Gould v R; R v Gould [2021] NSWCCA 92

Gould v R; R v Gould [2021] NSWCCA 92

The grounds of conviction appeal failed as the trial judge's directions sufficiently distinguished circumstances where Mr Borgas's evidence required special caution versus where it was supported by documentary evidence; the warnings given were appropriate, and no miscarriage arose. On sentencing, the judge was entitled to find all particulars (1)-(4) proved consistently with the jury verdict, as the Chiro principle did not extend to this offence; delay was considered. However, the sentence imposed by the District Court was manifestly inadequate, given the objective seriousness, and a sentence of 6 years imprisonment with a 3 years 6 months non-parole period was imposed on Crown appeal.

Jurisdiction
Australia
Judgment Date
10 May 2021
Procedural Posture
Criminal Appeal (conviction and Sentence); Crown Appeal Against Sentence / Court of Criminal Appeal Judgment on Conviction and Sentence; Re Sentencing on Appeal
Outcome
Conviction appeal refused; application for leave to appeal against sentence granted but appeal dismissed; Crown appeal allowed; respondent re-sentenced to 6 years imprisonment with a non-parole period of 3 years and 6 months.
Legal Topics
['appeal Against Conviction' 'appeal Against Sentence' 'attempting to Pervert Course of Justice' 'sentencing Principles' 'jury Directions' 'unanimity Direction' 'evidence' 'delay' 'manifest Inadequacy of Sentence']
['criminal Law'] ['appeal Against Conviction' 'appeal Against Sentence' 'attempting to Pervert Course of Justice' 'sentencing Principles' 'jury Directions' 'unanimity Direction' 'evidence' 'delay' 'manifest Inadequacy of Sentence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal (conviction and Sentence); Crown Appeal Against Sentence / Court of Criminal Appeal Judgment on Conviction and Sentence; Re Sentencing on Appeal

Legal Issues

  1. 1 ['Whether the trial judge erred in jury directions regarding the evidence of Peter Borgas (grounds 2(a), (b), and (c))' 'Whether the sentencing judge erred by sentencing on the basis that all particulars (1)-(4) had been proved without jury indication' 'Whether delay was properly taken into account on sentence' 'Whether sentence imposed by District Court was manifestly inadequate']

Ratio Decidendi

The grounds of conviction appeal failed as the trial judge's directions sufficiently distinguished circumstances where Mr Borgas's evidence required special caution versus where it was supported by documentary evidence; the warnings given were appropriate, and no miscarriage arose. On sentencing, the judge was entitled to find all particulars (1)-(4) proved consistently with the jury verdict, as the Chiro principle did not extend to this offence; delay was considered. However, the sentence imposed by the District Court was manifestly inadequate, given the objective seriousness, and a sentence of 6 years imprisonment with a 3 years 6 months non-parole period was imposed on Crown appeal.

Court Disposition

Conviction appeal refused; application for leave to appeal against sentence granted but appeal dismissed; Crown appeal allowed; respondent re-sentenced to 6 years imprisonment with a non-parole period of 3 years and 6 months.

Orders

  • ['Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) for conviction appeal grounds 2(a), (b), and (c)' 'Grant leave to appeal against sentence; dismiss the appeal' 'Allow the Crown appeal; quash District Court sentence of 17 December 2020; impose sentence of 6 years imprisonment (11...