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Supreme Court 4 July 2018

R v Keith Owen Goodbun

[2018] NSWSC 1025

Assault & violenceHomicideFirearms & weaponsDomestic & family violence
CRIME SENTENCE MURDER FURTHER CHARGES ON A 166 CERTIFICATE PLEA OF GUILTY DOMESTIC VIOLENCE

Citation: R v Keith Owen Goodbun [2018] NSWSC 1025
Court: Supreme Court of New South Wales
Date: 4 July 2018
Judge: Wilson J

Background

The offender was estranged from his wife of approximately 40 years. Following a violent incident in June 2016, police obtained an interim apprehended domestic violence order (ADVO) against him, and he was charged with property damage and assault occasioning actual bodily harm. He was released on bail subject to conditions including compliance with the ADVO and a prohibition on residing at the family home.

In the early hours of 7 October 2016, the offender drove from a property near Taree to the family home in Maitland, having resolved to kill his wife. He shot her four times with a rifle, causing her death. He also assaulted his daughter, who was present at the property. The offender subsequently made full admissions to police. He later pleaded guilty to murder and three additional offences, including contravening the interim ADVO, using an unregistered firearm, and assaulting his daughter occasioning actual bodily harm.

The offending was characterised by premeditation and careful execution. In the months before the killing, the offender had made explicit threats to shoot his wife, and his alcohol consumption had escalated. The murder occurred while he was on bail and in direct breach of the ADVO.

  • Whether a life sentence was required or whether a finite term of imprisonment was appropriate
  • What weight to give the offender's mental health conditions, specifically depression and alcohol-related brain damage, as mitigating factors
  • The significance of the guilty plea and full admissions to police in reducing the sentence
  • How to account for the offender's age and the need for general deterrence and community protection
  • Whether an agreed statement of facts bound the court and precluded it from considering other evidence in determining the gravity of the offending

Decision

Wilson J rejected the offender's submission that an agreed statement of facts bound the court to its terms and prevented consideration of other material. The judge held that this position was contrary to established authority and contrary to the interests of justice, drawing on the High Court's decision in GAS v The Queen; SJK v The Queen and a line of New South Wales Court of Criminal Appeal decisions. The court was entitled to consider all evidence before it, including the police interview and witness statements.

On the question of a life sentence, the Crown conceded this was not required. Wilson J accepted that concession and proceeded to impose a finite term. The offending was nonetheless treated as extremely serious: the murder was planned, carried out in the victim's home using a rifle, involved four lethal wounds, and occurred in direct breach of both bail conditions and a protective order. The offender's expressions of violent intent in the months beforehand were treated as significant aggravating features.

The offender's depression and alcohol-related brain damage were considered as part of his mental health history. However, these conditions did not substantially diminish the gravity of the offending or the weight given to general deterrence. The court acknowledged the guilty plea and full admissions as genuine mitigating factors, reflecting utilitarian value and some evidence of remorse, but weighed these against the seriousness and premeditated nature of the crime.

Wilson J concluded that an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate. The court also noted, as a separate matter, that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to the offender in the future.

Orders Made

  • The offender was convicted of the murder of Molly Goodbun on 7 October 2016.
  • The offender was convicted of assaulting Bionca Simmons occasioning actual bodily harm on 7 October 2016.
  • The offender was convicted of using an unregistered firearm on 7 October 2016.
  • The offender was convicted of contravening an interim apprehended domestic violence order on 7 October 2016.
  • An aggregate sentence of 41 years and 6 months imprisonment was imposed, commencing 7 October 2016 and expiring 6 April 2058, with a non-parole period of 31 years and 1 month. The earliest release date is 6 November 2047.
  • Indicative individual sentences (had separate sentences been fixed): murder, 40 years and 6 months; assault occasioning actual bodily harm, 1 year and 6 months; using an unregistered firearm, 1 year and 6 months; contravening an ADVO, 1 year and 6 months.
  • All four offences were directed to be recorded on the offender's criminal history as domestic violence offences under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • The court declined to make a further ADVO for the protection of Bionca Simmons, given the length of the sentence imposed.
  • Three charges on the s 166 certificate (possessing an unregistered firearm, possessing ammunition, and failing to keep a firearm safely) were noted as withdrawn by the Crown.
  • The offender was advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.

Key Takeaways

  • An agreed statement of facts does not bind a sentencing court to its terms or preclude the court from having regard to other evidence in assessing the gravity of the offending, consistent with GAS v The Queen; SJK v The Queen (2004) 217 CLR 198 and related New South Wales authority.
  • Premeditation, breach of a protective order, breach of bail conditions, and the commission of the offence in the victim's home were all treated as significant aggravating factors in a domestic violence murder.
  • Mental health conditions, including depression and alcohol-related brain damage, did not substantially reduce the weight given to general deterrence where the offending was planned and deliberately executed.
  • A guilty plea and full admissions to police were recognised as genuine mitigating factors carrying utilitarian and, to some extent, remorseful value, but carried limited weight against the overall seriousness of the offence.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, the Supreme Court may impose an aggregate sentence across multiple related offences, with the judgment recording what individual sentences would otherwise have been imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 59(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12(2), 14(1), 39(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), s 36(1)
- Evidence Act 1995 (NSW), s 191
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198
- Chow v Director of Public Prosecutions & Anor (1992) 28 NSWLR 593
- O'Neill-Shaw v The Queen [2010] NSWCCA 42
- Pleasance v R [2016] NSWCCA 113
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Alvares v R [2011] NSWCCA 33
- Aslan v R [2014] NSWCCA 114
- Cherry v R [2017] NSWCCA 150
- Mills v R [2017] NSWCCA 87
- Imbornone v R [2017] NSWCCA 114
- Mammone v R [2013] NSWCCA 95
- Bravo v R [2015] NSWCCA 302
- Browning v R [2015] NSWCCA 147
- *Faehringer v R