R v Goode

[2025] NSWDC 236

District Court

New South Wales

Medium Neutral Citation:

R v Goode [2025] NSWDC 236

Hearing dates:

5 February 2025

Date of orders:

5 February 2025

Decision date:

05 February 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 1 year 10 months with a non-parole period of 10 months

Catchwords:

CRIME — Child sex offences — Child abuse material — Possession

CRIME — Bestiality material — Possession

SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis — Advanced age — Health issues — Time in custody onerous

Legislation Cited:

Crimes Act 1900 (NSW)

Sentencing Procedure Act 1999 (NSW)

Cases Cited:

Minehan v R [2010] NSWCCA 140

Mouscasv R [2008] NSWCCA 181

R v Booth [2009] NSWCCA 8

R v Roy (No 3) [2005] ACTSC 5

Ryan v The Queen [2001] HCA 21; 206 CLR 267

Texts Cited:

P Mizzi, T Gotsis, P Poletti, “Sentencing offenders convicted of child pornography and child abuse material offences” (September 2010) Monograph 34 Judicial Commission of NSW

Category:

Sentence

Parties:

Brian Goode (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
Z Khan (for the offender)

Solicitors:
RMB Lawyers (for the offender)
J Loosely for the Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2023/419933

JUDGMENT – ex tempore Revised

Agreed Facts

1. Brian Goode was born in 1943.

2. In October 2023 police executed a search warrant at his home. The warrant authorised police to search all his electronic devices capable of capturing or storage of data. He cooperated with police. Police observed during the execution of the search warrant that the offender was in the process of downloading a large quantity of files from an ‘eMule’ peer to peer file sharing application. I was unfamiliar with this application, but its operation was summarised by McCallum J in R v Roy (No 3) [2025] ACTSC 5 at [39].

3. The material’s ‘tags’ indicated it was possibly child abuse material or bestiality material. A number of forensic examinations were conducted on hard drive storage devices which he had connected to his computer. He had a number of such storage devices.

4. An analysis conducted by police indicated that the offender possessed at least 180 videos and 276 images depicting child abuse material connected to his desktop computer. They had also found that he possessed at least 1,800 videos and 200 images depicting bestiality material connected to his desktop computer.

5. Other child abuse material was found on electronic storage devices. Other bestiality material was found on electronic storage devices. The review of the storage devices contained on the computer is summarised in Annexure A to the Agreed Facts and notes the type of videos or images. I was not required to view the child abuse material. The summaries provided note that the material depicted, young, sometimes very young children, engaged in sexual activity including penetrative sexual activity. The bestiality material included people engaged in both penile and oral intercourse with a variety of animals.

6. Goode denied any sexual interest in children. He said the child abuse material found could have been downloaded inadvertently and he did not have time to look at every file he downloaded. He said he had purchased hard drives from an online company selling electrical equipment. He told police he had a compulsion to download movies, but he could not explain why.

7. He said the material located on the hard drives were copies of the files the subject of the counts.

Matters for sentence

8. When he was before the Local Court, Goode said that he would plead guilty to two serious offences. The first, possess child abuse material is charged pursuant to s 91H(2) Crimes Act 1900 (NSW). It carries a maximum penalty of 10 years imprisonment. The second is, possess bestiality material. It is charged pursuant to s 547E Crimes Act and carries the maximum penalty of 3 years imprisonment. The maximum penalties are guides to the exercise of my sentencing discretion, important guides.

Form 1

9. When I sentence him for each of those offences, he asks that I take into account two further charges of respectively, possess child abuse material and possess bestiality material. I will do so. As the bulk of that material appears to be copies of the material, the subject of sentence, I have to be particularly careful not to double punish.

10. I take the matters on the Form 1 into account. I do not sentence for them. Here they could not lead any significant increase in the sentence, if at all. Although I do note that matter was possessed on separate items, separate from the computer. I treat this as a ‘clearing of the books’ matter.

The guilty plea

11. Goode’s early plea of guilty requires that I reduce the otherwise appropriate sentences by 25% to reflect the utilitarian value. I will do so. As I will be imposing an aggregate sentence, I will take care that the process of accumulation does not erode the benefits of that reduction.

12. The plea of guilty also involves an acceptance of responsibility and reflects the man before the Court who is treated as a first offender. Apart from this criminal behaviour, he was otherwise a person of good character. A matter to which I will refer shortly.

13. On his arrest Goode spent three days in custody. He has been on bail ever since. He has kept to his reporting conditions.

Objective seriousness

Child abuse material

14. It needs to be stated and restated that the possession of child abuse material is a particularly callous crime, callous, not just because the material on the recordings or images shows the abuse of children, it is callous because each time the material is viewed offenders are reminded of and confronted with the obvious video or pictorial evidence of the child’s exploitation and abuse and the degradation it causes.

15. I must have regard to the nature and the content of the material here; primarily video images, and the gravity of the sexual acts portrayed which are, so far as child abuse material is concerned, extreme. Although there is no evidence of torture or violence which sometimes occurs, some of the children were quite young.

16. I have to have regard to the nature and number of the images. As Mr Khan, who appears for the offender, points out, when compared to many of the matters that come before the Court, the number of child abuse material images are low. Sometimes the images are in the many thousands. This case does not fall into that category, but it is still significant because of the number of videos.

17. That said, it is still a particularly serious offence for the reasons outlined. And because of its seriousness, because of the impact on individuals and the community, of the offence appellant Courts have made it very clear that sentences designed to deter offenders, this offender, and others, are required. Those who make up the market for child abuse material cannot escape responsibility for the exploitation involved. The matters are, in my view, so serious that a custodial sentence of some length is required, although that sentence can be moderated for the matters that I will refer to shortly.

Bestiality material

18. Until May 2022, it was not an offence to possess bestiality material, unless that material was also child abuse material. In 2022 Parliament passed a bill which created a new offence: Crimes Act, s 547E. That offence commenced operation on 22 May 2022.

19. Mr Loosely, the solicitor who appears for the Director could not find any information, in the speeches in Parliament, that even referred to the introduction of this section, nor could I.

20. In the material before me, the offender told his psychologist that he was not aware it was an offence. Given that there was no Parliamentary comment in relation to this new provision, that is entirely understandable. But ignorance of the law is no excuse. Courts have to impose the law as it applies to individuals.

21. The offence of bestiality itself, s 79 Crimes Act, carries a substantial imprisonment of 14 years.

22. As best I can discern, one rationale for an offence, which also refers in addition to bestiality, to videos of animals being crushed, was an animal cruelty prevention measure. And when one looks at the considered decisions in relation to child abuse material, and the rationale for that legislation is, it appears, that Parliament were also concerned with the distribution of bestiality images primarily via the Internet. This, like child pornography, is an international problem as a market exists for such material. It is not a victimless crime as many of the people involved in such crimes may well be desperate and would be degraded by their involvement in the production of it. It is not an immorality crime but one whose rationale is the prevention of harm to both humans and animals.

23. Goode’s obsessive downloading of pornographic material had a focus on bestiality material as there are significantly more bestiality images compared with those containing child abuse material.

24. It is also clear, as Mr Khan points out, that he was obsessively downloading other legal pornographic material and that the two categories of material that bring him before the Court were but a small portion of his collection, although still significant in so far as the bestiality material is concerned. A matter to which I will soon refer.

Good character

25. As I said, Goode was a person of otherwise good character, a matter that I must take into account. There is no statutory exception to me taking it into account: Sentencing Procedure Act 1999 (NSW), 21A(3)(f); Ryan v The Queen [2001] HCA 21; 206 CLR 267. But as the Courts of Appeal have indicated for some types of offences prior good character, while it must but taken into account, can carry less weight: Mouscas v R [2008] NSWCCA 181. The secretive nature of downloading child abuse material in particular, means that those principles are regularly applied in matters such as these.

26. It does not mean I ignore the man for sentence. Goode did not give evidence, but I have two comprehensive reports from a psychologist, Ms Barhon, which set out his background and her conclusions in relation to his psychological state, both at the time of the offending and today. I also have the benefit of comprehensive Sentence Assessment Reports, including a psychologist consultation for sex offender treatment as part of that report, and it sets out his personal history. That history was succinctly summarised in the submissions of his counsel, which I adopt.

Case for the offender

27. Goode was born in country New South Wales. He left school at 15. He worked in industry for all of his life. He married and had three children but then divorced. He has been with his current wife for 42 years. She is here to support him today and has provided an Affidavit to the Court. He retired from work some years ago. He is self-financed and living in the community. They live a relatively isolated life with no social connections.

28. The material reveals work accidents and a number of negative incidents in his life. He requires medication for, high blood pressure, cholesterol, and to help him sleep. As he has aged, he has suffered from a mild cognitive impairment for some time and the symptoms condition are gradually increasing in severity.

29. Apart from these matters, he has led a blameless life in the community. As a consequence of the offending and the publicity, he has become even more isolated and his relations with his extended family have been strained. Whether that continues or not I do not know but it understandable, as the man that they thought they knew is not the man who committed these offences.

30. His wife, it appears, was unaware of the material as he would spend his time on his computer at night. She remains committed to him. If he is gaoled, she will suffer as a consequence. To the extent I can, and I take that into account, but it is the sort of hardship that would be suffered by a wife of 42 years who loses a person who has, for all that time, been part of her life, and on the material before me, makes an equal contribution to the household.

31. In her report Ms Barhon speculates on the ‘why’ question. It is apparent from the amount of material downloaded, both legal pornography and illegal pornography, that there was some compulsion operating. The sheer volume of material meant that it would have been almost impossible for the offender to have viewed everything that he downloaded. To that extent I accept Mr Khan’s submissions that there is an absence of evidence as to what was, in fact, viewed.

32. That said, the nature of the material and the concession that he liked watching videos means that I cannot accept a submission that the illegal material, both the bestiality and child abuse material, was not viewed. There would seem little point in downloading it otherwise. In the absence of sworn evidence to the contrary, I draw a natural conclusion based upon the evidence before me that some of the material would have been viewed, given the amount of time he took and the care he took in downloading it and the amount of time he spent at his computer.

33. I note that matters of aggravation have to be proved beyond reasonable doubt and matters of mitigation on balance of probabilities, but sentencing courts must regularly sentence on the basis of what is known. It is not suggested by the Crown, that all of the material was viewed nor is it suggested by the defence that none of it was viewed.

34. Certain matters that were raised with the psychologist were not supported by sworn evidence and are, to that extent, controversial. I am not bound to accept every statement made to a psychologist who repeats that material in a report. In reviewing the report, I focus on matters that are uncontroversial, so far as Goode’s background is concerned, and on conclusions based on professional evaluation of what she was told.

35. So far as his mild cognitive impairment is concerned, I have no hesitation in accepting the conclusion that that cognitive impairment exists. There is at best, a hint that it might have played some part in his offending behaviour, but in the absence of any professional opinion that it did, I give that particular assertion little weight.

36. There is nothing in this offender’s background that means that his moral culpability is not that of a person of a similar background. That is; a hardworking but unsophisticated individual who, for reasons that I do not think he can properly explain to himself, became obsessed with pornography and in particular, videos involving bestiality material, and also child abuse material. I cannot, in the absence of evidence, say how much was viewed but it is the possession of it that is being punished by this sentence.

37. Goode is 81, about to turn 82. He is not in good health, but he does not have any significant underlying conditions apart from those that one would expect of a person of his age. He has high cholesterol and high blood pressure, and he requires assistance sleeping. He has suffered entirely understandable anxiety in response to the legal circumstances resulting from his arrest and appearing before the Court. Any person of otherwise good character who risked separation from the community by being sent to goal would suffer understandable anxiety. This would continue while he was in custody. He will be particularly vulnerable while he is in custody. All those matters must be taken into account.

38. There is no evidence of any actual remorse, and he has shown limited insight. I do not hold that against him. His lack of understanding of the impact of his offending may be compounded by his mild cognitive impairment. While I say he has limited insight, I accept that he suffers considerable shame and regret for what he did. He may benefit from intervention by a psychologist. He would not qualify for any programs in custody, nor would he qualify, as best I can discern from the material before me, for any post release programs but he may be able to be referred to them while on parole. He will need to be assessed on his release.

39. I accept that one purpose for his possession, particularly the quantity of material, was his compulsive desire to download; and he downloaded terabytes. But as I said, it is his possession of the unlawful material that is to be punished and the quantity of material that he possessed that make this matter serious and require custodial sentences in both matters.

40. Ill health and age are factors that can mitigate punishment. Imprisonment will be a greater burden to him. A court can use such matters to support a finding of special circumstances and to extend what leniency as can be extended to a person who has never had any engagement with the legal system. This does not mean that appropriate sentences should not be imposed but it does warrant a longer period on parole by a finding of special circumstances.

Synthesis

41. Judges do not ignore the lived experience of gaol. Gaols are violent and nasty places. And this offender, for multiple reasons, is ill equipped to cope with a custodial sentence. I suspect he will soon be classified to a medical facility, if a bed is available for him. I have not had the benefit of a Corrections report, but I trust that they will, as they should, give him a full evaluation immediately and I will recommend that when they come to Court to take him down.

42. The reason custodial sentences must be imposed is reflected in the authorities, which constantly remind judges at first instance, that while they can take mitigating matters into account and extend leniency, the offender and more particularly, others in the community, have to understand the seriousness of possession of child abuse material and now since May 2022, the seriousness of possession of bestiality material.

43. One reason we have criminal laws is to protect the community, and in particular, to protect children wherever they are in the world, or those who might be exploited for prurient purposes. It is clear that the capacity to obtain such material online through applications such as ‘eMule’, enables people in the community to easily access such material. The community has to understand that one of the reasons we impose severe penalties is to bring home to the everyone that the ease of access to such material makes it very difficult to enforce the law. Although, as Justice MC Callum in R v Roy (No 3) [2005] ACTSC 5 points out, there are now available to law enforcement agencies mechanisms which enable them to track offenders.

44. The community has to understand that if you participate in downloading illicit material from the Internet and are caught, you can expect significant punishment: R v Booth [2009] NSWCCA 8; Minehan v R [2010] NSWCCA 140; P Mizzi, T Gotsis, P Poletti, “Sentencing offenders convicted of child pornography and child abuse material offences” (September 2010) Monograph 34 Judicial Commission of NSW.

45. The law is a blunt instrument and whether people will be deterred by the harsher punishment of others is open to debate, but all the authorities, in relation to child abuse material in particular, speak with one voice, retributive punishment is required in order in an attempt to deter others from committing similar crimes.

46. I do not, as I said, ignore the lived experience of gaol, and how particularly dangerous that can be for a person of his age. Here, it is the closing of the cell door on the offender that will, I hope, deter him from future unlawful behaviour. His receiving a custodial sentence is the most important deterrent aspect of this sentence. Accordingly, because of Goode’s, age, his ill health, the nature of the material before me and his cooperation with the authorities, I have sought to extend what leniency I can to him by reducing the time he must spend in custody to the absolute minimum required to meet the purposes of sentencing.

Orders

47. In relation to both matters there are convictions. There will be an aggregated sentence, and the indicated sentence indicates a reduction of 25% for each matter.

48. In relation to the child abuse material offence, taking into account Form 1, there will be a sentence of 1 year and 6 months imprisonment indicated. In relation to the bestiality offence, taking into account Form 1, there will be a sentence of 9 months indicated. The total aggregate sentence is 1 year and 10 months. The non-parole period is 10 months. Taking into account time served the sentence will commence on 2 February 2025. The offender will be released to parole on 1 December 2025. There will be a parole period of 1 year. Total sentence will expire on 1 December 2026.

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Decision last updated: 27 June 2025