R v Keith Owen Goodbun - [2018] NSWSC 1025 - NSWSC 2018 case summary — Zoe

NSWNSWSC

R v Keith Owen Goodbun

[2018] NSWSC 1025

Supreme Court of NSW|2018-06-22|Before: Wilson J, Underwood J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-06-22

Before

Wilson J, Underwood J

Catchwords

256 CLR 47 GAS v The Queen
SJK v The Queen [2004] HCA 22
[2004] NSWCCA 19 R v Miles [2002] NSWCCA 276 Saddler v R [2009] NSWCCA 83
194 A Crim R 452 SJ v R [2011] NSWCCA 160 Thomson and Houlton (2000) 49 NSWLR 383

Source

Original judgment source is linked above.

Catchwords

256 CLR 47 GAS v The QueenSJK v The Queen [2004] HCA 22[2004] NSWCCA 19 R v Miles [2002] NSWCCA 276 Saddler v R [2009] NSWCCA 83194 A Crim R 452 SJ v R [2011] NSWCCA 160 Thomson and Houlton (2000) 49 NSWLR 383

Judgment (30 paragraphs)

[1]

f Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224 Evidence Act 1995 (NSW) Faehringer v R [2017] NSWCCA 248 Filippou v The Queen [2015] HCA 29; 256 CLR 47 GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 Imbornone v R [2017] NSWCCA 114 Mammone v R [2013] NSWCCA 95 Mills v R [2017] NSWCCA 87 O'Neill-Shaw v The Queen [2010] NSWCCA 42 Pfitzner v R [2010] NSWCCA 314 Pleasance v R [2016] NSWCCA 113 R v CTG [2017] NSWCCA 163 R v Devine (unreported, Tasmanian Supreme Court, 5 July 1993, Underwood J) R v Engert (1995) 84 A Crim R 67 R v Fidow [2004] NSWCCA 172 R v Hamid [2006] NSWCCA 302 R v Palu [2002] NSWCCA 381; 134A Crim R 174 R v Thomas [2007] NSWCCA 269 R v Turnbull [2016] NSWSC 847 R v McGourty [2002] NSWCCA 335 R v Palu [2002] NSWCCA 381, (2002) 134 A Crim R 174 R v Qutami [2001] NSWCCA 353 R v Elfar [2003] NSWCCA 358 R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 R v Miles [2002] NSWCCA 276 Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 SJ v R [2011] NSWCCA 160 Thomson and Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 Veen v The Queen (No 2) (1988) 164 CLR 465 Texts Cited: Australian Institute of Health and Welfare, Family, Domestic, and Sexual Violence in Australia, 2018, p. 74. NSW Domestic Violence Death Review Team, Annual Report 2013-2015, p. 6 Category: Principal judgment Parties: Director of Public Prosecutions Keith Owen Goodbun Representation: Counsel: Crown - Mr B Costello Prisoner - Mr R Wilson Solicitors: Crown - Office of the Director of Public Prosecutions Prisoner - Legal Aid File Number(s): 2016/299286 Publication restriction: Nil

[3]

The Facts of the Offences

Tendered as Ex A3 on sentence was an "Agreed Statement of Facts". The offender contended at the hearing of the sentence that, facts having been agreed between the parties, this Court was bound by that agreement, and was not entitled to consider other material when determining the facts of the offender's crimes and their gravity. That assertion cannot be accepted; it is contrary to both authority, and the interests of justice. See generally GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198, at [30] - [31]; Chow v Director of Public Prosecutions & Anor (1992) 28 NSWLR 593 at 606 - 607; R v Palu [2002] NSWCCA 381; 134A Crim R 174, at [21]; O'Neill-Shaw v The Queen [2010] NSWCCA 42 at [23] - [24]; Pleasance v R [2016] NSWCCA 113 at [78] - [80].
What follows is largely drawn from that agreed statement, supplemented by reference to other evidence before the Court, including a recording of an interview between police officers and the offender on 7 October 2016, and the content of a statement pursuant to s 191 of the Evidence Act 1995 (NSW). The footnotes in the agreed statement of facts, which for the most part reference material not tendered to the Court, are not further referred to.
Molly Goodbun was born on 24 December 1956. When she was shot dead in the early hours of 7 October 2016 she was 59 years of age. The couple had been married for about 40 years and there are two children of the marriage.
The offender and Mrs Goodbun had owned a property at 26 Bella Street, Horseshoe Bend, a residential suburb of Maitland. They had lived at that address for around 30 years. They also owned acreage near Taree where they ran cattle.
Until an incident in June 2016, there were no known instances of physical violence from the offender to his wife. However there were several occasions during the course of the marriage when the offender became angry, and verbally abusive, and destroyed items of property that belonged to the family.
After selling her own home around 2012, the couple's eldest daughter, Bionca Simmons, had moved back to the family home. From that time, Ms Simmons noticed that the offender suffered with pain in his neck, back, and shoulders, and took painkillers and anti-depressants, and drank alcohol. She saw his mood change dramatically during the course of any one day, ranging from positive, generous and helpful, to argumentative, negative, blameful, and disrespectful.
At some stage in 2015, the deceased and the offender separated but continued to live at the premises at Horseshoe Bend. Mrs Goodbun and Ms Simmons lived in the house, and the offender lived in a caravan in the backyard. During this time the offender became more unstable and his behaviour deteriorated. He continued to drink. There were arguments between he and Mrs Goodbun where the offender stood close to her and yelled into her face. Some of the arguments concerned what would happen to the family home as a consequence of the breakdown of the marriage.

[5]

20 June to 6 October 2016

As a result of the interim ADVO, the offender left the home at Bella Street and moved initially to a caravan at a boatyard at Rutherford.
On 14 July 2016, the offender entered a plea of guilty to damaging Ms Simmons' property, and a plea of not guilty to the alleged AOABH against Mrs Goodbun before the Maitland Local Court. The matter was adjourned for hearing on 21 October 2016. The offender's bail was varied, allowing him to reside at the couple's acreage near Taree, a distance of about 250 kilometres from Maitland.
During the period July to early October 2016, Mrs Goodbun and the offender were in negotiations seeking to reach a financial settlement with respect to the marital property, necessitating some contact between them. The offender occasionally visited the family home with permission. There were arguments over the possible sale of the family home and disagreements over the upcoming Local Court hearing on 21 October 2016.
Between 20 June 2016 and 7 October 2016, the offender's alcohol consumption increased and became more regular.
In early July 2016, Rachel Goodbun, the youngest daughter of the offender and Mrs Goodbun, came to stay with her mother and sister for several weeks. During her visit, there was an occasion when the offender attended the property in breach of the conditions of the interim ADVO. Rachel warned her father that he had to leave. When the offender queried why, she said, "There is an AVO and if you come onto this property you will end up in gaol".
The offender said he had nowhere else to go and, when Rachel suggested he stay with his siblings, he said, "This is bullshit, I never touched her. This is all because of that lying bitch. This is my house and I should be able to go into it whenever I like."
He left when Rachel insisted he had to leave, although still referring to the situation as "bullshit".
Rachel again spoke with her father, later in July 2016, when he attended the family home to collect a caravan. When she commented positively on the fact that the offender had a place to stay, the offender replied, "It is really great. What I should do is go in there and shoot her in the fucking head. I should kill both of them. I could shoot both of those bitches."
When his daughter asked the offender how he could say such a thing, and queried whether he still loved Mrs Goodbun, the offender said, "No. I don't care if she fucking dies."
Rachel asked him to stop talking in that way, and the offender said that he didn't mean it. He left.
Rachel Goodbun ended her visit at Horseshoe Bend in early September 2016.

[6]

The Events of 6 and 7 October 2016

On Thursday 6 October 2016, the offender was at his and Mrs Goodbun's Taree property, where he had been staying in a caravan. Having resolved to kill his wife and burn the family home down, he obtained a Winchester model 320 bolt action repeating .22 calibre rifle with a Sterling Bams scope, and a large knife. Having ammunition for the gun, he test fired it and checked the gun to make sure it was in working order. He also secured two 10 litre containers of fuel, one of which was full, the second being only partially filled. Having burned down the caravan in which he had been living, he left the Taree property in possession of these items, and drove towards the Bella Street property in Horseshoe Bend.
The journey is one of about 250 kilometres, and the offender stopped from time to time to eat and sleep. By 1:39 am on Friday 7 October 2016, the offender had reached East Maitland, where he was filmed by security cameras at the drive through section of a fast food restaurant.
At about 2:50 that morning, David Myers, who had been living in another caravan located at 26 Bella Street, saw the offender arriving there in his Nissan Patrol. Mr Myers observed the vehicle travelling very quietly, and rolling to a stop at the driveway of the residence. He saw the offender open the driver's side door slowly, leaving it open behind him as he got out of the vehicle. The offender then walked a short distance up the driveway and scanned the backyard of the residence for several minutes before returning to his car and arming himself with the .22 calibre rifle. The offender went onto the verandah and approached a sliding door at the side of the house. Mr Myers watched the offender as he tried to open a door to the house.
In attending the premises without prior permission, the offender was in breach of the interim ADVO, this being the breach relied upon by the Crown as constituting the offence of contravening the interim ADVO that is before the Court for sentence.
Both Mrs Goodbun and Ms Simmons were at home that morning, each having been in their respective beds asleep. At about 3.00 o'clock Mrs Goodbun got up to go to the bathroom, whilst Ms Simmons got up to get some water. As Ms Simmons was returning to her room, she heard a knock at the sliding door at the side of the house. She heard her mother go to the door and unlock it, and then heard her mother speaking to her father. Although she could not make out the words spoken, her father sounded irritated. Ms Simmons went to join her mother at the door.
The offender, visibly armed with the .22 calibre rifle, tried to force his way into the house through the partially opened door, but Mrs Goodbun resisted him. She yelled to Ms Simmons, "Call the police, call the police".
Ms Simmons, who did not have a telephone, ran out onto the street, calling for help from Mr Myers before returning to the house. She saw her mother and the offender on the verandah of the house, struggling together. The offender was holding the butt of the rifle in his right hand and the barrel in his left. He fell into a chair on the verandah, and then knocked Mrs Goodbun over, causing her to fall to the ground. The offender then pointed the gun at his wife and shot her in the chest. Mrs Goodbun immediately began to gasp for air. She called to her daughter, "Sit me up, sit me up I can't breathe, he shot me."
The offender aimed the gun at Mrs Goodbun again. Seeing that, Ms Simmons ran towards the offender and tried to grab him. The offender used the butt of the rifle to strike his daughter to the right side of the head. Ms Simmons wrestled with the offender, trying to wrest control of the gun away from him, to save her mother. At one point she even pulled the barrel of the rifle towards her own body, directing the muzzle away from her mother. The rifle discharged and Ms Simmons momentarily released her grip on it, before again wrestling with the offender for control of the gun. She had in mind that she would fire the remaining bullets into the roof to prevent the offender from shooting her mother again, but was unable to do so.
Whilst the struggle for the gun continued the offender yelled at Ms Simmons, "Get off and let go of the gun, I won't shoot your mother again."
Ms Simmons released her grip on the rifle and said, "Ok, ok, I've let go."
The offender pointed the gun at Mrs Goodbun as she lay injured on the floor, and shot her again, to the head. As he walked from the verandah into the house, the offender said, "I hope she fucken dies, the bitch deserves to die, she had caused me enough hurt and pain".
Ms Simmons, who was herself injured as a consequence of the struggle with her father (the scratches and bruises being reflected by the charge of AOABH on the s 166 certificate), crouched down on the floor next to her dying mother and tried to provide first aid. She told her, "I love you mum, stay with me, I'm getting help just stay with me till we get help here, please don't leave me".
Mrs Goodbun, who was covered in blood and unable to speak, nodded in response to her daughter's words.
As Ms Simmons sat on the verandah floor trying to comfort her terribly injured mother, the offender came out of the house. She told the offender, "Look what you've done to her" and asked him to help. The offender replied, "I'm not gunna fuckin' help her, I hope she fuckin' dies".
He then pointed the rifle he was still carrying at his wife. Ms Simmons grabbed a cane box as the closest thing to hand and threw it at her father in an attempt to stop him from shooting her mother again. Her gesture had no effect; he shot Mrs Goodbun to the temple at close or contact range, shooting through the hand she had raised to her head.
Ms Simmons called to her mother, "Mum talk to me, are you alright, are you still with me, please say something or do something".
Mrs Goodbun made no response.
The offender pointed the rife at his daughter and threatened her, yelling, "Get the fuck out of here or you're next, you're lucky I haven't done it already."
Forced to leave her mother and flee, Ms Simmons kissed her mother on the arm, saying "I have to go, I love you". She then ran from the premises to a neighbouring property.
Without his daughter to interfere, the offender shot his wife for a fourth time, directing the rifle to her temple, at contact range.
The offender's use of the unregistered rifle constitutes the offence of using an unregistered firearm, which is before the Court on the s 166 certificate.
The offender remained in the house, drinking gin from a small flask he found there. Police arrived and, shortly after, he walked out of the house onto the verandah, where he put the gun down on his wife's body. He then walked onto the street, carrying the flask of gin, and with a large knife protruding from the left hand side of his trouser waist band. He was arrested without incident.
Ambulance officers attended Mrs Goodbun, but she died at the scene. The agreed facts are silent as to whether she was dead when paramedics arrived, or died before she could be taken to hospital, and there is no other information about this available to the Court.

[8]

The Offender's Interview with Police

The offender was interviewed by police later on the morning of 7 October 2016. The recording is Ex. B.
In the interview, the offender made full and detailed admissions to killing his wife by shooting her multiple times, intending to kill her. He also admitted to threatening his daughter with the rifle and, although he said that he could not recall hitting Ms Simmons in the head with the butt of the rifle, he accepted her account of the assault.
The offender said that, prior to entering police custody he had consumed half a flask of gin (after he murdered his wife but before arrest) and, on 6 October 2016, five litres of wine. He said that he drank every day, frequently in quantities such as that consumed on 6 October 2016.
The offender said that he left Taree on Thursday night, that being the 6 October 2016, and drove at good speed towards Maitland, although being careful not to do anything wrong. He told the interviewing officers that he had two 10 litre fuel drums in the car (one of which was not full), intending to "blow away" anyone who got in his way and burn the family house down. He said that, on arrival, he used the key Mrs Goodbun did not know he still had in the door, and the sound it made brought one of the occupants to the window. When his wife spoke to him at the door, demanding to know what he was doing, he told her "I tell you what I'm here for you fuckin' bitch, this is the end of your life".
The offender described a struggle between himself and his daughter Bionca for the gun, saying, "I'd already pulled the trigger, and it hit her somewhere".
He continued, And her mother was bleeding and she's, oh, mum, oh, mum, mum. And it, the rifle was a bolt-action repeater, I think it's a five shot, yeah, five shots. […] And um, I fired twice more, and then Bionca, I'm not sure how many shots I fired, I think it might have been seven, unless there's one still in it, 'cause I know that's how many bullets I had, seven. And Bionca's saying, "Help mum, dad, help her." I said, "Let the fuckin' bitch die, the filthy fuckin' bitches, you've been nothing but goddam, here have another one for this," and then bang, and shot her in the fuckin' head again. That's exactly what I done, mate. Not a very hard jigsaw puzzle for you to work out, is it?
Later in the interview the offender returned to this moment, telling the police that he had shot his wife, he thought in the neck or upper chest, and she was on the ground. He went on, Because she said, "I think you missed me but I just can't move, I can't move, hang on, Bionca, help me, I can't move." And Bionca was holding the gun very tightly, you know, and she said, "Help her, dad." I said, "No, you fuckin' let go of the gun and you help her. She's your mother, she chucked me out. […] She told me to get out of her life. You fuckin' help her." And as soon as she let go, fuckin' bang, I whacked two in as quick as I could.
He said that after shooting Mrs Goodbun twice, he walked inside the house, but returned to the verandah to shoot her again "to make sure she was dead". He could hear his daughter crying and his wife moaning and thought "I'm not going to fail, so that's why I shot her again".
The offender claimed to have reloaded the rifle at some point, firing a total of seven bullets, the gun having a capacity for five rounds. There is no crime scene or ballistics evidence before the Court on this point.
As to his entry to the house, the offender said "I just barged me way in", pushing his way in to the lounge room.
Having shot his wife, the offender said, …the ones I put in the gun, I would have shot the first fuckin' police officer walk through that gate. […] But I thought, ah, they've got a job to do …. have a gin and a couple …. probably better off to blow me fuckin' self away, I go, oh, hang on, I can go to gaol for thirty fuckin' years and get bed and breakfast every day. So I walked outside and shot Molly twice more to make sure she was dead.
The final two shots, fired at close range, were "to make absolutely sure she didn't get back up".
As to his crime, the offender said, I'm a normal person, I've, I've been to Black Dog Institute down in Sydney, I've been to psychiatrists and shit here, I've been to Taree, I've been up there, I've been at the health clinic, you know… […] But I am, I'm not making any excuses, no one has the right to cold-blooded murder someone. No one. Unless that person gives them the right. You take everything off me, you send me to the bush, want me to live in the bush with nothing, that's giving me the right.
The offender had earlier said that he was angry with his wife because of their ongoing dispute over the property settlement negotiations and the incident in June.
The offender told the officers that he had other guns but refused to say where they were, they being "well hidden". The offender also told police during the course of the interview, 1. He had the knife since "it might have been more appropriate if there was a party next door to use a knife instead of going fuckin' bang or something like that". 2. He went to Bella Street because "I just wanted to end my world, you know, end it. I've had enough. I sold that bloody house and Molly took it off the market and she's been fuckin' around and fuckin' around". 3. He intended "to get Molly and the house, I was, I had fully intended, right, and please understand, I fully, fully intended to kill Molly first… and anyone else who got in the way". 4. He said that he knew he would go to prison and was "quite fuckin' happy" about it. 5. He described his wife as "a piece of shit".

[10]

Criminal History

The offender's first encounter with the criminal law was on his 14th birthday in 1970 when he was dealt with in the Children's Court for two counts of break, enter and steal. He received two probation orders without conditions for a period of 12 months. Three days before his 18th birthday in 1974, he was charged with assault, together with some minor offences related to use of the railways. Monetary penalties were imposed by the Children's Court.
Later that same year, he came before the Court of Petty Sessions in Newcastle with respect to two counts of malicious injury (probably referring to property damage, such offences being so described at that time). Adult probation orders for 12 months with supervision were imposed. There were some driving offences in 1975 and, in 1979 in the Northern Territory, some alcohol and speed related driving offences, dealt with by way of fines.
In 1984 the offender was dealt with for offences of assault police, carry firearm whilst under the influence of alcohol, and carry a firearm with disregard for the safety of others. The facts of the 1984 convictions, Ex. C, give the date of the offences as 9 December 1983. On the evening of that day, Molly Goodbun attended Merriwa Police Station and complained that the offender had assaulted her. She asked for police assistance in removing the couple's very young daughters from the property, as she said the offender was well affected by alcohol. Sgt Dooker accompanied Mrs Goodbun to her property to help her. When the officer arrived at the property, he saw the offender to be armed with a .22 calibre repeating rifle. He asked the offender to put the gun down but was told "Fuck off copper. Get off my property right now or I'll waste you". The offender pointed the gun at the officer as he spoke. When Sgt Dooker again asked the offender to put the gun down, he responded "Get going or you're dead". The officer and Mrs Goodbun withdrew.
The following night the offender handed himself in to police, apologising for his conduct, and explaining it by reference to the eight schooners of beer he had consumed, and the argument he had had with his wife.
The .22 calibre rifle - of the same calibre and functionality as the weapon used to murder Mrs Goodbun - was seized by police, although its ultimate disposition is not recorded.
For assaulting Sgt Dooker, the offender was required to enter a recognizance pursuant to the then s 558 of the Crimes Act for 18 months. He was fined with respect to the firearms offences. Perhaps reflecting societal views at the time, he was not charged with assaulting his wife.
The offender was not again before a criminal court until 2013, when he was placed on a bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for an offence of driving with the high range proscribed concentration of alcohol in his blood. The bond was conditioned upon his compliance with a Forum Sentencing intervention plan.
In June 2016, the offender was charged with damage to property and assaulting Mrs Goodbun and occasioning actual bodily harm to her (as referred to from [11] above). He was on bail for those offences at the time of the offences of 7 October 2016, and was additionally subject to an Interim Apprehended Domestic Violence Order issued for the protection of Mrs Goodbun. The Court has not been advised of the outcome with respect to those matters. Since they do not appear on the criminal history, it may be that, as a consequence of these events, they did not proceed, despite the plea of guilty entered by the offender to the property damage offence.
Most recently, on 6 January 2018 in custody, the offender has been breached for a prison offence of "fight or other physical combat".
The criminal history, whilst not a significant one, deprives the offender of the status of being a person of good character.

[12]

The Offender's Background

The offender did not give evidence, and the little known of his personal circumstances is derived from the Crown case, and accounts from and of him reported by medical personnel.
The offender was born on 23 February 1956 and is now aged 62 years. He was aged 60 when he committed the offences before the Court. He grew up in Newcastle where he was one of seven (or 9) children in a generally happy family home, although in later years there was conflict with an older brother. He did generally well in school, although some hearing loss from age 8 or 9 led to some rebellious behaviour in school. He completed Year 9 at school and then entered the workforce.
Prior to the offender's incarceration he was unemployed, having last worked in 2013. He was evidently approved for a disability support pension just before his arrest. He had formerly worked in various capacities, including as a painter, a truck driver, and in farm work.
He had been married to Molly Goodbun for something like 40 years, or a little less, but had separated from her sometime prior to the murder.
The offender has been in custody continuously since 7 October 2016 with respect to this matter.
Exhibit 1 before the Court on sentence is an undated, handwritten letter from the offender directed to the Court. The Crown did not object to the tender of the document, although the weight to be attributed to its contents was disputed.
In the letter, the offender described his crime as an "ungodly" one, and sought to express the "extreme levels of remorse, sorrow, and despair" he feels, having come to the realisation that his actions have caused hurt to his and Mrs Goodbun's wider family, the couple's daughters, friends and neighbours. He said that his crime made him feel sick and ashamed. The offender noted that he was likely to spend the remainder of his life in prison, and referred to the work and programmes he participated in.
Exhibit 2 is a letter from Pastor Gary Ring of the NSW Prison Chaplaincy. Pastor Ring refers to the offender as "having accepted full responsibility for his decision to murder his then wife" and for the trauma occasioned to his daughter, presumably Ms Simmons, and his family. The Pastor advises that the offender "has expressed genuine remorse, with repentance, for his sinful, evil behaviour".
A fellow parishioner of the chapel services conducted by Pastor Ring is Shane Knight who, although Mr Knight does not say so, is evidently an inmate of the corrections system. In his letter to the Court of 17 November 2017, Ex. 3, Mr Knight refers to the offender as "exemplary" in his attitude to others in the gaol, and someone from whom he has never heard an "unkind word". He writes, "Keith has borne his time here with patience. He is remorseful for events that have happened in the past and has found strength in recognising this".

[13]

Health Issues

Most of the evidence placed before the Court related to the offender's health.
Exhibit 4 is a report prepared on 7 June 2018 by Dr Adam Martin, plainly for the purpose of use during the sentence proceedings. Dr Martin, a forensic psychiatrist, interviewed the offender on 8 February 2018 and 30 May 2017.
The offender gave Dr Martin a history of having been diagnosed with bi-polar disorder approximately 20 years ago, a diagnosis he said was confirmed more recently, in 2013, by the Black Dog Institute. He said that prior to arrest he had been medicated with Seroquel and Valium to assist with sleep, together with pain relief medication for physical conditions, including a painful hip and lower back. On occasion, he took greater doses than those prescribed. He has high blood pressure.
The offender said that he had mood disturbances and instability, with some periods of feeling "terrific", although his mood was more usually characterised by depression. He said that, just prior to the commission of the offences, and when affected by alcohol, he had tried to shoot himself, but failed because the gun's safety catch was on.
As to alcohol consumption, the offender said that he began drinking at age 15, and had a history of drinking regularly. He said he would sometimes drink as much as four litres of alcohol each day, although he could stop without withdrawal symptoms and had been abstinent altogether at times.
Regarding the murder of his wife, the offender said that in the period leading up to the crime his mood had been low. There was considerable acrimony with his wife and he regarded the interim ADVO and assault charge as not justified. He felt shattered by the breakdown of his marriage, and was drinking heavily. He was also taking medication to both keep him awake, and aid with sleep.
The offender said that the day before the murder, he saw his general practitioner and said that he was feeling angry and depressed about his marriage. He was advised to see a psychiatrist but did not do so. When driving to Maitland with the intention of murdering his wife he said he argued with himself about it, and felt as though he were in a trance. He referred to "pressure" in his head, and his mental state as being "disturbed".
Of the actual murder, the offender claimed to Dr Martin that "prior to the shooting" there had been a wrestle for the gun and it had discharged accidentally. The subsequent shots were fired deliberately by him.
On examination, Dr Martin did not observe any apparent distress affecting the offender, and his conduct was appropriate. He was alert and orientated and he was able to give what Dr Martin thought was a consistent history. The doctor observed, In my opinion, Mr Goodbun probably has experienced major depressive episodes and major depressive disorder and has probably experienced mood instability as part of long-term personality dysfunctional traits. He has a history of maladaptive coping abilities. The alcohol use has almost certainly led to some cognitive deficits around planning and judgment. He does not have a psychotic illness […] (at p.8 of Ex. 4).
Dr Martin noted that the offending conduct had occurred in the context of significant interpersonal conflict with his wife and daughter, and that the offender blamed his wife for their separation and his financial problems. Discounting the availability of a mental illness defence, and noting that the offender has a history of poor decision making, Dr Martin noted that the background to the commission of the offences was a "low mood" and observed, It is generally true that a person who is depressed and drinking heavily and experiencing interpersonal distress might have impaired judgment and skewed thinking about wrongfulness of actions. Given the described behaviour including the lengthy drive prior to the offending and the circumstance of the offending, from a psychiatric perspective, I do not think it can be said that he was severely impaired in his ability to control his actions. However, he would have been generally predisposed to distorted judgment, and not thinking clearly, and was perhaps more disinhibited in making decisions around his behaviour, as a result of having mood instability in the context of a mood disorder.
The doctor thought that the offender "probably felt justified by perceived losses and anger in acting violently" (p.9, Ex. 4).
As to any remorse for the crimes, Dr Martin said, Mr Goodbun demonstrated regret around the behaviour and described self-disgust. However, he also described the relationship before the offending in quite angry terms and I think he probably demonstrates some ambivalence in his attitude about what has occurred, reflecting the intense emotion and anger he experienced in the context of relationship conflict.
Of the offender's current circumstances, Dr Martin noted that the offender was sleeping and eating well, and that his medical and psychological needs were being met within the prison system. He seemed to be coping well and was not vulnerable at this stage (although might become so with advancing age).
Exhibit 5 on sentence is a report from Dr Ilana Hepner, a clinical neuropsychologist, dated 26 February 2018. Like the report of Dr Martin, the report was obtained for the purposes of tendering it in the sentence proceedings. Dr Hepner interviewed the offender, and conducted a neuropsychological assessment of him. She also had access to "available file material" including Justice Health records (necessarily post-dating the offences) and Hunter New England Health Area notes.
Dr Hepner referred to medical reports from 2013, 2014, 2015, and 2016, in which it was recorded that the offender had reported suffering from depressive incidents from a young age, with a history of heavy binge drinking. His diagnoses included bipolar III disorder. Alcohol abuse had led to some deficits in memory. His alcohol consumption was recorded in March 2016 as half a litre of cask alcohol every four days.
A reported decline in cognitive functioning over the years prior to psychological assessment in June 2015 was noted, but formal assessment found no deficits in the area of memory, visuospatial processing, language, and aspects of executive function. All of the 2015 results placed the offender in the average or low average range for cognitive function.
The Hunter and New England health records reviewed by Dr Hepner included a report from July 2016 (that is, after the June 2016 charges had been laid), with the offender presenting with "situational crisis and depression". In August 2016, his symptoms were elevated, with the offender reporting that he was drinking one bottle of wine daily, sometimes with marijuana use. He reported problems with coping, and memory difficulties. His mood was reported as connected with "psychosocial stressors". In September 2016, he reported drinking 5 litres of wine in a 24 hour period.
The offender gave Dr Hepner a history, including a history of alcohol abuse from age 6 years, typically characterised by heavy binge drinking as he got older. He said that from 2013, he drank a 2 litre jug of wine and soft drink every evening. He reported memory and concentration problems from 2013.
The offender referred to himself as an "angry person", who became "more explosive" when drinking. He reported having been in two fights in prison, although claimed to have been provoked on both occasions.
The offender gave Dr Hepner an account of the circumstances surrounding the murder of Mrs Goodbun, saying that he had decided to end his marriage and wished to sell the family home to address debt. He said that his wife blocked the sale and was "telling lies". He asserted that "she planned on keeping the house and I would have all the debt. I was getting that angry and upset" (p. 3, Ex. 5).
He referred to the criminal charges and the interim ADVO from June 2016 (although he gave the date as July), and said "I would've ended up with nowhere to live and massive debt… it was like the end of the world" (p. 3, Ex. 5). The offender said "I got that wild about it. I had a total mental breakdown […] I decided to go there and shoot her" (p. 3, Ex. 5).
As to his feelings about the crime, he told Dr Hepner, "I committed the worst crime of all ….I feel extreme remorse. It makes me feel quite sick. I feel sorry for the beautiful person I knew in Molly, and there for the 2 of us together, it was a mess. I feel deeply sorry, I can't put it in my head how she became like that. […] people won't forgive me. Their hearts were broken, emotions, their mother was shot."
Having examined and assessed the offender, Dr Hepner placed the offender in the average range for overall cognitive function.
His intellectual function was assessed as being in the low average range, whilst verbal skills were average. Attention span and memory were unimpaired and average. There was some slowing on "perceptuoclerical [1] speed" which was borderline impaired, but new learning and memory were all average.
Dr Hepner concluded that, having regard to the offender's history of heavy alcohol abuse and reported cognitive problems over the previous 5 years, it is likely that he has alcohol related brain damage. She thought he was likely to have been experiencing the identified deficits when he murdered his wife.
A volume of other medical letters and reports was tendered by the offender as Exhibits 6 and 7. In an unsigned letter directed to "NSW Police" dated 12 April 2013, Dr Iain Stewart noted that the offender had been treated for severe depression since January 2013, and that he had bipolar II disorder. He was noted to have "severe manic features recently exacerbated by bullying at work". He was said to be responding well to medication.
In May 2013, Dr Sukhdev Dillon, a career medical officer with Hunter Valley Community Mental Health, saw the offender in the context of "agitated and aggressive behaviour towards his wife following alcohol misuse". The offender told the doctor that he had a long history of depression and alcohol abuse and reported an incident of psychotic hallucinations. The doctor's "impression" was that the offender had an "antidepressant induced mood disorder with mixed features", alcohol dependence, and "cluster B personality vulnerability". A brain scan ordered to be conducted found what appears to be age related calcification but no other abnormalities (Ex. 6, report of 17 May 2013). Dr Dillon thereafter reported that the offender had improved markedly with medication.
On 25 November 2014, Dr Artin Jebejian, a psychiatrist with the Black Dog Institute, saw the offender, who reported memory deficit and bodily pain. Dr Jebejian recorded his "impression" as "Bipolar III disorder 'the mania was in context of citalopram high dose use'; previous alcohol abuse, previous nicotine dependence; alcohol-related memory disorder; cluster C traits; hypertension; asthma; chronic pain" [underlining in original].
This impression was a repetition of the impression Dr Jebejian formed at an earlier consultation, in September 2014. The treatment plan was for medication, dietary supplements, and therapy.
The doctor reviewed the offender in March 2016 by telephone, giving precisely the same impression as previously.
A psychological assessment in June 2015 recorded the offender as falling within the average range for neuropsychological function, scoring in the low average, average, or high average ranges across all testing domains. There was some indication of a reduction in "mental flexibility", working memory and speed of processing. The offender was encouraged to keep his brain active.
On 30 September 2016, one week before he murdered his wife, the offender was recorded by Dr Fu Chong (apparently a general practitioner) as having "been drinking excessively the past few days which relieves him from feeling depressed". He was said to have a flat affect, and Dr Chong recommended to the Taree Community Mental Health Team that he be considered for admission.
Other medical material relates to the offender's chronic pain, following motorcycle crashes in his youth, and a fall from scaffolding. Exercise physiology was recommended for pain.
Exhibit 7 is a "patient health summary" from the offender's former general practitioner, recording consultations between 2005 and 2016. Much of it relates to ordinary medical problems and treatment, such as the administration of a vaccination against influenza, or entries dealing with the offender's chronic pain condition. A list of prescriptions issued forms part of the material, although it is difficult in places to know what condition the particular medications have been prescribed to treat.
That provides a summary of the evidence before the Court.

[14]

The Murder of Molly Goodbun

The murder of Molly Goodbun was a chilling, and deeply shocking, crime.
It may without hyperbole be described as an execution. It was a crime which the offender resolved in advance to commit; he then decided upon the best means to carry out his intention, prepared for the crime including by securing weapons, and then, over a period of hours, took the necessary steps to effect the plan. It was clearly his intention that nothing would stop him from murdering his wife.
It seems that the offender had contemplated killing his wife at an earlier stage, prompted by his anger over the division of the marital property, and by the criminal proceedings against him related to his wife.
Although the agreed facts provide no information as to the nature of the allegation against the offender (or the ultimate disposition of the charges), it is clear that, following the incident of 19 June 2016, the offender was charged with assaulting Mrs Goodbun, and occasioning her actual bodily harm. It seems he was greatly angered by this and blamed Mrs Goodbun for the police proceedings against him.
When warned by his daughter Rachel on an occasion in July 2016 that his unannounced attendance at the family home was in breach of the interim ADVO issued the previous month, the offender referred to the order as "bullshit". He referred to his wife as a "lying bitch" and claimed the right to be able to enter his house when he wished.
At around that time, in another conversation with Rachel, the offender blamed his wife and eldest daughter for his exclusion from the family home, commenting that he should shoot his wife in the head.
To a Taree neighbour, at some stage prior to 7 October 2016, the offender said that any court that gave Mrs Goodbun anything of his (inferentially in any property settlement), is only going to give her a death sentence. I would have absolutely shot her just for that.
Whilst none of this evidence establishes that the offender had planned to kill Mrs Goodbun well prior 6 and 7 October 2016 (and I have not treated it in that way), it is clear that he thought about shooting her for some months before doing so, and did so because she was acting in her own interests, separately from him. His conduct is demonstrative of the level of anger and resentment he bore towards his wife, as a consequence of her seeking a financial settlement of the marital property, and seeking the protection of the police and the courts after the June 2016 incident.
The decision to murder Mrs Goodbun could have been taken no later than 6 October 2016. It may have been made in an alcohol affected state, since the offender told the police that he consumed a large amount of wine on 6 October 2016, and told Dr Martin that "just before the offending" he had been affected by alcohol (p.4, Ex. 4).
On that day, the offender took steps preparatory to carrying out his crime. He secured two weapons capable of inflicting lethal injury, a Winchester repeating .22 calibre rifle, and a sharp long-bladed knife. The gun had been thoroughly examined and test fired by him to ensure it was in working order. He took particular care to check the accuracy of the scope. The offender armed himself with the knife in case he was unable to use the gun, due to its noise. He took possession of a quantity of fuel.
He left Taree at night, timing his arrival in Horseshoe Bend for the early hours of the morning. Plainly, this is a time when it might be expected that most people would be at home in bed asleep. The offender's knowledge of his wife's habits would have given him that expectation.
He undertook and completed the drive from Taree to Maitland with the intention of killing his wife and "anyone else who got in the way".
The offender's approach to the property in the early hours of 7 October 2016 was characterised by silence and stealth. All of this bespeaks a cold and determined implementation of his plan.
The offender's conduct in the preceding hours represents a considerable level of premeditation and planning, heightening the gravity of the crime. This was no spontaneous and fleeting outburst of murderous rage. It was a carefully planned and callously executed crime, motivated by a deep and long held anger at Mrs Goodbun because she had sought to exercise her (legitimate) property rights, and because she had been instrumental in the issue of an interim ADVO and criminal charges against the offender.
His entry into the property at Horseshoe Bend involved an element of force, as the offender told police in his interview. When his wife opened the door as he manipulated the key in the lock, the offender barged into the house, and then pushed his way into the lounge room. There is little to distinguish this conduct from a constructive break to the seal of the premises.
The offender's determination to carry out his carefully laid plan was such that he resisted the attempts made by both Mrs Goodbun and Ms Simmons to stop him from using the gun. The distraught pleas of his daughter did no more to deter the offender from murdering his wife than the physical resistance mounted against him.
His cold determination is further demonstrated by the number of gunshot injuries inflicted on Mrs Goodbun. The first shot to Mrs Goodbun's chest was discharged after the offender took aim. This injury alone would have rapidly led to Mrs Goodbun's death. It must have been clear to the offender that his wife was very seriously injured. Despite this, having wrestled against his daughter for the gun, he again took aim and shot Mrs Goodbun to the head.
The third and fourth shots were directed to Mrs Goodbun's head, at contact or near contact range.
Any one of these injuries would have led rapidly to death. The offender's intention to kill his wife would have been effected by the first shot alone; the three shots discharged thereafter were wholly unnecessary to his purpose. Even allowing that the offender may not have been certain that the first chest shot was fatal, he must have appreciated the likely lethal nature of a gunshot wound to the head, particularly when it was additional to the first injury inflicted. Despite that, he directed two more rounds at close range into his wife's head. This was violence of a high order which inflicted harm that was unnecessary to the offender's purpose. That, in my view, involved gratuitous infliction of injury, encompassed by the word "cruelty". This also heightens the gravity of the offence.
I have concluded that, contrary to the offender's submissions, the murder did involve a breach of trust, in two ways. As the offender made clear to police, he carried with him on this night a key to his wife's home, and endeavoured to use it to gain access to the house after he arrived there. This was a key that the offender had in his possession because of his relationship with Mrs Goodbun. That he had retained it without Mrs Goodbun's knowledge (as he told police he did) represents a breach of trust, as does his use of the key to attempt to gain entry to the premises.
Although the offender argued that there could be no breach of trust where a couple was estranged, that is contrary to authority. In R v Devine, an unreported decision of the Tasmanian Supreme Court of 5 July 1993, Underwood J (as he then was) referred to just such a situation, noting that, The relationship of husband and wife, albeit estranged, is an aggravating factor, for violence of this kind constitutes a breach of trust.
This passage from the judgment was cited with approval in this State in R v Hamid [2006] NSWCCA 302.
It was in the context of the marital relationship that the offender obtained the key to the property that he used to try to enter the home from which he had been barred. It was in that context that he acquired knowledge of the layout of the premises and the habits of its occupants. These are practical examples demonstrating the breach of trust referred to in Devine and Hamid.
There is a further, and very serious, breach of trust in the circumstances in which the second gunshot injury was inflicted, and that is in the deception of Ms Simmons. After the offender discharged the first bullet, Ms Simmons very bravely struggled with her father for control of the gun. She let go of the weapon, returning full control of it to the offender, only after her father had assured her that he would not shoot Mrs Goodbun again. On that basis, and clearly trusting her father to do as he said he would, Ms Simmons let go of the gun. The offender then pointed the gun at his wife and shot her again, in the head. Having control of the gun, he was able to inflict the third and fourth wounds. The breach of his daughter's trust in deceiving her to gain control of the gun was a grave one, and increases the seriousness of the offence.
The offender clearly chose to carry out his crime in the early hours of the morning, in his victim's home, because he expected Mrs Goodbun to be at home at such an hour, and likely asleep. In so doing he defiled what should have been the safety of his wife's home, and that of his daughter. This is also a feature of the crime which increases its seriousness.
Also increasing the gravity of the crime is the fact that the offender used a gun, a particularly lethal weapon, to murder his wife, whilst also armed with an alternative weapon, a knife, carried for the same purpose.
Whilst the offender argued that his crime was mitigated by the absence of features referred to in s 21A(2) of the Crimes (Sentencing Procedure) Act, such as the fact that it was not committed in company, did not involve gratuitous cruelty (although I do not agree), and did not involve the abuse of a position of authority, for example, I am unable to accept that submission as a correct statement of the law. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3]: "It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse".
That principle has been endorsed and applied in numerous decisions of the Court of Criminal Appeal, including more recently in Mammone v R [2013] NSWCCA 95 at [35], Bravo v R [2015] NSWCCA 302 at [45], Mills v R [2017] NSWCCA 87 at [57], R v CTG [2017] NSWCCA 163 at [60] to [63], Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69], and Faehringer v R [2017] NSWCCA 248 at [49] - [52].
I regard the murder of Molly Goodbun as a gravely serious example of the crime of murder. Insofar as it is necessary to describe the objective gravity of the crime by reference to a range, this crime falls towards the very top of the range of seriousness in my assessment. It may be that other, more terrible, crimes can be imagined, but that does not lessen the gravity of this crime: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; [1988] HCA 14.
I do not accept that, as submitted by the offender, this crime falls "just above the mid-range of seriousness" for such an offence, even having regard to his health issues (which are considered below).

[17]

The Assault of Ms Simmons, Occasioning Actual Bodily Harm

This was an offence committed, despite the offender's previously expressed hostility to Ms Simmons, probably spontaneously. In the offender's words to police, Ms Simmons "tried to save her mother", and so the offender assaulted her. There was no premeditation involved, other than his determination to allow no-one to stop him from effecting his purpose of killing Mrs Goodbun. A weapon was involved, in that the offender struck his daughter to the head with the butt of the rifle, but the injuries inflicted during the struggle between the two were superficial, being scratches to an arm and knee, and bruises.
It is the context in which this offence was committed that makes it a very serious one, rather than the nature of the physical harm inflicted. Ms Simmons was assaulted because she tried to stop the offender from committing a terrible crime. She was assaulted in her own home, in the early hours of the morning when she had just emerged from sleep, and the offender placed his daughter in danger of her very life in wrestling with her over a loaded gun which, in fact, discharged.
There was also a breach of trust: Ms Simmons was entitled to look to her father for love and support; instead, he attacked and injured her.
The real harm to Bionca Simmons does not consist of scratches and bruises however. It is in the ongoing psychological harm the offence, and the context in which it occurred, has left behind that is of great significance. Ms Simmons was struggling not just for her mother's life but, when she pulled the rifle towards her own body, for her own; and she struggled with her father, a man to whom she should have been able to look for love and protection.
The damage caused by this crime will, I have no doubt, go on for Bionca Simmons. It is devastatingly described in the statement prepared by Rachel Goodbun. This is a case such as that referred to by Basten JA in R v Thomas [2007] NSWCCA 269, wherein it was said (at [37]), "[…] it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim."
Although there must be some level of overlap between this crime and the murder of Mrs Goodbun, this offence falls at the upper end of the range of gravity.

[18]

The Issue of Mental Illness

The offender submitted that, because of his mental impairment, his moral culpability should be regarded as less, and the gravity of his crimes therefore reduced. Having very carefully considered all of the medical and psychological evidence, and the evidence placed before the Court in the Crown case, I am unable to accept that submission.
Although the medical evidence commences in 2005 with the general practice notes in Ex. 7, for earlier years there is nothing but the offender's self report. That report is not always reliable. For example, the offender told Dr Martin he began drinking at age 15, and Dr Hepden at age 6. There are numerous inconsistencies in the reports given by the offender to various health professionals about his alcohol consumption, including at the time of the offences, and his account to police. There is a significant discord between the sequence given in the agreed facts of the order of shooting, to that given by the offender to Dr Martin. The histories given, therefore, must be treated with a degree of caution.
What the medical evidence establishes is that, by his own report, the offender has a lengthy history of mood instability, recorded over a period of years. He has been a very heavy drinker for many years, with his alcohol abuse giving rise to many of his health issues, including memory difficulties. Such impairment as there is may be attributed to alcohol abuse. The impairment to cognitive function does not appear to be in any sense profound, since the offender continues to function in the average or low average range of cognitive ability in all domains bar one. The latter aspect of his cognition could have played little or no part in the commission of these crimes by the offender.
Most recently, the offender was depressed, a condition regarded as situational by treating staff at Hunter New England Health. That is hardly surprising since, when he consulted the District Health Service, the offender had separated from his wife, been restrained from attending his property by court order, was in financial difficulties, living in unsatisfactory circumstances, and facing criminal charges.
This falls short in my view of establishing, on the balance of probabilities, that the offender's depression and cognitive decline played any role in his decision, coldly taken and maintained over a number of hours and despite physical resistance from his wife and daughter, to kill Molly Goodbun. On the contrary, his conduct on 6 and 7 October 2016 was coldly rational, and in no way indicative of a disordered or chaotic mind. The account of events he gave to police soon after murdering his wife was comprehensive and does not demonstrate mental impairment.
It is not enough to establish the existence of a mental disorder to claim a diminution in moral culpability, a reduction in the relevance of general deterrence, and thus a reduced sentence. There is no automatic consequence that flows from the presence of such a disorder: R v Engert (1995) 84 A Crim R 67.
There is no suggestion that the offender did not fully comprehend the gravity and wrongfulness of his conduct, and resolve to continue with it nevertheless. He himself referred to the murder of his wife as "cold-blooded" (Q&A 199, aide memoire to Ex. B). Whilst to Dr Martin and Dr Hepner the offender described himself as in "a trance" at about the time of these crimes, that was the first time he had raised such a claim. Nothing about the clear and detailed account of his crimes that he gave to police on 7 October 2016 is suggestive of a person acting whilst in a trance, or some other disengaged mental state. It must be recalled that everything said by the offender to these doctors was said in the knowledge that reports for sentence would be produced by each, and would in all likelihood be before the sentencing court. Indeed, Dr Martin told the offender prior to their consultation that he would prepare a report which "could affect his legal outcome".
Referring to the length of the drive undertaken by the offender that night, and the circumstances of the commission of the crimes, Dr Martin found no evidence of severe impairment. He observed that, in a general sense, a person who is depressed because of interpersonal stress and drinking heavily "might" have impaired judgment and skewed thinking. So much can be accepted; it does not in my view reduce the offender's moral culpability, or make him less available as a vehicle for general deterrence.
The fact that the offender was "generally predisposed" to poor judgment and "perhaps more disinhibited" in decision making does not alter that conclusion.
Nor am I persuaded that the limited (and self-inflicted) cognitive impairment referred to by Dr Hepner is as significant as the offender contends. What the doctor's assessment shows is a limited degree of decline in some areas of cognitive functioning, but nothing that could mitigate this offending. In general, he was functioning within the low average to average range of cognition.
The offender's own self-serving and untested assessment of himself as suffering from a mental breakdown is not to be accepted.
I do not regard the offender's mental health as being in any material way connected with the commission of these offences: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [77]; Aslan v R [2014] NSWCCA 114 at [35]. It cannot mitigate his crimes.
Since the medical evidence refers to the offender as being relatively settled in the prison system, with his medical needs met, his health cannot mean that his time in custody is more onerous than for others in the prison population.
I have had regard to the offender's state of health when considering his overall subjective case.

[20]

The Pleas of Guilty

The offender entered a plea of guilty to Mrs Goodbun's murder on 22 November 2017 in the Local Court at Newcastle - that is, almost 14 months after he was charged. He also indicated pleas of guilty to the offences before the Court on the s 166 certificate at that time.
A plea entered over a year after charge cannot be characterised as an early one, although the offender submits he should, for reasons of good policy, receive the full extent of the discount on sentence identified in Thomson and Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104. There, it was said by the then Chief Justice, at [152] - [158], In my opinion, the appropriate range for a discount is from 10-25 percent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options. There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate. (See e.g. R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen [1989] 11 Cr App R (S) 182 at 184). There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea. (See e.g. R v Kalache [2000] NSWCCA 2, see esp per Sully J at [38]-[42]).
I accept that the offender's pleas have had a significant utilitarian benefit to the criminal justice system, in that it was unnecessary to conduct a trial. Although it is not without reservation, the offender's pleas will be recognised by a discount of 25% on the sentences that would otherwise have been imposed.

[21]

The Question of Remorse

The offender did not give evidence.
Such evidence as there is of remorse comes from, either, his unsworn and untested assertions in Ex. 2, or from the report or observations of others.
The practice of providing letters or statements from an offender has been the subject of criticism in R v Elfar [2003] NSWCCA 358 at [25] and other cases, for good reason.
In the absence of seeing the offender express the claimed remorse, it is not possible to make an assessment of the genuineness of the sentiment, and I am not prepared to accept the offender's letter as reliable evidence of remorse. Certainly it is in contrast to some of the things said by the offender elsewhere, most notably in his interview with police, where he displayed quite the opposite of remorse for his crimes.
It is also in contrast to his presentation in Court during the sentencing proceedings, through which he sat without emotion.
As was observed in Pfitzner v R [2010] NSWCCA 314 at [33], it is one thing to make an expression of remorse, but quite another to face cross-examination on the subject.
As to the statements to others, the Court of Criminal Appeal has repeatedly warned about the cautious approach that should be adopted concerning statements of this kind: R v Qutami [2001] NSWCCA 353 at [58] - [59]; R v Palu [2002] NSWCCA 381, (2002) 134 A Crim R 174 at 185; [40]-[41]; R v McGourty [2002] NSWCCA 335 at [24] - [25]; Imbornone v R [2017] NSWCCA 114 at [57].
Dr Martin recorded the offender's expressions of "regret", but also observed that the offender "probably felt justified" in acting violently by his perceived losses, for which he blamed his wife. In any event, it is difficult to reconcile the self-disgust and regret voiced to Dr Martin with the anger the offender also expressed to him about the breakdown of his marriage.
To Dr Hepner the offender said he felt "extreme remorse" but, in the same conversation he queried how his wife "became like that", describing her at another point in the consultation as a liar. To Dr Hepner, the offender clearly attributed blame for the situation to his wife.
From what the offender said during the gaol calls, it seems as though he still considers that his crimes were caused or triggered by the unreasonableness of his wife over the property settlement between them.
Exhibits 2 and 3 should, in all of the circumstances, also be given limited weight.
I adopt what was said by Buddin J in Alvares v R [2011] NSWCCA 33, with the concurrence of other members of the Court, and confirmed in SJ v R [2011] NSWCCA 160 at [25]: "...a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Starfrace (1997) 96 A Crim R 452. Nor will what Simpson J has described, in Pham v R [2010] NSWCCA 208 [at para 33], as 'the often ritual incantation of remorse and contrition' be automatically accepted by a sentencing judge."
In some circumstances, a plea of guilty may be evidence suggestive of remorse but I do not regard it as such in this case. The pleas of guilty were entered in the face of incontrovertible evidence. The offender was arrested by police at the scene of the crimes, in circumstances where both Mr Myers and Ms Simmons had witnessed part of his conduct. He made full admissions to police. He had received, it appears, expert opinion that a mental illness defence was not available to him. If the offender wished to have any good chance of mitigating the sentence likely to be imposed on him, entering pleas of guilty was the only course he could take. The pleas say nothing about remorse.

[22]

Deterrence

Both specific and general deterrence loom large in this case.
Although it was submitted that there was no history of domestic violence in this matter, that is contrary to the evidence. Whilst it is true that the offender does not have a lengthy criminal history for domestic violence offences, this incident did not occur against a background of an untroubled domestic life. The agreed facts refer to instances when the offender damaged or destroyed property belonging to family members, or stood leaning into Mrs Goodbun's face during arguments and yelling at her. The 1984 incident shows that the offender has, in the past, resorted to making threats with a gun in the context of an argument with his wife. Some of the medical material refers to the offender's aggressive conduct towards his wife in 2013, in the context of excessive drinking.
In all of the circumstances, a sentence reflecting the need for specific deterrence is called for, although it can be properly ameliorated by reference to the offender's age, and the unlikelihood of his being in a domestic relationship at any time in the future.
General deterrence is, however, a significant consideration.
Domestic violence is a profoundly serious problem in this community, extending, not infrequently, to the murder of a spouse or partner. A report prepared for the Australian Government by the Australian Institute of Health and Welfare this year, entitled "Family, Domestic, and Sexual Violence in Australia" suggested that, "About 1 woman is killed every week by a current or former partner. Almost 4 in 5 (79%, or 99) victims of intimate partner homicide were female, compared with less than 1 in 5 male victims (21%, or 27). This means that about 1 woman a week and 1 man a month were killed by an intimate partner over the 2 years to 2013-14."
Too often, these are crimes committed by men against women who have chosen to live a separate life - a decision the male partner is not prepared to accept. The NSW Domestic Violence Death Review Team Annual Report 2013-2015 reported that between 1 July 2000 and 30 June 2012, 63% of the women killed by their former partner had ended the relationship within the three months prior to death (NSW Domestic Violence Death Review Team, Annual Report 2013-2015, p. 6).
These are statistics of which all of us in this community should be greatly ashamed, and which the courts must play a role in addressing. The courts must ensure that those who commit offences like those now before this Court pay a heavy price for their crimes, to punish them, to denounce the crime, and to deter others. The victims of domestic violence must be protected insofar as the courts are able to afford them protection. Where there is violence there is a, […] long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence: Munda v the State of Western Australia (2013) 249 CLR 600; [2013] HCA 38, at [54].
In Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224, the Court of Criminal Appeal noted (at [82], [84], [108]) that general deterrence is a matter of some importance in domestic violence cases. Citing Cherry v R [2017] NSWCCA 150 at [78], the Court said that there is a requirement for "rigorous and demanding consequences for perpetrators" of domestic violence offences.
General deterrence and denunciation are significant features to be comprehended by the sentence imposed upon the offender. I have earlier recorded my reasons for concluding that, notwithstanding the evidence of the offender's depression and brain damage, the principle of general deterrence applies.

[26]

Does This Offence Call For a Sentence of Life Imprisonment?

In some circumstances, a life sentence is mandatory. Section 61(1) of the Crimes (Sentencing Procedure) Act provides: 61 Mandatory life sentence for certain offences "(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."
It is the combined weight of those four features - retribution, punishment, community protection and deterrence - which is relevant to the determination of the question of the application of s 61: R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19, at [52]-[54].
Regard must also be had to s 21(1) of that Act, which provides: 21 General power to reduce penalties "(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term."
The question is whether this matter warrants the imposition of the maximum sentence, life imprisonment. In R v Miles [2002] NSWCCA 276 it was held at [204] that: "There is a two stage process involved in determining whether a life sentence is mandated. The Court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty. The Court must then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty."
Both the offender and the Crown have submitted that the murder of Mrs Goodbun does not warrant the imposition of the life sentence. During the sentence proceedings the parties were reminded that the Crown's concession as to penalty did not bind the Court, and both had an opportunity to make submissions with respect to that issue.
Ultimately, I have concluded that, since the evidence does not suggest that the offender is likely to pose an ongoing threat to the community, one of the four features - community protection - has little or no weight in this matter. It is only that feature of the case that has dissuaded me from the imposition of a life sentence. However, in all likelihood the sentence to be imposed will be, in practical effect, just that.
As Johnson J said in R v Turnbull [2016] NSWSC 847 at [128] - [129], The courts have made clear that age is not a licence to commit an offence: R v Holyoak (1995) 82 A Crim R 502 at 507. Whilst the age of the Offender needs to be taken into account, - [I interpose, I have done so] - this cannot give rise to an expectation that the elderly can offend with relative impunity: R v McLean [2001] NSWCCA 58; 121 A Crim 484 at 492 [44]. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved, and is one that accords with the general moral sense of the community: R v McLean at 492 [45]. There is no principle that, if the Court does not impose a life sentence under s.61 Crimes (Sentencing Procedure) Act 1999, that the Court should impose a sentence which provides some prospect of the Offender being released before his death. A fundamental sentencing principle is that a sentence must reflect the objective seriousness of the offence. Adherence to that principle may, in the case of an offender of advanced years, have the practical effect of being a life sentence: Barton v R [2009] NSWCCA 164 at [22]-[27].

R v Keith Owen Goodbun

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (30 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (42)