R v Goodridge (No 2)

[2012] NSWSC 1180

Supreme Court

New South Wales

Medium Neutral Citation:

R v Goodridge (No 2) [2012] NSWSC 1180

Hearing dates:

21 September 2012

Decision date:

03 October 2012

Before:

Adamson J

Decision:

(1) I indicate that if the special hearing involving the Forensic Patient had been a normal trial against a person fit to be tried, I would have imposed a sentence of imprisonment; and

(2) I nominate as the limiting term in respect of the Forensic Patient's offence, 18 years commencing on 16 May 2009.

Catchwords:

CRIMINAL LAW - sentence - imposition of limiting term under Mental Health (Forensic Provisions) Act - sentencing factors relevant to the length of a limiting term - relevance of a forensic patient's mental condition to the length of a limiting term

Legislation Cited:

- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Mental Health (Forensic Provisions) Act 1990

Cases Cited:

- Bhuiyan v R [2009] NSWCCA 221
- Courtney v R [2007] NSWCCA 195; 172 A Crim R 371
- R v AN [2005] NSWCCA 239
- R v Bell (1985) 2 NSWLR 466
- R v Engert (1995) 84 A Crim R 67
- R v Goodridge [2012] NSWSC 378
- R v Mailes [2004] NSWCCA 394; 62 NSWLR 181
- R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85
- R v Previtera (1997) 94 A Crim R 76

Category:

Sentence

Parties:

Regina
Michael William Goodridge

Representation:

Counsel:
M Barr (Crown)
P Winch (Forensic Patient)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Johnson & Sendall Solicitors (Forensic Patient)

File Number(s):

2009/38556

Judgment

1. Michael Goodridge (the Forensic Patient) was charged with the murder of Carmel George. Because he was found unfit to be tried, the matter proceeded by way of a special hearing.

1. On 16 April 2012, the Forensic Patient was arraigned on an indictment charging him with the murder of Ms George between 13 and 17 May 2009 at Moss Vale: Crimes Act 1900 s 18(1)(a). The Forensic Patient is taken, by s 21(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (the Act), to have pleaded not guilty to the offence charged.

1. Following a special hearing by judge alone, I found that on the limited evidence available, the Forensic Patient murdered Ms George: R v Goodridge [2012] NSWSC 378.

Facts

1. The Forensic Patient lived in Moss Vale. He was well known there, both because he was often seen walking the streets with his dog, Zone, and also because of his behaviour associated with abuse of drugs and alcohol.

1. In May 2009 the Forensic Patient, who was then aged 52, was evicted from his Housing Commission flat due to his violence under the influence of alcohol. In response to his eviction, the Forensic Patient lay down in the middle of a road in Moss Vale, apparently with the intention of ending his life. He was struck by a car but at such a low speed that his injuries were relatively slight. Nonetheless he was admitted to hospital overnight.

1. The deceased, Ms George, then 39, who knew the Forensic Patient through a mutual friend, Paul Knight, spent time with him in the hospital. She had, days before, discharged herself from a drug and alcohol rehabilitation centre to which she had been admitted to overcome her heroin addiction.

1. When the Forensic Patient was discharged from hospital, on Tuesday 12 May 2009, he and the deceased went drinking together. On the following day, Wednesday 13 May 2009, the Forensic Patient and the deceased continued to drink together. That night they dined together at the unit which Mr Knight rented, where they also spent the night. The deceased shared a bed with Mr Knight and the Forensic Patient slept with Zone.

1. On Thursday 14 May 2009, Mr Knight told the accused that he could no longer stay in his unit because the owners objected. The deceased, who expressed concern for the Forensic Patient because of his recent injuries, accompanied him to disused accommodation within the boundary of the Moss Vale Railway Station. The railway barracks were used by squatters and itinerants and were in a state of disrepair with several windows smashed.

1. During the course of that day the Forensic Patient and the deceased drank together, both at the Jemmy Moss Hotel and also at the railway barracks where they intended to stay the night. During the course of the evening and into the night they continued to consume substantial quantities of alcohol.

1. At some time before the Forensic Patient left the barracks on Friday morning, he made unwelcome sexual advances to the deceased. When she did not respond as he had hoped, the Forensic Patient became angry and violent. He wanted to hurt her and to "teach her a lesson". He intended to cause her grievous bodily harm although he did not intend to kill her. On several occasions he pushed the deceased against the wall with such force that she fell to the ground. At some stage he repeatedly forced his right arm into her vagina and her rectum, causing the internal injuries and profuse bleeding from which she eventually died.

1. On Friday morning, when the Forensic Patient woke, he was horrified by the pool of blood which surrounded the deceased's body. He restrained Zone from sniffing or licking the blood and took him out for a walk. The Forensic Patient, who was covered with blood, went to the Jemmy Moss Hotel at opening time to continue drinking. The bar attendant, who knew him, was so alarmed by his appearance that she said:

"Fuck Michael, what's happened to you? It looks like you have murdered somebody. Get to the toilets and wash your face. I'm not going to serve you looking like that."

1. The Forensic Patient's face was blank. He went off to the toilets and then returned to drink a schooner of VB. The bar attendant also noticed that his black jeans were on inside out.

1. On several occasions on Friday 15 May 2009, the Forensic Patient returned to the railway barracks and saw the deceased's body lying on the floor in a pool of blood. He partly covered her with sheets and tried to wipe up some of the blood in an ineffectual way. He neither disclosed what had happened, nor sought help. At some stage he touched the deceased's body and found it to be cold.

1. On Saturday 16 May 2009, Sharon Millbank, a mutual friend of the Forensic Patient and the deceased encountered the Forensic Patient at the Central Hotel where he was drinking. By this time, the Forensic Patient had changed his bloodied clothes. Ms Millbank enquired after the deceased and eventually the Forensic Patient took her to the railway barracks where the deceased was still lying in a pool of blood.

1. The unchallenged coronial evidence of the direct cause of Ms George's death was exsanguination due to vaginal and rectal injuries. Acute alcohol intoxication was identified as a significant condition contributing to her death since it could impair the metabolic, haemodynamic and inflammatory response to haemorrhagic shock. An analysis of Ms George's blood alcohol content recorded 0.373 g/100mL.

1. The coronial report described injuries to Ms George's vagina and rectum as follows:

"There were extensive injuries on the vestibules of the vagina with a small laceration on the posterior aspect of the vaginal wall at the opening. The lacerations extended symmetrically into the vagina on both sides. Small pieces of fine black material and fibres were present in the vagina. There were also numerous lacerations around the rectum with extensive laceration, bruises and swelling. The anal opening had an irregular appearance and blood was visible."

1. The deceased bled to death as a result of injuries she sustained to her vagina and her rectum for which the Forensic Patient was responsible. His conduct in pushing his right arm into her vagina and her rectum caused her to bleed profusely which resulted in her death. He intended to cause her grievous bodily harm to punish her because she would not comply with his wishes.

1. At the time the Forensic Patient killed the deceased he was grossly intoxicated and he also had an underlying condition of alcohol-related brain damage. His judgment was substantially impaired by reason of his self-induced intoxication, which tended to make him behave aggressively and erratically. His judgment was also impaired, but not substantially so, by the underlying brain damage.

1. Nonetheless the Forensic Patient appreciated at the time of these events that his acts towards the deceased would cause her really serious injury and that he intended to do so. There is, in my view, no basis to distinguish between his acts of pushing her to the floor, which he has admitted were done to hurt her and "teach her a lesson" and his acts of pushing his right arm into her vagina and rectum which caused her to bleed to death.

1. The Forensic Patient's actions that resulted in the deceased's death were horrendously violent and savage. They involved a substantial and determined use of force, which both violated and denigrated her in a brutal and degrading way. He utterly abused the goodwill which she, from a generous concern for his welfare, had shown him by spending time with him in hospital and accompanying him to the railway barracks.

Victim Impact Statement

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

Sentencing

1. The Forensic Patient was born on 11 March 1957. He was 52 at the time he murdered the deceased. He is now 55. He was arrested on 16 May 2009 and has been in custody since that date.

1. The maximum penalty for murder is life imprisonment.

The statutory requirements concerning the determination of a limiting term

1. A verdict that the Forensic Patient committed the offence charged (s 22(1)(c)) is a "qualified finding of guilt" made in the absence of a conviction (s 22(3)(a)). Accordingly, by reason of s 23(1)(a), the Court must indicate whether, if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment.

1. Section 23(1)(b) of the Act defines limiting term as:

"... the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence."

1. The effect of s 23(1)(b) of the Act is that the Court is obliged, when determining a limiting term, to adopt and apply all the statutory and common law principles of sentencing that apply to the sentencing of a person convicted of that offence: R v AN [2005] NSWCCA 239 at [13]. A limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing: R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85 at [30].

1. In R v Mailes [2004] NSWCCA 394; 62 NSWLR 181 (Mailes), Dunford J, with whom Adams and Howie JJ agreed, said, at [32] that the purpose of a limiting term:

"... is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial..."

1. Section 54D(1)(b) of the Crimes (Sentencing Procedure) Act 1999 provides that the standard non-parole period statutory scheme does not apply to the sentencing of a Forensic Patient to detention. Accordingly the "sentence" referred to in s 23 of the Act must be a reference to the total sentence and not to the non-parole period since there is no power to fix a non-parole period less than the total term: Mailes at [29].

Relevance of mental condition to length of limiting terms

1. Because impaired mental functioning, whether transitory or permanent, is relevant to sentencing (Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [14], per Basten JA) it is necessary to consider the evidence relating to the Forensic Patient's mental condition, both at the time of the offence and presently.

1. The Forensic Patient had underlying alcohol-related brain damage at the time of the offence. Since his incarceration he has suffered a further deterioration in intellectual function. He sustained a head injury when he was assaulted in gaol in January 2010.

1. Dr Nielssen, psychiatrist, interviewed the Forensic Patient at the request of his solicitors on 3 November 2009, 5 August 2010 and most recently on 16 March 2012. Dr Nielssen noted that a MRI scan performed on 3 June 2010 revealed cerebral atrophy and lesions in the white matter consistent with vascular disease. In his most recent report Dr Nielssen found that the Forensic Patient's mental state had deteriorated since the previous interviews, at least part of which could be attributed to the head injury in gaol.

1. Dr Lennings, psychologist, examined the Forensic Patient on 6 January 2010. His assessment dated 10 January 2010, which was principally relevant to the Forensic Patient's fitness to be tried, was that he presented with significant cognitive deficits associated with a history of cerebral insult as well as a long history of severe poly-substance and alcohol dependence. Dr Lennings considered the Forensic Patient to be functioning in the mentally retarded range at the time of his assessment. He also obtained a history of seizures consequent on alcohol withdrawal.

1. Dr Westmore, psychiatrist, first examined the accused on 9 March 2011 at the request of the DPP. He diagnosed on Axis III alcohol-induced brain damage and possible brain damage associated with previous head injuries.

1. The Forensic Patient was examined by Dr Reuters, psychiatrist, on 6 July 2012. Dr Reuters noted that Dr Nielssen had diagnosed that the Forensic Patient was suffering from dementia and would not be able to live independently. Dr Reuters noted that the Forensic Patient could not remember the offence, the trial or why he was in prison.

1. Dr Reuters conducted cognitive assessments which indicated that the Forensic Patient suffers from dementia. The examination confirmed the diagnosis. For example, the Forensic Patient was neither able to recognise his own reflection in the mirror, or the reflection of Dr Reuters. Dr Reuters' assessment of the Forensic Patient's present condition appears from the following paragraph in her report:

"Mr Goodridge is a 55 year old man with a long history of heavy alcohol, cannabis and benzodiazepine use. The substance abuse has been complicated by seizures. He has a history of head injury and a baseline low IQ. His cognition appears to have deteriorated since he was first assessed by Drs Lennings and Nielssen in 2010. He has no memory of the crime and was unable to provide details of many historical aspects of his life on today's interview, whereas he had previously been able to give a fuller history. His behaviour in the Long Bay Hospital is significantly disturbed, as evidenced by reports of his laughing and talking to himself and inappropriate toileting. He poses a risk to his safety as a result of his poor judgment and cognitive impairment, for example his perching on a bathroom sink."

1. Dr Reuters also opined that, given his current severe level of cognitive impairment, it is probable that the Forensic Patient's life span will be less than 6.7 years if he continues on his current trajectory of cognitive decline.

1. It does not follow from my rejection of the defence of substantial impairment to murder that the basis for such defence is not relevant to the determination of the appropriate sentence: R v Bell (1985) 2 NSWLR 466 at 485. In my view, the Forensic Patient's mental condition reduced his moral culpability for the murder of the deceased. His long-standing history of alcohol abuse and the concomitant brain damage meant that he was prone to binge-drinking which tended to make him behave erratically and aggressively. His intoxication impaired his judgment and contributed to his abhorrent behaviour towards the deceased.

1. I accept that the Forensic Patient was disgusted and appalled when he discovered the deceased's body the following morning. He was remorseful when he appreciated what he had done, although his capacity to fully comprehend and recall his actions, having regard to his level of intoxication, was compromised. Far from demonstrating organised and planned criminal activity, the Forensic Patient was guilty of wanton, spontaneous, ill-considered acts which he intended to, and which did, cause grievous bodily harm to someone of whom he was very fond.

1. Nonetheless, although the Forensic Patient's mental condition is a factor to be taken into account, it does not displace other matters, including the objective seriousness of the offence. McClellan CJ at CL said of the sentencing exercise in Bhuiyan v R [2009] NSWCCA 221 at [30]:

"... although in most cases the serious mental illness will have deprived an Forensic Patient of their usual capacity for reason and control it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of the Forensic Patient. The particular difficulties faced by an Forensic Patient which may have contributed to the offence will be addressed by the Mental Health Review Tribunal which in appropriate circumstances may release the Forensic Patient before the limiting term has expired."

1. I have had regard to such aggravating and mitigating factors referred to in s 21A of the Crimes (Sentencing Procedure) Act as are relevant. I do not propose to refer to particular paragraphs since such matters as I regard as relevant are specifically referred to elsewhere in these reasons.

Other factors relevant to sentencing

1. The evidence of the Forensic Patient's life is relatively scant because he was a poor historian. According to histories given to specialists he is the middle child of three. His father was a coal miner. At the age of three he was run over by a car driven by his father and suffered a head injury as a result. He does not recall his childhood in any detail. He left school at 13. He worked as a general hand on a dairy farm. He has been homeless for much of his adult life. He has been unable to form stable relationships.

1. The Forensic Patient began drinking from the age of about 12, as a consequence of the heavy drinking that was prevalent in his family. He also used a substantial amount of cannabis and continued to do so until the time of his arrest.

1. These matters are relevant to the length of the limiting term because justice demands that allowance be made for life's adversities, particularly when, as here, they have deprived the Forensic Patient of any real opportunities in life. He became dependent on alcohol when he was still a child and his deprived childhood led to an even more impoverished and compromised adulthood.

1. I do not consider it to be appropriate to give any particular weight to general deterrence in determining a limiting term because of the nature and severity of the symptoms exhibited by the Forensic Patient, and the effect of the condition on the mental capacity of the Forensic Patient, both at the time of the offending and at the date of sentence: R v Engert (1995) 84 A Crim R 67.

1. Nor do I consider that specific deterrence has any bearing on the appropriate sentence because of these matters. Although the Forensic Patient has a record of previous convictions, and indeed killed the deceased when he was on a 12-month bond for shoplifting on 16 March 2009, these matters are of little significance in the determination of a limiting term having regard to his mental condition.

1. Because of his compromised mental and physical state, the Forensic Patient no longer presents any danger to the community.

1. It is overwhelmingly likely that the Forensic Patient will die before the expiry of the limiting term. It does not follow that I ought reduce the limiting term, since the appropriate sentence for murder is not proportional to life expectancy of the offender.

1. The most significant factor in determining a limiting term is the seriousness of the offence. The Forensic Patient deprived the deceased of her life in a painful, cruel and degrading manner.

1. I accept the submissions made on behalf of the Forensic Patient that I ought not impose a life sentence, since such a sentence is reserved for a more heinous crime than the one for which the Forensic Patient has been convicted. His acts were ill-considered, cruel and stupid and were the product of disinhibition, frustration and rejection.

1. As I have said above, the Forensic Patient's intent was to cause grievous bodily harm which is generally, and in this case appreciably, less heinous than an intention to kill. The period of premeditation was very short; any thought processes on his part which led him to form the relevant intent would have been affected by the substantial quantities of alcohol he had ingested and his underlying mental impairment.

1. The conclusion at which I have arrived is as follows:

(1)   I indicate that if the special hearing involving the Forensic Patient had been a normal trial against a person fit to be tried, I would have imposed a sentence of imprisonment; and

(2)   I nominate as the limiting term in respect of the Forensic Patient's offence, 18 years commencing on 16 May 2009.

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Decision last updated: 03 October 2012