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Court of Criminal Appeal 15 December 2006

Goebel-McGregor v Regina

[2006] NSWCCA 390

HomicideDomestic & family violence
CRIMINAL LAW PROVOCATION CRIMES ACT S 23

Citation: Goebel-McGregor v Regina [2006] NSWCCA 390
Court: New South Wales Court of Criminal Appeal
Date: 15 December 2006
Judge(s): James J, Hidden J, Hislop J

Background

The appellant was convicted of murdering his former de facto partner at Guyra on 8 December 2002, after shooting her in the back of the head. The couple had separated, and the deceased had commenced a new relationship. A prolonged and acrimonious dispute over custody of their two children had followed, along with apprehended domestic violence proceedings brought by the deceased.

At trial, it was not genuinely in dispute that the appellant had shot the deceased or that he had done so with the intent required for murder. The live issues were whether provocation under s 23 of the Crimes Act 1900 reduced the killing from murder to manslaughter, and whether a partial defence of substantial impairment of mind under s 23A applied.

The jury rejected both partial defences and returned a verdict of guilty of murder. Newman AJ sentenced the appellant to twenty years imprisonment with a non-parole period of fifteen years. The appellant appealed against both conviction and sentence.

  • Whether the trial judge's directions to the jury on the partial defence of provocation were correct in law under s 23 of the Crimes Act 1900
  • Whether any error in those directions caused a substantial miscarriage of justice warranting the conviction being set aside
  • Whether the sentence of twenty years with a fifteen-year non-parole period was manifestly excessive, having regard to the appellant's age and depressive illness
  • Whether a determinate sentence that, given the appellant's age, might extend across most of his remaining life expectancy was impermissible in the absence of a formal life sentence

Decision

The Court of Criminal Appeal accepted that the trial judge had erred in law in his directions to the jury on provocation. However, the Court found that this error did not produce a substantial miscarriage of justice. The factual circumstances of the killing, including that the deceased was shot in the back of the head at close range, made it effectively inconceivable that a properly directed jury would have accepted the provocation defence and returned a verdict of manslaughter rather than murder. The conviction appeal was therefore dismissed.

On the question of substantial impairment, the Court found no error in the trial judge's handling of that defence. The jury had been entitled to reject the defence on the evidence before it, including the competing psychiatric evidence.

Turning to sentence, the Court acknowledged that a lighter sentence might have been open, particularly given the appellant's depressive illness. Nonetheless, the sentence imposed was found to fall within the range available to a sentencing court exercising sound discretion in respect of an objectively serious murder.

The Court addressed the submission that the sentence was effectively a life sentence given the appellant's age. Drawing on established authority, the Court confirmed that a determinate sentence is not impermissible merely because, when an offender is of advanced years, it may in practice extend across most or all of their remaining life expectancy. The objective seriousness of the offence must still be adequately reflected in the sentence.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • An error in a trial judge's provocation directions does not automatically result in a conviction being set aside; the Court of Criminal Appeal will dismiss the conviction appeal where the error could not realistically have affected the jury's verdict given the facts of the killing.

  • Under s 23 of the Crimes Act 1900, provocation operates as a partial defence reducing murder to manslaughter, but its availability depends on the jury being properly directed on the relevant standard. Misdirection alone is insufficient to establish a substantial miscarriage of justice.

  • The Court of Criminal Appeal confirmed that a determinate sentence does not become impermissible simply because an elderly offender may die in custody before completing it, provided the sentence genuinely reflects the objective seriousness of the offence rather than operating as a covert life sentence.

  • In dismissing the sentence appeal, the Court reiterated that where a sentencing court refrains from imposing a formal life sentence, any determinate sentence imposed must still be proportionate to objective seriousness, and an advanced age does not operate as a ceiling on that assessment.

  • Competing psychiatric evidence on substantial impairment under s 23A of the Crimes Act 1900 is a matter for the jury to resolve, and a verdict rejecting that defence will not be disturbed on appeal merely because expert opinion was divided.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23, 23A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Rules

Cases
- R v Khalouf [2005] NSWCCA 395
- Green v The Queen (1997) 191 CLR 334
- Edwards v The Queen (1993) 178 CLR 193
- R v Chen (2003) 138 A Crim R 433
- DesRosiers v Regina [2006] NSWCCA 16
- R v Holyoak (1995) 82 A Crim R 502