R v Goold (No 1)
[2016] ACTSC 95
•9 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Goold (No 1) |
Citation: | [2016] ACTSC 95 |
Hearing Dates: | 9 November 2015 - 8 December 2015 |
DecisionDate: | 9 May 2016 |
Before: | Walmsley AJ |
Decision: | See [29]-[40] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offences against the person – sexual offences – act of indecency upon a person under the age of 10 years CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offences against the person – sexual offences – act of indecency upon a person above the age of 10 years but under the age of 16 years CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offences against the person – sexual offences – sexual intercourse with a person under the age of 16 years |
Legislation Cited: | Crimes Act 1900 (ACT) ss 92K(1), 92K(2), 92E(2) Crimes (Sentencing) Act 2005 (ACT) s 65 |
Cases Cited: | Mill v The Queen [1988] HCA 70 Pearce v The Queen [1998] HCA 57 |
Parties: | The Queen (Crown) John Goold (Offender) |
Representation: | Counsel Ms S McMurray (Crown) Mr R Thomas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Gil-Jones Barker Law (Offender) | |
File Number: | SCC 7B of 2014 ; SCC 242 of 2014 |
Publication Restriction: | The identity of the victims are suppressed |
WALMSLEY AJ:
Introduction
On 18 December 2015, a jury found the offender guilty of ten counts on an indictment. Of the remaining three counts he was found not guilty of two and the jury could not agree on the other. The jury was discharged in relation to the count on which they could not agree and the DPP is yet to decide whether he proposes to try him again on that charge.
The background to the matter is as follows. In about 1991 the offender formed a relationship with the mother of the victims. She had been married before and from that marriage she had two daughters and a son. The two daughters were the victims in these offences. All three children remained living with her after her divorce. The family at that time lived in rural Victoria. She met the offender there and they began to live together. However, they separated after a time and he left the district and moved to Canberra, where he established a florist business in Mitchell. He and the mother of the victims were later reconciled. In 1991 they began living together again, this time in Canberra. As before, the children lived with them. They lived for a short time in Hackett and then moved to Palmerston, where all of the offending occurred. The offender and the victims’ mother married in March 1992. In October 1993, the victims’ mother left the home and took her children back to Victoria. They never resumed their relationship.
What ultimately motivated the victims’ mother to leave the offender was that she formed the view he was behaving in a sexually inappropriate way with the girls.
However, she did not immediately go to the police about her suspicions. Her children did not complain to her that the offender had behaved inappropriately towards them. It was not until, many years later, when her son KC told her of something the offender had done to him, when his sisters told her he had assaulted them. Ultimately the police were informed, the offender was charged, and the trial took place in December 2015.
There was a very substantial delay between the time of the offending and the guilty verdicts. The offending occurred in 1991 and 1992. The verdicts were 13 years later. The police first spoke to the offender about the matters in 2007. Thus, from 2007 until late last year the offender was aware these matters were hanging over him.
The facts of the offending were as follows. There was evidence before the jury that the offender was very violent towards the victims’ mother when they lived in Victoria and, later, in the ACT, and that the victims had observed some of the violence. The offender, in fact, pleaded guilty in the County Court in Victoria in April 2015 to a serious assault on the mother which occurred when they were all living together in Victoria in 1991. The offender’s violent conduct to their mother was put to the jury by the Crown as the reason the children did not immediately complain of what the offender did to them. I am satisfied the jury accepted that evidence, and the reasoning, which in my view was compelling. I find the facts as found by the jury were:-
(a)Count 1
(i)Between 1 May 1992 and 25 October 1993 he committed an act of indecency on LC who was then over 10 but under 16. The act of indecency involved guiding her hand to masturbate him to ejaculation while he lay in his bed and her mother was in the shower.
(b)Count 2
(i)The second count occurred on the same occasion as count one and involved the offender placing his tongue in LC’s mouth while getting him to kiss him.
(c)Count 4 (This occurred with counts 5 and 6)
(i)This offence occurred between 1 January 1993 and 25 October 1993. The offence was engaging in sexual intercourse with LC, being then over 10 but under 16 years of age. The act involved putting his penis in her mouth. She told the jury she felt like gagging when this occurred.
(d)Count 5
(i)This offence occurred at the same time as count 4 and involved putting his tongue in LC’s mouth.
(e)Count 6
(i)This offence occurred on the same occasion as counts 4 and 5, when he placed LC’s hand over his penis and had her masturbate him.
(f)Count 7
(i)This offence occurred between 1 May 1993 and 27 September 1993 and consisted of putting his tongue in MC’s mouth.
(g)Count 8 (Occurred on same day as counts 9, 10 and 11)
(i)This occurred between 1 May 1992 and 27 September 1993; he had MC masturbate him while LC kissed him.
(h)Count 9
(i)This offence occurred between 1 May 1992 and 27 September 1993, when he had LC kiss him while MC was masturbating him.
(i)Count 10
(i)This offence occurred between 1 May and 27 September 1993, when he had MC kiss him while LC masturbated him.
(j)Count 11
(i)This offence occurred between 1 May and 27 September 1993, when he had LC masturbate him while MC kissed him.
In summary, he was found guilty of one count of sexual intercourse with a person over 10 and under 16, and nine counts of committing an act of indecency – two on a child under 10 and seven on a child over 10 but under 16.
Some of the offences occurred at the same time. This applies to counts 1 with 2, 4 with 5 and 6, and 8 with 9, 10 and 11.
Count 4, the act of intercourse, was a significant example of that offence. As to the acts of indecency, the kissing incidents were less grave than those involving the placing of a hand on his penis for masturbation, but all were serious examples of acts of indecency.
Counts 7 to 11 all occurred in the presence of one or other of LC and MC, so were objectively more serious.
All offences occurred when the offender was in the position of stepfather. He lived with them in a family and was married to their mother. This was a grave betrayal of a step father’s trust. The children were entitled to feel and be safe in their own home. Mr Thomas submitted the offences were opportunistic. That is probably true, but the opportunities were available because of his privileged position as step father. Mr Thomas submitted there was no overt violence and I accept that and take it into account. And as Mr Thomas said, the offender did not touch the victims in a sexual way. I take that into account, though it is of limited weight given the ways he had them touch him sexually. I find all the offences to have been objectively significant examples.
Victim impact statement
LC read a victim impact statement by CCTV from Victoria. She gave a moving account of the way the offender’s actions had affected her life. I consider her account of the effects on her was, if anything, understated. Her sister did not make a statement but I infer she would have been similarly affected.
Subjective circumstances
Apart from minor traffic matters in 1993, the offender has on his record a conviction in the County Court in Victoria of recklessly causing injury to the victims’ mother. He was convicted of that offence on 17 April 2015 and released on a bond for two years. The offence was an old one, which occurred when he was living with the mother of the victims and her three children in Victoria. The assault was a punch or series of punches to her head which rendered her unconscious. His record permits some but little leniency.
The offender was born on 5 January 1951 and is 65. He is single and has no children of his own. He has suffered all of his life from a disease of the hips called Perthes Disease. He has a significant limp and in due course will need a hip replacement. I accept he will find serving a full term sentence more difficult because of his age and this physical problem.
He was assessed for a pre-sentence report and the report of 10 March 2016 was in evidence.
He is the eldest of seven. He had supportive parents. He maintains contact with family. The pre-sentence report notes, “Mr Goold’s sister made it clear that she and the rest of their family and friends are supportive of the offender and apparently do not believe that the offences occurred”.
The offender had a 17 year marriage before his short marriage to the mother of the victims. When interviewed by the authors of the pre-sentence report he initially denied any domestic violence in that relationship until the pre-sentence report authors reminded him of his recent Victorian conviction. I should add that he told the jury when he gave sworn evidence that he had never been violent to the victims’ mother, but was forced to concede in cross-examination that he had pleaded guilty to that Victorian offence only last year.
He could offer no explanation for his offences to the pre-sentence report authors, and continued to deny he had committed them. He appeared dismissive of questions about the impact of his offending on his victims. The pre-sentence report authors concluded he had failed to accept any responsibility for his offending.
He has been assessed as suitable for the Adult Sex Offender Program by the ACT Corrective Services.
The offender worked on charter boats for some years when young. Then he worked as a butcher and later he grew vegetables and flowers. He has been on a disability support pension since 1996.
His counsel called evidence from two residents of Cooktown, where he was living until he went into custody for these offences. I am satisfied that at least until these convictions he was well regarded by some in the Cooktown community.
The maximum penalty for the act of indecency on a child under 10 (s 92K(1) of the Crimes Act 1900 (ACT)) (as MC was at the time she was offended against) was 12 years. For the offences of indecent acts on LC the maximum was 10 years (s 92K(2) of the Crimes Act 1900 (ACT)). For the act of intercourse on LC the maximum was 14 years (s 92E(2) of the Crimes Act 1900 (ACT)).
Sentencing considerations
Both the Crown and Mr Thomas gave me assistance by referring me to sentences for sexual offences against children where the offending had occurred both in the ACT and elsewhere. I have taken those into account. Of course, the facts are different in every case, and the maximum sentences can vary between jurisdictions. Here, there were two victims and a multiplicity of offences against each one. However, some occurred on the same occasions. As will appear, I have allowed a substantial degree of concurrency where there was more than one offence on the one occasion.
I have taken into account the delay. The police knew about these offences in 2007 yet it was some years before he was charged and tried. He is entitled to some understanding because of the delay of years, knowing the charges were pending: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [14].
I take into account Pearce v The Queen [1998] HCA 57 principles. As will be apparent I have devised a total sentence of 8 years with a non parole period of 4 years and nine months, with a degree of concurrency and accumulation.
The maximum penalties were the same at the time of the offending as they are now.
I take into account the significant breaches of trust. His continual denials of the offences suggest poor prospects of rehabilitation. And I find his prospects of rehabilitation are limited.
It is necessary to deter him and others. Thus I pay particular attention to specific and general deterrence.
He went into custody on 18 December 2015 with no other custody for these offences and sentences will date from then.
Sentence
I propose to impose a series of sentences leading to a head sentence of eight years with a non parole period of 4 years and nine months.
Count 1 – In relation to the offence of act of indecency on a person between 10 and 16 years, the offender is sentenced to two years imprisonment to commence on 18 December 2015 and end on 17 December 2017.
Count 2 – In relation to the offence of act of indecency on a person between 10 and 16 years, the offender is sentenced to 18 months imprisonment to commence on 18 September 2016 and end on 17 March 2018.
Count 4 – In relation to the offence of act of sexual intercourse on a person between 10 years old under 16 years, the offender is sentenced to three years imprisonment to commence on 18 March 2017 and end on 17 March 2020.
Count 5 – In relation to the offence of act of indecency on a person between 10 and 16 years, the offender is sentenced to 18 months imprisonment to commence on 18 December 2018 and end on 17 June 2020.
Count 6 – In relation to the offence of act of indecency on a person between 10 and 16 years, the offender is sentenced to two years imprisonment to commence on 18 December 2018 and end on 17 December 2020.
Count 7 – In relation to the offence of act of indecency on a person under 10 years, the offender is sentenced to 18 months imprisonment to commence on 18 September 2019 and end on 17 March 2021.
Count 8 – In relation to the offence of act of indecency on a person under 10 years, the offender is sentenced to two years and three months imprisonment to commence on 18 December 2020 and end on 17 March 2023.
Count 9 – In relation to the offence of act of indecency on a person between 10 and 16 years, the offender is sentenced to 15 months imprisonment to commence on 18 March 2021 and end on 17 June 2022.
Count 10 – In relation to the offence of act of indecency on a person under 10 years, the offender is sentenced to 15 months imprisonment to commence on 18 June 2021 and end on 17 September 2022.
Count 11 – In relation to the offence of act of indecency on a person between 10 and 16 years, the offender is sentenced to two years and three months imprisonment to commence on 18 September 2021 and end on 17 December 2023.
The offender is to be eligible to apply for parole after serving 4 years and nine months imprisonment.
Pursuant to s 65 of the Crimes (Sentencing) Act 2005 (ACT), I sentence the offender to a non parole period of four years and nine months imprisonment to date from 18 December 2015 to 17 September 2020.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Walmsley AJ. Associate: Date: 18 August 2016 |
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