Goodbun v R

Case •

[2020] NSWCCA 77

•

23 April 2020

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Goodbun v R [2020] NSWCCA 77
Hearing dates: 11 September 2019
Date of orders: 23 April 2020
Decision date: 23 April 2020
Before: Bathurst CJ at [1]; Fullerton J at [117]; Bellew J at [134]
Decision:

(1)   Grant leave to appeal.
(2)   Appeal dismissed.

Catchwords: CRIME – Appeals – Appeal against sentence – Whether unnecessary to make a finding of special circumstances – Manifest excess – Whether aggregate sentence imposed was unreasonable or plainly unjust – Gravity of offending
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Barrett v R [2020] NSWCCA 11
Barton v R [2009] NSWCCA 164
Browning v R [2015] NSWCCA 147
Cherry v R [2017] NSWCCA 150
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (NSW) v Darcy-Shillingsworth [2017] NSWCCA 224; (2017) 269 A Crim R 40
Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
DJM v R [2013] NSWCCA 101
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297; (2014) A Crim R 528
Jolly v R (2013) 229 A Crim R 198; [2013] NSWCCA 76
Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kelsall v R [2017] NSWCCA 240
MLP v R [2014] NSWCCA 183
O’Connell v R [2006] NSWCCA 82
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Park v R [2019] NSWCCA 105
Patsan v R [2018] NSWCCA 129
R v AKB (No 8) [2018] NSWSC 1628
R v Bond [2001] NSWSC 1059
R v Boyd [2018] NSWSC 380
R v Cameron (Supreme Court of New South Wales, Newman J, 16 October 1992)
R v Cramp [2004] NSWCCA 264
R v Cullen [2015] NSWSC 768
R v Dent [2016] NSWSC 444
R v Droudis (No.16) [2017] NSWSC 20
R v Evans (No.3) [2017] NSWSC 1523
R v Fidow [2004] NSWCCA 172
R v O’Connell [2004] NSWSC 1120
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Simpson (2001) 53 NSWLR 704
R v Stani-Reginald [2013] NSWSC 567
R v Stephen James Boyd (No 2) [2018] NSWSC 380
R v Villaluna [2017] NSWSC 1390
RLS v R [2012] NSWCCA 236
Thach v R [2018] NSWCCA 252
Texts Cited: Nil
Category:Principal judgment
Parties: Keith Owen Goodbun (Applicant)
The Crown (Respondent)
Representation:

Counsel:
S Kluss (Applicant)
B Baker (Respondent)

  Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2016/299268
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law
Citation:
[2018] NSWSC 1025
Date of Decision:
4 July 2018
Before:
Wilson J
File Number(s):
2016/299268

Judgment

  1. BATHURST CJ: Keith Owen Goodbun (the applicant) pleaded guilty to the 7 October 2016 murder of his wife, Molly Goodbun (the deceased). He also pleaded guilty to three related offences referred to the Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The offences to which he pleaded guilty were set out as follows in the primary judgment:

“(1) Murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), which carries a maximum sentence of life imprisonment, with a standard non-parole period (‘SNPP’) of 20 years;

(2) Contravening an apprehended domestic violence order pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which carries a maximum sentence of 2 years imprisonment and / or a fine;

(3) Using an unregistered firearm contrary to s 36(1) of the Firearms Act 1996 (NSW) which, on indictment, carries a maximum sentence of 5 years imprisonment (since there is no evidence the gun was a prohibited firearm); and

(4) Assault occasioning actually [sic] bodily harm contrary to s 59(1) of the Crimes Act, an offence carrying a maximum penalty of 5 years imprisonment on indictment.”

  1. The sentencing judge noted correctly that because the Crown chose to prosecute the last two offences summarily, a jurisdictional sentencing limit of 2 years imprisonment applied to each of those offences.

  2. The applicant was sentenced to an aggregate sentence of 41 years and 6 months to date from 7 October 2016 with a non-parole period of 31 years and 1 month. Her Honour set out the following indicative sentences as required by s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act):

“(1)   For the offence of the murder of Molly Goodbun, a term of 40 years and six months imprisonment.

(2)   For the offence of assaulting Bionca Simmons occasioning her actual bodily harm, a term of 1 year and 6 months imprisonment.

(3)   For the offence of using an unregistered firearm, a term of 1 year and 6 months imprisonment.

(4)   For the offence of contravening an interim apprehended domestic violence order, a term of 1 year and 6 months imprisonment.”

However, her Honour did not specify a non-parole period in her indicative sentence for the offence of murder as required by s 54B(4) of the Sentencing Procedure Act.

  1. The indicative sentences were arrived at after a discount of 25% for the plea of guilty.

  2. The applicant has sought leave to appeal against his sentence.

Factual background

  1. The factual background to the offences was set out by the sentencing judge in a manner which was not disputed on the appeal.

  2. The deceased 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 had two children.

  3. Until June 2016 there were no known instances of physical violence from the applicant to the deceased, although there were several occasions when the applicant became angry and verbally abusive. The couple’s eldest daughter, Bionca Simmons (Ms Simmons), gave evidence that she noticed, after moving back to the family home around 2012, that the applicant suffered pain in his neck, back and shoulders, took painkillers and antidepressants, and drank alcohol. The sentencing judge stated that at some stage in 2015 the deceased and the applicant separated but continued to live in the same premises, the deceased and Ms Simmons in the house and the applicant in a caravan in the back yard. She stated that the applicant became more unstable, his behaviour deteriorated and he continued to drink. She noted that there were arguments between the applicant and the deceased, some of which concerned what would happen to the family home as a consequence of the breakdown of the marriage.

  4. On 19 June 2016 an altercation took place after the applicant accused the deceased and Ms Simmons of stealing a guitar and a sum of cash from him. The applicant became angry and threw items of clothing belonging to Ms Simmons onto the street and damaged items of furniture in Ms Simmons’ bedroom. The deceased tried to contact the police but the applicant pulled the telephone from the wall and broke it. The police did, however, attend the family home, and obtained an Interim Apprehended Domestic Violence Order on behalf of the deceased.

  5. The applicant was also charged with damaging property and assaulting the deceased, occasioning her actual bodily harm. He was released on bail subject to a residential condition preventing him from living at the family home, and a condition requiring compliance with the terms of the Interim Apprehended Domestic Violence Order.

  6. Both the Interim Apprehended Domestic Violence Order and the bail conditions were in force at the time of the murder.

  7. Between July to early October 2016 the deceased and the applicant were in negotiations seeking to reach a financial settlement with respect to the marital property. The applicant occasionally visited the family home with permission but there were arguments about its possible sale.

  8. In early July 2016 Rachel Goodbun (Ms Goodbun), the younger daughter of the couple, came to stay with her mother and sister for several weeks. On one occasion the applicant attended the property. When Ms Goodbun warned him that he had to leave or he would breach the Interim Apprehended Domestic Violence Order he stated:

“This is bullshit … This is all because of that lying bitch. This is my house and I should be able to go into it whenever I like.”

  1. Ms Goodbun stated she again spoke to the applicant later in July 2016 when he attended the family home to collect a caravan. At the time he said:

“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 Ms Goodbun asked him to stop talking that way he said he did not mean it.

  1. On 6 October 2016 the applicant was living at his and the deceased’s Taree property, where he had been staying in a caravan. The Taree property was about 250 km from the family home in East Maitland.

  2. The sentencing judge recorded that having resolved to kill his wife and burn the family home down, the applicant obtained a Winchester model 320 bolt action repeating .22 calibre rifle and a large knife. He had ammunition for the gun and tested it 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 those items and drove towards the family home.

  3. As I have indicated, the journey was one of about 250 km, and the applicant stopped from time to time to eat and sleep. By 1:39 am on 7 October 2016 he had reached East Maitland where he was filmed by security cameras at the drive through section of a fast food restaurant.

  4. At about 2:50 am that morning a Mr David Myers saw the applicant arriving at the family home 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 applicant open the driver’s side door, walk a short distance up the driveway and scan the backyard of the residence for several minutes before returning to his car and arming himself with the rifle. The applicant then went onto the verandah and approached a sliding door at the side of the house. Mr Myers watched him as he tried to open the door.

  5. The sentencing judge recorded that in attending the premises without prior permission, the applicant was in breach of the Interim Apprehended Domestic Violence Order, this being the breach which founded the second of the charges which I have set out above.

  6. Both the deceased and Ms Simmons were at home that morning, having been in their respective beds asleep. At around 3:00 am the deceased got up to go to the bathroom, while Ms Simmons got up to get some water. Ms Simmons heard a knock at the sliding door at the side of the house and heard her mother go and unlock it and speak to her father. Ms Simmons went to join her mother at the door. What happened thereafter is set out by the sentencing judge in the following terms:

“[31]   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’.

[32]   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.’

[33]   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.

[34]   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.’

[35]   Ms Simmons released her grip on the rifle and said, ‘Ok, ok, I've let go.’

[36]   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’.

[37] 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’.

[38]   Mrs Goodbun, who was covered in blood and unable to speak, nodded in response to her daughter's words.

[39]   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’.

[40]   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.

[41]   Ms Simmons called to her mother,

‘Mum talk to me, are you alright, are you still with me, please say something or do something’.

[42]   Mrs Goodbun made no response.

[43]   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.’

[44]   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.

[45]   Without his daughter to interfere, the offender shot his wife for a fourth time, directing the rifle to her temple, at contact range.”

  1. The sentencing judge noted that the use of the rifle constituted the offence the subject of the third charge.

  2. After committing the murder the applicant 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 the deceased’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 waistband. He was arrested without incident.

  3. In his subsequent interview with police the applicant made full and detailed admissions to killing his wife by shooting her multiple times, intending to kill her. He 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.

  4. The applicant told police he left Taree on Thursday night, 6 October, and travelled at good speed towards Maitland, although being careful not to do anything wrong. He told police he had the two 10 litre fuel drums in the car intending to “blow away” anyone who got in his way and burn the family house down. He said that when his wife spoke to him at the door of the house he said to her, “I tell you what I’m here for you fuckin’ bitch, this is the end of your life”.

  5. The applicant then described a struggle between himself and Ms Simmons saying “I’d already pulled the trigger, and, and it hit her somewhere”.

  6. The applicant then described what occurred subsequently in the following terms:

“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 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?

…

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.”

  1. The applicant also told the police that after shooting the deceased twice he walked inside the house but returned to the verandah to shoot her again to make sure she was dead. He said “I’m not going to fail, so that’s why I shot her again”.

  2. The applicant said the final two shots fired at close range were “to make absolutely sure she didn’t get back up”. He also made the following remarks to the police:

“ … 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.

…

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.”

  1. The sentencing judge also noted that since the time the applicant was in custody he stated to one person who had spoken to him “It’s my fault what I done, that’s absolutely all my fault, but –” and on another occasion “… it’s just, just a pity Molly couldn’t come to terms with a fair deal … Shame it couldn’t have been sorted out a different way.”

  2. The sentencing judge recorded the applicant’s criminal history. In 1984 he was dealt with for offences of assault police and carry a firearm whilst under the influence of alcohol, and carry a firearm with disregard for the safety of others. He was required to enter a recognizance pursuant to the then s 558 of the Crimes Act 1900 for 18 months.

  3. In addition he was charged with the offences to which I have referred in [9] above and was on bail for those offences and subject to the Interim Apprehended Domestic Violence Order at the time of the murder.

  4. The sentencing judge referred to the victim impact statement of Ms Goodbun which she described as a powerful and harrowing account of the impact that the death of the deceased had on those who loved her.

The applicant’s subjective case

  1. Her Honour noted that the applicant did not give evidence, and details of his personal circumstances were derived from the Crown case, and accounts from him and of him reported by medical personnel.

  2. Her Honour recorded that the applicant was 62 years of age at the time of sentence. He grew up in a generally happy family home, although in later years there was conflict with an older brother. He completed Year 9 at school and then entered the workforce.

  3. Her Honour recorded that prior to his incarceration he was unemployed, having last worked in 2013.

  4. Her Honour referred to an undated letter from the applicant directed to the Court. The Crown disputed the weight that could be given to that letter. In it however, the applicant stated that his crime was an “ungodly” one, and he sought to express the “extreme levels of remorse, sorrow, and despair” he felt, having come to the realisation that his actions caused hurt to his and the deceased’s wider family.

  5. Her Honour also noted that there was a letter from a pastor of the NSW Prison Chaplaincy referring to the applicant as “having accepted full responsibility for his decision to murder his then wife” and for the trauma occasioned to his daughter and his family.

  6. So far as the applicant’s health issues were concerned, the sentencing judge referred to a report dated 7 June 2018 by Dr Adam Martin, a forensic psychiatrist who interviewed the applicant on two occasions.

  7. The report stated that the applicant gave a history of having been diagnosed with bipolar disorder approximately 20 years ago. and that he told Dr Martin he had been medicated with Seroquel and Valium to assist with sleep, together with pain relief medication for physical conditions. The report stated that the applicant said he had mood disturbances and instability with some periods of “feeling terrific”, although his mood was more usually characterised by depression. The applicant told Dr Martin he would sometimes drink as much as 4 litres of wine each day, but that he could stop without withdrawal symptoms.

  8. So far as the murder was concerned, the applicant told Dr Martin that in the period leading up to the crime his mood had been low, there was considerable acrimony with his wife and that he regarded the Interim Apprehended Domestic Violence Order and assault charges as not justified. He told Dr Martin that the day before the murder he saw his general practitioner and said he was feeling angry and depressed about his marriage. He said the general practitioner advised him to see a psychiatrist but he did not do so.

  9. Dr Martin expressed the view that the applicant probably had experienced major depressive episodes and mood instability as part of long-term personality dysfunctional traits. He concluded however that it could not be said he was severely impaired in his ability to control his actions, although he would have been generally disposed to distorted judgment and not thinking clearly. As to remorse Dr Martin made the following remarks:

“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.”

  1. There was also in evidence a report dated 26 February 2018 from a Dr Ilana Hepner, a clinical neuropsychologist. The applicant expressed remorse to Dr Hepner.

  2. Dr Hepner placed the applicant in the average range for overall cognitive function, his intellectual function being assessed in the low average range, whilst verbal skills were average.

  3. Dr Hepner concluded that it was likely that the applicant had alcohol related brain damage.

  4. Various other medical reports were tendered but it is not necessary to refer to them here.

The sentencing judge’s reasons for imposing the sentences

  1. The sentencing judge described the murder as a chilling and deeply shocking crime which, without hyperbole, could be described as an execution.

  2. Her Honour stated that it appeared that the applicant had contemplated killing his wife at an earlier stage, referring to comments he made to his daughter, Ms Goodbun, in July 2016 (see [14] above). She stated that whilst the evidence did not establish that the applicant had planned to kill the deceased well prior to 6-7 October 2016, it was 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. She described his conduct as demonstrative of the level of anger and resentment he bore towards the deceased as a consequence of her seeking a financial settlement of the marital property.

  3. Her Honour stated that the decision to murder the deceased could have been taken no later than 6 October 2016 and may have been made in an alcohol affected state. She said that on that day the applicant took steps preparatory to carrying out his crime, referring to the securing of the two weapons and the testing of the gun. Her Honour concluded that the applicant undertook and completed the drive from Taree to Maitland with the intention of killing his wife and anyone else who got in the way. She described his approach to the property in the early hours of 7 October 2016 as characterised by silence and stealth, which bespoke a cold and determined implementation of his plan.

  4. The sentencing judge described the applicant’s conduct in the hours leading up to the murder as representing a considerable level of premeditation and planning, heightening the gravity of the crime. She stated that his entry into the property involved an element of force, barging into the house and pushing his way into the lounge room.

  5. Her Honour stated that the applicant’s determination to carry out his plan was such that he resisted the attempts made by both the deceased and Ms Simmons to stop him from using the gun. She stated that his cold determination was further demonstrated by the number of gunshot injuries inflicted on the deceased.

  6. Her Honour stated that any one of the gunshots wounds would have led rapidly to death, and that the applicant must have appreciated the likely lethal nature of a gunshot wound to the head, particularly when it was additional to the first injury. Her Honour stated that despite this he directed two more rounds at close range and inflicted harm that was unnecessary to his purpose. She described those as involving gratuitous infliction of injury encompassed by the word “cruelty”. She stated that this also heightened the gravity of the offence.

  7. Her Honour concluded that the murder involved a breach of trust in two ways. The first was that the applicant carried with him the key to the deceased’s home, and endeavoured to use it to gain access to the house after he arrived there. She said that this was a key he had in his possession because of his relationship with the deceased and it was in that context that he acquired knowledge of the premises and the habits of its occupants.

  8. Her Honour also described the deception of Ms Simmons as a further and very serious breach of trust. She referred to the fact that Ms Simmons returned full control of the weapon to the applicant only after he assured her he would not shoot the deceased again. Instead the applicant shot the deceased three more times.

  9. Her Honour described the crime as defiling what should have been the safety of his wife and daughter’s home which was a further feature which increased its seriousness. She said that the gravity was also increased by the fact that a particularly lethal weapon was used by the applicant to murder his wife.

  10. Her Honour stated she regarded the murder as a gravely serious example of the crime of murder, and that, insofar as it was necessary to describe the objective gravity of the crime by reference to a range, the crime fell towards the very top of the range of seriousness. She rejected the submission that the crime fell “just above mid-range of seriousness” for such an offence.

  11. Her Honour described the contravention of the Interim Apprehended Domestic Violence Order as a defiance of the orders of the court made for the protection of the deceased and those with whom she lived as of the highest order. In relation to the use of the unregistered firearm she stated that the seriousness of that charge fell at the upper most end of the range of gravity, but that the criminality of that offence and that of the murder formed part of a whole.

  12. In relation to the charge which related to the assault on Ms Simmons her Honour said that it was an offence probably committed spontaneously as Ms Simmons “tried to save her mother”. She stated that it was the context in which the offence occurred which made it a very serious one, rather than the nature of the physical harm inflicted. She said the real harm to Ms Simmons did not consist of scratches and bruises, but the ongoing psychological harm which the offence and the context in which it occurred have left behind. She concluded that although there must be some level of overlap between the crime and the murder of the deceased, the offence fell at the upper end of the range of gravity.

  13. Her Honour rejected the submission that because of the applicant’s mental impairment his moral culpability was lessened and the gravity of his crimes thereby reduced. She concluded that the medical evidence fell short of establishing on the balance of probabilities that the applicant’s depression and cognitive decline played any role in his decision, coldly taken and maintained over a number of hours, to kill the deceased. She described the account of events he gave to the police soon after murdering his wife as comprehensive and not demonstrating mental impairment. She stated she did not regard the offender’s mental health as being in any material way connected with the commission of the offences. However, she said she had had regard to the applicant’s state of health when considering his overall subjective case.

  14. Her Honour noted correctly that the breach of the Interim Apprehended Domestic Violence Order had been specifically charged and a sentence was to be imposed for that offence. She said that that sentence would comprehend the gravity of the breach and that the applicant cannot be further penalised by adding to the length of sentence imposed for the remaining offences. She stated the breach of bail was an aggravating factor.

  15. Her Honour stated, not without reservation, that the applicant’s plea would be recognised by a discount of 25% on the sentences that would otherwise have been imposed.

  16. In relation to the question of remorse, the sentencing judge noted that the applicant did not give evidence and that she was not prepared to accept his letter as reliable evidence of remorse.

  17. So far as the statements of remorse made to Drs Martin and Hepner were concerned, she stated that the Court of Criminal Appeal has repeatedly warned about the cautionary approach that should be adopted in relation to such statements.

  18. Her Honour stated that both specific and general deterrence loomed large in the case. She stated that whilst it was true that the applicant did not have a lengthy criminal history for domestic violence, the incident did not occur against the background of untroubled domestic life. She referred to instances when the applicant damaged or destroyed property belonging to family members, and to an incident in 1984 where the applicant resorted to making threats with a gun in the context of an argument with his wife. She stated that in all the circumstances a sentence reflecting the need for specific deterrence was called for, although it could 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.

  19. She also stated, however, that general deterrence was a significant consideration, describing domestic violence as a profoundly serious problem in this community, extending not infrequently to the murder of a spouse or partner. She stated that the courts must ensure that those who commit crimes like the ones before her must pay a heavy price for their crimes, to punish them, to denounce the crime, and to deter others. She thus concluded that general deterrence and denunciation were significant features to be comprehended by the sentence.

  20. Her Honour said that by the imposition of the sentence, any realistic prospect that the applicant could commit crime in the community in the future would be removed.

  21. Her Honour declined to make a finding of special circumstances. She stated that she had had regard to the applicant’s age, health, lack of experience of prison, need for supervision, and risk of institutionalisation, but stated that while any of these features could alone or in combination be a basis for special circumstances, such a finding is unnecessary having regard to the length of the sentence to be imposed and the ordinary statutory ratio.

  22. Her Honour dealt with questions of concurrency and accumulation. As there was no criticism of her Honour’s approach to these questions, it is not necessary to set out her reasoning.

  23. Her Honour imposed the aggregate sentence to which I have referred above.

The grounds of appeal

  1. The applicant relied on the following grounds of appeal:

“Ground 1.   The sentencing judge erred in law by determining that it was unnecessary to make a finding of special circumstances because of the length of the sentence that she proposed to impose and the ordinary statutory ratio that applied.

Ground 2.   The sentence is otherwise manifestly excessive”.

Ground 1

The parties’ submissions

  1. The applicant in his written submissions submitted that the sentencing judge was in error in determining that it was unnecessary to make a finding of special circumstances having regard to his age, health, lack of experience in prison, and risk of institutionalisation

  2. The Crown submitted that her Honour rejected the applicant’s claim for special circumstances on the basis that the length of the parole period was sufficient, and that it was necessary to ensure that the non-parole period reflected the minimum period of imprisonment required by the objective seriousness of the offences.

  3. It was submitted that it is well established that a sentencing judge may determine not to vary the statutory ratio where the statutory parole period is sufficient in length to allow for adequate supervision and support. It was also submitted that having regard to the level of seriousness of the offences it was open to the sentencing judge to conclude that the non-parole period of 31 years and 1 month was necessary to reflect the objective seriousness of the offences.

Consideration

  1. Leaving aside any question of manifest excess which is the subject of ground 2, I do not think the sentencing judge erred in the manner contended for.

  2. Her Honour gave express consideration to matters which she said alone or in combination could amount to special circumstances, but concluded that the statutory ratio provided for an adequate parole period in the present case. It is well established that that is an approach available to sentencing judges: RLS v R [2012] NSWCCA 236 at [83]-[84]; DJM v R [2013] NSWCCA 101 at [14].

  3. Further, the sentencing judge stated that the principal consideration was to ensure that the minimum period of incarceration reflected the criminality and the subjective case. In R v Cramp [2004] NSWCCA 264 Spigelman CJ emphasised the importance of this consideration, reiterating that there were unlikely to be many cases in which a court would interfere unless the non-parole period was found to be manifestly inadequate or manifestly excessive: [2004] NSWCCA 264 at [34]-[36]; see also R v Fidow [2004] NSWCCA 172 at [18]-[19] citing R v Simpson (2001) 53 NSWLR 704 at [73].

  4. In written submissions filed on behalf of the applicant it was contended that his age was a particularly relevant factor which warranted a finding of special circumstances. The applicant was born on 23 February 1956 and it follows that if alive he will be 91 years of age at the time he is first eligible for parole.

  5. Thus the sentence is tantamount to a life sentence. That does not mean the sentencing judge erred, as she took into account the applicant’s age in reaching her conclusion that the non-parole period was the minimum period of incarceration appropriate, having regard to the nature of the case and the applicant’s subjective circumstances.

  6. In Barton v R [2009] NSWCCA 164, Giles JA, with whom Howie and Latham JJ agreed, said that a fundamental sentencing principle is that the sentence must reflect the objective seriousness of the offence, and that adherence to this principle may have the practical effect of imposing a life sentence on an offender of middle to advanced age: [2009] NSWCCA 164 at [22]-[27].

  7. It follows that this ground has not been made out.

Ground 2

The parties’ submissions

The applicant

  1. Counsel for the applicant in submissions referred to the fact that the standard non-parole period for the offence of murder was 20 years (Sentencing Procedure Act s 54D). It was submitted with reference to the indicative sentence for murder that having regard to the 25% discount for the plea of guilty, the undiscounted starting point for the sentence was one of 54 years.

  2. In supplementary written submissions the applicant referred to s 54B of the Sentencing Procedure Act, noting that contrary to the requirements of that section the sentencing judge failed to make a record of why she set a non-parole period that was longer than the standard non-parole period (see ss 54B(4), (5)). Counsel for the applicant stated at the hearing that this was not put as a separate ground of appeal but rather that the failure to take the standard non-parole period into account supported the proposition that the sentence was manifestly excessive.

  3. Both in the written submissions and at the hearing it was submitted that the sentence for murder prior to the discount set a new high watermark in relation to sentencing for the offence. It was submitted that this led to both the aggregate sentence and the aggregate non-parole period being manifestly excessive.

  4. In dealing with the issue at the hearing counsel for the applicant placed considerable reliance on the decision of this Court in Park v R [2019] NSWCCA 105. In that case the offender murdered one of his flatmates for the purpose of obtaining access to his motor vehicle and bank accounts. The victim was found in a green council bin parked near the roadway around the corner from the premises occupied by the victim and the offender. The victim was wrapped in an orange plastic bag inside a suitcase, with black electrical tape wrapped tightly around his neck and wrists, and tied with red rope around the hands, torso and legs. Both the victim and the offender’s DNA was found on a sledgehammer at the premises where they lived. The offender initially denied the murder but ultimately pleaded guilty.

  5. The sentencing judge after allowing a 10% discount for the plea of guilty sentenced the offender to a term of imprisonment of 36 years with a non-parole period of 27 years.

  6. The Court of Criminal Appeal, whilst accepting the sentencing judge’s characterisation of the offence as significantly above the mid-range of objective seriousness, concluded that the offender’s relative youth, his complete absence of any criminal record and his genuine remorse were factors militating in favour of a lesser period of imprisonment. In those circumstances the Court considered that the head sentence and non-parole period were manifestly excessive. The offender was resentenced to a term of imprisonment of 28 years and 9 months with a non-parole period of 21 years and 6 months.

  7. Counsel for the applicant conceded quite properly that notwithstanding the standard non-parole period the non-parole period in the present case would necessarily exceed 20 years.

  1. Counsel for the applicant also accepted that in respect of the other offences, the indicative sentences were within the range which was available and the level of accumulation could not be the subject of complaint.

The Crown

  1. The Crown emphasised that non-compliance with s 54B(4) and (5) of the Sentencing Procedure Act does not of itself give rise to a finding of error, although it may be taken into account in determining if error has been shown. She submitted that in the present case the sentencing judge did not fail to take into account any relevant considerations, or take into account any irrelevant considerations. She submitted that the sentencing judge correctly stated that the standard non-parole period was to be used as a guide.

  2. At the hearing the Crown emphasised that the murder was a gravely serious murder, carefully planned and callously executed. She also pointed out that the offence was committed in breach of conditional liberty relating to the Interim Apprehended Domestic Violence Order, an order made to protect the safety of the victim.

  3. She also pointed to the manner in which the offence occurred, noting the applicant entered the property in the early morning, used the key, and fired a number of shots with careful and cold determination. She pointed out that after the second shot the victim was conscious and able to speak. She also noted that after the daughter tried to take the gun the applicant told her he was not going to shoot, and that immediately after the daughter let go of the gun he shot the victim again contrary to the assurance he had given. He then shot her a third and fourth time.

  4. The Crown pointed out it was a cold and calculated murder committed in a domestic violence setting, and that the applicant had no remorse after the shooting.

  5. She submitted that in those circumstances there was an acute need for general and specific deterrence, and that the sentence in all the circumstances was not manifestly excessive.

Comparable cases

  1. At the request of the Court, each party made supplementary submissions referring to a number of cases where sentences were imposed either for serious crimes of murder, or murders in a domestic violent setting.

  2. The applicant provided three schedules. It is only necessary to refer to the first as the second and third were subsets of it.

  3. The first schedule comprised a table maintained by the Public Defenders for the murder of female partners, the schedule helpfully highlighting the sentences where pleas of guilty had been entered. In one (R v Cameron (Supreme Court of New South Wales, Newman J, 16 October 1992)) the offender was sentenced to life imprisonment after trial in circumstances where he assaulted the victim and she drowned in her blood. However, the offender had also committed two prior murders. In another (R v Bond [2001] NSWSC 1059) the offender was sentenced after trial to a term of 30 years with a non-parole period of 25 years. The offender had stabbed his 30 year old girlfriend three times at her home. The offence was not premeditated and there was no history of violence in the relationship. The fact that the offender was on parole at the time for the manslaughter of another woman was a significant aggravating circumstance.

  4. In R v O’Connell [2004] NSWSC 1120 the offender, after receipt of a 20% discount for a plea of guilty, was sentenced to a term of imprisonment of 35 years with a non-parole period of 25 years (the standard non-parole period was 20 years). The offender had killed a 15 year old girl with whom he was having a casual relationship. There were horrific injuries including 10 stab wounds and evidence of sexual violence, and the victim’s body was disposed of in a nearby garbage bin. The offender had been the victim of abuse by his stepfathers, and had drug and alcohol problems and ADHD. The sentencing judge stated but for his youth and his plea, a life sentence would have been imposed. An appeal was dismissed (O’Connell v R [2006] NSWCCA 82).

  5. In R v Cullen [2015] NSWSC 768 the offender was sentenced after trial to a term of imprisonment of 30 years and a non-parole period of 22 years and 6 months. The offender had killed his estranged wife, first assaulting her in the garage of an apartment block and forcing her into the boot of his car. He then purchased fishing knives, drove to a reserve and fatally stabbed the victim in a frenzied and brutal attack. The offence was described by the sentencing judge as above mid-range.

  6. The applicant in his supplementary submissions placed particular reliance on R v Villaluna [2017] NSWSC 1390. The offender in that case pleaded guilty to charges of murder and wounding with intent to cause grievous bodily harm. After a 15% discount, the offender was sentenced to an aggregate term of imprisonment of 40 years with a non-parole period of 30 years, the indicative sentence for murder being 34 years with a non-parole period of 24 years. The offender had stalked, abused and tormented his female ex-partner. He followed her to a dinner date with a male victim, stabbing him 11 times and wounding the ex-partner. It was found that the murder was planned, the victim was a complete stranger and that the offender had planned for some time to kill any man in the presence of his ex-partner. The sentencing judge found no remorse and that there were significant prospects of reoffending in the unlikely event that he ever formed another relationship.

  7. In R v Boyd [2018] NSWSC 380 the accused pleaded guilty to murder. He had attacked his long term spouse after a period of separation and assaulted his son who arrived and tried to assist the victim. There were numerous stab wounds to the victim’s face and both sides of her neck, as well as multiple bruises and stab wounds. The sentencing judge described the stab wounds as showing savagery and brutality, and that there was the evident use of multiple weapons. The offender had anger issues and the sentencing judge found limited prospects of rehabilitation. The offender was sentenced to an aggregate sentence of 33 years with a non-parole period of 25 years and 6 months. The indicative sentence for the offence of murder was 30 years with a non-parole period of 22 years and 6 months. The indicative sentences were arrived at after a discount of 10% for the plea of guilty.

  8. In R v AKB (No 8) [2018] NSWSC 1628 the offender was found guilty after trial of the murder of his wife. He set fire to her bedroom and prevented her from leaving, stopping his son from opening the door for her. He was angered that the victim intended to leave the marriage. The crime was committed in front of their children, there was gratuitous cruelty, some planning, and risk of injury to the boys in the adjacent bedroom. He was sentenced to a term of imprisonment of 36 years with a non-parole period of 27 years.

  9. There are a large number of other cases referred to in the table in respect of which lesser sentences were imposed. However, the above cases are the most helpful having regard to the particular facts and circumstances in the present matter.

  10. In addition to the Public Defender’s table the Crown provided a separate table described as “Comparative Cases – Murder – Determinate Sentences – Single Murder (not involving a child victim) – Head Sentences over 40 Years – Post SNPP”. I have reviewed all those cases in my judgment in Barrett v R [2020] NSWCCA 11 at [100]-[107] and I will not repeat what I have there set out.

  11. The Crown emphasised that it is well established that comparative cases do not fix the boundaries within which sentencing judges are obliged to act, and that the relevant consistency sought is in the application of the relevant legal principles. It was submitted that the Public Defender’s table needed to be approached with particular caution, as there was no specific category of “domestic murder”. The Crown also submitted that the fact that the murder occurred in a domestic relationship was an aggravating factor, further aggravated by the fact that there was a breach of trust, that the offence occurred in the victim’s home, and that there was a past history of domestic violence offences. She emphasised that particular weight must be given to general deterrence and denunciation, having regard to the prevalence and seriousness of domestic violence.

  12. The Crown submitted that the cases in the Public Defender’s table were generally much less objectively serious than the offending in the present case, and that none involved gratuitous cruelty committed in the presence of a second victim and with injuries inflicted on the second victim. Many of the offenders had more favourable subjective circumstances.

  13. The Crown submitted that the cases in the table mentioned above at [102] were more similar to the present offence, as there was planning, absence of remorse, callous and sometimes gratuitous cruelty, in most cases the offences occurred in the home, and there was no reduction of moral culpability arising from mental illness or deprived background. The Crown further submitted that in fact the present case involved more serious offending than those cases because the applicant had two weapons, the level of planning exceeded that in many of the offences in the table, the offence occurred in breach of two forms of conditional liberty, the applicant had a prior history of offending, and the offending caused physical harm and significant psychological harm to another victim.

Consideration

  1. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J conveniently summarised the principles relevant to this ground of appeal. His Honour stated:

“[443] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this Court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

  1. In the present case, counsel for the applicant submitted that the notional starting point of the indicative sentence was erroneously high, and pointed to the failure of the sentencing judge to specify a non-parole period in respect of that indicative sentence for murder, but otherwise did not refer to any particular matter which was said to lead to the sentence being manifestly excessive. This is not to criticise this approach. The approach was consistent with that referred to by the plurality in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 in the following terms:

“[59]   As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out (71) in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say (72) in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said (73) that ‘the sentence imposed in these matters is so far outside the range of sentences available that there must have been error’.

…

[61]   The applicants' submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge's findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal. The reasons given by the Court of Criminal Appeal for concluding that the sentences passed were manifestly inadequate sufficiently revealed the bases for that conclusion.”

  1. The appeal is against the aggregate sentence. Although the indicative sentences are not themselves amenable to appeal, they may be a guide as to whether error is established in relation to the aggregate sentence: JM v R [2014] NSWCCA 297; (2014) A Crim R 528 at [40] and the cases there cited. That is particularly the case where the sentence was to a significant extent imposed for the offence of murder.

  2. In a case such as the present it is important to bear in mind the limitations on the use that can be made of so called comparable cases. What is to be sought is consistency in legal principle by the treatment of like cases alike, and different cases differently: Hili at [47]-[49]. As was pointed out in that case, approving what was said by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305], a history of sentencing can reveal a range, but does not establish that the range is the correct range. Past sentences can stand as a yardstick against which a sentence can be measured, but it is only by examination of the whole of the circumstances that have given rise to the sentence that any unifying principle may be discerned: Hili at [54]; see also Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [27]-[28]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28]; Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [61]-[83].

  3. The present case is an extremely serious one. I will not repeat the circumstances in which it occurred. However, as the sentencing judge pointed out, it was premeditated, callous and cruel, was carried out in breach of trust including deceiving the applicant’s daughter as to his intention, and took place in the victim’s home. It also took place whilst the applicant was on bail for the assault charge to which I have referred at [9]. The applicant demonstrated a lack of remorse immediately after the killing, attributing his actions to the deceased’s desire for a financial settlement of the marital property. Her Honour was entitled to view his subsequent untested expressions of remorse with caution.

  4. Further, the importance of general deterrence and denunciation in cases of this nature must be emphasised: see Cherry v R [2017] NSWCCA 150 at [76], [78]; Director of Public Prosecutions (NSW) v Darcy-Shillingsworth [2017] NSWCCA 224; (2017) 269 A Crim R 40 at [83]-[85].

  5. Nevertheless, the indicative sentence for murder of 40 years and 6 months imposed after a discount of 25% for the plea of guilty was extremely high, representing a pre-discount sentence of 54 years. None of the cases to which I have referred in this case or in Barrett v R have a comparable pre-discount sentence (leaving aside those in which a sentence of life imprisonment was imposed). Accepting the limitation on the use that can be made of such comparable cases, it does seem to me that the sentence imposed was inconsistent with legal principle in sentencing for this type of offence in the sense explained in Hili.

  6. The Crown in written submissions submitted that none of the cases in the Public Defender’s list involved gratuitous cruelty, committed in the presence of a second victim with injuries inflicted on the second victim. That with respect is incorrect: see R v Villaluna; R v Boyd. Further, even if it were accepted that the present case was objectively more serious than R v O’Connell and R v Cullen, the difference was not such as to warrant such a marked disparity.

  7. The aggregate sentence was substantially imposed for the offence of murder. That is clear from the indicative sentences imposed for the other offences. As a consequence, the aggregate sentence, like the indicative sentence, is manifestly excessive.

  8. The sentence is manifestly excessive and should be set aside.

Resentence

  1. As this is a dissenting judgment, it is neither necessary nor appropriate for me to indicate what sentence I would have imposed had it been necessary to resentence the applicant.

  2. FULLERTON J: I have read the judgments of the Chief Justice and Bellew J circulated in draft.

The first ground of appeal

  1. I agree with their Honours that the first ground of appeal should be dismissed for the following additional reasons.

  2. It is clear from the sentencing remarks extracted in full at [206] of Bellew J’s judgment that her Honour accepted that the factors relied upon by the applicant, namely his age, health and the risk of institutionalisation might have provided a basis for a finding of special circumstances. It is equally clear that she regarded that finding and the consequential alteration to the statutory ratio between the aggregate sentence and the non-parole period as “unnecessary” (which I take her Honour to mean was not warranted) given the structure of the aggregate sentence she intended to impose, in particular the length of the period the applicant would spend in custody before he was eligible to be considered for release to parole.

  3. The first ground of appeal is expressed, in terms, that the approach her Honour took to the question of special circumstances, in particular that it was “unnecessary” to make that finding because of the length of the sentence she intended to impose, was contrary to law.

  4. Counsel submitted that it would have been open to the sentencing judge to have considered the factors relied upon by the applicant as “not sufficient” to displace the statutory ratio, but she did not make that finding. Instead she found that it was not necessary for a finding of special circumstances to be made having regard to the length of the sentence to be imposed. It was that finding that counsel submitted was contrary to law.

  5. No authority was cited in support of that proposition. There are many authorities of this Court to the contrary. I would dismiss the first ground of appeal on that basis alone.

  6. The further submission that the imposition of a lengthy sentence on a person of advanced age warrants greater weight being given to that factor when a sentencing judge is considering whether a finding of special circumstances should be made was also unsupported by authority. While in a particular case an offender’s advanced age may attract significant weight on the question whether special circumstances are established, the weight of that factor, amongst other factors, is quintessentially one calling for the exercise of a sentencing discretion.

  1. In Thach v R [2018] NSWCCA 252, at [43], Davies J (Bathurst CJ and RA Hulme J agreeing) confirmed that the breadth of the discretion to find or not to find special circumstances is subject only to the ultimate constraint that the non-parole period ultimately imposed must reflect the criminality involved and, where relevant, an offender’s subjective circumstances, and must not be reduced to a level beyond that which is necessary to punish the offender and provide specific deterrence.

  2. The extensive consideration the sentencing judge gave to the full range of considerations relevant to determining the minimum period the applicant should spend in custody, including but not limited to her assessment of the objective gravity of the totality of his offending and the lack of any evidence of genuine remorse or any assessed prospects of rehabilitation, in my view, more than justified her Honour declining to make a finding of special circumstances on the basis that any reduction in the non-parole period was “unnecessary” or unwarranted. No error of law or discretion is disclosed in that approach.

The second ground of appeal

  1. I agree with Bellew J that the second ground of appeal should also be dismissed and with the orders he proposes for the ultimate disposition of the appeal.

  2. In light of the detailed analysis his Honour has given to the evidence and to the cases variously relied upon in the schedules provided by the parties after the hearing of the appeal (acknowledging, as did his Honour, the limitation on the use of comparative cases where a claim is made that a sentence is either manifestly excessive or inadequate), I have not found it necessary to refer to the evidence in detail or any particular case or category of case in confirming my agreement that the sentence indicated for the murder of the deceased did not suggest the aggregate sentence, as a reflection of the total criminality involved, was manifestly excessive.

  3. It is not to the point that a more egregious murder might be envisaged, or that there are features of the offending of others convicted of murder that are either singularly, or in combination, more or less gratuitous or cruel. What is to the point is that there was no challenge to the finding of the sentencing judge that the particular circumstances in which the premeditated murder of Mrs Goodbun was committed placed it at the very top of the notional range of objective seriousness, and no challenge to her Honour’s further finding that there was nothing in the applicant’s subjective circumstances that operated in mitigation of sentence.

  4. I would also wish to make clear my view that although the aggregate sentence imposed is very severe, so also is the gravity of the applicant’s overall offending. The domestic context in which that offending occurred, including the breach of the interim AVO in place for Mrs Goodbun’s protection, were sentencing factors entitled to considerable weight in the assessment of the objective seriousness of the murder (and the sentence indicated for that offence) and the objective seriousness of the offence committed against the applicant’s daughter (and the sentence indicated for that offence) as she sought to defend her mother by deflecting the applicant’s further attack.

  5. In Patsan v R [2018] NSWCCA 129, at [39]-[42], Adamson J (Bathurst CJ and Leeming JA agreeing) confirmed the correctness of the sentencing judge’s approach to the assessment of the objective seriousness of multiple offences of violence inflicted by the offender upon his former partner by taking into account the fact that the offences occurred in the context of a breakdown in a domestic relationship and where the female victim was effectively defenceless.

  6. In rejecting counsel’s submission that the sentencing judge had, in effect, used the applicant as a scapegoat for the prevalence of domestic violence offences in the community, her Honour said:

[39] I reject Mr Skinner’s further submission that the sentencing judge had, in effect, used the applicant as a scapegoat for the prevalence of domestic violence offences. While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them. The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant’s conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths.

[40] In R v Edigarov [2001] NCWCCA 436; (2001) 125 A Crim R 551 , Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]:

[V]iolent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

[41] The High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 recognised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection. The High Court referred, at [54], to:

the 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. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

[42]  Recently the High Court in R v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that:

current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence.

  1. After taking into consideration the findings her Honour made for sentencing purposes, none of which were challenged on the appeal, and after giving due weight to what can only be described as the applicant’s calculated and brazen determination to kill his wife in an act of callous and unbridled revenge, evidenced, inter alia, by him discharging three shots to her head at close range despite having effectively disabled her with the first shot to her chest, I am not persuaded that the sentence indicated for the murder has rendered the aggregate sentence imposed either “unreasonable or plainly unjust”.

  2. I have reached that conclusion in full recognition of the fact that, given the applicant’s age, the length of the non-parole period will mean he is likely to spend the rest of his life in custody.

  3. BELLEW J: Keith Owen Goodbun (the applicant) pleaded guilty before the Local Court, and adhered to that plea before the sentencing judge, to a charge in the following terms:

  1. On 7 October 2016, at Horseshoe Bend in the State of New South Wales, did murder Molly Goodbun.

  1. The offence of murder carries a maximum penalty of life imprisonment, with a standard non-parole period of 20 years imprisonment.

  2. The following further offences, all of which were committed on 7 October 2016, were contained in a Certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) which was before the sentencing judge:

(1) Contravening an interim Apprehended Domestic Violence Order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which carried a maximum penalty of 2 years imprisonment and/or a fine of $5,500.00;

(2) Using an unregistered firearm, namely a semi-automatic rifle, contrary to s 36(1) of the Firearms Act 1996 (NSW) which carried a maximum penalty of 2 years imprisonment;

(3) Possessing an unregistered firearm, namely a semi-automatic rifle, contrary to s 36(1) of the Firearms Act 1966 (NSW) which carried a maximum penalty of 5 years imprisonment;

(4) Not keeping a firearm safely contrary to s 39(1)(a) of the Firearms Act 1996 (NSW) which carried a maximum penalty of 2 years imprisonment and/or a fine of $2,200.00 (the firearm not being a prohibited firearm or a pistol);

(5) Possessing ammunition for a firearm contrary to s 65(3) of the Firearms Act 1996 (NSW) which carried a maximum penalty of a fine of $5,500.00.

(6) Assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) which carried a maximum penalty of 2 years imprisonment.

  1. Ultimately, the Crown did not proceed with charges (3), (4) and (5) on the certificate.

  2. The sentencing judge set out the following indicative sentences as required by s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act):[1]

    1. R v Keith Owen Goodbun [2018] NSWSC 1025 at [223]. The sentencing judge did not specify a non-parole period in respect of the indicative sentence for the offence of murder as required by s 54B(4) of the Sentencing Act. However her failure to do so does not, in light of s 54B(7) render the sentence invalid.

  1. Murder – 40 years and 6 months imprisonment.

  2. Assault – 1 year and 6 months imprisonment.

  3. Using an unregistered firearm – 1 year and 6 months imprisonment.

  4. Contravening an interim Apprehended Domestic Violence Order – 1 year and 6 months imprisonment.

  1. Having done so, her Honour sentenced the applicant to an aggregate sentence of 41 years and 6 months imprisonment, with a non-parole period of 31 years and 1 month imprisonment. [2]

    2. At [222].

  2. The applicant now seeks leave to appeal against that sentence on the grounds set out below.

THE FACTS OF THE OFFENDING

  1. A statement of agreed facts was tendered on sentence, [3] and the sentencing judge acknowledged that her factual findings in terms of the circumstances of the offending (none of which are challenged by the applicant) were drawn largely from what was contained in that document. [4] Her Honour found the facts of the offending to be as follows.

    3. Exhibit A3.

    4. At [5].

Background

  1. Molly Goodbun (the deceased) was the applicant’s wife. She was born on 24 December 1956 and was 59 years of age when she was shot dead by the applicant in the early hours of 7 October 2016. [5] The applicant and the deceased had been married for about 40 years and had two children. [6]

    5. At [6].

    6. At [6].

  2. Until June 2016 there were no known instances of physical violence by the applicant to the deceased. However, there had been several occasions when the applicant had become angry and verbally abusive towards the deceased, and had destroyed items of property belonging to the family. [7]

    7. At [8].

  3. In around 2012, the couple’s eldest daughter, Bionca Simmons (Ms Simmons) moved back to the family home at Horseshoe Bend, a residential suburb of Maitland. [8] Having done so, Ms Simmons noticed that the applicant took painkillers and antidepressants, and drank alcohol. [9] She also observed dramatic mood changes in the applicant, ranging from positive, generous and helpful, to argumentative, negative, blameful and disrespectful. [10]

    8. At [9].

    9. At [9].

    10. At [9].

  4. In 2015 the deceased and the applicant separated. However, they both continued to live at the Horseshoe Bend property, the deceased and Ms Simmons living in the house and the applicant living in a caravan in the back yard. During that time, the applicant became more unstable, his behaviour deteriorated and he continued to drink. There were arguments between the applicant and the deceased, during which the applicant would stand close to the deceased and yell in her face. Some of the arguments concerned what would happen to the family home following the breakdown in the marriage. [11]

    11. At [10].

  5. On 19 June 2016 the applicant accused the deceased and Ms Simmons of stealing a guitar and a sum of cash from him. He became angry and threw items of clothing belonging to Ms Simmons onto the street, and damaged items of furniture in her bedroom. [12] The deceased tried to contact the police but the applicant pulled the telephone from the wall and broke it. However, the police attended the property, following which an interim Apprehended Domestic Violence Order (ADVO) was issued against the applicant. The terms of that order prohibited the applicant from assaulting, molesting, harassing, threatening, intimidating, stalking or otherwise interfering with the deceased, and from entering the deceased’s place of work or residence without her prior permission. The ADVO remained in force at the time of the deceased’s murder. [13]

    12. At [11].

    13. At [13].

  6. At the time of the issue of the ADVO, the applicant was charged with damaging property, and assaulting the deceased occasioning to her actual bodily harm. He was released on bail subject to conditions preventing him from living at the Horseshoe Bend property, and requiring compliance with the terms of the ADVO. Those bail conditions also remained in force at the time of the deceased’s murder. [14]

    14. At [14].

The events between 20 June 2016 and 6 October 2016

  1. Following his release on bail, the applicant moved to the nearby town of Rutherford where he lived in a caravan. [15] In the period that followed, he and the deceased were engaged in negotiations regarding the Horseshoe Bend property. The applicant occasionally visited the deceased with her permission, but there were arguments about the possible sale of the property. [16] The applicant’s alcohol consumption increased during this period. [17]

    15. At [15].

    16. At [17].

    17. At [18].

  2. In early July 2016 Rachel Goodbun (Ms Goodbun), who was the younger daughter of the applicant and the deceased, came to stay with her mother and sister at the Horseshoe Bend property. On one occasion during her visit the applicant attended the property in breach of the ADVO. When Ms Goodbun warned the applicant of the consequences of such a breach the applicant stated:

This is bullshit … This is all because of that lying bitch. This is my house and I should be able to go into it whenever I like. [18]

18. At [19]-[20].

  1. The applicant ultimately left the property, continuing to refer to the situation as “bullshit”. [19]

    19. At [21].

  2. Ms Goodbun spoke to the applicant again in the latter part of July 2016. When she commented positively on the fact that the applicant had found a place to stay, the applicant said:

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. [20]

20. At [22].

  1. When Ms Goodbun queried whether the applicant still loved the deceased, the applicant said:

No, I don’t care if she fucking dies. [21]

21. At [23].

  1. When Ms Goodbun asked the applicant to stop talking that way he said he did not mean it, and left the property. [22]

    22. At [24].

The events of 6 and 7 October 2016

  1. On 6 October 2016 the applicant was living in a caravan on a property in Taree which he and the deceased owned and which was located about 250km from Horseshoe Bend. [23] It was whilst living there that the applicant resolved to kill the deceased and burn down the family home,[24] he having told a neighbour at one point that any Court that gave the deceased anything of his “[was] only going to give her a death sentence”. [25] He obtained a Winchester model 320 bolt action repeating .22 calibre rifle and a large knife. He had ammunition for the gun and test fired it to make sure it was in working order. He also secured two 10 litre containers of fuel, one of which was full and the other partially full. Having burned down the caravan in which he had been living on the Taree property, the applicant left in possession of the rifle, a knife, ammunition and the fuel, and drove towards Horseshoe Bend, where he arrived in the early hours of 7 October 2016. [26]

    23. At [26].

    24. At [26].

    25. At [133].

    26. At [26]-[28].

  2. At about 2:50am David Myers saw the applicant’s vehicle travelling very quietly and rolling to a stop at the driveway of the property at Horseshoe Bend. The applicant opened the driver’s side door, 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. The applicant then walked to the house. He went onto the verandah, approached a sliding door and tried to open it. [27] In attending the premises without the deceased’s permission, the applicant was in contravention of the ADVO, a circumstance which founded charge (1) on the s 166 certificate. [28] He was also in breach of his bail conditions.

    27. At [28].

    28. At [29]; see [3] above.

  3. Both the deceased and Ms Simmons were at home when the applicant arrived. At around 3:00 am the deceased got up to go to the bathroom, while Ms Simmons got up to get some water. Ms Simmons was returning to her room when she heard a knock at the sliding door at the side of the house. She heard her mother go and unlock the door and speak to the applicant. The applicant sounded irritated. Ms Simmons went to join her mother at the door. [29] What then happened was set out by the sentencing judge in the following terms: [30]

    29. At [30].

    30. At [31]-[45].

[31]   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”.

[32]   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.”

[33]   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.

[34]   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.”

[35]   Ms Simmons released her grip on the rifle and said, “Ok, ok, I've let go.”

[36]   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,

COMPARABLE CASES

  1. In view of the oral submissions made by the parties at the hearing, the Court requested supplementary submissions by reference to sentences imposed in other cases of murder, including those committed in the context of domestic violence. Before coming to consider those supplementary submissions and the cases, it is appropriate to make reference to the decision of this Court in Park upon which counsel for the applicant placed significant reliance in oral submissions.

  2. In Park the offender had murdered his flatmate for the purpose of obtaining access to his motor vehicle and bank accounts. The victim’s body was found in a garbage bin near the premises which he had occupied with the offender, wrapped in a plastic bag inside a suitcase, with black electrical tape wrapped tightly around his neck and wrists, and rope tied around his hands, torso and legs. Following a plea of guilty (for which the sentencing judge made an allowance of 10%) the offender was sentenced to a term of imprisonment of 36 years with a non-parole period of 27 years.

  3. On appeal, this Court agreed with sentencing judge’s characterisation of the offence as being significantly above the mid-range of objective seriousness, but concluded that the offender’s relative youth, his genuine remorse, and the absence of any prior criminal record were factors which supported the imposition of a lesser sentence. In concluding that the sentence imposed at first instance was manifestly excessive, this Court imposed a sentence of 28 years and 9 months imprisonment with a non-parole period of 21 years and 6 months. In doing so, this Court confirmed the finding of the sentencing judge that the offending was pre-meditated to a significant degree. [132]

    132. At [18].

  4. There are a number of factors which distinguish the circumstances in Park from those in the present case. To begin with, the offending in Park was not committed in the context of domestic violence.

  5. It is also significant that unlike the applicant’s offending, the offending in Park was not in breach of any form of conditional liberty. It is also evident that aspects of the subjective case of the offender in Park played a significant role in determining his sentence. Those factors included his relative youth, the absence of any criminal record, his genuine remorse, and his moderate prospects of rehabilitation. [133] The applicant in the present case was unable to rely on any of those factors in mitigation of sentence. In all of these circumstances, I am not persuaded that the decision in Park supports a conclusion that the sentence imposed on the applicant is manifestly excessive.

    133. At [41].

  6. Counsel for the applicant provided a series of schedules containing a large number of cases involving sentences imposed for the offence of murder. The following are taken from those schedules.

  7. In R v Cameron [134] (Supreme Court of New South Wales, Newman J, 16 October 1992) the offender assaulted the victim and she drowned in her blood. The offender was sentenced to life imprisonment, in circumstances where he had committed two prior murders.

    134. Supreme Court of NSW, Newman J, 16 October 1992 (unreported).

  8. In R v Bond [135] the offender murdered his partner by stabbing her three times at her home. Following a trial, the applicant was found guilty by a jury and was sentenced to imprisonment for 30 years, with a non-parole period of 25 years. In imposing that sentence, the sentencing judge found that the offending was aggravated by the fact that the offender was on parole at the time,[136] but took into account a number of other factors. [137]

    135. [2001] NSWSC 1059.

    136. At [67]. These included the absence of evidence of premeditation or planning, and the absence of the commission of any other connected offence.

    137. At [61]; [66].

  9. In R v O’Connell [138] the offender pleaded guilty to murdering a 15 year old girl with whom he was having a casual relationship. There was evidence of the infliction of 10 stab wounds as well as blunt force trauma. There was also evidence of sexual violence having been perpetrated on the victim whose body was disposed of in a nearby garbage bin.

    138. [2004] NSWSC 1120.

  10. The sentencing judge found that the offender had deliberately embarked on a course of conduct designed to divert suspicion from himself as the person responsible for the death of the deceased,[139] but did not find that the offending was premeditated. Further, although the offender had a criminal history, there was considerable evidence before the sentencing judge as to the offender’s difficult childhood. [140] The sentencing judge was not able to determine that the offender was unlikely to reoffend,[141] but concluded that he had shown a “degree of remorse”. [142] After applying a discount of 20% to reflect the plea of guilty, the applicant was sentenced to a term of imprisonment of 35 years with a non-parole period of 25 years. An appeal to this Court was dismissed. [143]

    139. At [33].

    140. Commencing at [37].

    141. At [72].

    142. At [73].

    143. O’Connell v R [2006] NSWCCA 82.

  11. In R v Cullen [144] the offender was sentenced, following a trial, to imprisonment for 30 years with a non-parole period of 22 years and 6 months. The offender had killed his estranged wife, first assaulting her in the garage of an apartment block and forcing her into the boot of his car. He then purchased fishing knives, drove to a reserve and fatally stabbed her in a frenzied and brutal attack. The offending was found to fall above the mid-range of objective seriousness. The sentencing judge was not provided with any evidence detailing the offender’s childhood and therefore found himself unable to express any views about the offender’s personal situation in any relevant or reliable way. [145] The offender had no criminal history in Australia although he did have a history of criminal offending in the United Kingdom, including a series of offences of violence. [146] The sentencing judge found that the offender had not expressed any remorse or contrition for his offending. [147]

    144. [2015] NSWSC 768.

    145. At [27].

    146. At [28].

    147. At [31].

  12. R v Villaluna [148] was a case on which counsel for the applicant also placed particular reliance. In that case, the offender had pleaded guilty to charges of murder and wounding with intent to cause grievous bodily harm. After a 15% discount, the offender was sentenced to an aggregate term of imprisonment of 40 years with a non-parole period of 30 years, the indicative sentence for murder being 34 years imprisonment with a non-parole period of 24 years.

    148. [2017] NSWSC 1390.

  13. The offender had stalked, abused and tormented his former partner, and followed her to a dinner date with a male victim, where he stabbed the victim 11 times and wounded his former partner. The sentencing judge described the offender as “an almost textbook example of a perpetrator of extreme domestic violence” and concluded that general deterrence, denunciation and retribution were all significant considerations in the sentencing of such offenders. [149] The sentencing judge also found that the offending was aggravated by the ferocity of the attack and the level of planning, the fact that it involved the use of a weapon, and the fact that it took place in a public place in circumstances that would have caused great distress to the members of the public present. [150] In all of these circumstances, the sentencing judge found that the murder offence was “well above the middle of the range of objective seriousness”[151] and that the objective seriousness of the stabbing offence fell at the same level. [152] The sentencing judge found that whilst there was evidence of difficulties in the offender’s upbringing, they were deserving of little weight in the overall assessment of the appropriate sentence. [153] In terms of other matters, the sentencing judge found that the offender did not have a record (or at least any significant record) of prior convictions but that in light of perpetrated acts of domestic violence and abuse towards his former partner over a sustained period of time prior to committing the offences, he could not be sentenced on the basis that he was a person of prior good character. [154] Even allowing for the offender’s plea of guilty, the sentencing judge was not satisfied that he was remorseful for his actions in any relevant sense, describing the offender as being “awash with self-pity and anger”. [155] The sentencing judge also found that the offender presented as having significant prospects of re-offending in the unlikely event that he ever formed another relationship. [156]

    149. At [41].

    150. At [48].

    151. At [49].

    152. At [50].

    153. At [65].

    154. At [67].

    155. At [71].

    156. At [72].

  14. In R v Stephen James Boyd (No 2) [157] the offender pleaded guilty to murdering his wife after a period of separation, assaulting his son who arrived at the scene and tried to assist the victim, and driving in a manner dangerous to the public. There were numerous stab wounds to the victim’s face and both sides of her neck, as well as multiple bruises and stab wounds in the chest, back and shoulders. Findings on post mortem examination demonstrated that significant force was repeatedly used by the offender upon a defenceless victim. [158] The sentencing judge found that the offending leading to the death of the victim was savage and brutal, that it involved the use of multiple weapons, and that it was in the nature of an attack over a sustained period of time. [159] Her Honour further found that the offending had resulted from alcohol-fuelled anger directed towards the deceased by the offender. [160] The offender’s attack on his son was found by the sentencing judge to have demonstrated the offender’s deliberate focus on attacking his son with a bat and intending to harm him, and preventing his son’s intervention in the attack on the deceased victim. [161]

    157. [2018] NSWSC 380.

    158. At [38].

    159. At [37].

    160. At [37].

    161. At [39].

  15. Whilst the sentencing judge was not satisfied that a life sentence was appropriate,[162] she found that the offending was of very substantial gravity, involving extensive violence exhibited towards the offender's long-term partner in her home. She found that the objective seriousness was well above the mid-range bearing in mind the obvious ferocity of the attack, the length of time over which it occurred (which at the very least was close to half an hour), the extensive and horrific injuries suffered by the victim and the multiple weapons which were used. [163]

    162. At [43].

    163. At [46].

  16. The offender had a record of previous convictions, one of which was recent and involved an alcohol-related attack on his son. [164] Moreover, the offender was subject to a good behaviour bond at the time of his offending and the offending had occurred in the home of his former spouse and son, a place where both were entitled to feel safe and secure. [165] The sentencing judge found that there were few mitigating factors, and rejected a submission that the offender had shown remorse for his offending. [166] She found that the offending was committed as a result of aggression brought about due to the level of the offender's intoxication, but found that the diagnosis of an adjustment disorder had no role to play in terms of mitigation. [167] On the whole of the evidence sentencing judge found that that there may be “some little prospects"[168] of rehabilitation and allowed a discount of 10% in light of the offender's late plea of guilty. [169]

    164. At [50].

    165. At [51]-[52].

    166. At [54]-[55].

    167. At [66].

    168. At [84].

    169. At [90].

  17. The offender was sentenced to an aggregate sentence of 33 years imprisonment with a non-parole period of 25 years and 6 months imprisonment. The indicative sentence for the offence of murder was 30 years imprisonment with the indicative sentence for the associated charge of wounding with intent being one of 6 years and 3 months imprisonment. [170]

    170. At [95].

  18. In R v AKB (No 8) [171] the offender was found guilty, following a trial, of the murder of his wife. The offender had started a fire in his wife’s bedroom with the aid of an accelerant, as a consequence of which his wife was burned to death. The sentencing judge described the circumstances of the victim's murder as confronting, shocking and gruesome to a marked degree,[172] and was satisfied that the offender intended to kill the deceased, that he knew that she could not escape out of the window of the bedroom because there were metal bars on the window, and that he actively prevented her from leaving by the only door which would have allowed her to escape. [173] The sentencing judge also found that the victim's murder was “seriously aggravated" by having been carried out in the presence of the children of the offender and his wife, in circumstances where the offender had actively prevented one of the children from trying to save his mother. [174] The sentencing judge also found that the offending was aggravated by having been committed in the deceased's home where she was entitled to feel safe, that it involved gratuitous cruelty (in as much as the deceased was burnt to death whilst being prevented from escaping the fire) and that it involved planning and preparation by reason of the introduction of the accelerant. [175] His Honour was satisfied that the offender desired to have control over the deceased and that tension in the relationship had arisen from the resistance of the deceased to that control. [176] His Honour made a point of emphasising that a marriage or similar relationship gives no right to one party to control the other. [177]

    171. [2018] NSWSC 1628.

    172. At [24].

    173. At [24].

    174. At [25].

    175. At [25].

    176. At [27].

    177. At [28].

  19. The offender was 45 years of age and had no prior criminal history. His Honour concluded that both specific and general deterrence were important factors in sentencing for murder in a domestic setting although in the present case, specific deterrence was not a significant consideration. [178] Whilst his Honour was satisfied that the offending involved planning, he concluded that the evidence did not permit him to find beyond reasonable doubt that the planning commenced earlier than the day prior to the fire. [179] His Honour found that the objective seriousness of the offending was well above the mid-range. [180] He found that the offender had not shown any remorse for his offending and whilst he considered that his prospects for rehabilitation were only average until such time as he could accept what he did and accept the wrongfulness of his actions, he regarded it as “most unlikely" that the offender would reoffend. [181] He regarded the evidence that the offender suffered from post-traumatic stress disorder as a matter that was deserving of very little weight, firstly because of the seriousness of the offending and secondly because the condition did not appear to prevent the offender from leading a relatively normal existence in terms of employment and social interaction. [182] The offender was sentenced to a period of imprisonment of 36 years with non-parole period of 27 years.

    178. At [31].

    179. At [32].

    180. At [38].

    181. At [53].

    182. At [59].

  20. The Crown provided three schedules setting out sentences imposed in other cases. The first schedule set out sentences imposed in cases of a single count of murder of an adult where the aggregate head sentence imposed was in excess of 40 years. The sentences imposed in the cases R v Evans (No.3),[183] Kelsall v R,[184] R v Droudis (No.16),[185] and R v Dent, [186] all of which were included in this schedule, were reviewed in the judgment of Bathurst CJ in Barrett v R. [187] This schedule also included reference to the sentence imposed in Villaluna to which reference has already been made. [188]

    183. [2017] NSWSC 1523.

    184. [2017] NSWCCA 240.

    185. [2017] NSWSC 20.

    186. [2016] NSWSC 444.

    187. [2020] NSWCCA 11 at [100]; [103]; [104]; and [107]; respectively.

    188. At [105] above.

  21. Over and above those cases, the schedule made reference to the sentence imposed in R v Stani-Reginald. [189] In that case, the offender pleaded guilty to the murder of a 24-year-old woman whom he sexually assaulted before strangling her with a ligature in a boarding house in which they both lived. In addition to the offence of murder, the offender also pleaded guilty to having sexual intercourse with the victim without consent in circumstances of aggravation, namely that the time of the offence he occasioned actual bodily harm to her. The sentencing judge found that the duration of the attack was more than momentary,[190] and that it had been planned for some considerable time prior. [191] In all of the circumstances, the sentencing judge found that both offences fell within the worst category of offences of their kind. [192]

    189. [2013] NSWSC 567.

    190. At [42].

    191. At [46].

    192. At [52].

  22. The offender was 19 years old at the time of the offending and 21 years old at the date of sentence. His prior criminal history included offences of violence as a young person, including two counts of armed robbery with an offensive weapon, one count of having custody of a knife in a public place, four counts of assault with intent to rob, one count of stalking/intimidating with intent to cause fear, two counts of damaging property by fire and two counts of assault with intent to rob, armed with an offensive weapon. [193] In light of that record, the sentencing judge gave more weight to personal deterrence and protection of society than would otherwise have been the case. [194] There was no evidence that the offender had been suffering from any mental illness or mental disorder, and the sentencing judge was not satisfied that he had a chronic complex post-traumatic stress disorder. [195] His Honour accepted that by his pleas of guilty, the offender had accepted responsibility for his offending, but was not satisfied that his pleas were indications of contrition or remorse, but were rather a recognition of the strength of the Crown case against him. [196] The sentencing judge was not satisfied that the offender was otherwise contrite or remorseful. [197]

    193. At [53].

    194. At [55].

    195. At [77].

    196. At [78].

    197. At [80].

  23. In respect of the offence of murder, the offender was sentenced to imprisonment for 45 years, with a non-parole period of 30 years. In respect of the offending of aggravated sexual assault the offender was sentenced to imprisonment for a period of 15 years for non-parole of 10 years. The sentences were wholly concurrent.

  24. The second schedule provided by the Crown set out sentences imposed in cases of murder of female partners dating back to 1991. To the extent that any of the cases set out in that schedule are relevant, they have already been considered.

  25. The third schedule provided by the Crown was a schedule of sentences imposed in cases of murder in which the non-parole period was in excess of 20 years. That schedule contained a large number of sentences imposed in other cases. The sentences themselves, and the circumstances of the offending, covered a very wide range. The cases that are the most helpful are those contained in the first of the schedules provided by the Crown and have been discussed above.

  26. In providing this material, the Crown submitted that a cautious approach was required, particularly given that there is no specific category of “domestic violence murder”. The Crown further submitted that the cases in the schedules provided by counsel for the applicant were, generally speaking, less objectively serious than the offending in the present case.

CONSIDERATION

  1. It is appropriate to begin by setting out a number of principles which are relevant to the determination of this ground.

  1. Firstly, the general principles which apply when considering a ground of manifest excess were conveniently summarised by R A Hulme J in Obeid v R:[198]

“[443] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this Court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

198. (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

  1. In the present case, counsel for the applicant submitted that the notional starting point of the indicative sentence for the offence of murder was erroneously high and also pointed to the failure of the sentencing judge to specify a non-parole period in respect of that indicative sentence for murder. Counsel did not otherwise refer to any particular matter which was said to lead to a conclusion that the sentence was manifestly excessive. Such an approach is consistent with that referred to by the plurality in Hili. [199]

    199. At [59]; [61].

  2. Secondly, the present application is one for leave to appeal against the aggregate sentence. The indicative sentences are not themselves amenable to appeal, but they may be a guide as to whether error is established in relation to the aggregate sentence. [200]

    200. JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40].

  3. Thirdly, in circumstances where the Court has been referred to sentences imposed in a number of other cases, it is necessary to bear firmly in mind the limitations which are placed on material of that kind. Sentences imposed in other cases are not binding precedents. They are statements of what has happened in the past. [201] A history of sentencing can establish a range of sentences that have in fact been imposed. However, such history does not establish that the range is the correct range, or that the upper or lower limits of the range are the correct upper and lower limits. Further, the range of sentences that have been imposed in past cases does not fix the boundaries within which future judges must, or even ought, to sentence. Such cases can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a particular sentence. However when considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that unifying principles may be discerned. [202] Fundamentally, the consistency that is sought in sentencing is consistency in the application of the relevant legal principles, and not numerical or mathematical equivalence. [203]

    201. Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [83].

    202. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303] – [305].

    203. Hili at [18]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40].

  4. It follows that a careful approach must be taken when a Court is asked to compare the sentence imposed in one case with the sentence imposed in another. The need for such an approach obviously arises, at least in part, from the fact that no two cases are the same. There will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another. [204]

    204. MLP v R [2014] NSWCCA 183 at [44]; RLS (supra) at [132].

  5. Fourthly, the fact that the undiscounted sentence in the present case may represent the “high watermark” of sentences imposed for the offence of murder does not, of itself, demonstrate that the sentence is manifestly excessive. There will always be one sentence which constitutes the longest sentence imposed for particular offending. [205]

    205. Jolly v R (2013) 229 A Crim R 198; [2013] NSWCCA 76 at [75]; MLP (supra) at [46].

  6. Whilst the circumstances of this offending have already been set out at length, it is nevertheless necessary to emphasise a number of matters.

  7. Firstly, the offending in the present case occurred against a background of, and in the context of, a history of significant domestic violence. To the extent that any of the cases previously discussed involved the involved the murder of a domestic partner, none of them were characterised by the level of domestic violence which pervaded the applicant’s relationship with the deceased. That history manifested itself, at least in part, by the applicant being charged with assaulting the deceased in June 2016. It was following those events that the applicant and the deceased separated, and began discussing the issue of property settlement. It was against this background that the sentencing judge found that the applicant was motivated to kill the deceased by a deep and long held anger because she had sought to exercise her rights, and because she had been instrumental in the issue of the ADVO and the bringing of associated criminal charges. [206] Whilst there is no specific category of “domestic violence murder”, the offending in the present case cannot be divorced from the context in which it was committed. The commission of offences in the context of domestic violence, and in the context of a breach of an ADVO, were circumstances which attracted a need for specific deterrence, general deterrence and denunciation. [207]

    206. At [140].

    207. Cherry v R [2017] NSWCCA 150 at [80] citing Browning v R [2015] NSWCCA 147 at [4]-[9]; Director of Public Prosecutions (NSW) v Darcy-Shillingsworth [2017] NSWCCA 224 at [83]-[85].

  8. Secondly, whilst the sentencing judge found that the applicant had formed the intention to kill the deceased the day prior to doing so, her Honour properly recognised that the applicant’s offending could not be divorced from a number of statements he had made prior to that time in which he had expressed an intention, in unequivocal terms, to kill the deceased. [208] As the sentencing judge found,[209] those statements were indicative of the level of anger and resentment that the applicant bore towards the deceased as a consequence of her decision to seek a settlement of the matrimonial property, and seek protection after being assaulted by the applicant. All of these matters form an important part of the background to the offending. They were not characteristics of the offending in the cases to which the Court was referred.

    208. At [134].

    209. At [134].

  9. Thirdly, the applicant’s planning of the offending was significant, both in terms of the time over which it took place, and perhaps even more importantly, in terms of what he actually did. Having made the decision to kill the deceased, and having armed himself to the extent previously described, the applicant travelled a significant distance to the deceased’s home, arriving in the early hours of the morning and thus at a time when he knew that in all likelihood, the deceased would be asleep. When he arrived, he engaged in clandestine and surreptitious behaviour, obviously in an attempt to ensure that he did not attract the attention of others nearby, as well as in an attempt to surprise the deceased and prevent her from taking refuge.

  10. In many of the other cases to which the Court was referred, substantial planning was not a factor. [210] Notably, in Park (where there was some evidence of planning) this Court emphasised that there was a difference between premeditation to a significant degree on the one hand, and the formation of a sophisticated and guileful plan on the other. [211] The offending in Park was found to fall into the former category. The offending of the applicant clearly fell into the latter. The sophisticated planning of the offending in the present case, and the applicant’s guile in executing it, were reflected in the matters discussed above.

    210. For example, Bond, O’Connell, Cullen, AKB, Evans, Kelsall and Dent.

    211. At [18].

  11. Fourthly, the offending itself was properly described by the sentencing judge as being in the nature of an execution, and as involving gratuitous cruelty towards the deceased. That is to say nothing of the breaches of trust committed by the applicant towards both the deceased and his daughter.

  12. Fifthly, the offending was in breach of both the ADVO and the applicant’s conditions of bail. That was not a characteristic of the offending considered in the majority of the cases previously discussed, Bond being an exception. [212] However in Bond, there was no evidence of planning, no evidence of the offender having armed himself prior to the offending, and no evidence that the offender had committed any other connected offence.

    212. Bond (supra).

  13. All of these factors, along with those others to which reference has been made, lead to the unchallenged finding of the sentencing judge that the applicant’s offending was towards the very top of the range. Whilst it is not incumbent upon a sentencing judge to determine where the objective seriousness of particular offending falls by reference to a notional range, it is noted that the assessment of the sentencing judge placed the offending at a higher level than was the case in any of the other decisions to which the Court was referred.

  14. Fifthly, there was little by way of mitigation in the applicant’s subjective case. That circumstance also serves to contrast this case with many of those considered above. [213]

    213. See for example Park, O’Connell, Cullen, Villaluna and AKB.

  15. I acknowledge that the starting point adopted by the sentencing judge in the present case is higher than any of the sentences to which the Court was referred. For the reasons I have already expressed, that of itself does not indicate manifest excess. For the reasons previously noted, there are necessarily limitations on any comparative exercise in which the Court is asked to engage. As might be expected, each of the other cases considered have factors which distinguish them from the present case, either in terms of the objective seriousness of the offending, the subjective circumstances of the offender, or both. Having considered the matter, I am satisfied that taken as a whole, the offending in the present case was more serious than the offending in any of the cases which have been considered, and in some instances substantially so. The notional starting point adopted by the sentencing judge was, in my view, wholly consistent with her Honour’s unchallenged findings, including her finding that the circumstances of the murder offence fell towards the very top of the range.

  16. The offending itself, quite apart from the careful planning, was callous and cruel. It took place in the deceased's home, where she was entitled to feel safe. It was carried out in breach of the applicant's conditional liberty and involved serious breaches of trust, the second of which involved a complete deception by the applicant of his daughter. The insensitivity and cruelty which accompanied the applicant's act of firing the final two shots needs no further comment.

  17. It is apparent applicant was motivated, at least in part, by his hatred for the deceased and a desire to engage in some form of retribution arising from the circumstances which saw him charged with assault, and made subject to the ADVO. Following the offending, the applicant demonstrated no remorse. On the contrary, his statements to others sought to blame his offending on the deceased's desire for a financial settlement of the marital property.

  18. Given the entirety of the circumstances of the present case, I am not persuaded that the sentence imposed is unreasonable or plainly unjust.

  19. In circumstances where the sentencing judge dealt comprehensively with all aspects of the evidence which was before her, I am also not persuaded that her failure to comply with s 54B(7) of the Sentencing Act reflects error. Finally, to the extent that it was submitted that the applicant was entitled to have the evidence of his mental state taken into account as part of his overall subjective case, her Honour did precisely that. [214]

    214. At [178].

  20. I propose the following orders:

  1. Grant leave to appeal.

  2. Appeal dismissed.

**********

Endnotes


Decision last updated: 23 April 2020

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