R v Goodridge

Victim Impact Statement 21At the sentence hearing on 21 September 2012, the Crown read out a Victim Impact Statement which the deceased's mother, Jenny George, had written. This statement was an eloquent and heart-rending testament to the loss its author and her family have suffered. I am bound by authority which prevents me from taking into account the content of such a statement in determining an appropriate sentence, lest the law be seen to sanction a comparison of the value of one life with another: R v Previtera (1997) 94 A Crim R 76. However, Ms George's statement is both a record and a reminder of the enormous gap which is left in the lives of those who survive, when one human being takes the life of another.

Sentencing 22The Forensic Patient was born on 11 March 1957. He was 52 at the time he murdered the deceased. He is now 55. He was arrested on 16 May 2009 and has been in custody since that date. 23The maximum penalty for murder is life imprisonment.

The statutory requirements concerning the determination of a limiting term 24A verdict that the Forensic Patient committed the offence charged (s 22(1)(c)) is a "qualified finding of guilt" made in the absence of a conviction (s 22(3)(a)). Accordingly, by reason of s 23(1)(a), the Court must indicate whether, if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment. 25Section 23(1)(b) of the Act defines limiting term as: "... the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence." 26The effect of s 23(1)(b) of the Act is that the Court is obliged, when determining a limiting term, to adopt and apply all the statutory and common law principles of sentencing that apply to the sentencing of a person convicted of that offence: R v AN [2005] NSWCCA 239 at [13]. A limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing: R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85 at [30]. 27In R v Mailes [2004] NSWCCA 394; 62 NSWLR 181 (Mailes), Dunford J, with whom Adams and Howie JJ agreed, said, at [32] that the purpose of a limiting term: "... is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial..." 28Section 54D(1)(b) of the Crimes (Sentencing Procedure) Act 1999 provides that the standard non-parole period statutory scheme does not apply to the sentencing of a Forensic Patient to detention. Accordingly the "sentence" referred to in s 23 of the Act must be a reference to the total sentence and not to the non-parole period since there is no power to fix a non-parole period less than the total term: Mailes at [29].

Relevance of mental condition to length of limiting terms 29Because impaired mental functioning, whether transitory or permanent, is relevant to sentencing (Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [14], per Basten JA) it is necessary to consider the evidence relating to the Forensic Patient's mental condition, both at the time of the offence and presently. 30The Forensic Patient had underlying alcohol-related brain damage at the time of the offence. Since his incarceration he has suffered a further deterioration in intellectual function. He sustained a head injury when he was assaulted in gaol in January 2010. 31Dr Nielssen, psychiatrist, interviewed the Forensic Patient at the request of his solicitors on 3 November 2009, 5 August 2010 and most recently on 16 March 2012. Dr Nielssen noted that a MRI scan performed on 3 June 2010 revealed cerebral atrophy and lesions in the white matter consistent with vascular disease. In his most recent report Dr Nielssen found that the Forensic Patient's mental state had deteriorated since the previous interviews, at least part of which could be attributed to the head injury in gaol. 32Dr Lennings, psychologist, examined the Forensic Patient on 6 January 2010. His assessment dated 10 January 2010, which was principally relevant to the Forensic Patient's fitness to be tried, was that he presented with significant cognitive deficits associated with a history of cerebral insult as well as a long history of severe poly-substance and alcohol dependence. Dr Lennings considered the Forensic Patient to be functioning in the mentally retarded range at the time of his assessment. He also obtained a history of seizures consequent on alcohol withdrawal. 33Dr Westmore, psychiatrist, first examined the accused on 9 March 2011 at the request of the DPP. He diagnosed on Axis III alcohol-induced brain damage and possible brain damage associated with previous head injuries. 34The Forensic Patient was examined by Dr Reuters, psychiatrist, on 6 July 2012. Dr Reuters noted that Dr Nielssen had diagnosed that the Forensic Patient was suffering from dementia and would not be able to live independently. Dr Reuters noted that the Forensic Patient could not remember the offence, the trial or why he was in prison. 35Dr Reuters conducted cognitive assessments which indicated that the Forensic Patient suffers from dementia. The examination confirmed the diagnosis. For example, the Forensic Patient was neither able to recognise his own reflection in the mirror, or the reflection of Dr Reuters. Dr Reuters' assessment of the Forensic Patient's present condition appears from the following paragraph in her report: "Mr Goodridge is a 55 year old man with a long history of heavy alcohol, cannabis and benzodiazepine use. The substance abuse has been complicated by seizures. He has a history of head injury and a baseline low IQ. His cognition appears to have deteriorated since he was first assessed by Drs Lennings and Nielssen in 2010. He has no memory of the crime and was unable to provide details of many historical aspects of his life on today's interview, whereas he had previously been able to give a fuller history. His behaviour in the Long Bay Hospital is significantly disturbed, as evidenced by reports of his laughing and talking to himself and inappropriate toileting. He poses a risk to his safety as a result of his poor judgment and cognitive impairment, for example his perching on a bathroom sink." 36Dr Reuters also opined that, given his current severe level of cognitive impairment, it is probable that the Forensic Patient's life span will be less than 6.7 years if he continues on his current trajectory of cognitive decline. 37It does not follow from my rejection of the defence of substantial impairment to murder that the basis for such defence is not relevant to the determination of the appropriate sentence: R v Bell (1985) 2 NSWLR 466 at 485. In my view, the Forensic Patient's mental condition reduced his moral culpability for the murder of the deceased. His long-standing history of alcohol abuse and the concomitant brain damage meant that he was prone to binge-drinking which tended to make him behave erratically and aggressively. His intoxication impaired his judgment and contributed to his abhorrent behaviour towards the deceased. 38I accept that the Forensic Patient was disgusted and appalled when he discovered the deceased's body the following morning. He was remorseful when he appreciated what he had done, although his capacity to fully comprehend and recall his actions, having regard to his level of intoxication, was compromised. Far from demonstrating organised and planned criminal activity, the Forensic Patient was guilty of wanton, spontaneous, ill-considered acts which he intended to, and which did, cause grievous bodily harm to someone of whom he was very fond. 39Nonetheless, although the Forensic Patient's mental condition is a factor to be taken into account, it does not displace other matters, including the objective seriousness of the offence. McClellan CJ at CL said of the sentencing exercise in Bhuiyan v R [2009] NSWCCA 221 at [30]: "... although in most cases the serious mental illness will have deprived an Forensic Patient of their usual capacity for reason and control it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of the Forensic Patient. The particular difficulties faced by an Forensic Patient which may have contributed to the offence will be addressed by the Mental Health Review Tribunal which in appropriate circumstances may release the Forensic Patient before the limiting term has expired." 40I have had regard to such aggravating and mitigating factors referred to in s 21A of the Crimes (Sentencing Procedure) Act as are relevant. I do not propose to refer to particular paragraphs since such matters as I regard as relevant are specifically referred to elsewhere in these reasons.

Other factors relevant to sentencing 41The evidence of the Forensic Patient's life is relatively scant because he was a poor historian. According to histories given to specialists he is the middle child of three. His father was a coal miner. At the age of three he was run over by a car driven by his father and suffered a head injury as a result. He does not recall his childhood in any detail. He left school at 13. He worked as a general hand on a dairy farm. He has been homeless for much of his adult life. He has been unable to form stable relationships. 42The Forensic Patient began drinking from the age of about 12, as a consequence of the heavy drinking that was prevalent in his family. He also used a substantial amount of cannabis and continued to do so until the time of his arrest. 43These matters are relevant to the length of the limiting term because justice demands that allowance be made for life's adversities, particularly when, as here, they have deprived the Forensic Patient of any real opportunities in life. He became dependent on alcohol when he was still a child and his deprived childhood led to an even more impoverished and compromised adulthood. 44I do not consider it to be appropriate to give any particular weight to general deterrence in determining a limiting term because of the nature and severity of the symptoms exhibited by the Forensic Patient, and the effect of the condition on the mental capacity of the Forensic Patient, both at the time of the offending and at the date of sentence: R v Engert (1995) 84 A Crim R 67. 45Nor do I consider that specific deterrence has any bearing on the appropriate sentence because of these matters. Although the Forensic Patient has a record of previous convictions, and indeed killed the deceased when he was on a 12-month bond for shoplifting on 16 March 2009, these matters are of little significance in the determination of a limiting term having regard to his mental condition. 46Because of his compromised mental and physical state, the Forensic Patient no longer presents any danger to the community. 47It is overwhelmingly likely that the Forensic Patient will die before the expiry of the limiting term. It does not follow that I ought reduce the limiting term, since the appropriate sentence for murder is not proportional to life expectancy of the offender. 48The most significant factor in determining a limiting term is the seriousness of the offence. The Forensic Patient deprived the deceased of her life in a painful, cruel and degrading manner. 49I accept the submissions made on behalf of the Forensic Patient that I ought not impose a life sentence, since such a sentence is reserved for a more heinous crime than the one for which the Forensic Patient has been convicted. His acts were ill-considered, cruel and stupid and were the product of disinhibition, frustration and rejection. 50As I have said above, the Forensic Patient's intent was to cause grievous bodily harm which is generally, and in this case appreciably, less heinous than an intention to kill. The period of premeditation was very short; any thought processes on his part which led him to form the relevant intent would have been affected by the substantial quantities of alcohol he had ingested and his underlying mental impairment. 51The conclusion at which I have arrived is as follows: (1)I indicate that if the special hearing involving the Forensic Patient had been a normal trial against a person fit to be tried, I would have imposed a sentence of imprisonment; and (2)I nominate as the limiting term in respect of the Forensic Patient's offence, 18 years commencing on 16 May 2009.

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