New South Wales Court of Criminal Appeal CITATION : R v Godden [1999] NSWCCA 201 FILE NUMBER(S) : CCA 60514/98 HEARING DATE(S) : 23 July 1999 JUDGMENT DATE : 23 July 1999 PARTIES : Regina James Earl Godden (Appellant) JUDGMENT OF : Studdert J at 1; Simpson J at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0290; 97/31/0555 LOWER COURT JUDICIAL OFFICER : Woods DCJ COUNSEL : C.K. Maxwell QC (Crown) In person SOLICITORS : S.E. O'Connor (Crown) In person CATCHWORDS : ACTS CITED : Justices Act Crimes Act DECISION : Leave to appeal granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60514/98 STUDDERT J SIMPSON J Friday 23 July 1999 REGINA v JAMES EARL GODDEN JUDGMENT 1 STUDDERT J: The applicant, James Earl Godden, pleaded guilty before Judge Woods QC in the District Court to the following offences: (i) assault occasioning actual bodily harm; (ii) assault with act of indecency. 2 The applicant also stood for sentence following committal under s 51A of the Justices Act on two counts of armed robbery. His Honour, in respect of the first two matters, imposed a fixed term of penal servitude for one year on each of them with the sentences to be served concurrently. For the armed robberies, the judge sentenced the applicant to a minimum term of penal servitude for three years and an additional term of two years, with both sentences to be served concurrently and to be served concurrently also with the sentences for the first two offences I have identified. 3 The applicant now seeks leave to appeal against those sentences. The applicant is unrepresented. 4 The victim of the first two offences was Nicole Rutledge. The applicant had been acquainted with her for many years but a sexual relationship developed over the months before the commission of the offences on 15 October 1997. The judge expressed himself as being satisfied that the applicant's behaviour deteriorated over this period because of his increasing drug use. On the morning that the offences were committed the victim told the applicant that their relationship was at an end and asked him to leave the house. This he did but spent much of the day drinking and he returned to the victim's house that night, forced entry to the house and when his victim left it he followed her, pushing her against the side fence. Then he grabbed her from behind, dragged her up into the house and into the lounge room where he threw her on the floor thus abrading her right elbow. As the victim lay on the floor, the applicant stood over her, put both hands around her throat and started choking her. At the same time he said to her "I want to bash you now and if I wanted to, I could kill you". The applicant subsequently dragged the victim into the bedroom and threw her onto a mattress. He stood over her and pulled her tights from her. He brandished his fist at her and threatened to knock her out. He then undid his belt and started pulling his jeans down but then stated "I can't do this" and moved away. 5 The medical evidence was that the victim sustained bruising on both upper arms and around the neck with swelling and tenderness in the neck area. There were also abrasions to the right elbow and to the right foot. 6 The offence of assault occasioning actual bodily harm is one for which s 59 of the Crimes Act imposes a maximum penalty of penal servitude for five years. The offence of assault with act of indecency is one for which s 61L of the Crimes Act imposes a maximum term of five years imprisonment. 7 The armed robberies were committed in May and June 1998. On 14 May 1998 the applicant entered the Caltex Service Station at Forrester's Beach wearing a mask and armed with an imitation pistol and a knife. Using aggressive language he ordered the service station employee in the shop to give him all his money. He also threatened the victim, asserting that he had a syringe full of AIDS and advising the victim not to give him any trouble. The applicant took some $565 and cigarettes from the garage. 8 Then on 6 June 1998 he entered a liquor store at Killarney Vale. He was again wearing a mask and was armed with what appeared to be a pistol. He demanded money from the shop assistant and took $1500 in cash. 9 On the following day he was arrested. 10 An aggravating feature in relation to the robberies was that they were committed whilst the applicant was on bail. 11 The judge made a number of findings as to subjective features in the case which were sympathetic to the applicant, having noted that the applicant had some minor criminal history which was of no significance and which involved no history of violence. The judge accepted the evidence of relatives and friends that absent drug use the applicant was not violent and he was particularly impressed, it would seem, by the evidence of the applicant's mother. There was evidence placed before the judge that there were persons willing to seek to employ the applicant and to assist him. The applicant's mother spoke of the improvement in his condition whilst she had been visiting him in custody and the judge determined that there were special circumstances requiring an extended period of supervision by the Probation and Parole Service after the applicant was released from custody to assist him in abstaining from drugs. 12 In his written submissions the applicant has referred to the following considerations: "* At age 35 I have no prior convictions. * I was on speed at the time of the robbery, and that my actions were uncharacteristic in the extreme. * There were threats made to my family demanding that moneys be paid, and that failure to pay would result in harm coming to them. * There were no extenuating circumstances taken into account at the time of my sentencing. * My mental and emotional state of the time of the robbery was such that I acted impulsively, and that this is something for which I am still very sorry. * My sentence has not been backdated to include time served and that * No psychological reports were tendered at the time of sentencing." 13 It is to be observed that from his Honour's sentencing remarks that his Honour was alert to the applicant's drug problem and its contribution to these offences. His Honour carefully addressed the subjective features of this case. As to the complaint that the applicant ought to have been given credit for the sixty-nine days in custody before the commencement date fixed for his sentences, it is clear that his Honour did not overlook that earlier period spent in custody. On the contrary, he concluded his sentencing remarks: "I have taken into account in structuring these sentences the period of custody which you have already served." 14 These were serious offences. The armed robbery offences were each in a category for which s 97 of the Crimes Act provides for a maximum penalty of penal servitude for twenty years. 15 I am satisfied that the sentences which his Honour imposed were well within the range of a sound sentencing discretion. I have carefully considered his Honour's reasons for sentence. I detect no error in the approach that his Honour took. He was not compelled to backdate the sentence to the date when the applicant was first arrested, but, as I have observed, he did not overlook that earlier period in custody when he determined what sentence he regarded as appropriate. 16 The applicant has not established any ground which would justify this Court disturbing the sentences which were imposed. In my opinion leave to appeal should be granted but the appeal should be dismissed. 17 SIMPSON J: I agree. 18 STUDDERT J: The orders then are those that I proposed. ********** 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.