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Court of Criminal Appeal 27 October 1999

Regina v Goodier

[1999] NSWCCA 347

Sexual offences
SENTENCING SENTENCES NOT EXCESSIVE

Citation: Regina v Goodier [1999] NSWCCA 347
Court: NSW Court of Criminal Appeal
Date: 27 October 1999
Judge(s): Simpson J; Smart AJ

Background

The applicant pleaded guilty in the District Court to aggravated indecent assault on an eight-year-old girl and attempted aggravated indecent assault on a six-year-old boy. The offences occurred in November 1996, when the applicant invited the two children into his home and, in the presence of the boy, pulled aside the girl's leotard and kissed her around the genital area. Forensic testing returned a positive result for saliva on the child's clothing.

The District Court sentenced the applicant to a fixed term of nine months for the attempted assault, and a minimum term of eighteen months with an additional term of eighteen months for the aggravated indecent assault, with both sentences to run concurrently. The sentencing judge found special circumstances, warranting the extended additional term, on the basis that the applicant would require prolonged support and supervision on release.

The applicant sought leave to appeal against the severity of these sentences, arguing that the judge failed to give adequate weight to various mitigating factors.

  • Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, including his difficult childhood, the period free of offending between 1989 and 1996, his guilty plea, his new relationship, and his prospects of rehabilitation.
  • Whether the agreed facts were ambiguous and, if so, whether the court should have proceeded on the lesser factual basis that the applicant had only touched the child over her clothing.
  • Whether the sentences imposed were excessive in all the circumstances.

Decision

The Court rejected the submission that the agreed facts were ambiguous. The agreed statement of facts recorded that the applicant pulled aside the child's leotard and kissed her around the genital area, and this was corroborated by a positive saliva test. The sentencing judge was entitled to proceed on that basis, though the Court noted this fell short of cunnilingus.

On the subjective factors, the Court acknowledged the applicant's unhappy childhood, the absence of reoffending between 1989 and 1996 and again between the offences and sentencing, his guilty plea (which spared both children from giving evidence), and his new relationship and child. However, the Court held that considerations of compassion and humanity cannot outweigh the objective gravity of the offences, which remained the cardinal sentencing consideration. Personal and general deterrence were also identified as important factors.

The Court found that the applicant's good rehabilitation prospects had already been adequately addressed through the finding of special circumstances and the extended additional term. The submission that the case was not the worst of its kind carried limited weight given how far the sentences already fell below the maximum penalty.

The sentences were described not merely as within the permissible range but as lenient. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that objective seriousness of the offending is the cardinal consideration in sentencing, and that compassion for the offender's personal circumstances cannot displace that analysis.
  • A guilty plea that spares child complainants from giving evidence carries genuine mitigating weight, even where forensic evidence makes conviction likely.
  • Where an applicant's rehabilitation prospects are already reflected in a finding of special circumstances and an extended additional term, those prospects carry reduced additional weight as a standalone ground of appeal.
  • The fact that an offence does not represent the worst example of its kind has limited utility as a ground of appeal severity where the sentences imposed are already well below the statutory maximum.
  • Factual ambiguity in agreed facts will not automatically be resolved in an applicant's favour where other evidence, including forensic results, is consistent with the more serious factual basis adopted by the sentencing judge.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text or metadata.