SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v Goold (No 2)
Citation: / [2016] ACTSC228
Hearing Date: / 17 August 2016
DecisionDate: / 17 August 2016
Before: / Elkaim J
Decision: / (i)The offender is sentenced, in respect of the charge of sexual intercourse without consent, to a term of imprisonment of 6 years, to commence on 9 May 2018 and end on 8 May 2024.
(ii)The non-parole period in respect of the offence stated in order (i) and in respect of the sentence imposed by Walmsley AJ on 9 May 2016 is to expire on 17 September 2022.
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent –common assault
Legislation Cited: / Crimes Act 1900 (ACT), s 92D
Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 66
Cases Cited: / R v Nona [2015] ACTSC 136
R v Scheeren [2014] ACTSC 272
Parties: / The Queen (Crown)
John Goold (Offender)
Representation: / Counsel
Ms S McMurray(Crown)
Mr R Davies (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Offender)
File Number: / SCC 7A of 2014
Publication Restriction: / The complainant’s identity is suppressed

ELKAIM J:

1.On 8 June 2016 the offender was arraigned on the single count in the indictment numbered CC13/7357 and dated 21 February 2014.

2.Following arraignment the offender entered a plea of guilty. The charge is that between 1 May 1992 and 25 October 1993 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with QQwithout her consent, knowing that she was not consenting, or being reckless as to whether she was consenting.

3.This offence is contrary to s 92D of the Crimes Act 1900(ACT) and carries amaximum penalty of 12 years imprisonment. It carries the same penalty as at the time the offence was committed.

4.The offender has also asked for another offence, of common assault, to be taken into account.

5.The offender is already in prison. This is because on 9 May 2016, he was sentenced to a term of imprisonment for a number of offences for which he had been found guilty by a jury in a trial that concluded on 18 December 2015. On that date the jury found the offender guilty of 10 counts relating to unlawful sexual activity with minors.

6.The details of the offences can be found in the sentencing reasons given by Walmsley AJ on 9 May2016. The overall result of the sentences imposed by Walmsley AJ was a sentence of imprisonment of eight years with a non-parole period of four years and nine months. The non-parole period expires on 17 September 2020.

7.The sentencing remarks reveal that the jury was unable to make a decision on one count and was discharged in respect of that count. I was informed today that the plea of guilty to the offence before me was a product of an agreement with the Crown that the offender would not face a fresh trial in respect of the undecided charge before the jury.

8.I was also informed that there is a long procedural history behind the subject charge. The offender was originally charged in October 2013 and the matter was listed for trial in August 2014. The proceedings were vacated to allow for proceedings in Victoria to be completed. The matter was then listed for trial in November 2015 but was not reached. It was once again listed for trial in June of this year, however the plea of guilty was entered on 8 June 2016.

9.The ultimate effect of the procedural history is that the plea of guilty was not entered at an early opportunity but nevertheless must be taken into account for its utilitarian effect and because the victim and her children will not be required to face the rigours of giving evidence once again.

Background

10.The offender was born in 1951 so that he is currently 65 years of age. He is now a single man. He has no children. He grew up in a supportive family and apparently maintains their support (Exhibit 3).

11.He suffers and has donefor most of his life, from Perthe’s disease which primarily affects his hip joints. It is a congenital degenerative condition that has led to the early onset of severe arthritis. The offender has had surgery on one hip and has pain and limitations of movement. He will need more treatment, probably including further surgery, in the future. I was informed that treatment is being considered through ACT Corrective Services.

12.The offender has been involved in a number of occupations since leaving high school for a technical school when he was 14 years of age. He has worked on a family property, oncharter boats and as a butcher. Following his first marriage, he engaged in farming activities producing vegetables and flowers. He has also spent some time on a disability support pension; I assume thatis because of his hip condition.

13.The offender’s first marriage lasted 17 years. The second marriagewas to the victim of this offence and did not last very long. It ended because the victim had ‘had enough’ of the abusive relationship and left with her children.

14.The minors who were the victims of the offences leading to the offender’s imprisonment are the children of the victim to the offence now being dealt with.

The offence

15.Sometime between the relevant dates,the victim came across her son, then aged about six or seven years of age, standing bent over in the lounge room with his pants down. The victim askedthe offender for an explanation. They began arguing. The offender pushed the victim into their bedroom and onto the bed. He punched hera number of times in front of her son.

16.That night the victim again sought an explanation of the day’s events. The offender again assaulted the victim and then had the sexual intercourse with her, from behind and without her consent.

17.It is important to note that the assault took place amidst a pattern of domestic violence being imposed upon the family by the offender. A victim impact statement read out on behalf of the victim (Exhibit 4) relates the very substantial effect of the events on her and her children. While I have no doubt that the statement encompasses the matters that were dealt with before Walmsley AJ, this offence on its own would have had deep and long-lasting consequences.

The other offence of assault

18.On 27 August 1993 the primaryvictim’s children attended a function at their school. The offender picked them up at about 10 PM. On the way homehe gave the victim’s son a pocket knife and told him to cut a branch from a tree. The child obeyed and was then told he was going “to get a flogging”. When they arrived home, the child was taken to his bedroom, told to take down his pants and lower himself to his hands and knees. He was then whipped by the offender with the branch that had been cut down. The child suffered a good deal of pain for some days. He was also no doubt significantly humiliated.

Sentencing considerations

19.The offences occurred many years ago. Unlike the offences dealt with by Walmsley AJ(where the offences were revealed by statements made by children who had since grown up) the victim here was an adult as at the date of the offence. There also seems to have been aconsiderable delay between the offences being reported and appropriateaction being taken.

20.The delay may be taken into account in the manner described in R v Nona [2015] ACTSC 136 from paragraph 45.

21.The circumstances of the offence which include a mother making enquiries about something untoward that she had seen, the assaults that accompanied the rape and the utter disdain in which the victim was treated, in my view combine to make this offence one of more than medium objective seriousness.

22.As a general statement, I have had regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7.

23.I think it clear from the decision of the Chief Justice in R v Scheeren [2014] ACTSC 272, taking into account the Human Rights legislation in the ACT, that the sentencing process should be conducted on the basis of the trends in sentencing existing at the time of the offence, 1993, provided offences were not then being dealt with more harshly than currently.

24.The schedule I have been provided with setting out sentences imposed in this court between January 1990 and December 1992 has been useful. Many of the offences in the schedule are very different to the current matter however there are a number concerning sexual intercourse without consent. Unfortunately, the details of the offences are unknown.

25.There can be no argument but that a sentence of imprisonment should be imposed.

26.As I have stated, the plea of guilty has been very recent and could have been made a long time ago. For reasons stated above, I think a discount of 10% is appropriate.

27.I think there are two issues of particular concern. The first is whether the offender should be taken as a person whose criminal record includes the offences for which he has already been sentenced. He did not have a relevant criminal record before 1992.

28.The second is when the sentence should commence. Should it, at least to some degree, overlap with the sentences that the offender is currently serving or should it only commence upon completion of those sentences, or even at some other time.

29.I think the offender should be treated as having committed this offence at a time he was engaging in other criminal activity. I note that the offence referred to in Exhibit 2 as having occurred in Victoria, has the same victim as the present matter and occurred generally during the same period of time.

30.Thus my intent is not to treat the offender at the time he committed this offence as being of good character.

31.It was pointed out on behalf of the offender that he had reasonable prospects of rehabilitation as evidenced by the fact that he has not come to the attention of the authorities since the early 1990s. The submission is prima facie correct however it needs to be recalled that the victims of his conduct left him in 1993 and he would have been aware of the suspicions of the police since about 2004.

32.In relation to the second point, I think the sentence I should impose should contain a degree of both accumulation and concurrency. My aim is for the non-parole period to be extended by two years. I note here that, unlike for example in NSW, the non-parole period I set is not limited to the offence for which he is being sentenced but involves an overall re-setting of the non-parole period for the offence before me and those for which the offender was sentenced by Walmsley AJ (s 66 of the Crimes (Sentencing) Act 2005 (ACT)).

33.I think the appropriate term of imprisonment, after applying the 10% discount and taking into account the other offence (common assault) is 6 years, to commence on 9 May 2018. The purpose of the orders I will make however is to extendthe currentnon-parole period by two years to expire on 17 September 2022.

Sentence

34.I make the following orders:

(i)The offender is sentenced, in respect of the charge of sexual intercourse without consent, to a term of imprisonment of 6 years, to commence on 9 May 2018 and end on 8 May 2024.

(ii)The non-parole period in respect of the offence stated in order (i) and in respect of the sentence imposed by Walmsley AJ on 9 May 2016 is to expire on 17 September 2022.

I certify that the preceding thirty-four[34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim
Associate:
Date: 18 August 2016

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