Sentencing Act 1995 (WA)

1 EM HEENAN J: On 14 February 2008, Ashley Glenn Goodin entered pleas of guilty to five of six counts on the indictment then presented against him. The matter was then adjourned to allow further consideration of the sixth count. Since then, the State of Western Australia has decided not to proceed with that charge on the indictment and a notice of discontinuance of that count was presented to this court and accepted by me on 1 May 2008. I thereupon heard submissions from counsel for the prosecution and for the offender in relation to the sentence which should be imposed in relation to the five convictions recorded earlier, and remanded the offender in custody for sentence today.

2 All five convictions arise from conduct of the offender at a Western Australian country town on 28 May 2007. They are:

1. That on 28 May 2007 at this town, Ashley Glenn Goodin entered or was in the place of a named person without her consent with intent to commit an offence therein and that he was armed with an offensive weapon, namely, a knife, and that immediately before the commission of the offence he knew, or ought to have known, that there was another person in that place, and, further, that the place was ordinarily used for human habitation.

This is the offence known as aggravated burglary and, by s 401(1)(a) of the Criminal Code, carries a penalty of imprisonment for up to 20 years.

3 2. The second count is that on that same date and at the same place, Goodin unlawfully detained the named person who was the lady living in the house.

This is the offence known as deprivation of liberty which, by s 333 of the Code, carries a penalty of imprisonment for up to 10 years.

4 3. The third count is that on the same date and at the same place, Goodin unlawfully and indecently assaulted the named lady by touching her breasts and that at the time he was armed with an offensive weapon, namely, a knife.

This is the offence known as aggravated indecent assault and, by s 324 of the Code, carries a penalty of imprisonment for up to 7 years.

5 4. The fourth count is that on the same date and at the same place, Goodin stole from the named lady, with threats of violence, money which was her property and that at the time he was armed with an offensive weapon, namely, a knife.

This is the offence known as robbery which, if committed while the offender is armed with any dangerous or offensive weapon, carries a maximum penalty of imprisonment for life.

6 5. The fifth and final offence is that on the same date and at the same place, Goodin unlawfully assaulted the named lady and thereby did her bodily harm. No circumstance of aggravation was alleged in relation to that count and, therefore, by s 317(1) of the Code, the penalty for such an assault occasioning bodily harm is a liability to imprisonment for 5 years.

Background and details of the commission of the offences

7 On 27 May 2007, when he was then aged a little over 18 1/2 years, Ashley Goodin experimented, he says for the first time, with the use of methamphetamines. According to him, he visited a friend's house that morning, where he took 40 units of amphetamines intravenously. He returned to his home in this country town in the wheat belt, where he says he felt quite unwell, but he subsequently smoked a further 30 units of amphetamines. Shortly afterwards, the friend telephoned, saying that more amphetamines were available for sale. Goodin decided to do a burglary to obtain the money, and chose upon the premises of his next door neighbour. Although this was his first involvement with amphetamines, he had quite a history of alcoholism and cannabis use, and, as a result had only, at the best, occasional intermittent employment.

8 Goodin made preparations to commit the offences by drawing a map of his neighbour's house and preparing a list of items which he would need, which included gloves, shoes, a jumper, pants, a machete, a pocketknife and a mobile phone with a light. In fact, he took all these items with him for the commission of the offences except for the machete.

9 The house next door to him in this country town was occupied by a 40-year-old woman and her 8-year-old son. The lady was only very slightly known to Goodin, whom he had met as his neighbour. At about 3 am on 28 May 2007, Goodin went to his neighbour's house next door. He knew that she was at home because her car was parked at the house, and a light was on inside. He effected entry through a side door which led into a kitchen and he carried with him in his hand a pocketknife with the blade open (count 1). Having entered the house, Goodin went to the main bedroom and found the lady asleep in bed with her 8-year-old son. He put his hand over her mouth and woke her, then pulled her from the bed and, holding the knife to her throat, forced her to various rooms inside the house and later took her outside (count 2).

10 The third count of aggravated indecent assault occurred inside the house. While forcing her from room to room, Goodin took the lady into a spare room where he reached under her top and fondled her breasts (count 3). As he did this, he was still holding the open pocketknife in his hand.

11 After that, Goodin forced the lady into the kitchen and demanded money from her, whilst still holding the open pocketknife. Out of fear, she took $65 from her purse and gave it to the offender (count 4). While forcing the lady around the house as described, Goodin struck her to the head and stomach on several occasions. Having obtained the $65, he forced her outside and then threw her to the ground because she was screaming and refused to be quiet. He struggled with her on the ground, trying to place his hand over her mouth to keep her quiet. He then used a television cable, from the side of the house, to wrap around her throat in an effort to silence her. This was so tight that she thought she was going to die, while all the time Goodin still held the open pocketknife in his hand. As a result of these assaults, the lady suffered bruising to her back, mouth and throat, and bleeding around her mouth. She was rendered unconscious several times as a direct result of these assaults (count 5 assault occasioning bodily harm).

12 After some time, Goodin released the cable from around the lady's throat and allowed her to get up off the ground. Then, oddly, he gave the money which he had taken back to her and walked inside the house with her. He then sat her at the kitchen table and spoke to her. Not surprisingly, the lady remained very frightened and was not able to give close attention to what Goodin was saying, and did not respond to him. After some time, he left the house and she heard the front gate close.

13 At that point, the lady went back to bed and fell asleep. When she woke up, she was in pain. After sending her son to school, she drove to a friend's house and described what had happened. The friend took her to the police and she was then seen by a doctor.

14 During this entire incident, the lady did not recognise Goodin as being her neighbour. She had only met him on a couple of brief occasions before this.

15 The police attended at Goodin's home at 5.30 pm on 28 May 2007 and executed a search warrant. Goodin initially denied leaving his home that night, saying that he was asleep, but after some time he began making admissions. A video camera was turned on again after an earlier uneventful interview, and recorded Goodin admitting to leaving his house in the early hours, going to the lady's house in order to steal money, holding the open pocketknife in his hands, going to the bedroom, grabbing her breasts, demanding and receiving money and struggling with her outside the house. He admitted that the lady must have been very scared and panicked, and said that he himself had panicked because she would not be quiet and he did not want to go back to gaol. He admitted trying to stop her from screaming, and that he struggled with her on the ground, saying that he wrapped the TV cable around her throat in an effort to keep her quiet.

16 Goodin was then arrested and has remained in custody since 28 May 2007. The prosecution concedes that any sentences of imprisonment should be backdated to take effect from then.

17 The lady was examined by the local medical practitioner at her surgery on 28 May 2007 in the evening. The doctor noted a small abrasion on the lower lip, with no injuries to the gums or teeth; a small superficial wound on the front of the neck with mild bruising, localised swelling and tenderness, with no difficulty swallowing, and some soft tissue pain around the neck and right shoulder. The doctor certified that these injuries all interfered with the health and comfort of the lady, but did not endanger her life and were not likely to endanger life, or to cause permanent injury to physical health, but that they would definitely have a bad impact upon her mental health.

18 The money stolen was returned by Goodin during the course of the offences.

19 In a report prepared by the Department of Corrective Services and dated 22 April 2008, Goodin's role in these offences was described and documented. It was noted that he had no prior history of adult convictions, but, as a youth, he had six convictions for burglary-related offences and for aggravated sexual penetration without consent. For these, he was diverted to juvenile justice teams on youth community based orders with detention, and the explanation he gave was that the offences were committed to obtain money for his alcohol and cannabis use. It seems reasonably clear that he was involved in a negative peer association with a group of youths which was partly responsible for his illegal conduct. He successfully completed the juvenile justice community base order and he also completed a supervised release order for the offence of aggravated sexual penetration without consent.

20 Goodin's personal background reveals that he has had no contact with or knowledge of his natural father and that, from the age of only 2 weeks, his mother handed over his care to his grandparents, and from then on she had very limited contact with her son. A meeting of sorts occurred in 2005, but, as a result of that, he has chosen to have no further contact with his mother. There are three other siblings with, it would seem, different fathers, with whom he has no contact. He lived with and was cared for and raised by his grandparents who appear to have given him a close and loving relationship with constant support, and who remain ready to assist him and to accommodate him.

21 The author of the PSR made contact with Goodin's grandmother who confirmed these details about his youth. The grandmother advised that, without a mother, Goodin felt rejected by his parents during his formative years and that this had a significant adverse impact on his psychological wellbeing. She described how, during childhood and his teenage years, Goodin had been teased because of obesity and she attributes his antisocial behaviour to when they moved to the present town, where he fell in with an undesirable peer group. She said that he was easily led by members of this group and began using alcohol and cannabis. The grandmother also informed the author of the PSR that she and her husband were in the process of selling their property in this town and of moving to another country town. She confirmed that their grandson is welcome to return and live with them, and that she was willing to assist him with reintegration into the community upon eventual release.

22 Goodin is unmarried with no dependants, but has advised that he has been involved in several short-term relationships.

23 Goodin left school at the end of year 9 and has worked as a carpenter, mechanic, and window and door fabricator. His last period of work was in 2006 when, for about four and a half months, he worked as a window and door fabricator, but he says that his employment ceased due to moving from one town to another. At the time of his arrest, Goodin was receiving Centrelink benefits of $320 a fortnight from which he was paying $50 per fortnight to his grandparents for board. He had no outstanding liability for fines.

24 The author of the PSR took a history which described Goodin as being in good physical health except for a cyst under his waistline. However, this revealed an attempted suicide at about 13 years of age and a psychiatric report was requested. That was subsequently provided by Dr S D Febbo FRANZCP, a consultant psychiatrist, who reviewed Goodin and the documentation comprising the brief in this case. The history which Dr Febbo obtained included a more detailed account of Goodin's experimentation with methamphetamines on 27 May 2007, describing how he felt disoriented and decided to do a burglary. He seems to have understated the severity of his conduct when giving a description of his forced entry to the adjoining home, although he expressed a sense of sympathy for the lady and remorse at the ordeal that she had suffered at his hands.

25 Dr Febbo's investigations did not reveal or suggest any formal psychiatric disorder, or psychotic symptoms. They did, however, include an account of a generally pervasive low mood, which may have amounted to a low grade depression. The more significant finding was the revelation of a significant history of alcohol and substance abuse. It emerged that Goodin had commenced drinking at the age of 13 and would frequently drink to the point of intoxication. This became more frequent and by the age of 16 he was drinking to the point of intoxication on most days. He reported alcoholic blackouts, morning drinking and alcohol withdrawal symptoms. Goodin also disclosed that he began using cannabis at the age of 13, and from the age of 16 was using the substance daily. Apart from this, and the episode with amphetamines on 27 May 2007, he had not used other illegal substances.

26 The account which Dr Febbo obtained of Goodin's childhood was consistent with the information already described and confirmed that the offender regarded his childhood in positive terms. He was happy, and grateful to his grandparents who had cared for him well. At school, he was only an average student and was often suspended, and frequently truant. At times, he ran away from home and he had been involved with the police before the age of 15. He spent about a year in juvenile detention, following an offence of sexual penetration without consent. He claimed that the complainant had given consent and that he pleaded guilty because he was frightened. There have been a number of other offences before the age of 18, including a number of burglaries.

27 The employment history which Dr Febbo obtained is largely consistent with the earlier account, but it seems that most of this time was spent working for his grandfather. For the rest of the time, Goodin had been unemployed and was rarely in a condition to work because of his alcohol and substance abuse.

28 In Dr Febbo's opinion, the significant features of the history were the use of large quantities of amphetamines preceding the offence and he noted a sense of regret, embarrassment and concern for the lady affected. The long history of alcohol abuse and dependence and of substance abuse and dependence was of concern, and in Dr Febbo's view this fell within the category of a conduct disorder and suggested that there was an emerging antisocial personality disorder. He offered the opinion that these were traits falling within the category of borderline personality disorder, with evidence to suggest marked personality pathology.

29 Dr Febbo recommended that the alcohol and substance abuse history needed to be addressed assertively and that, either within a prison setting, or on release, there were strong indications for intervention for alcohol and substance abuse service. He also expressed the view that there should be psychological input to address the unresolved childhood issues of disaffection at being abandoned by his parents, and that the chronic depressive symptoms could be managed by using cognitive behavioural strategies. Dr Febbo also recommended that Goodin should be offered programmes available to sexual offenders in addition to the anger management programme, and that on any release from prison there should be close supervision through the Department of Corrective Services.

30 Finally, Dr Febbo expressed the opinion that his prognosis was guarded because of the significant forensic history up to the age of 18 and significant emerging pathology. There is, therefore, reason for concern at a possible deterioration in Goodin's conduct and attitude, as that intervention both during and after any term of imprisonment is desirable.

31 The investigation of the alcohol and substance abuse which the author of the PSR had undertaken revealed that there was a frequent and heavy daily use of cannabis and alcohol. His asserted level of expenditure for the use of these substances at $300 to $350 a week before his arrest greatly exceeded his visible income, and it seems that the substance abuse issues are therefore larger and more entrenched than Goodin himself has expressly acknowledged. Nevertheless, Goodin has expressed a high level of motivation to overcome his addiction and alcohol consumption, and wishes to engage in therapeutic intervention.

32 His prior list of offences in Children's Courts dating from December 2001 to October 2005, while relatively small, did include convictions for serious offences. His tendency to violent offences while under the influence of illicit substances and the level of violence used in his attack on this lady are alarming, more so having regard to his young age. A variety of intervention approaches and treatment orders were recommended by the officer from the Department of Corrective Services who also advanced the contention that, in the event of a custodial sentence, Goodin should be made eligible for parole so that an assessment for his suitability could be undertaken in the future. The view, obviously shared by Dr Febbo, is that he needs to be watched and supervised in any transition to life in the community.

33 In submissions made on his behalf, counsel for Mr Goodin conceded that the appropriate disposition for these offences would be terms of immediate imprisonment and no other form of disposition was sought. In doing so, counsel stressed that an order for parole eligibility should be made and that the overall effect of any sentences imposed should recognise that the various offences were all part and parcel of one continuous course of illegal conduct in the victim's home that night.

34 Section 6 of the Sentencing Act requires that I must impose a sentence which is commensurate with the seriousness of your offences. This seriousness is to be determined by taking into account the statutory penalties, which I have described, which range from a maximum of 5 years' imprisonment up to life imprisonment; the circumstances of the commission of the offences, including the vulnerability of the victim of the offence and other relevant factors. There is no doubt that a woman such as this lady, living in her home only with her 8-year-old son, was in a very vulnerable position when confronted with an armed intruder in the small hours of the morning who was willing to, and did, resort to threats of violence and actual violence.

35 I am also obliged to consider any aggravating factors and any mitigating factors, but I must not impose a sentence or sentences of imprisonment unless I decide that the seriousness of the offences is such that only imprisonment can be justified or that the protection of the community requires this.

36 In the present case, counsel for the prosecution has submitted that the seriousness of these offences requires the imposition of an immediate term of imprisonment. Counsel on Goodin's behalf, quite realistically and, in my view, inevitably, acknowledges the force of this submission and does not argue against it. In my view, the seriousness of these offences requires that for both personal and general deterrence sentences of imprisonment must be imposed, and that the gravity of your conduct requires punishment at this extreme order and that the protection of the community also requires this. Notwithstanding my conclusion in this regard, I must give further and independent attention to the question of whether or not any sentences of imprisonment should be suspended, notwithstanding that they are otherwise required as the only appropriate disposition. This is required of me by the Sentencing Act, but, having regard to that issue for this second and different purpose, I am satisfied that immediate sentences of imprisonment still must be imposed.

37 I am also obliged to have regard to aggravating or mitigating factors. Aggravating factors are those which increase the culpability of the offender. In this case, a number of the offences committed include circumstances of specific aggravation which render Goodwin liable to much higher sentences. Among these, is the use of an offensive weapon, namely, the knife, the unlawful entry to premises known to be used for habitation, and unlawful entry into these premises when it was known by Goodin that they were occupied. Furthermore, his efforts in using a length of TV cable around the neck of the victim to secure her and quieten her when she was screaming is a very serious circumstance of aggravation.

38 I also am obliged to have regard to Goodin's personal circumstances, but in doing so I point out that none of these offences is aggravated by the fact that he has a previous criminal record.

39 Mitigating factors are those which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which he should be punished. There is one such factor which, in my view, should be recognised so that the approach taken by the court should try and avoid destroying utterly any hope for rehabilitation, but instead emphasise the need for Goodin to conform to the requirements of society and endeavour to put him on the road to a fresh start once he has paid his debt to society for these offences. The more so is this a factor in the present case because of the difficulties which Goodin encountered in his youth. I have no doubt that, despite every good wish and effort by his grandparents, the sense of deprivation which Goodin had developed because of the loss of interest in him by his parents was a significant factor in leading him into unlawful conduct and then into the course of alcohol and substance abuse which, in my view, is the real cause of his present offending.

40 Other mitigating factors include a plea of guilty and the earlier in the proceedings when such a plea is entered, or an indication is given that it will be entered, the greater the mitigation. I can also take into account the assistance which Goodin provided to law enforcement authorities as a mitigating factor. In this case, apart from the short-lived initial denial, he disclosed to police his role in these offences on the day afterwards and gave a full account of what he considered to have happened. He also seems to have experienced some remorse at the scene by returning to the lady the money which was stolen.

41 It follows that the admissions which Goodin made in the course of the investigation and the responses which he has directed through his counsel have resulted in pleas of guilty to these five charges being entered at the earliest occasion. I am satisfied that Goodin should receive a substantial discount for these pleas of guilty and I note that discounts of between 20% and 35% may be granted according to the discretion of the judge in particular circumstances - see Bruno v The State of Western Australia [2005] WASCA 149, where reference is made to Little v The Queen [2001] WASCA 87 [13] where three judges of the Full Court observed that discounts for early pleas usually fall between 25% and 35%, depending upon the circumstances. See also Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313, 318; Abela v The Queen [2002] WASCA 279; (2002) 134 A Crim R 392, 483 and Miles v The Queen (1997) 17 WAR 518.

42 Other mitigating factors include the absence of any significant prior record. This cannot be advanced in this case because Goodin's juvenile record, although short, is quite serious. However, in my view, the analysis of this conducted by Dr Febbo is informative and suggests that he has had a long period of low esteem, low grade depression and latent personality disorder which is not all that surprising, having regard to his personal circumstances. Goodin does seem to be easy prey for bad companions. That he has drifted into association with bad company seems to be due to drinking and low self-esteem, and this has simply snowballed and got worse progressively over the years until he has reached the point where he has had no significant employment for quite a long time. That needs to change and perhaps he will be able to look back on this episode as the beginning of the time for change. If nothing else, it should provide a substantial break to his habits of alcohol and drug abuse and give him the opportunity to avail of the intervention procedures which are recommended by Dr Febbo.

43 Goodin has had a reasonable education and has had experience in trade. His grandparents are standing by him and they provide a source of inspiration, sympathy, help, encouragement and accommodation for the future. He should take advantage of this when able to do so.

44 I have already referred to the unsuitability of non-custodial forms of punishment for these offences. In reaching the conclusions which I have in this regard, I must expressly state that I have not overlooked the availability of the many non-custodial options, nor the imperative from Parliament that imprisonment should be imposed only as a last resort.

45 Where a sentence of immediate imprisonment is imposed, I must consider whether or not any period in custody which the offender has spent while on remand should be taken into account. I am quite satisfied that this should be the case and both counsel for the prosecution and Goodin's own counsel make that submission. Accordingly, the sentences of imprisonment which I am about to impose should be backdated to take effect from 28 May 2007 when Goodin was taken into custody. I am also obliged to consider whether or not a parole eligibility order under s 89 of the Sentencing Act should be made. All the recommendations, including submissions from both counsel, support the making of such an order and an order will be made that Goodin is suitable for parole eligibility.

46 Next, I must give effect to changes in the law brought about by s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) which require me to reduce by a factor of one-third any period of imprisonment which I would otherwise have imposed according to the law which applied before that amendment came into force.

47 I have taken the view that all these five offences were part and parcel of the one continuous act of criminal conduct and that, accordingly, the sentences which I am about to impose should be served concurrently. Some sentences are longer than others because of the gravity of the offending revealed by them. It will, therefore, be the longest of the five sentences which will determine the total effective period for which Goodin will be imprisoned.

48 The five convictions for each of the different offences carry different potential penalties, but the common feature of the entire range of criminal conduct is the unlawful entry into domestic premises at night with an intention to rob, and a readiness to threaten or use violence. This was accompanied by actual violence to a very vulnerable woman living with her young child and, in the end, there was an assault which, if it did not in the end produce life-threatening or grievous consequences, at least had the potential for that.

49 Speaking generally, the range of offences can be brought within the category of cases dealing with a severe robbery. In Miles v The Queen, the Court of Criminal Appeal observed that the offence of robbery had become significantly more prevalent and that sentences had therefore been 'firmed up' so that by 1997, the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, would be from 6 to 9 years - per Malcolm CJ at 521. In the light of the amendments effected in 2003, that range has been reduced by one-third and is now 4 to 6 years. That is still commonly the range of sentences imposed for a single offence of aggravated armed robbery at present - The State of Western Australia v Wells [2005] WASCA 23; Taylor v The Queen (Unreported, WASCA Library No 980152, 6 April 1998) and R v Valentine [2003] WASCA 7. It has also been accepted in Miles v The Queen and in Radebe v The Queen and in many other cases that a discount of between 25% to 35% for fast-track pleas of guilty are ordinarily appropriate.

50 In this case, having regard to the youth of the offender and the mitigating factors which I have mentioned, including the immediate admission of his role in the offences, the fast-track plea of guilty and the remorse, coupled with an intention to reclaim his life from alcoholism and drug dependency, I consider that a reduction of one-third on the sentences which would otherwise be imposed is appropriate. I therefore tabulate the sentences which I would impose for each of the five offences, listing first the starting-point (that is, the pre-2003 sentence without discount) and then the actual sentence (that is, reduced by one-third and again by a further one-third because of the 2003 amendments to the law and the discounts which I have described). The sentences therefore will be:

51 As mentioned, all these sentences are to be served concurrently and each will operate and take effect from 28 May 2007. The practical effect of this combination of sentences is that Goodin will be required to serve a period of 3 years 6 months' imprisonment, commencing from 28 May 2007, and will be eligible for parole.