District Court New South Wales Medium Neutral Citation: R v Goodacre [2024] NSWDC 432 Hearing dates: 17 July 2024 Date of orders: 17 July 2024 Decision date: 17 July 2024 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of imprisonment of 7 years 3 months with a non-parole period of 4 years Catchwords: CRIME — Violent offences — Assault occasioning actual bodily harm — Offensive weapon with intent to commit indictable offence CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Property offences — Destroying or damaging property — Larceny CRIME — Summary offences — Custody of knife in public place SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness — Middle range for Sequence 6 — Consideration of community protection — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Intoxication — Stimulant and Opioid Use Disorders — Learning deficiencies — Childhood sexual abuse Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: BH v R [200023] NSWCCA 278 Cahyadi v R [2007] NSWCCA 1 Dungay v R [2020] NSWCCA 209 Eaton v R [200023] NSWCCA 125 FL v R [2020] NSWCCA 114 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Owen v R [2022] NSWCCA 214 Postiglione v The Queen [1997] HCA 26 (1997) 189 CLR 295 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 Texts Cited: Australian Federal Government, Royal Commission, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (December 2017) Category: Sentence Parties: Adam Goodacre (the offender) Public Prosecutions (NSW) (Crown) Representation: Counsel: A Booker (for the offender) Solicitors: Legal Aid (NSW) for the offender J Loosley, solicitor for the Director of Public Prosecutions (NSW) (Crown) File Number(s): 2023/212462 JUDGMENT – ex tempore revised Agreed Facts 1. In the morning of 3 July 2023 Adam Goodacre committed serious and disturbing offences. He left the home where he was staying in southern Wollongong at about 4.20am to 4.30am. A relatively short distance from that home he smashed the window of a parked car and took some property from it. The owner of the car saw something was going on. He chased Goodacre and asked him to stop. A confrontation occurred. In the course of the confrontation Goodacre took a knife from his sleeve. With the knife out he walked towards the person whose car had been damaged, saying, "have a go at this cunt brah, I'll fucken go yah, I'll stab ya". His victim scrambled away while asking that the knife be dropped. The offender turned and ran away down the street. 2. As his victim was backing away, he fell. He put out his hand, I presume to break his fall, and fell on it. He suffered deep tissue damage to his wrist which required medical treatment. He was unable to use his arm for a few days, restricting his capacity to work. When he checked his vehicle, he found the side window had been smashed. 3. Goodacre kept walking. Within 20 minutes he was at a local railway station. CCTV showed he had knife in his hand. About 6am he entered the curtilage of premises near the railway station. He was able to gain entry through the toilet window using a ladder. 4. Two people were asleep inside their home. The male homeowner woke, got up, and was confronted by the offender in the hallway. He asked what he was doing in his home. Goodacre had a knife in his right hand. He appeared angry and accused the homeowner of being a "paedophile". The homeowner tried to calm him down, while his female partner ran out of the house to get help. The offender then asked his male victim for drugs, money and car keys. When he was told that he had no money the offender punched and kicked his victim. The victim hit a wall and nearly lost consciousness. 5. The victim thought that he had only been punched and kicked but in fact he had been stabbed with one or both of the knives that he noticed the offender was carrying and waving. As his victim slumped against a wall Goodacre went into a bedroom and took a handbag belonging to the female victim and some mobile phones. 6. Police and ambulance were called and were soon on the scene. The victim was taken to Wollongong Hospital. He had multiple stab wounds. Wounds were found to both sides of his neck, his left lumbar area, his left shoulder, and right hand. The wounds were washed and sutured. He also had multiple abrasions and scratches on his face and arms. As a result of the blow he had suffered, sustained a right zygomatic fracture but surgery was not required. A tooth had been knocked out and several teeth were loose. As a consequence of his injuries, he was unable to chew food for some weeks. 7. By 6.25am police were on the scene with a police dog. Soon after the offender was apprehended. The handbag was recovered as were papers belonging to the female victim. Two knives were found near the handbag. I have photographs of them. He was also in possession of an item that had been stolen from the first victim. Charges 1. When he was before a Local Court, six charges were referred to this Court. Three are for sentence and three are to be dealt with on a Form 1, which relates to the final offence. The offences for sentence are: * Sequence 4: Assault Occasioning Actual Bodily Harm pursuant to s 59(1) Crimes Act 1900 (NSW), maximum penalty 5 years imprisonment. * Sequence 7: Use Offensive Weapon with Intent to Commit an Indictable Offence pursuant to s 3B(1)(a) Crimes Act, maximum penalty 12 years. That offence relates to the first confrontation in the street and the production of the knife. * Sequence 4: Assault Occasion Actual Bodily Harm pursuant to s 59(1) Crimes Act, maximum penalty 5 years imprisonment. That offence relates to the injuries suffered by the first victim after he fell in response to the use of the weapon by the offender. * Sequence 6: Specially Aggravated Break and Enter and Commit Serious Indictable Offence pursuant to s 112(3) Crimes Act, maximum penalty of 25 years. For an offence that falls, taking into account objective factors only, in the middle of the range Parliament has fixed a standard non parole period of 7 years. That offence relates to the entry into the premises near the railway station and what occurred inside those premises. Form 1 1. A Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1 attaches to Sequence 6, the specially aggravated break and enter. Those offences include: * Sequence 1: Destroy or Damage Property, relating to the window of the vehicle owned by the first victim. * Sequence 2: Larceny, that is, the item taken from that vehicle. * Sequence 5: Custody of a Knife in a Public Place. While that knife is one of the same knives used in both the offensive weapon and aggravated break and enter, it is the possession of that weapon between the two crimes that is the subject of that charge. 1. I do not sentence for the matters on the Form 1, but they do here mean, because of their individual seriousness, that greater weight be given to personal deterrence and retribution when I come to formulate an appropriate sentence for the specially aggravated break and enter offence to which they relate. 2. I must be careful particularly not to double count any matters that might aggravate the sentence because of course, the knife use is related to, and in fact an element of, Sequence 7 and was a relevant fact to what occurred in the specially aggravated break and enter offence. Objective seriousness 1. It is accepted by the offender that each of the offences were serious; so serious that only a custodial sentence could be imposed in relation to each matter. 2. So far as the specially aggravated break and enter is concerned, the prosecution submit that this offence falls "above" the mid-range of objective seriousness. Mr Booker, counsel for Goodacre, submits it falls "just below" that mid-range. 3. In careful submissions, Mr Loosley, solicitor who appears for the Director of Public Prosecutions, drew my attention to what fell from the Court of Criminal Appeal in Eaton v R [2023] NSWCCA 125 and BH v R [2023] NSWCCA 278. When I come to give content to both the maximum penalty and standard non-parole period that applies to this offence, I will take guidance from what fell from the Court in those cases and others. Resolving disputes about where a matter is said to fall in a range poses "vexing issue[s] for sentencing judges": see Eaton at [45] (Hamill J). 4. It is accepted that an assessment of objective seriousness is essential to setting the parameters of an appropriate sentence. Having reviewed the authorities, while it is necessary, I identify the matters relevant to an evaluation of objective seriousness, I need not do so by reference to a notional or putative scale of objective seriousness. That can, as may have occurred in Eaton, lead to error. 5. In FL v R [2020] NSWCCA 114 at [59] Justice Wilson noted: "What is not required is for the sentencing court to express that assessment by reference to a formula or a percentage or by classifying the objective seriousness of an offence." 1. But the cases to which I was referred note the importance or desirability of attempting to make such an assessment where there is a standard non-parole period. 2. Where the standard non-parole period applies. It is as an important guide to the exercise of a sentencing discretion. Where the parties' submissions differ on that assessment, as here, it is desirable I determine if it falls in or above the so-called middle of the range: Owen v R [2022] NSWCCA 214. As the High Court made clear in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, meaningful content should be given to the standard non parole period as a legislative guidepost to the reaching of a proper sentence. 3. Ultimately, in every sentence, the question is: What is the appropriate sentence based on the seriousness of the offences, its consequences, and the individual circumstances of the offender? All relevant factors must be synthesised without engaging in a staged approach to sentencing: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. 4. Sequence 6, includes the elements of; break and enter, commit the indictable offence of larceny, with the circumstance of aggravation that he was armed, and the circumstance of special aggravation is the intentional wounding of the male victim. Here there the facts of this case elevate the seriousness of the aggravated break and enter, whose elements and maximum penalty already speak to the potential seriousness of that type offence. 5. The fact that Goodacre was intoxicated made his behaviour unpredictable and more dangerous. While there is no indication it was in any way correct or accurate, his stated motivation that the homeowner was a paedophile is a matter that has to be taken into account. One of the functions of the criminal law is discourage citizens from resorting to self-help. All self-help does is lead to violence between members of our community. 6. That the offender was intoxicated by drugs, is not a matter that can be taken into account in mitigation, as R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 and ss 5A and 5AA Crimes (Sentencing Procedure) Act 1999 (NSW), make clear. 7. By entering the property while armed with two knives, Goodacre escalated the danger of any confrontation. The Court does not underestimate the impact upon a person, any person, who wakes to find a stranger in their house and is then confronted by that stranger who is armed. 8. Property was taken, but compared to many other cases, it was minimal and soon recovered. Although I do not underestimate the impact of losing a tooth, or going to hospital with stab wounds, the injuries were relatively superficial, by comparison with many of the matters which fall within this type of offence, thankfully for the victim and the offender. This works to reduce the seriousness of the offence. 9. They were potentially serious injuries, but courts sentence on the basis of actual harm. I do not underestimate the protentional for psychological harm. The fact there is no Victim Impact Statement does not mitigate the offence nor does its absence give rise to an inference that an offence had little or no impact on a victim: Crimes (Sentencing Procedure) Act 1999, s 30E(5). 10. As I am obliged to resolve a dispute between the parties, I find that the matter falls within the middle of what is a very broad range of types of offences that could be committed. Although to be frank, I do not place as much weight on than that description; others might take a different view. But I do not start with the maximum penalty or the standard non-parole period and oscillate about it. It is just one matter that is a guide to the exercise of my sentencing discretion. 11. So far as the use offensive weapon, it too is a serious example of its type. An offence was committed in a public street against a person's property, who in the early hours of the morning went out to investigate, as most would. He was then confronted and threatened by a drug affected man armed with a knife. The threat was made so that Goodacre could escape responsibility for property crimes he had committed against his victim. 12. Again, it needs little imagination to understand the impact on the victim. Then to compound that impact, in response to a threat, a separate offence was committed because the victim fell and in breaking his fall sustained a serious injury. 13. Again, while the two matters are related, the injury matter is a separate offence, although it occurred as a consequence of the first matter. And again, it is so serious that a custodial sentence is appropriate. For those two matters, there are many common circumstances that interrelate. While they are separate offences and require separate punishment, I do not not double count common factors where what occurred was in a very short sequential order. Other matters 1. The offender has a criminal history. He was on two Conditional Release Orders at the time; a matter that I take into account in aggravation of the sentence. His record, while it has some matters of violence on it, contains no matters as serious as the matters now before the Court. These offences appear to be quite separate and distinct from the other crimes that he has committed. There has been, as he has got older, an escalation in his criminal activity. As a consequence, he has spent time in gaol. Subjective case for the offender 1. While it does not mitigate, Goodacre's intoxication with illicit drugs, enables me to have some understanding, given his background, how he came to be in the state of mind he was this morning, and what needs to be done in the future to prevent future offending. 2. The material in relation to his background is primarily contained in a report from Dr Coe, a forensic psychiatrist. There is also a letter from the Chaplain at Bathurst Correctional Centre, which indicates the offender is hoping and trying his best to change his life so that he never returns to prison. 3. Although Goodacre did not give evidence, the report seems to be a comprehensive and 'warts and all' assessment. It does not canvass the objective seriousness of the offending. There is some evidence of insight into the impact of his offending on the two principal victims. Matters I will take into account. 4. The report details what is described as an "unremarkable childhood", but it also notes that there was an incident involving alleged child sexual abuse when he was in Year 1 and what are described as "Learning Disorders" or reading and writing difficulties. 5. I do not underestimate the impact of even one instance of abuse but given the disclosures, and what is set out in the report, it is difficult to assess what impact it had on his later development. Given all the evidence put before the Royal Commission in Australian Federal Government, Royal Commission, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (December 2017) and put before this Court on an all too regular basis, I do not underestimate the impact of that that incident. 6. As a child he had lengthy periods in hospital which may have impacted on his capacity to engage at school. He still has problems reading and writing and that would have created problems in his schooling and later life. Dr Coe, without making a definitive diagnosis, accepts that Goodacre shows symptoms of adult Attention-Deficit/Hyperactivity Disorder ('ADHD'). 7. There is a lot of evidence to show that he took up the use of illicit drugs well before he was old enough to make rational, informed decisions. During the course of his life, Goodacre has continued to abuse multiple drugs such that a Stimulant and Opioid Use Disorders were described. 8. He admitted to a long history of associating with anti-social peers and anti-social behaviour. This is reflected in the escalating nature of his criminal record which includes periods in custody. 9. In Dr Coe's opinion, a cycle of substance abuse, related problem-solving deficits, impulsivity and crime has characterised this man's life, particularly in his recent years. Again, these matters are reflected in his criminal record. Dr Coe says one "circuit breaker" will be achieved by Goodacre's removal from the community for a period. Dr Coe suggests that he is a good candidate for the compulsive drug treatment program. Sadly, that Drug Court Program is not available to offenders from this area. 10. He will however, Dr Coe says, benefit from participation in the Intensive Drug Alcohol Program (IDATP). He will require psychological help. That help needs to be trauma informed because he will need to explore matters from his past. Such assistance is unlikely to be available to him while in custody. He needs all the help he can with his substance abuse disorders so that on release, the cycle of now in place can be broken. 11. Dr Coe recommends a structured release into the community. I will have a copy of Dr Coe's report sent to Corrective Services with the warrant. Synthesis 1. Evidence about the offender's background is always a relevant matter on sentencing. A judge, as part of their synthesis of relevant matters, has to consider an offender's moral culpability, that is, their moral blame worthiness for the offences. 2. The principle underlying factor in the commission of these offences was the offender's intoxication from his regular use of illicit drugs, but courts do not make simplistic assumptions. Courts are entitled to take into account all the relevant matters. It would appear that the offender's background, despite the best efforts of his family, had a continuing impact on him. While he was able, for periods, to work and have a family life in the community, at other times, particularly when making decisions about the use of illicit drugs and while intoxicated, he failed to fully appreciate the wrongfulness of his actions or control his conduct. He does things which, when he sits in a cell as he does today, he later regrets. 3. While there is no evidence here of childhood deprivation, there are a number of matters in his background that would have impacted on him as a child. His learning difficulties, his health difficulties, the trauma of the sexual assault, have helped make the man who comes for sentence today; a man who was caught in a cycle of drug use and crime. 4. Those matters, I accept, interfered with the development and maintenance of pro-social values; although at times he was able to display those values. His moral compass, particularly so far as drug use is concerned, and his capacity to make behavioural decisions and think consequentially, have been compromised. 5. There is no direct causal link between those matters and the commission of this offence, but the link is there – in his drug use and his drug abuse. It is not necessary, to search for a causal link between a person's background and the offence: Dungay v R [2020] NSWCCA 209 at [136]-[153]. To do so can bypass the larger issues and focus too narrowly on the offences. 6. We punish people for the commission of serious offences. One of the principles referred to by Mr Loosley was the need for the protection of the community. A community can be protected when a person is removed from the community, but they have to be restored to it. 7. The community can be protected if others come to understand that severe sentences can be imposed for crimes of violence against others, and then pause before they take drugs or doing what occurred here. But where a person's consequential thinking has been damaged during the course of their life, they rarely think about the consequences to themselves, let along the consequences to others. 8. The community can also be protected if a person engages in rehabilitation and comes out of gaol a better person than when they went in. Mr Booker, in his comprehensive submissions urged me not to impose a "crushing" sentence. That is, a sentence that would not "crush" all hope of productive life on release, and in particular, not cause the offender to abandon hope and then not cooperate in the rehabilitation process. Sentences should not destroy a person's prospects, but sentences have to be proportionate and what might be seen as "crushing" can really depend on the perspective of the observer. The victim has a different perspective than the offender, and the community might have different perspectives. Motivation is important when someone is in gaol. Community safety, community protection, can be impeded if a person loses motivation and becomes institutionalised and does not cooperate or engage in rehabilitation or psychological treatment. 9. The minimum term that must be served must be proportionate to the seriousness of the offending and take into account the purposes of sentencing. There will be a finding of special circumstances to enable the staged release into the community should the State Parole Authority find that there are no community safety issues and allow the release of the offender, given the history or the lack of anything in his history; that is likely if he continues to behave in custody. There have been prison disciplinary matters on his record; he needs to knuckle down and engage whenever possible. Hopefully he can be provided with some education programs to help with literacy. 10. The Court has to synthesise all of the relevant matters. Here, a number of serious offences were committed against members of the community and appropriate punishment and retribution must be exacted. The offender has the capacity to lead a law-abiding life in the community. He has a number of underlying problems that must be addressed in custody and later in the community. It may be necessary for a staged release with as much supervision as possible. 11. I have been referred to other cases, particularly by Mr Booker. The decisions of appellate courts are always welcome. They provide some guides to the exercise of my sentencing discretion. Principles should be applied consistently but sentencing involves a discretionary judgment and a mix of factors that must be weighed in determining an appropriate sentence are never precisely the same. Every offence and every offender is individual and requires individual consideration in the exercise of judgment. 12. I will be imposing an aggregate sentence. The aggregate sentence will reflect my finding of special circumstances and the need for the minimum term to properly reflect what was done and the other purposes of sentencing. 13. Each of the indicated sentences will be reduced by 25% to take into account the utilitarian value of his pleas of guilty in the Local Court. His cooperation with the course of justice has also been taken into account when I assessed his prospects for rehabilitation. Those prospects are really dependent upon, as he gets older, and sadly, he will have to get older in gaol, his maturity and the assistance he must be given. Hopefully, he will deal with his learning and other difficulties and come to grips with his substance abuse problems and the other matters in his background revealed by Dr Coe. 14. If he is able to deal with those problems, he would certainly have the capacity to work and rejoin the community as a productive member of it. If the cycle is not broken, if there is further escalation or commission of crimes of this nature, he could spend the rest of his life in custody. That might be only just, but further crimes will mean that he has hurt someone else, something that must be avoided as he has already hurt here two individual victims and the community at large by the commission of his crimes. Orders 1. In relation to each matter, I will indicate sentences and then impose an aggregate sentence. I have sought to structure the sentences so that the aggregate sentence is just and appropriate to the totality of the offender's crimes: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1. * In relation to the Use Weapon with Intent, there will be a sentence of 2 years and 3 months imprisonment. * In relation to the Assault Occasioning Actual Bodily Harm, there will be a sentence of 1 year and 6 months imprisonment. * In relation to the Specially Aggravated Break, Enter and Commit Serious Indictable Offence, there will be a sentence indicated of 5 years and 3 months and a non-parole period of 3 years and 4 months. 1. That sentence will commence on 3 July 2023. It is a sentence of 7 years and 3 months imprisonment. There will be a non-parole period of 4 years and 7 months imprisonment which means he is eligible for consideration for release to parole on 2 February 2028. There will a non-parole period of 2 years and 8 months imprisonment to allow for a staged and monitored release to the community which will commence on 3 February 2028 and expire on 20 October 2030. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2024