John Goss v R

Court of Criminal Appeal (NSW)|2009-07-16|Before: Hodgson JA, Howie J, Fullerton J

CITATION: John Goss v R [2009] NSWCCA 190 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/07/2009 JUDGMENT OF: Hodgson JA at 1, 23, 25; Howie J at 2; Fullerton J at 24

DECISION: Leave to appeal is granted but the appeal is dismissed.

Crimes Act (NSW) 1900 (now repealed) - s 76 LEGISLATION CITED: Parole Orders (Transfer) Act 1983 Crimes (Administration of Sentences) Act 1999 - 235B

R v Cartwright (1999) 17 NSWLR 243 R v Vachalec [1981] NSWLR 353 CASES CITED : R v Ehrenburg (NSWCCA, unreported, 14 December 1990) R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 R v Keir [2004] NSWCCA 106

COUNSEL: M Grogan - Crown Applicant appeared in person

SOLICITORS: S Kavanagh - Crown Applicant appeared in person

iN THE COURT OF CRIMINAL APPEAL 2008/8588

HODGSON JA HOWIE J FULLERTON J

THURSDAY 16 JULY 2009 John GOSS v R Judgment 1 HODGSON JA: We have reached a decision in this matter and the decision is that your appeal will be dismissed. I will ask Justice Howie to deliver the judgment. 2 HOWIE J: The applicant was sentenced in the District Court on 7 November 2008 in respect of two offences of child sexual assault. The first was an indecent assault committed between 1974 and 1975 against a child, who shall be referred to as AR. The second offence was an act of indecency committed between 1979 and 1980 against a child under the age of 16 who shall be referred to as KB. The first offence was contrary to s 76 of the Crimes Act (NSW) 1900 (now repealed) and carried a maximum penalty of imprisonment for 6 years. The second offence was contrary to s76A of that Act (now repealed) and carried a maximum penalty of imprisonment for 2 years. In respect of the first offence the Judge was asked to take into account two offences on a Form 1 both being indecency offences committed against AR between 1974 and 1975. 3 In respect of the first offence, and taking into account the matters on the Form 1, the applicant was sentenced to 12 months with a non-parole period of 6 months to date from 7 November 2008. The non-parole period expired on 6 May 2009. In respect of the second offence the applicant was sentenced to a fixed term of 2 months to date from 7 May 2009. As a result of these sentences the applicant had to serve a total minimum period before being released to parole of 8 months with a parole period of 4 months. The minimum period of custody expired on 6 July 2009 when the fixed term expired. The applicant was on that date entitled to be released to parole. 4 The applicant has now been paroled but on condition that he reside in NSW. However, the applicant wishes to return to Victoria because that is the State where he normally resides with his wife. The applicant can be permitted to serve his parole period in Victoria by having his parole transferred under the Parole Orders (Transfer) Act 1983. However, the Commissioner of the Corrective Services Commission has issued an instruction, purportedly under s 235B of the Crimes (Administration of Sentences) Act, that includes the following:

No registrable Offender/Parolee included under the Child Protection Act 2000 will be eligible for interstate transfer. 5 It is the view of the Department of Corrective Services that the applicant comes within that prohibition and therefore cannot have his parole transferred to Victoria. 6 This Court has no jurisdiction to determine whether this instruction is within the power conferred upon the Commissioner or whether the applicant does fall within the prohibition for interstate transfer of his parole order set out in this instruction. 7 As a result of this situation the applicant has sought leave to appeal to this Court against the sentence imposed. His grounds of appeal set out on his Notice of application for leave to appeal are as follows:

Extracts of and from transcripts of hearing (a) copy of Application for transfer of parole to Victoria.

Medical condition and need to have ability to have a new knee inserted in right leg which is presently bone on bone. Also to see my own specialists re continuity of Medication, Heart, Diabetes specialists. 8 On a document headed "Submissions" the applicant has written:

1, the application of a parole order of 4 months from 7th July 2009 be removed as it manifestly impinges (sic) by extra cost incurred to move to a premises in N.S.W. for four months.

Medical condition is currently under control whilst in custody in NSW will place undue stress in finding (1) a new cardiologist (2) a new diabetes specialist and I was booked for a new right knee in Nov 2008 in a private hospital with another specialist. 9 Attached to this document is a letter signed by the applicant to the Court. It is as follows:

Having unsuccessfully applied to the parole board of NSW to have my parole transferred to Victoria for the 4 month period as above, I request consideration as to the removal of the parole provision as it is my wish to return to my home of 40 years in Croydon Victoria 3136.

I have fulfilled all the requirements of me whilst incarcerated and having to serve my parole period in NSW will add to my financial pain of supporting not only a home in Victoria, but I will be forced to spend money on accommodation which in the present climate is a difficult task. I am a self funded retiree and the breakdown of the World economy has not done me or my Allocated pension any favours.

I enclose my submission to the parole board of NSW which to my understanding (as I was not presented with a copy of the ruling) was based on a ruling which became legislation in 2005.

I was and am prepared to enter into parole in Victoria or if your Honour were to determine some other form of compliance. Before being arraigned here I had been on parole in Victoria and had complied with all directions of the parole board. My Victorian parole manager had also to make a presentence report which was submitted at my hearing.

It is my sincere wish to be reunited with my wife of 43 years upon my release which will also place an extra stress on her and since being at Junee Correctional Centre she has already travelled from Melbourne on at least 6 occasions and we have other dates which she will be attending me here. Finding alternate accommodation will also necessitate a bond of no less than $500 that is assuming I can rent for such a period of 4 months.

I originally lodged an appeal against severity of sentence, but Legal Aid suggested that there would be little hope of achieving a favourable result, I am asking for the Mercy of the court to be invoked in this case and to have the parole clause removed from my sentence.

I attach copies of submissions from my hearing which I consider relevant and trust you may also look upon them favourably when considering my request. Judge Boulton was a circuit judge from Queensland in the week of my proceedings. I've highlighted those parts of the submissions to Judge Boulton which I consider relevant to my request.

My medical conditions as listed, still exist and I would that I could return to the situation of my private consultants to continue the support which existed prior to my incarceration and which has been continued to a degree in here. Obviously I have been unable to have a new knee inserted and that pleasure awaits my returned to Melbourne. I am currently a self-supporting Superannuant with private health insurance. 10 The applicant has annexed to this letter an application he made for the transfer of his parole and parts of the transcript before the sentencing judge highlighting submissions made on his behalf and parts of the evidence of a psychologist called on his behalf. The applicant highlighted these portions to support a submission made to the sentencing judge that the applicant was rehabilitated. 11 Some question must arise as to the admissibility of much of this material because it is relevant, if at all, only to an event that occurred subsequent to the imposition of sentence. The Court will not normally receive this material unless, because of an error in the sentence imposed, this Court is required to resentence the applicant. 12 In light of the ground upon which the applicant seeks to have this Court intervene it is unnecessary to recount the facts or subjective circumstances of the applicant in any great detail. The offences were part of a course of conduct by the applicant arising from a sexual relationship he had with a 12 year old girl in Victoria. The present offences occurred when the applicant was holidaying in NSW with the two complainants. The offences especially involving the child AS were serious involving as they did acts of penetration of the child or by the child upon the applicant. He had been convicted of similar offences against AS in Victoria and served a prison sentence before being dealt with by Judge Boulton. 13 The applicant does not contend that the sentences were manifestly excessive or that there was any patent error in the reasons for sentence given by the Judge. He simply asks this Court to exercise mercy and delete the parole period. In effect he is asking the Court to reduce the sentence because of an event that has occurred since the sentence was imposed, that is that he has been refused to have his parole transferred to Victoria. 14 In R v Cartwright (1989) 17 NSWLR 243 Hunt and Badgery-Parker JJ stated at 257:

Where circumstances arise for the first time after sentencing which are alleged to render the sentence imposed either excessive or inadequate, the review of that sentence is the proper province of the executive government and not of this Court: R v Munday [1981] 2 NSWLR 177 at 178. 15 The refusal to transfer his parole is an administrative decision. This Court does not take into account administrative acts in determining the sentence to be imposed. Nor does it supervise the manner in which sentences are served as a result of administrative decisions made by the Corrective Services Commission such as the segregation of a prisoner or the transfer of the applicant from one prison to another. In R v Vachalec [1981] NSWLR 351 at 353-354 Street CJ stated:

… as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government. Administrative miscarriage in the working out of a sentence cannot be remedied by this Court as it has no jurisdiction to enter the administrative field. 16 This Court does have an extraordinary jurisdiction to intervene where subsequent events have revealed a latent problem, usually of a mental or physical nature in the accused person, that was unknown or not fully appreciated at the time of sentence but where, if it had been known or appreciated, some different sentence would have been imposed. The jurisdiction was exercised in R v Ehrenburg (NSWCCA, unreported, 14 December 1990) where immediately after being sentenced the applicant had given birth prematurely to a deformed child. The sentencing court was aware of complications in her pregnancy but not the full extent of the problem. 17 In R v Ashton [2002] NSWCCA 498; 137 A Crim R 73, this Court was asked to exercise the jurisdiction in relation to a case where unbeknown to the sentencing judge the applicant had a psychiatric aversion to imprisonment because of a previous event the result of which was that he fled the jurisdiction rather than serve a term of periodic detention. In the course of allowing the appeal, I stated:

[11] However, this Court must be careful to maintain a principled approach in dealing with appeals before it. The Court should be scrupulous to ensure that there is a proper basis for receiving evidence of events that occurred after sentence where there is no error established in the sentence imposed. In Ehrenberg, the Court emphasised the special and unusual circumstances that would permit such evidence to be received and acted upon in order to reduce an otherwise appropriate sentence. Loveday J, with whom Gleeson CJ agreed, stated: It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstances of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177).

Samuels JA, while also agreeing with Justice Loveday, cautioned against this Court erring in principle as a result of sympathy for the applicant. 18 The jurisdiction has been exercised where the sentencing judge's expectations as to the manner in which the sentence would be served was frustrated by subsequent events that indicated that the true position was not appreciated at the time of sentence. So in R v Keir [2004] NSWCCA 106 an appeal was allowed where the judge understood that special arrangements could be made for the imprisonment of an elderly prisoner with severe heart disease. However, the applicant's medical condition deteriorated and the Court felt it necessary to intervene although the was no error in the sentence imposed. However, the Court stressed that the jurisdiction to receive evidence of post-sentencing facts and to alter the sentence imposed as a result of those facts should be "rare and exceptional". 19 There is some superficial similarity in the present case. The sentencing judge and presumably those appearing for the applicant were unaware that the applicant would not be permitted to serve parole in Victoria. The Judge found that he was rehabilitated. There was thus no practical purpose for the applicant to be on parole for the purpose of supervision or assistance. I would find it difficult to accept that the Judge did not believe that the applicant would be released to return to Victoria after serving the non-parole period in this State. Part of the submission of counsel for the applicant in requesting a suspended sentence was that there was no purpose for the applicant to serve a prison sentence away from his family and his treating doctors in another State. 20 I cannot but feel sympathy for the applicant who no doubt served his sentence in the belief that once he was released to parole he would return to Victoria. He must be feeling frustrated that he is the victim of "red-tape". This is the result of a prohibition of general application that does not consider the individual facts and circumstances of a particular case. These were old offences and there is not the slightest suggestion that the applicant presently presents a danger to any child either in this State or anywhere else. Yet he has been caught by the width of the legislation concerned with the registration of child sexual offenders and hence falls within the general prohibition that, for no apparent public policy that I can identify, deprives him from returning to his family and his support system in an adjacent State. 21 However, I do not believe this case falls into the rare and exceptional circumstances that would justify this Court interfering with an otherwise unimpeachable exercise of sentencing discretion. I myself might have imposed a fixed term in all the circumstances of the case, but it was well open to the sentencing Judge to impose the sentence that he did. The applicant's complaint is really no more than one of convenience for a period of only four months. I can appreciate that he does not understand the rhyme or reason behind the refusal to transfer his parole. Nor do I on the material before this Court. Yet this Court's jurisdiction is limited and cannot avail the applicant. His remedy must be sought from the executive, although I understand that his attempts have so far been futile. I am far from satisfied that this is a result that is unduly harsh or unreasonable having regard to the period of parole and the absence of any compelling reason of a medical or other nature requiring his immediate residence in Victoria. 22 For those reasons I propose that leave to appeal be granted but the appeal be dismissed.

25 HODGSON JA: The order of the court will be as Justice Howie has proposed. **********

17/07/2009 - Edit Error - Paragraph(s) Cover Sheet and Case name

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