Citation: Goodbun v R [2020] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 23 April 2020
Judges: Bathurst CJ (at [1]); Fullerton J (at [117]); Bellew J (at [134])
Background
The applicant pleaded guilty to the murder of his wife in the early hours of 7 October 2016. The couple had been married for approximately 40 years. Following a breakdown of the marriage and an escalating pattern of conflict, an Interim Apprehended Domestic Violence Order had been obtained against the applicant, prohibiting him from attending the family home.
Despite this order, the applicant drove approximately 250 kilometres from a regional property to the family home armed with a rifle and a knife, and carrying fuel containers. He had previously stated to his daughter that he intended to shoot his wife. After arriving at the home in the early hours of the morning, he forced his way onto the verandah and shot his wife in the chest while her daughter was present. The wife died from her injuries.
The applicant was sentenced at first instance to an aggregate term of 41 years and 6 months imprisonment, with a non-parole period of 31 years and 1 month. He sought leave to appeal against sentence on the grounds that the sentence was manifestly excessive and that the sentencing judge erred in failing to make a finding of special circumstances.
Legal Issues
- Whether the sentencing judge erred by failing to make a finding of special circumstances, and whether it was therefore unnecessary to make such a finding
- Whether the aggregate sentence of 41 years and 6 months was manifestly excessive or otherwise unreasonable or plainly unjust
- Whether the sentencing judge failed to give adequate weight to the mitigating factors, including the applicant's guilty plea, personal circumstances, and physical and mental health
Decision
The Court rejected the applicant's argument on special circumstances. Although the sentencing judge did not expressly make a finding of special circumstances, the non-parole period actually set represented a ratio of approximately 75 percent of the total sentence. That ratio was, for practical purposes, consistent with the statutory default under the Crimes (Sentencing Procedure) Act 1999 (NSW), meaning any failure to make an express finding caused no operative error.
On the question of manifest excess, the Court examined the gravity of the offending in detail. The murder was premeditated and carefully planned. The applicant had armed himself, driven a substantial distance, arrived at night while his wife was sleeping, and killed her in front of their daughter while both an apprehended domestic violence order and bail conditions were in force. The Court found these features placed the offending at the most serious end of the spectrum for this type of offence.
The Court also considered comparable sentencing decisions and the subjective circumstances of the applicant, including his age, health conditions, guilty plea (for which a 25 percent discount was applied), and absence of prior criminal history. While these factors were accepted as mitigating, the Court found they did not bring the aggregate sentence outside the range of sentences available to the sentencing judge for offending of this gravity.
The application for leave to appeal was dismissed.
Orders Made
No orders were made in this decision.
Key Takeaways
- A sentencing judge's failure to make an express finding of special circumstances does not constitute operative error where the resulting non-parole period to total sentence ratio conforms, in substance, to the statutory default under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Premeditation, arming, significant travel to the scene, commission of the offence in breach of an apprehended domestic violence order and bail conditions, and the presence of a family member during the killing are all factors that can place a domestic homicide at the most serious end of the sentencing range.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate intervention for manifest excess requires the sentence to be unreasonable or plainly unjust, not merely near the upper boundary of the available range.
- Mitigating factors, including a guilty plea attracting a 25 percent discount, physical and mental health conditions, and the absence of prior criminal history, will be weighed against the objective gravity of the offence and may be insufficient to reduce a sentence that is otherwise proportionate to that gravity.
- Under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing judge imposing an aggregate sentence must set indicative sentences for each individual offence; and under s 54B(4), an indicative non-parole period must also be specified for an offence of murder.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder), s 59(1) (assault occasioning actual bodily harm)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) (contravening apprehended domestic violence order)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 54B
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), s 36(1) (using unregistered firearm)
Cases:
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Barrett v R [2020] NSWCCA 11
- Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (NSW) v Darcy-Shillingsworth [2017] NSWCCA 224
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297
- Jolly v R (2013) 229 A Crim R 198; [2013] NSWCCA 76
- Kelsall v R [2017] NSWCCA 240
- MLP v R [2014] NSWCCA 183
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- O'Connell v R [2006] NSWCCA 82
- Park v R [2019] NSWCCA 105
- R v AKB (No 8) [2018] NSWSC 1628