R v Goodall [2000] VSCA 106

Court of Appeal (Vic)|2000-05-31|Before: WINNEKE, P., BATT and BUCHANAN, JJ.A.

The applicant left the premises in Mrs W's car. He drove as far as the Cape Nelson lighthouse, near Portland, where, a little after 7 p.m. on the same day, he collided with a car which was part of a police cordon that by now surrounded him. After the collision he remained in the car. He still had the rifle with him. He fired two shots within the car in an attempt to kill himself. One of them was directed at his jaw. It fractured his jaw and caused associated injuries. He had driven to Cape Nelson because he had heard that there was a beach near the border and proposed to park there and kill himself.

The applicant was seriously wounded. He was taken immediately to the Portland Hospital for treatment. He was interviewed there on Thursday 11 June 1998 by members of the Homicide Squad. He fully admitted his guilt of the crimes, with which he was charged later that day.

The maximum penalty for murder is imprisonment for life and that for rape and attempted murder is imprisonment for 25 years.

On 7 May 1999 his Honour heard a plea in mitigation on the applicant's behalf. He received two reports by Mr Ian Joblin, the psychologist, and two by Dr Lester Walton, the psychiatrist, as well as the report by the applicant's general practitioner and a hospital report. Dr Walton gave evidence on the applicant's behalf. I have drawn on the essentials of that evidence in what I have said earlier about the applicant's behaviour and mental state. His Honour also had before him six victim impact statements.

On 14 May 1999 his Honour, having set out the above facts and having also traced briefly the applicant's biographical details in terms which I adopt without repetition, sentenced the applicant to imprisonment for 19 years on the count of murder, eight years on the count of rape and ten years on the count of attempted murder. He directed that three years of the sentence for rape and four years of the sentence for attempted murder be served cumulatively upon that for murder, and the balance in each case be served concurrently, making a total effective sentence of 26 years' imprisonment. He fixed a non-parole period of 21 years and declared that the period of 338 days' pre-sentence detention be reckoned as already served under the sentence. In addition, his Honour made an order pursuant to s.464ZF of the Crimes Act 1958 for the taking of a forensic sample from the applicant and an order pursuant to s.151 of the Firearms Act 1996 for the forfeiture of the rifle and ammunition. In an addendum to his sentencing remarks his Honour stated that he had considered that on the third count the applicant was to be sentenced as a serious violent offender so that section 6E of the Sentencing Act 1991, as to prima facie cumulation, applied. In that his Honour was, I consider, clearly correct: s.6C(1)(a). Section 6D(a), as to the primacy of protection of the community in determining the length of sentence, also applied.

The applicant now seeks leave to appeal against sentence on the grounds that the sentence is manifestly excessive (ground 1) and that the judge failed to take into account the applicant's plea of guilty (ground 2), personal circumstances (ground 3) and genuine remorse (ground 4).

In his forceful address Mr Tehan contended that the total effective sentence, the individual sentences and the non-parole period were each manifestly excessive, but he said that his primary attack was upon the total effective sentence of 26 years' imprisonment. Acknowledging the grievous nature of the crimes committed by the applicant, he took as his starting point the following remarks of the sentencing judge:

"There are four factors which reduce the sentence significantly I would have otherwise imposed upon you, each outlined by Mr Shwartz. The first is you have pleaded guilty to all counts before me; and you have done so at the earliest opportunity; and you have waived the calling of any witnesses at the committal and before me. You also answered the 631 questions asked of you in the Portland Hospital by the Homicide officers on 11 June 1998 fully. Those matters betoken genuine and deep remorse for your terrible actions, not merely situational accommodation by you. Second, at the age of 49 years you have no prior convictions and otherwise you have positive good character to speak on your behalf. Third, other than these terrible crimes, you are not a man of violence. Neither of your relationships was marked by physical violence by you. Fourth, at the time you were suffering a severe depressive illness. As a consequence of those considerations I impose a lesser sentence than otherwise I would have imposed upon you. I bear in mind the principle of totality and the submission of Mr Shwartz that you should have preserved to you some prospect for the future. I agree with that submission."

The kernel of the application, Mr Tehan said, was that, when one examined the individual sentences, the total effective sentence and the non-parole period, one was driven to the view that insufficient weight had been given to one or more of those four factors. That submission is different from the second, third and fourth grounds of appeal, which assert failure to take the factors into account and which, I may say immediately, cannot in the light of the judge's remarks relied on be sustained. The grounds were, however, really treated in argument as particulars of the first ground.

Mr Tehan elaborated the four factors listed by his Honour, taking the Court, with his usual emphasis, to the evidence in support of each. It is unnecessary to recapitulate any of that, except his submissions on the effect of the plea of guilty to a count of murder. Mr Tehan traced the history in this State from R v. David[1], of guilty pleas to murder counts as the penalty was progressively changed from death, through mandatory life imprisonment, to life imprisonment or a term of years. He submitted, correctly in my view, that a plea of guilty in murder is significant. That does not, however, mean that it can always countervail against aggravating circumstances of the terrible offence in a given case, as, for instance, R v. Beckett[2], where there were not only a plea of guilty, but very significant co-operation with the authorities, given and promised, in relation to the co-offender shows. Here the Crown case was, in my view, strong indeed, when to the evidence Mrs W could give is added the applicant's record of interview. Dr Walton's evidence, especially when his cross-examination is included, did not, in my view, enable any aspect of the mental element of the crime to be contested with any real prospect of success. Thus the plea of guilty was not surprising. By that I do not mean to minimise the applicant's proven remorse.

It is convenient at this point to note the clarion call with which Mr Tehan concluded his address. He stated that it was time for this Court to restate that due weight should be given to a guilty plea in a murder case, as had been recognised in R v. Donnelly[3]. That proposition may be accepted provided that proper force is given to the word "due". What is due will vary with the circumstances. Sometimes it will result in a substantial discount. Sometimes it will be completely outweighed so as to be entirely ineffectual. That is made clear by what Brooking, J.A. said in R v. DJH[4], namely:

"It is not to be thought that a plea of guilty will necessarily and in all circumstances save a murderer from life imprisonment. Of the correctness of that proposition I have no doubt whatever. I will add that I also have no doubt that a plea of guilty will not necessarily and in all circumstances save a murderer from a sentence of life imprisonment without possibility of parole."

It is significant that at paragraph 21 Charles, J.A. expressed himself as agreeing with all that Brooking, J.A. had said.

Mr Tehan then fastened upon the following sentence from the judgment of Charles, J.A. in Donnelly at 648:

"An examination of the sentences imposed for the crime of murder in the years 1990 to 1996 suggests to me that the head sentence imposed by the learned judge was close to the highest sentence that might have been regarded as appropriate to this crime".

The sentence of which his Honour was speaking was one of imprisonment for 16 years. Mr Tehan submitted that the words "this crime" meant the crime of murder and he contended that in 1998 (more accurately 1997) 16 years' imprisonment was regarded as "the top of the range" and that Donnelly should be taken as a safe guidepost still.

Even if Mr Tehan's reading of the passage in Donnelly were correct, I would say that it does not reflect current sentencing practice. As this Court had occasion in recent years to point out in, for instance, R v. Brooks[5], in DJH and in Beckett at paragraph 21, the value of human life seemed to have been depreciated in some murder sentences. Whilst it must be stressed that every case turns on its own facts, the case of Director of Public Prosecutions v. England[6] (special leave refused, 26 May 2000) furnishes a surer guide to this Court's general, and I stress general, approach. There, in a case of a late plea of guilty by an offender aged 19 at the time of committing the offence of murder with violence and horrendous aggravating circumstances, this Court on a Director's appeal increased a sentence of 18 years' imprisonment with a non-parole period of 14 years to 23 years' imprisonment with a non-parole period of 17 years.

But I do not think that Mr Tehan's reading of the passage in Donnelly is correct. The words "this crime" refer, I think, to a murder such as the Court there had under consideration. On that basis Mr Tehan then sought to equiparate the present case to that one, saying that each was a swift murder with two shots fired at close range arising out of a marital or like dispute. But, to take only one point, the victim here was not a spouse or de facto spouse and the cases are clearly distinguishable. (I should make it clear in passing, in order to avoid any misunderstanding, that I entirely discountenance any suggestion that there is some lesser category of murder categorised as "domestic" murders.)

Mr Tehan then submitted that in any case a sentence, as here, of 19 years' imprisonment for a single count of murder where there was a plea of guilty was, of itself and necessarily, beyond the range available to a sentencing judge. For that he called in aid of Donnelly. He said that such a sentence could be within range if it was imposed after a trial. It will be apparent from what I have said that I reject this general submission.

I turn now from generalities to the submission that the head sentence of 19 years' imprisonment was manifestly excessive in the circumstances of this case and this offender. I am quite unpersuaded that that was so. There were aggravating features of this murder. The victim was elderly and alone in the house where she lived. She was not the person the applicant was after, but she stood in his way. She was removed by an execution-style killing, the second shot putting beyond doubt the applicant's murderous intent towards her. The submission fails to recognise the law's concern for the sanctity of human life.

Nor do I consider the head sentence of eight years' imprisonment for the rape here in question was manifestly excessive. That crime, too, was attended by circumstances of aggravation. Mrs W was subjected to humiliation and indignities during an ordeal lasting some three hours and during that time she was anxious about her mother, whom she knew the applicant had harmed and who she thought was still alive, but was prevented from attending to her. It is true that the four factors mentioned by his Honour apply to all counts, including this one. It is true, too, that Mrs W and the applicant had previously had a consensual sexual relationship, but that no longer existed. When the maximum penalty for rape of 25 years' imprisonment and current sentencing practices along with the aggravating circumstances of this offence are borne in mind, the sentence, in my view, is not outside the range properly open to his Honour in the exercise of a sound discretionary judgment.

Mr Tehan was, perhaps, on stronger ground in his submission that the sentence of ten years' imprisonment for attempted murder was in the circumstances of this case manifestly excessive. For he was able to contrast this case with recent cases in which like or higher sentences for attempted murder had been imposed or approved. Here the attempt occupied a relatively short time, and, although Mrs W received blows to the head, they were not very numerous and she did not suffer serious or long lasting injury. But there can be no doubt of the applicant's murderous intention as he raised his rifle, which is a very significant matter albeit that such intention must always be present in attempted murder. In the end I am not prepared to say that the sentence is obviously outside the range of sentences open to his Honour.

I have, however, concluded that the total effective sentence of 26 years' imprisonment is manifestly excessive or, more precisely, that both the directions for cumulation are manifestly excessive. (Strictly, as his Honour pointed out in the addendum to his sentencing remarks, in the case of Count 3 the relevant direction is, by virtue of s.6E above mentioned, one for concurrency. It could perhaps be described as manifestly inadequate.) The question of totality must be considered on the basis that the applicant may have to serve every day of the total effective sentence. If that occurred, he would by my calculation be a little over 74 years of age when released. As against that I take into account that, although there might be said to have been only one criminal episode with three incidents, there were two victims. I take into account also the circumstances of undoubted aggravation, the maximum penalties provided and, in the case of Count 3, the terms of s.6E above mentioned. Nevertheless, reviewing the aggregate or total effective sentence with the applicant's age in mind, I have concluded at the end of the day that it goes manifestly beyond what is "just and appropriate", to use the words in Thomas, Principles of Sentencing, 2nd Edition, 1979, pp.56-57. I think that the total effective sentence may properly be called "crushing" in that it does not really preserve to the applicant "some prospect for the future", as, in a submission with which his Honour agreed, counsel for the applicant below had submitted his Honour's sentence should do.[7]

I am comforted in, though, of course, not compelled to, that conclusion by the very fair statement by Mrs Quin for the respondent, made after consultation, that the Crown's view was that the total effective sentence was high, especially in light of the plea of guilty, and that some reduction in cumulation might be warranted.

In the circumstances, it is unnecessary for me to consider whether the non-parole period is itself manifestly excessive.

It follows that, in my view, the sentencing discretion is reopened for exercise by this Court. Taking into account the four factors that his Honour identified, the applicant's age and other personal circumstances, the facts of the offences and what I have already said, I would grant the application and would propose that the sentences imposed on each count be confirmed, but that in lieu of his Honour's directions it be directed, in substance, that two years of the sentence imposed on each of Counts 2 and 3 be served cumulatively upon the sentence imposed upon Count 1, making a total effective sentence of 23 years. I would fix a non-parole period of 18 years and make appropriate declarations under ss.6F(1) and 18(4) of the Sentencing Act.

The applicant was 49 years of age when he was sentenced. He was, as the sentencing judge acknowledged, a man of hitherto unblemished character, a hardworking man who had reared and provided for his three children in a manner which rightly earned him their love and respect.

At the time when he committed the offences to which he pleaded guilty it is clear that he had been reduced by dint of his own personality to a state of severe and abject depression which clouded his capacity for objective rational thought, albeit clearly not to the point of mental impairment. His lack of capacity for rational thought was to some extent I think reflected in the fact that, before being apprehended by the police, he had shot himself in the head.

The learned judge's sentencing remarks are clear and concise and correctly, in my view, reflect the very serious nature of the three crimes to which the applicant had pleaded guilty. His Honour referred to the four factors which he said should "significantly reduce the sentence" which he would otherwise have imposed. Those four factors being the immediacy of the plea of guilty and the genuine and deep remorse for the actions, the positive good character of the applicant, the fact that his established character demonstrated him to be not a man of violence, and finally the fact that the applicant was suffering from a severe mental illness. Notwithstanding the terrible nature of the crimes, the only question is whether the sentences imposed, and particularly the total effective sentence, infringed the principle of totality. In the course of his remarks the judge said that he "bore in mind the principle of totality and the submission that the [applicant] should have preserved to him some prospect for the future". His Honour said that he agreed with that submission.

The sentences imposed, if fully served, would mean that the applicant would not be released until the age of approximately 75 years. If released at the expiration of the minimum term he would be approximately 70 years.

The Crown, through Mrs Quin, fairly put to this Court that the total effective sentence is capable of being viewed as infringing the principle of totality by reason of unwarranted cumulation; and that is because of the factors in mitigation to which his Honour had referred. They do not, it is said, properly reflect his Honour's intention to preserve to the applicant some prospect for the future. After very careful consideration, I think that concession is well-founded and, accordingly, I agree with the conclusions of Batt J.A., the reasons which he has given and the orders which he proposes. In so concluding, I wish to associate myself with his comments that the sentence of 19 years imposed for the offence of murdering Mrs R is not manifestly excessive. This offence, in essence, amounted to an execution of an innocent and defenceless bystander in the sanctity of her own home and for no better reason than that she happened to be in the way of the applicant's ultimate objective.

Each crime, including murder, must be dealt with according to its own facts. I do not accept, as Mr Tehan sought to contend, that the case of Donnelly[8] sets any sort of "penalty ceiling" for the crime of murder where the accused has pleaded guilty. The sentence in that case was set, in my view, to meet its own circumstances. A plea of guilty to the crime of murder will no doubt be given the significance which it deserves in the circumstances of the particular case. The sentence of 19 years for this murder, having regard to its circumstances and notwithstanding the plea of guilty, was a sentence which I think was well open to his Honour. Sentences, as this Court pointed out in the case of Coulston[9] are not precedents which must be applied unless they can be distinguished. This is a statement particularly apt to the crime of murder in which the Court is bound to pay proper regard to the sanctity of human life and in respect of which the maximum penalty remains one of life imprisonment.

I agree. I would add that I share the views expressed by the other members of the Court as to the sentence imposed for murder in this case and the effect of the decision in R v. Donnelly.

The formal orders of the Court will be that the application is allowed. The appeal is treated as having been instituted and heard instanter; it too will be allowed. The sentences imposed below are quashed and in lieu thereafter we substitute the following sentences: Count 1, imprisonment for 19 years; Count 2, imprisonment for eight years; Count 3, imprisonment for ten years.

We order that two years of the sentence imposed on Count 2 is to be served cumulatively upon the sentence imposed upon Count 1 and because in respect of Count 3 the applicant falls to be sentenced as a serious violent offender, we order that eight years of the sentence on that count is to be served concurrently with the sentences imposed on Counts 1 and 2. In other words, two years of that sentence will also be cumulated upon the sentence imposed on Count 1.

The total effective sentence is, therefore, one of 23 years. We order that the applicant serve a minimum term of 18 years' imprisonment before becoming eligible for parole.

Pursuant to s.6F of the Sentencing Act 1991, we direct that there be entered into the records of the Court the fact that the applicant has been sentenced for the offence on Count 3 as a serious offender.

Pursuant to s.18(1) of the Sentencing Act we declare that the period of 721 days during which the applicant has been held in custody in relation to these offences be reckoned as a period of imprisonment already served under these sentences and we direct that the fact of the declaration and its details be noted in the records of the Court.

[4] [1998] VSCA 108 at paragraph 12.

[7] Compare R. v. Yates [1985] VicRp 3; [1985] V.R. 41 at 48, though note 50 per Murphy, J.

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