The King v Goudge

[2023] NTSC 47

CITATION:The King v Goudge [2023] NTSC 47

PARTIES:  THE KING

v

GOUDGE, Raymond

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NOs:  22116871 & 22211332

DELIVERED:  7 June 2023

HEARING DATES:  24 May & 7 June 2023

JUDGMENT OF:  Grant CJ

REPRESENTATION:

Counsel:
          Crown:  T Wrathall

Supervised Person:  B Wild
CEO, Department of Health:       E Farquhar

Solicitors:

Crown: Office of the Director of Public Prosecutions

Supervised Person:  North Australian Aboriginal Justice Agency

CEO, Department of Health:       Solicitor for the Northern Territory

Judgment category classification:          C
Judgment ID Number:  GRA2307
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The King v Goudge [2023] NTSC 47

Nos. 22116871 & 22211332

BETWEEN:

THE KING

AND:

RAYMOND GOUDGE

CORAM:    GRANT CJ

REASONS FOR JUDGMENT

(Delivered ex tempore on 7 June 2023)

[1]The accused is charged with four offences across two files.  Those offences are assaulting a worker, two counts of assaulting a police officer in the course of his or her duty, and assaulting an employee of Territory Care and Support Services.

[2]On 17 November 2021, the accused was committed for trial on the first three of those offences.  On 2 June 2022, an ex officio indictment was signed in relation to the fourth offence in time.

[3]The accused suffers from a degenerative condition which was first diagnosed in or about 1991.  The condition causes frequent seizures, intracranial bleeding, psychosis and organ damage.  The condition also causes significant impairment in executive functioning and disinhibition, and the accused requires ongoing daily care.  He also meets the criteria for dementia due to the progressive nature of the condition.  The accused has been admitted to the psychiatric unit of the Royal Darwin Hospital on a number of occasions since his diagnosis.  His condition is exacerbated by polysubstance abuse.  The accused has been in receipt of a disability support pension since 1999, and has been under a National Disability Insurance Scheme plan since 2017.

[4]On 3 June 2022, I determined that the accused was unfit to stand trial for the four offences with which he had been charged, and was unlikely to regain fitness within 12 months, pursuant to s 43T of the Criminal Code 1983 (NT).  On that same day, it was determined by agreement that the accused was also suffering from a mental impairment at the time he committed each of the offences, and a plea of not guilty by reason of mental impairment was accepted and recorded pursuant to s 43XA of the Criminal Code.  On 12 August 2022, I declared that the accused was liable to supervision pursuant to s 43XB(a) of the Criminal Code.  That now requires a further determination concerning the appropriate form of supervision order having regard to the accused’s circumstances and the nature of the offending.

[5]The first three offences were committed on 30 May 2021.  On that day the accused was observed lying on the road in the path of oncoming vehicles.  Two security officers went to provide assistance but the accused became highly aggressive.  Paramedics were called.  Following their arrival, the accused continued to be aggressive.  One of the security officers positioned himself between the accused and the paramedics, whereupon the accused punched the security officer in the face causing chipping to his two lower front teeth.  That was the first offence.

[6]Police then attended at the location.  The accused began taunting police and speaking to them in aggressive terms.  He attempted to punch the male police officer on a number of occasions, and slapped the male officer’s hands.  That was the second offence.

[7]The female police officer then attempted to provide assistance.  The accused punched the female officer in the eye causing her to fall to the ground and suffer extensive bruising and swelling to her eye.  The accused was then restrained and arrested.  That was the third offence.

[8]The fourth offence was committed six months later on 18 November 2021.  At that time the accused attended the Territory Care and Support Service to receive his daily allowance.  A short time later a care worker came into the office and provided the accused with his allowance.  The accused asked whether there was more money, and the care worker advised that he had received the ordinary amount.  The accused became enraged and without warning punched the victim in the face causing him to suffer bleeding from the nose and swelling to the left eye.  The accused then punched the victim a second time.

[9]As the accused has previously been declared liable to supervision under Div 5 of Pt IIA of the Criminal Code, it is now necessary to make a supervision order.  The principal question in that determination is whether that order should be custodial or non-custodial in nature at this point in time.  That determination must be made in the application of the principle that restrictions on a supervised person's freedom and personal autonomy are to be kept to a minimum that is consistent with maintaining and protecting the safety of the community. 

[10]That matter has been subject to very careful consideration by the health professionals involved in the accused’s care and treatment.  The most recent and operative report in relation to that care and treatment, and the recommendations of the health professionals, was generated on 12 May 2023.  That report acknowledges that the accused has in the past displayed, and continues to display, violent behaviours towards his support staff.  He also refuses medical assistance with significant adverse outcomes.  Despite those factors, and after intense deliberations, the Forensic Disability Unit within the Department of Health is of the opinion that it would be appropriate to test the accused’s risk under care arrangements and in accommodation in the community setting, rather than subjecting him to a custodial supervision order at this point in time.  The recommendation is that the accused be placed on a non-custodial supervision order for a period of six months subject to various conditions, and that his progress be monitored during that period.

[11]The legislation does not contemplate the making of a supervision order for a finite period.  The order is made in the appropriate form for an indefinite period, subject only to the conduct of reviews in accordance with the legislation and any application for variation made by a person with statutory standing.  For the reasons which follow, however, there will be a trigger for review which is generally consistent with the six-month trial period recommended by the Forensic Disability Unit.

[12]Section 43ZG of the Criminal Code provides that when the Court makes a supervision order it must fix a term that is appropriate for the offence concerned and specify the term in the order.  If the supervised person has been charged with the commission of multiple offences, the Court must fix the term by reference to the offence carrying the longest maximum period of imprisonment.  In this case, the offences carrying the longest maximum penalties are the assault on the female police officer and the assault on the care worker, both causing harm, each of which attracts a maximum penalty of imprisonment for seven years.  I will treat the assault on the care worker as the index offence because in my assessment, having regard to the circumstances of the offending and the photographs of the injury, it was the most serious of the two offences. 

[13]Fixing the appropriate term in this case presents a number of difficulties and particular considerations.  First, the accused has a relevant prior criminal history.  That includes multiple convictions for assaulting workers and causing harm, aggravated assault, common assault, trespass, stealing and disorderly behaviour.  That prior criminal history elevates the importance of community protection in the notional sentencing exercise.  Secondly, for the reasons I have described concerning the accused’s neurological condition, both his moral culpability and his suitability as a vehicle for deterrence are reduced while further elevating the importance of community protection.  Thirdly, the accused is entitled to some discount on sentence in recognition of the various agreements which have been made on his behalf which obviated the need for the conduct of an investigation into fitness and a special hearing.

[14]The circumstances of the index offence speak for themselves.  The victim was assisting the accused in the course of the victim’s duty.  The accused assaulted the victim viciously and without warning.  That assault included two punches, and the victim suffered significant harm as a result.  In this particular case, allowing for the personal circumstances of the offender and the application of a discount for the reasons I have described, a notional term of imprisonment for 12 months is fixed. 

[15]Section 43ZG(5) of the Criminal Code provides that at least three months, but not more than six months, before the expiry of the notional term the Court must conduct a review to determine whether to release the supervised person from the supervision order.  That provision will facilitate the review of the supervised person’s progress after six months as recommended by the Forensic Disability Unit.

[16]Having regard to those considerations, I make the following orders.

1.Pursuant to s 43ZA(1)(b) of the Criminal Code, the supervised person is subject to a non-custodial supervision order.

2.While subject to the non-custodial supervision order, the supervised person is to remain under the care of, and receive treatment from, the  staff, servants and agents of the Chief Executive Officer of the Department of Health and service providers under the National Disability Insurance Scheme, together referred to as ‘the treating team’.

3.The supervised person shall:

(a)    comply with all reasonable and lawful directions of the treating team;

(b)    reside at accommodation as approved and directed by the treating team and not leave that residence without the prior approval of the treating team and in the company of a member of the treating team or a person approved by the treating team;

(c)    not cause damage to the approved residence, damage to property belonging to the treating team or damage to other property;

(d)    not assault or threaten any member of the treating team or other person;

(e)    take the medications prescribed by the treating team and submit to blood tests and other medical examinations that may be ordered by the treating team as adjuncts to those medications;

(f)     attend all appointments made for him by the treating team;

(g)    cooperate with ongoing assessments relevant to his cognitive impairment, mental state, psychosocial functioning and general health; and

(h)    participate in any positive behaviour and psycho-educational interventions as advised by the treating team.

4.If the supervised person breaches conditions 3(b) or (d), members of the Northern Territory Police are authorised to take him into custody and convey him to the Darwin Correctional Centre, whereon the General Manager of the Correctional Centre is authorised to receive him and hold him in safe custody to be brought before this Court as soon as practicable.

5.A term of imprisonment of 12 months commencing today is fixed pursuant to s 43ZG of the Criminal Code.

6.The appropriate person is to file and serve a report for the major review pursuant to s 43ZK of the Criminal Code by close of business on 8 December 2023.

7.The matter is adjourned for a major review at 9am on 26 February 2024.

8.The Supervised Person is excused from attending at that time if legally represented.

9.The parties have liberty to apply.

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