The Queen(Crown) v Brandon Goboly (Accused)

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 24 October 2016
• Docket Number: File Number: SCC 151 of 2016
• Date: 24 October 2016

The Queen

(Crown)

and

Brandon Goboly

(Accused)

[2016] ACTSC 322

Before:

Refshauge J

File Number: SCC 151 of 2016

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and punishment — sentencing — serious offences — multiple offences — victim aged 13 years old — committing an act of indecency on a person under the age of 16 years — sexual intercourse with a person under the age of 16 years — consideration — subjective circumstances — prospects of re-offending — remorse — guilty plea — suspended sentence — Good Behaviour Order — Adult Sex Offenders Program

Cases Cited:

Azzopardi v The Queen (2011) 35 VR 43

Clarkson v The Queen (2011) 32 VR 361

CTM v The Queen (2008) 236 CLR 440 (2008) 236 CLR 440

Gillard v The Queen [2016] ACTCA 50

Gordon (1994) 71 A Crim R 459

Goundar v Goddard (2010) 240 FLR 176 (2010) 240 FLR 176

Ibbs v The Queen (1987) 163 CLR 447 (1987) 163 CLR 447

Martin v The Queen [2013] VSCA 377 ; 238 A Crim R 449

McGarry v The Queen (2001) 207 CLR 121 (2001) 207 CLR 121

McKenna v The Queen (1992) 7 WAR 455

OH v Driessen [2015] ACTSC 148

R v Barker [2014] ACTSC 115

R v BJW (2000) 112 A Crim R 1

R v BNS (No 2) [2016] ACTSC 145

R v CC (No 2) [2016] ACTSC 220

R v CV [2013] ACTCA 22

R v Harrington [2016] ACTCA 10 ; 11 ACTLR 215

R v Hunt [2016] ACTSC 52

R v Kamara [2016] ACTSC 294

R v McGrail [2016] ACTSC 142

R v NCE [2016] ACTSC 111

R v NF (No 1) [2016] ACTSC 216

R v PM [2009] ACTSC 24

R v QI (No 2) [2016] ACTSC 188

R v Ridley [2014] ACTSC 382

R v Scott (2009) 22 VR 41

R v Sheedy [2016] ACTSC 256

R v Smith [1964] Crim LR 70 [1964] Crim LR 70

R v Sulemanov [2007] VSCA 288

Wong v The Queen (2001) 207 CLR 584 (2001) 207 CLR 584

Legislation Cited:

Crimes Act 1900 (ACT), ss 55(2), 61(2)

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 13, 33, 33(1)(za)

Texts Cited:

Shorter Oxford English Dictionary (Clarendon Press, 6 ^th ed, 2007)

Representation:

Counsel

Mr S McMurray (The Crown)

Ms K Marson (Accused)

Decision:

• 1. Brandon Charles Goboly be convicted of committing an act of indecency on the victim, being a person under the age of 16 years.

• 2. Brandon Charles Goboly be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months from 24 October 2016.

• 3. Brandon Charles Goboly be convicted of engaging in sexual intercourse with the victim, being a person under the age of 16 years.

• 4. Brandon Charles Goboly be sentenced to 12 months imprisonment, commencing on 20 August 2016, to take into account pre-sentence custody.

• 5. That sentence be suspended from 24 October 2016 for 12 months.

• 6. Brandon Charles Goboly be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act for a period of 12 months from 24 October 2016, with the following conditions:

  • (i) a probation condition that he be under the supervision of the Director-General or her delegate for 12 months and obey all reasonable directions of the person supervising him;

  • (ii) a condition that he submit himself for assessment for suitability of the ACT Corrective Services Adult Sex Offender's Program and, if found suitable, undertake the Program.

• 7. Brandon Charles Goboly be convicted of committing a second act of indecency on the victim, being a person under the age of 16 years.

• 8. Brandon Charles Goboly be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act for four months, commencing on 24 August 2017.

Refshauge J

1 On 23 April 2015, the accused, Brandon Charles Goboly, met the complainant, QQ, and her mother at a sporting social club in Canberra.

2 QQ and her mother regularly attended the club and made friends with other regular attendees, which is how Mr Goboly came to meet them.

3 A relationship between Mr Goboly and QQ developed, though he was then 20 years old and she was then 13 years old.

4 Some days later, they met at Garran shops and engaged in sexual activity.

5 Later, in December 2015, they met again at the social club and Mr Goboly kissed QQ, forcibly introducing his tongue into her mouth.

6 As a result of a complaint to police, Mr Goboly was arrested in January 2016 and charged with two counts of committing an act of indecency with a person under the age of 16 years and one count of sexual intercourse with a person under the age of 16 years. He has pleaded guilty to these offences and I must now sentence him for them.

7 Sexual intercourse with a person under the age of 16 years is an offence against s 55(2) of the Crimes Act 1900 (ACT), the maximum penalty for which is 14 years imprisonment.

8 Committing an act of indecency with a young person under the age of 16 years is an offence prohibited by s 61(2) of the Crimes Act and it attracts a maximum penalty of 10 years imprisonment.

9 While these maximum penalties show that the offences are to be regarded as serious, the sentence must be proportionate to the precise facts as the offences cover a wide variety of acts and circumstances. See Ibbs v The Queen (1987) 163 CLR 447, 451–2.

Thefacts

10 As noted above, Mr Goboly met QQ and her mother when they attended the social club on 23 April 2015. Mr Goboly and QQ exchanged mobile telephone numbers and later exchanged a very large number of short message service (SMS) texts, including messages regarding their respective ages. Initially, Mr Goboly's messages were polite and about general topics, but, on 25 April 2015, when QQ suggested they ‘meet up soon’, Mr Goboly asked what they would do. After some further messages he said ‘seriously what would we do go to a park? Or sexual things baha or chill and chat then bairn lol!’ to which QQ answered ‘probably all of those things tbh hahaha.’

11 On 26 April 2015, QQ invited Mr Goboly to meet her at Garran shops. The conversation included the following:

Goboly: and then do what? Is your mum at your house

QQ: yeah she is but there's heaps of private places around the shops

Goboly: private places to do what?

QQ: whatever you want ;)

Goboly: Hahaha really now hey ;)

Goboly: Would you actually chill with me if I came?

QQ: Of course I would

Goboly: Well what if I said I was busing to Woden right now haha?

12 Later in the evening of 26 April 2016, QQ and a friend met with Mr Goboly and walked to Garran shops. QQ's friend left shortly afterwards. QQ and Mr Goboly walked to a nearby underpass, sat on a wall, and talked for about 20 minutes.

13 While initially they did not sit closely, Mr Goboly later moved closer to QQ and started rubbing the inside of QQ's left thigh. They then started kissing. Mr Goboly then stood up pulling QQ to her feet with him and started kissing and touching her on both breasts. This was the first offence of committing an act of indecency on a person under the age of 16 years.

14 Mr Goboly then pushed his right hand down the front of QQ's jeans and under her underpants, touching her vagina. He inserted his fingers into her vagina and proceeded to move them in and out for about two minutes. This was the offence of engaging in sexual intercourse with a person under the age of 16 years.

15 Mr Goboly removed his fingers from QQ's vagina but they continued kissing for a few more minutes. QQ, however, felt that things between them were moving too fast. About 7:00pm, they walked off in different directions.

16 QQ's mother had become concerned that her daughter had not returned home and she called the police. When QQ returned home, she noted that the police were at her home. Mr Goboly sent an SMS message to QQ, ‘well it was really lovely to spend the time we did tonight together haha’ and QQ replied, ‘hahaha yes it was;) the police are at my house though’.

17 On 17 December 2015, QQ, who was by that time 14 years old, again attended the same social club with her mother. She sent a message to Mr Goboly, ‘are you at the club?’ and he replied that he was not but was at another club. Twenty minutes later, Mr Goboly arrived at the social club, which he told QQ by text message. Shortly after, QQ and her mother met Mr Goboly and another male friend accompanying, but they did not stay together.

18 About 30 minutes later, Mr Goboly sent a message to QQ, suggesting that she ‘go to the toilet right now’, but she said she could not and invited him to come to where she was.

19 Mr Goboly then sent a message to QQ stating, ‘I wanna kiss you though I can't with here [sic] there I shall have to bail as soon as I made contact with them lips imma have to go.’

20 Shortly afterwards, Mr Goboly and his friend met QQ and her mother in the smoking area of the club and greeted them. QQ and her mother left to go inside and Mr Goboly and his friend then walked to where QQ and her mother were sitting inside and they sat with them. Mr Goboly later told QQ that he was leaving the club and asked her for a hug. She agreed, got up from her chair and took a step forward to hug him. He grabbed her with both of his hands around her waist, pulled her in towards his body and kissed her on the lips. QQ was shocked about what happened and tried to keep her mouth shut but she felt Mr Goboly's tongue inside her mouth. This was the second offence of committing an act of indecency on a person under the age of 16 years.

21 QQ's mother saw what was happening and pulled Mr Goboly off saying, ‘What are you doing?’ Mr Goboly started to apologise, at which time Mr Goboly's mother approached the table and told him to go home...