Goddard v The Queen - [2012] NTCCA 6

Goddard v The Queen [2012] NTCCA 06
PARTIES: GODDARD, Stephen Angus Bruce
v

The Queen

TITLE OF COURT:   COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:   CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:   CCA 5 of 2011 (20933420)
DELIVERED:   8 MARCH 2012
HEARING DATES:   30 JANUARY 2012
JUDGMENT OF:   KELLY, BARR JJ & OLSSON AJ
APPEAL FROM:   RILEY CJ

REPRESENTATION:
Counsel:
Appellant:   R Goldflam
Respondent:   M McColm
Solicitors:
Appellant:   Northern Territory Legal Aid Commission
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:   OLS1202
Number of pages:   13

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Goddard v The Queen [2012] NTCCA 06

No. CCA 5 of 2011 (20933420)

BETWEEN:
STEPHEN ANGUS BRUCE GODDARD

Appellant
AND:
THE QUEEN

Respondent

CORAM: KELLY, BARR JJ & OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 8 March 2012)
KELLY J:

I agree that leave to appeal should be refused for the reasons given by Olsson AJ.
BARR J:
I agree that leave to appeal should be refused for the reasons given by Olsson AJ.
OLSSON AJ:
Introduction
This is an application for leave to appeal against a sentence imposed by a Judge of this Court on the applicant at Alice Springs on 28 March 2011, consequent upon his plea of guilty to a charge that, on 2 October 2009, at Tennant Creek he had sexual intercourse with a woman LB without her consent and knowing about or being reckless as to her lack of consent.
The learned sentencing Judge indicated that he took, as a commencement point, a sentence of seven years imprisonment as being appropriate in the circumstances. In recognition of the applicant’s plea, he reduced that period to imprisonment for five years and six months, to run from 2 March 2011. He set a non parole period of four years.
The applicant was refused both an extension of time within which to appeal and leave to appeal by a single Judge. He thereupon sought a rehearing of those aspects by this Court pursuant to s 429(2) of the Criminal Code.
When the proceedings were called on before this Court, the Crown consented to an extension of time, which was thereupon granted. With the concurrence of the parties, counsel were heard both as to the issue of leave and also the merits of the proposed appeal.
It is important to note that this matter falls to be considered against the background that the applicant had separately been charged with an offence pursuant to s 192(4) of the Criminal Code in relation to an act of gross indecency on a young woman called LG without her consent and knowing about or being reckless as to the lack of consent. This Court was informed by counsel that such offending had occurred about two hours prior to the offence the subject of this application. For the sake of brevity the earlier offence will be referred to as "the gross indecency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goddard v The Queen

Details

AGLC: Goddard v The Queen [2012] NTCCA 06
Case: [2012] NTCCA 6
Decision Date: 08/03/2012

CaseChat Overview and Summary

In the case of Goddard v The Queen, the applicant, previously convicted of sexual offences, sought to appeal against the sentence imposed by the Northern Territory Supreme Court. The primary issue before the Court was whether the sentence of five years and six months imprisonment, with a non-parole period of four years, for a sexual assault offence, was manifestly excessive. The applicant argued that his intellectual disability and high degree of intoxication at the time of the offence should have warranted a more lenient sentence. The Court was required to determine if the sentencing judge had erred in imposing such a sentence, and if the sentence was clearly and obviously excessive.

The Court examined whether the applicant's intellectual disability and intoxication were significant enough to warrant a reduced sentence. The Court noted that the applicant had been warned against drinking alcohol in the past, and there was no compelling evidence to suggest that his intellectual disability was a substantial factor in the commission of the offence. The Court also considered the severity of the offence, the need for deterrence, and the protection of the community in determining the appropriate sentence. The Court held that while the sentence might be at the higher end of the spectrum of reasonable sentencing outcomes, it was not clearly and obviously excessive, and there was no specific error in the exercise of the sentencing discretion by the learned sentencing judge.

The Court concluded that the sentence imposed was not manifestly excessive and refused the applicant's leave to appeal. The application was dismissed, and the original sentence was upheld. The Court emphasised that in assessing the excessiveness of a sentence, it must be clearly and obviously, and not just arguably, excessive. The Court found that the sentence in this case, while severe, did not meet the threshold for manifest excessiveness.

Orders

Orders of the court

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Background

Background to the litigation

The present application is limited to the sentence imposed on 28 March 2011. There was no appeal in relation to that imposed in respect of the gross indecency offence.The relevant narrative facts It is necessary to recite the key facts relating to both offences, having regard to the issues arising on this application. On the night of 2 October 2009, the applicant, who was then 21 years of age, had been drinking at several venues in Tennant Creek and became intoxicated. Having left the Tennant Creek Hotel, he spoke to LG, a 23 year old female, who was also intoxicated. He asked her whether she wanted a lift and she asked him to drive her to a nominated house in Tennant Creek. He did so, but stopped short of the nominated address. When asked by LG what he was doing, he said that he wanted a head job for giving her a lift. She refused, whereupon he exposed his penis outside his pants and said, "Can you suck my cock?". He put his hand on the top part of her body near her neck, and pulled her towards his exposed penis. LG told him that she did not want to and resisted, so that he could not pull her face on to his penis. He then put his penis back in his pants and told her to get out of the car. When she did not comply, he got out of the vehicle, went to the passenger-side door and demanded that she get out. She then complied and he drove off. At a time said to be about two hours later (at about midnight) the applicant went to the house of LB, with whom he had had a casual sexual relationship since about January 2009. She had not invited him to her house on that occasion. She had previously made it plain to him that she would not entertain any sexual activity whilst her young son was in the house. On arrival, the applicant entered LB's house through an unlocked front door. LB had just put her 11 year old son and his friend to bed. The applicant went straight into her bedroom, removed his clothes, grabbed her under her dress and pulled down her underwear. He then forced her onto the bed and proceeded to have penile vaginal intercourse with her without her consent. In the course of doing so he grabbed LB by the hair, slapped her on the cheek and bit her a number of times on the neck and arms and legs, before eventually falling asleep. She then left the premises and contacted the police. As a result of the assault upon her LB sustained a small abrasion to the labia minora and tenderness to her vagina, multiple bruises and abrasions, bite marks to her neck, a small bruise on the upper lip, scratch marks to her back, bite marks on her left arm and chest and hair pulled from her head. During a subsequent record of interview the applicant admitted having intercourse with LB but falsely asserted that it had been consensual, although he did concede to having slapped LB and agreed that he may have bitten her. The learned sentencing Judge noted that, although the applicant ultimately pleaded guilty, it was not an early plea. It was indicated shortly before the applicant’s trial was due to commence and after LB had been required to give evidence in a pre-recorded session. He was therefore entitled to some credit for the utilitarian benefits of the plea, but not to credit for an early plea.The personal circumstances of the applicant

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The short answer to that proposition is that those features could equally have been the product of the applicant’s high degree of intoxication and there is no compelling reason, absent relevant expert evidence, to conclude that they were substantially the product of his intellectual disability. His own counsel at first instance conceded that the applicant had repeatedly been warned against drinking alcohol.Conclusions At the end of the day, the key issue to be addressed is as to whether it can fairly be said that the imposition of a discounted sentence of five years and six months imprisonment with a non-parole period of four years, in addition to the sentence previously imposed in respect of the grossly indecent offence, without any concurrency, was manifestly excessive. That question is not to be answered by reference to what the members of this Court might have done in the circumstances. Error in the exercise of the sentencing discretion must be demonstrated, it being presumed that there is no error. The impugned sentence must be clearly and obviously, and not just arguably, excessive. (House v The King[3], Moore v The Queen[4], Liddy v R[5]) In the instant case, whilst the impugned sentence may be toward the top end of the spectrum of reasonable sentencing outcomes, I remain unconvinced that the learned sentencing Judge fell into specific error or that the actual sentence imposed was clearly and obviously excessive on the face of it. I would refuse leave to appeal. The application should be dismissed.

Ratio Decidendi

Legal Principle Established

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