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  Home :: 2006 December :: Goldsmith v Tasmania [2006] TASSC 86 (1 November 2006)

Goldsmith v Tasmania [2006] TASSC 86 (1 November 2006)

Last Updated: 2 November 2006

[2006] TASSC 86

CITATION: Goldsmith v Tasmania [2006] TASSC 86






FILE NO/S: CCA 86/2005

DELIVERED ON: 1 November 2006


HEARING DATE: 22 August 2006

JUDGMENT OF: Crawford, Slicer and Tennent JJ


Criminal Law - Jurisdiction, practice and procedure - Judgment andpunishment - Sentence - Miscellaneous matters - Sex offenders incapableof controlling sexual instincts - 20 complainants - Whether 6½ years'imprisonment manifestly excessive.

Aust Dig Criminal Law [900]



Appellant: G A Richardson

Respondent: C J Rheinberger


Appellant: G A Richardson

Respondent: Director of Public Prosecutions

Judgment Number: [2006] TASSC 86

Number of paragraphs: 26

Serial No 86/2006

File No CCA 86/2005






1 November 2006

Order of the Court

Appeal dismissed.

Serial No 86/2006

File No CCA 86/2005




1 November 2006

1 I agree in substance with the reasons for judgment of both Slicerand Tennent JJ and agree that the sentence was not manifestlyexcessive.

File No CCA 86/2005




1 November 2006

2 The appellant was convicted on his plea of thirty-six counts of indecent assault contrary to the Criminal Code,s127, four counts of maintaining a sexual relationship with a personunder the age of 17, (s125A), one count of aggravated sexual assault(s127A), and one count of unlawful sexual intercourse with a youngperson (s124). The crimes were committed between 1976 and 1987 when theappellant was aged between 31 and 42. The sexual misconduct involvedadolescent males aged between 13 and 16 years. The learned sentencingjudge summarised that conduct in the following terms:

"In order to satisfy your criminal sexual attraction topost-pubescent boys, a condition known as is ephebophilia, you utiliseda variety of means to bring yourself into contact with potentialvictims and obtain their trust. They included:

* maintaining an association with a religion and related youth groups;

* coaching athletics at a school and incidental to this, rubbing down athletes;

* involving yourself with youths through your golf club and other organisations;

* befriending the parents and family of youths;

* taking youths on camping trips and the like;

* inviting youths to your home for activities that included prayer meetings, playing cards and working on your home;

* supplying youths with cigarettes and alcohol; and

* allowing a youth to drive your vehicle.

Once you had inveigled a victim into a vulnerable situation, suchas, submitting to a rub down or playing strip poker, you preyed on himsexually. You frequently plied a victim with alcohol in order todiminish his inhibitions. With exceptions to which I will refer, thepredominant form of your abuse involved the handling of the boy's oryour penis. It began with you touching the victim's penis and wherethere was acquiescence this was pursued to the point of masturbationand extended to mutual masturbation. The exceptions include thefollowing instances which all occurred after you had entered the bed ofa victim:

* an occasion when you put a finger into a boy's anus.

* two separate occasions when you pressed your penis against the small of the back of a boy; and

* an occasion when you pressed your penis against the side of a boy.

You on two separate occasions placed your mouth over the penis of avictim. On another occasion, when a 16 year old boy refused to removehis shorts for a rub down, you held him down and wrestled with him inan unsuccessful effort to remove this shorts. This is the only instancewhen you used force in an endeavour to overcome resistance to anadvance. My impression of this episode is that once the boy's resolvewas clear, you desisted. I am not satisfied that you, on any occasion,prevailed over a victim's resistance by means of force. Ordinarily youdesisted when an advance was rebuffed."

3 No issue is taken with those findings on this appeal.

4 The appellant, aged 60 at the time of his pleas, was sentenced toa term of imprisonment for 6½ years and the non-parole period fixed atfour years.

5 The single ground of appeal is that the sentence was "manifestly excessive".

6 The appellant, himself a person with a difficult and troubledupbringing, having entered the priesthood of the Catholic Church, butnot being ordained, was employed at the Marist College in Burnie as anathletics coach between 1975 and 1979. Eighteen of the crimes werecommitted during that period on boys entrusted to his care. In 1976 hecommenced work in the insurance industry with a distinguished careerretiring before sentence. In that period he continued his associationwith young males through the Catholic Church, youth clubs and sportingand community organisations. The remaining twenty-four counts occurredbetween June 1980 and February 1987. The respondent accepted on thehearing that in that latter year the appellant, through his ownresources, successfully overcame his inclinations and desisted fromfurther sexual predation. But his condition, asserted at the sentencinghearing but not supplemented by medical opinion, could not be acceptedas a significant mitigating matter. His conduct was a product of thehuman condition, not one of legal justification or acknowledgement.That a person is sexually attracted to young persons, be they male orfemale, might make the conduct more understandable and susceptible tomodification, but ought not ameliorate sanction. A paedophile ought bepunished as a paedophile, not as a victim of inclination. Subjectivecircumstances, which include upbringing and early experience, remainrelevant to sanction but not the conduct itself.

7 In all other respects the appellant was entitled to manymitigating matters. Apart from sexual predation, he had lived aproductive life and served his community well. The learned sentencingjudge accepted all of those matters and no error is claimed in hisdealing with the character or history of the offender.

8 Here, the age of the offender as at the time of sentence is of little import (R v Hunter (1984) 36 SASR 101; Trew (1984) 12 A Crim R 422; Professor Warner, Sentencing in Tasmania,2nd ed, 3.510). The pleas were a product of complaints andinvestigation, not of volunteered admission. It was accepted that theappellant had made an early plea and in so doing had spared thecomplainants much trauma. It was accepted that the plea was not just arecognition of the inevitability of conviction (Pavlic v R (1995) 5 Tas R 186).There was remorse and an appropriate response to the charges (Warner(supra) at 3.601 - 606). The sentence was a recognition of the needs ofretribution, the consequences of sexual misconduct on twenty childrenor youths over many years, and the betrayal of faith and trust by apredator. It reflected more the objective principles of sanction andpublic interest than the subjective characteristics of the offender.The learned sentencing judge was entitled, and required, to apply thoseprinciples. Here, absence of penetration was relevant, but notsignificant to the sentencing process.

9 The parameters of sanction to sexual misconduct are by the verynature and variation in the circumstances, difficult, if notimpossible, to determine. Examination of Warner 11.4 and the casesreferred to, illustrate the complexities. The nature of the crimes,their repetition and continuance, warranted the sentence imposed. Noerror in its calculation has been shown, nor is error manifest by itslength.

10 The appeal ought be dismissed.

File No CCA 86/2005




1 November 2006

11 On 2 December 2005 following a plea of guilty to 42 offences, theappellant was convicted and sentenced to 6½ years' imprisonment with anon-parole period of four years. By his notice of appeal he assertsthat sentence was manifestly excessive. There is no suggestion on thisappeal that the learned sentencing judge did not take into account allrelevant matters. The challenge to the sentence goes to the weightaccorded those matters.

12 The offences to which the appellant pleaded guilty were 36 countsof indecent assault, four counts of maintaining a sexual relationshipwith a young person under the age of 17 years (which by their natureindicate there were at least three sexual acts with each complainant),one count of aggravated sexual assault and one count of unlawful sexualintercourse with a young person. The complainants, there were 20 ofthem, were all young males between the ages of 13 and 16. The offencestook place over the period 1976 to 1987.

13 The conduct which gave rise to the charges included the appellanttouching a complainant's penis, the appellant causing a complainant totouch his penis, the appellant rubbing his penis against acomplainant's body, the appellant masturbating and then ejaculating ona complainant, the appellant inserting a finger into the anus of acomplainant and the appellant performing fellatio on a complainant.

14 In his submissions, counsel for the appellant dealt with a numberof mitigating factors. He accepted that the number of victims was anaggravating factor, but submitted that the nature of the offending wasat the lower end of the scale. There were only three occasions wherethe issue of penetration arose and they involved the brief insertion bythe appellant of his finger into the anus of one boy and two occasionswhere the complainant's penis was in the appellant's mouth. He arguedthe sentencing of the appellant for these offences could bedistinguished from those cases where actual penetration occurred.

15 Counsel referred to the age of the appellant at sentence. He was60. Counsel referred to par3.510 in the second edition of ProfessorWarner's text Sentencing in Tasmania and the quote there from acase dealing with a 73 year old offender, namely "a sentencing judgecannot overlook the fact that each year of the sentence represents asubstantial portion of the period of life which is left to him." Thatcomment may be highly relevant for an offender in his or her seventies.However in the present case, the learned sentencing judge noted theappellant's age and there was no other material to suggest that thisfactor was a particularly significant one. I would not regard theappellant's age as a matter which should have been given significantweight as a mitigatory factor.

16 The appellant's good character, apart from this offending, wasreferred to. There is no argument the appellant had a successful careerin the insurance industry over many years and that he also contributedto the community in a positive way over many years, including since hisretirement. A number of references were put before the learnedsentencing judge and it was pointed out many of the authors were awareof the charges. As a mitigatory factor this can, in my view, be atwo-edged sword depending on the nature of the offending before acourt. There can be little doubt that, had the industry in which theappellant worked and the community he provided assistance to during thetime of offending been aware of what he had done, the opportunities todo the good things he did may have been limited. However, that he hascontinued community involvement over many years after that was a factortaken into account.

17 The factor which clearly could be, and was, considered is thatthe appellant had no convictions otherwise than for some minor trafficoffences.

18 Counsel also referred to what he described as the appellant'ssexual dysfunction and the fact that the appellant was able to regaincontrol of himself and stop offending. He also said that the appellantdid not choose to do what he did. At the sentencing hearing counsel hadtold the court that the appellant had a "condition" calledephebophilia. There was no material suggesting this was some sort ofillness. Rather it appeared to be a description of the nature of theappellant's conduct, that is, a sexual attraction to post-pubescentboys. Counsel suggested the reasons for this condition were possiblythat the appellant's own earliest sexual encounters were with oldermales and the training he received for the priesthood.

19 It is hard to see this as a particularly mitigating factor. Theinference the court was being asked to accept was that the appellanthad something akin to a disease over which he had no control which hadresulted in the offending. That cannot be accepted. Even were itaccepted he had a disease of a psychological nature, about which itmust be said there was absolutely no material put before the court,then clearly the appellant did nothing but live with it and accept andembrace its consequences for the 11 years over which he offended. Itwas accepted that the appellant voluntarily ceased offending over alengthy period before these offences came to light.

20 The appellant's ill health was referred to. In 1995 he had aheart attack which resulted in surgery. He had a further admission tohospital for the same problem in September 2004. He suffers shortnessof breath and repeated chest pain. He needs to carry a spray with himat all times and takes a number of medications. It was submitted thestress of imprisonment would have a detrimental effect on his health.The learned trial judge recognised that the age and health of theappellant would mean a sentence of imprisonment would be undulyonerous.

21 A very significant mitigatory factor to which counsel referredwas the appellant's plea of guilty. In this regard he again referred toProfessor Warner at 105. Professor Warner said:

"Recent Tasmanian Decisions have accepted the following propositions advanced by King CJ in Shannon (1979) 21 SASR 442 at 452 - 453 as a correct statement of the principles governing the mitigatory effect of pleas of guilty:

(1) A plea of guilty may be taken into account in mitigation of sentence where -

(a) it results from genuine remorse, repentance or contrition, or

(b) it results from a willingness to co-operate in theadministration of justice by saving the expense and inconvenience of atrial, or the necessity of witnesses giving evidence, or results fromsome other consideration which is in the public interest;notwithstanding that the motive, or one of the motives, for suchco-operation may be a desire to earn leniency,

and where to allow the plea a mitigatory effect would be conduciveto the public purposes which the sentencing judge is seeking toachieve.

(2) A plea of guilty is not of itself a matter of mitigation whereit does not result from any of the above motives, but only from arecognition of the inevitable, or is entered as the means of inducingthe prosecution not to proceed with a more serious charge.

(3) In cases falling within (1), the judge is not bound to make areduction, but should consider the plea with all the other relevantfactors in arriving at a proper sentence.

(4) In assessing the weight to be attached to a plea of guilty as afactor making for leniency, it is proper for the judge to bear in mindthat it is important to the administration of justice that guiltypersons should not cause expense to the public and delay to other casesby putting forward false stories and on the basis of such false storiescontesting the charges against them.

(5) The above propositions are not to be taken as weakening in anyway the principle that there must be no increase in the sentence whichis appropriate to the crime because the offender has contested thecharge."

Counsel submitted there was an indication of remorse, the pleas werenot, as in the case of some matters, a bowing to the inevitable, andthe pleas had saved the victims the trauma of having to go through atrial and give evidence and the justice system the cost of what wouldhave been a lengthy trial. Counsel submitted that the learnedsentencing judge was not obliged to identify the amount of anydiscount, but the factors in this case did indicate a significantdiscount was appropriate.

22 In his submissions, Counsel suggested that the pleas in thepresent case should have perhaps attracted a discount in the region ofone third. Had that been applied in the present case, that would meanthe head sentence without the plea would have been nine years and ninemonths for offences "not involving penetration, force or threats".There can be no doubt the learned sentencing judge recognised that theappellant's plea deserved recognition. He said, "Your plea of guilty isa significant mitigatory factor."

23 However, for this appeal to succeed, the appellant must satisfythis Court that the learned sentencing judge made an error when heimposed the sentence that he did. Given the nature of the ground, theCourt would need to be satisfied that the sentence in itself was so farbeyond what should have been imposed had the learned sentencing judgeconsidered all relevant factors and given them proper weight, that initself it demonstrated error. It is not sufficient that members of thisCourt might have concluded a different sentence was appropriate.

24 As I said earlier, there is no suggestion that all relevantmatters were not considered. It is the weight accorded them whichunderpins this appeal. Sentencing for sexual offences is alwaysdifficult. It is only necessary to look at chapter 11.4 of ProfessorWarner's text on sentencing to see the wide variety of factors thatmust be considered and the variables from case to case which can affecta sentence.

25 In the present case the learned sentencing judge was dealing within excess of 42 sexual acts over 11 years involving 20 complainants,all of whose lives had been significantly affected by the offending. Iam not satisfied that there has been anything put before this Courtwhich would indicate the learned sentencing judge erred in hisdetermination of the sentence such as to invite interference by thisCourt.

26 I would dismiss the appeal.


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