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18
Court of Criminal Appeal 23 April 2020

Goodbun v R

[2020] NSWCCA 77

HomicideDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS GRAVITY OF OFFENDING

Citation: Goodbun v R [2020] NSWCCA 77
Court: Court of Criminal Appeal
Date: 23 April 2020
Judge(s): Bathurst CJ; Fullerton J; Bellew J

Background

The applicant pleaded guilty to the murder of his wife of approximately 40 years on 7 October 2016, and to three related offences. The couple had separated in 2015 but continued to live on the same property, and by June 2016 the applicant had been charged with assaulting the deceased, had an Interim Apprehended Domestic Violence Order (ADVO) made against him, and had been released on bail with conditions preventing him from living at the family home.

On 6 October 2016 the applicant resolved to kill the deceased. He obtained a rifle and knife, test-fired the rifle, secured fuel containers intending to burn the family home, burned down his own caravan, and drove approximately 250 kilometres to the deceased's home. Arriving shortly before 3:00 am, he approached the property quietly and stealthily, armed himself, and gained entry. He then shot the deceased multiple times. After she was struck he returned and fired additional shots at close range to ensure she was dead, first deceiving his daughter into relinquishing the rifle by assuring her he would not shoot again.

The sentencing judge imposed an aggregate sentence of 41 years and 6 months imprisonment with a non-parole period of 31 years and 1 month, with an indicative sentence for murder of 40 years and 6 months after a 25 per cent discount for the guilty plea. The applicant sought leave to appeal on two grounds: that the sentencing judge erred in declining to make a finding of special circumstances, and that the aggregate sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred in declining to make a finding of special circumstances, in particular given the applicant's age, health, lack of prior custodial experience, and the risk of institutionalisation
  • Whether the aggregate sentence of 41 years and 6 months imprisonment, and the indicative sentence for murder with a notional pre-discount starting point of 54 years, were manifestly excessive

Decision

Ground 1: Special circumstances

The Court unanimously dismissed this ground. The sentencing judge had expressly considered each of the factors advanced in support of special circumstances, including the applicant's age, health and risk of institutionalisation, but concluded in the exercise of her discretion that a finding of special circumstances was unnecessary (at [66]). It is well established that a sentencing judge may decline to vary the statutory ratio where the resulting parole period is sufficient to allow for adequate supervision and reintegration, and that approach was open here (at [74]). The Court also confirmed the fundamental principle that a sentence must reflect the objective seriousness of the offence even where adherence to that principle results, in practical terms, in a life sentence for an offender of middle to advanced age (at [78], [215]).

Fullerton J noted that no authority supported the proposition that an advanced age, of itself, requires greater weight to be given to special circumstances, and that the weight of that factor among others is quintessentially a matter for the exercise of a sentencing discretion (at [123]). The sentencing judge's comprehensive consideration of the minimum period of incarceration required by the applicant's criminality and subjective circumstances disclosed no error of law or discretion (at [125]).

Ground 2: Manifest excess

The Court majority (Fullerton J and Bellew J; Bathurst CJ dissenting) dismissed this ground. The unchallenged findings of the sentencing judge placed the murder offence towards the very top of the range of objective seriousness (at [55], [195]). Several features contributed to that assessment: a considerable level of premeditation and planning, the use of a lethal weapon to carry out what was properly described as an execution, gratuitous cruelty in the firing of multiple close-range shots after the deceased was effectively disabled, serious breaches of trust including the deliberate deception of the applicant's daughter, commission of the offence in the victim's home in the early hours of the morning, and the breach of both the ADVO and bail conditions (at [260]-[266]).

Bellew J found that the overall offending in the present case was more serious than in any of the comparable cases provided by the parties, in some instances substantially so, and that the notional starting point was consistent with the unchallenged factual findings (at [269]). There was also little by way of mitigation in the applicant's subjective case: the sentencing judge did not accept genuine remorse, the plea could not be characterised as early (though it attracted a 25 per cent discount for utilitarian value), and the applicant's mental health was not found to be causally connected to the offending (at [268]). Fullerton J was not persuaded that the sentence was unreasonable or plainly unjust, noting it was very severe but so was the gravity of the applicant's overall offending (at [129], [132]).

Bathurst CJ dissented on this ground, finding the indicative sentence for murder was inconsistent with legal principle as derived from comparable cases, and that the aggregate sentence was consequently manifestly excessive (at [112]-[115]).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may decline to make a finding of special circumstances where the parole period resulting from the statutory ratio is sufficient for reintegration and supervision, and where the principal consideration is to ensure the non-parole period reflects the minimum period required by the gravity of the offending (at [74], [212]-[213]).

  • The Court of Criminal Appeal confirmed that the imposition of a sentence which amounts in practical terms to a life sentence on an offender of middle to advanced age does not of itself constitute error, provided the sentence reflects the objective seriousness of the offence (at [78], [215]).

  • In assessing manifest excess, past sentences in comparable cases provide a yardstick but do not fix the boundaries within which sentencing judges must act; the consistency sought is consistency in the application of relevant legal principles, not numerical equivalence (at [257]).

  • The fact that a notional pre-discount starting point represents the highest on record for the offence does not, of itself, demonstrate manifest excess: there will always be one sentence that constitutes the longest imposed for a particular offence (at [259]).

  • Domestic context and breach of an ADVO are circumstances that attract significant weight in assessing the objective seriousness of a murder and the need for both specific and general deterrence and denunciation (at [129]-[130], [261]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Firearms Act 1996 (NSW)

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Barrett v R [2020] NSWCCA 11
- Barton v R [2009] NSWCCA 164
- Browning v R [2015] NSWCCA 147
- Cherry v R [2017] NSWCCA 150
- 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; (2017) 269 A Crim R 40
- Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- DJM v R [2013] NSWCCA 101
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297; (2014) A Crim R 528
- Jolly v R (2013) 229 A Crim R 198; [2013] NSWCCA 76
- Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kelsall v R [2017] NSWCCA 240
- MLP v R [2014] NSWCCA 183
- O’Connell v R [2006] NSWCCA 82
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Park v R [2019] NSWCCA 105
- Patsan v R [2018] NSWCCA 129
- R v AKB (No 8) [2018] NSWSC 1628
- R v Bond [2001] NSWSC 1059
- R v Boyd [2018] NSWSC 380
- R v Cameron (Supreme Court of New South Wales, Newman J, 16 October 1992)
- R v Cramp [2004] NSWCCA 264
- R v Cullen [2015] NSWSC 768
- R v Dent [2016] NSWSC 444
- R v Droudis (No.16) [2017] NSWSC 20
- R v Evans (No.3) [2017] NSWSC 1523
- R v Fidow [2004] NSWCCA 172
- R v O’Connell [2004] NSWSC 1120
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Simpson (2001) 53 NSWLR 704
- R v Stani-Reginald [2013] NSWSC 567
- R v Stephen James Boyd (No 2) [2018] NSWSC 380
- R v Villaluna [2017] NSWSC 1390
- RLS v R [2012] NSWCCA 236
- Thach v R [2018] NSWCCA 252