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. File notes indicate that he had a propensity to bottle up his emotions, to be susceptible to the influence of his peers, and presented as being somewhat passive in temperament. Since last contact with this service in 1990 Mr Goodier appears to have become more sure of himself and aware that he needs to develop self assertive skills. In spite of this, there is some concern that the recent victims of his sexual deviancy are young children. The offender claims to have overcome a previous tendency to over-indulge in alcohol, cannabis and gambling." 8 That report also records that due to victimisation in his home town he had been forced to move to Queensland. He had found it difficult to obtain work since his arrest. He is a motor vehicle spray painter. 9 The applicant's personal history is set out in the detailed report of Mr A Andreasen, a clinical psychologist. A short period before the offences a seven year relationship with a lady had ended. This had affected him. He claimed that on the afternoon of the offence involving the eight year old girl he was under the influence of alcohol and marijuana. He also claimed that he did not have a sexual attraction to children, and that what happened was a "spur of the moment thing". 10 Some few months before being sentenced he had formed a relationship with a lady which was proving successful. His mother had noticed a big improvement. The applicant had a very unhappy childhood with an alcoholic father, who beat him and his mother. Ultimately his mother left taking him and his sister. His father committed suicide. 11 Mr Andreasen reported, amongst other things: "This thirty-three year old man presented in a variable fashion and he was evidently somewhat depressed and very concerned at his present predicament. He seemed to have little insight into his sexual difficulties and appeared to see them as just things which had happened over the years. While initially in the interview he was quite defensive, towards the end of the interview he did let go somewhat and acknowledged that he had been in some real personal difficulty over the last year or so, and he admitted that he was concerned that his behaviour could occur again in the future if he didn't do something about it". 12 Mr Andreasen concluded: "This is a man who has good intellectual capacity and understanding but he has an immature and distorted personality. There is a history of recurrent physical abuse during childhood by a manic depressive alcoholic father, who committed suicide when this boy was eight years old. He has a criminal history of stealing, indecent assault, and peep and pry, and some of the stealing charges related to women's underwear. This man is socially withdrawn, he has very poor social and interpersonal skills, and an immature and distorted sexuality. It was difficult to get this man to discuss his behaviour and motivation in relation to these offences with any level of thoughtfulness or insight, despite his obviously intellectual capacity to do so. While he expressed concern at his behaviour, and concern at repeating his behaviour in the future, he had not developed any insight into his sexuality, and he had no idea of what he might do about it. He did somewhat lose his composure towards the end of the interview, and he acknowledged that he might need to have some counselling in case he should get into trouble again in the future. He had not reflected upon what effects his behaviour may have had on the children concerned, and he tended to blame alcohol and drugs and the situation and his past. This man very much needs to work at his own sexuality, his difficulties in interpersonal relationships, the immaturity and distortion of his personality, and, importantly, his use of alcohol and drugs and its effect on his behaviour and sexuality. He needs to learn to take responsibility for his drinking, and for his sexual behaviour and most of all he needs to learn strategies to be able to control these. He seems to be emerging from a year or so of trying to blot out the memories of this offence with drugs and alcohol. He has recently begun a live in relationship with a young woman, and it is possible that this will have a settling and sobering effect upon him. He would need to undertake some substantial individual counselling so as to develop some insight and some changed attitude towards his own sexual behaviour and drinking before he could benefit from a specific program for sexual offenders." 13 The Judge correctly emphasised the importance of general deterrence. The Judge found that there were special circumstances as the applicant would need to receive extended support and assistance on his release from gaol. 14 The appellant submitted that the Judge erred in his consideration of the subjective features and the weight which he attached to them. These included his age and his being at the crossroads, the hardships of his childhood, earlier mentioned, and his new relationship. His de facto wife has borne him a child. 15 He further submitted that the pleas of guilty had real value to the Crown as it was by no means certain that he would have been convicted. That is not persuasive in view of the positive saliva tests. However, the plea meant that neither child had to give evidence, as the Judge realised. 16 The applicant also relied on his circumstances at the time of the offence, the lack of premeditation, the absence of offences between 1989 and November 1996 and between December 1996 and September 1998. 17 It was also submitted that this was not the worst type of case. That is true, but that does not help when we are considering the question of the correctness of the sentences imposed when they were so far below the maximum penalty. 18 The applicant contended that the prospects of rehabilitation were good. This was adequately taken into account by the finding of special circumstances and the extended additional term. 19 Mr Hadley has made a passionate plea on behalf of the applicant. This Court can readily understand the applicant's fervent desire to be with his defacto wife and his young child, but that is not the critical matter. This Court is not entitled to allow considerations of compassion and humanity to outweigh the objective gravity of the offences. That is the cardinal consideration. Personal and general deterrence are also important. 20 Unfortunately, the applicant committed serious offences for which the law requires him to be punished. The sentences imposed by Judge Job were not only well within the permissible range of correct sentences and not excessive but lenient. 21 In my opinion leave to appeal should be granted, but the appeal should be dismissed. 22 SIMPSON J: I agree. The orders of the Court will be as proposed by Justice Smart. ********** 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.