Regina v Goodier [1999] NSWCCA 347

New South Wales Court of Criminal Appeal CITATION : Regina v Goodier [1999] NSWCCA 347 FILE NUMBER(S) : CCA 60601/98 HEARING DATE(S) : 27 October 1999 JUDGMENT DATE : 27 October 1999

Regina PARTIES : v Neil Patrick Goodier JUDGMENT OF : Simpson J at 22; Smart AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/51/0065 LOWER COURT JUDICIAL OFFICER : Job DCJ

COUNSEL : A: W J Hadley (Direct Access) R: R D Ellis SOLICITORS : R: S E O'Connor CATCHWORDS : Sentencing; aggravated indecent assault on young child; sentences not excessive DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60601/98

SIMPSON J SMART AJ

WEDNESDAY, 27 OCTOBER 1999 REGINA v NEIL PATRICK GOODIER JUDGMENT

1 SMART AJ: Neil Patrick Goodier seeks leave to appeal against the severity of concurrent sentences comprising a fixed term of nine months for attempted aggravated indecent assault, and a minimum term of eighteen months with an additional term of eighteen months for aggravated indecent assault. 2 In November 1996 Jasmine, born 2 February 1988 and Daniel, born 16 May 1990 lived a short distance from the applicant. The agreed facts, omitting the children's surname read: "On Sunday 24 November 1996 Daniel was playing in the near vicinity of the accused's house. He went with the accused to a shed in the backyard. Whilst outside the shed the accused tried to pull Daniel's pants down. He persisted despite Daniel trying to pull his pants up. He stopped and gave Daniel what Daniel described as rude pictures. Daniel took the pictures home to his mother, who observed they were pages torn from a magazine showing a couple in a sex scene. Daniel told his mother he had picked them up off the road. The next day after school Daniel and Jasmine went out to play in the street. Jasmine was wearing a blue leotard with a skirt over the top. Daniel took Jasmine to the accused's house where the accused let them in, and led them to a bedroom. Both Daniel and Jasmine saw sexually explicit magazines in the room. The accused pulled aside Jasmine's leotard and kissed her around the genital area. Daniel was in the room at the time. The two children left the premises and went home. Jasmine had a shower and changed her clothes. She then complained to her mother of the accused's action. Jasmine and Daniel then led their mother to the accused's home. A short time later police arrived and located a number of sexually explicit magazines in a second bedroom and in the garage. The accused when questioned admitted to touching Jasmine on the `fanny', on the outside of her clothes, but did nothing else. He said he grabbed Jasmine across the vagina and rubbed her `pussy'. He denied that he did anything which might have resembled cunnilingus. The accused was not asked about the earlier visit by Daniel. The underpants and leotard worn by Jasmine were sent away for forensic examination. This produced a positive test for saliva." 3 Before us Mr Hadley has submitted that the statement of facts was ambiguous, and that this Court should proceed on the lesser basis that the accused had simply touched Jasmine on the outside of her clothes. That was the admission made by the applicant at the time he was questioned. However, the agreed statement of facts records that he pulled aside her leotard and kissed her around the genital area, and there was a positive test for saliva. In those circumstances it was appropriate for the Judge to proceed on the basis that the applicant had indeed kissed the child in the area of the vagina. That, of course, is very different from cunnilingus. 4 The Judge noted the plea of guilty. The Judge correctly regarded the offences as serious remarking on the young age of the children, namely six and eight. The applicant was convicted of some previous offences. 5 In 1982 in the Children's Court he was dealt with for breaking, entering and stealing, and for stealing underclothes and underwear. On 7 November 1985 he received concurrent sentences totalling two years with a non parole period of fifteen months for indecently assaulting a person under sixteen; breaking, entering and stealing, and breaking and entering with intent. In June 1989 he was convicted of peeping and prying. In 1982 and 1984 he was also dealt with for a couple of minor offences of no present relevance. He had no offences between June 1989 and November 1996. 6 The applicant was born on 26 June 1965 so that the offences between 1982 and 1989 were committed between the ages of seventeen and twenty-four. Some of the earlier convictions indicate the start of a sexual problem. The applicant committed no offences between November 1996 and September 1998 when he was sentenced. 7 The pre-sentence report contains this summary: "Over a seven year period between June 1983 and October 1990 Mr Goodier was subject to probation supervision with psychiatric and psychological counselling, a community service order and imprisonment, followed by parole supervision.