R v Goodwin [2004] NSWSC 757

New South Wales Supreme Court

CITATION : R v Goodwin [2004] NSWSC 757 HEARING DATE(S) : 16/06/2004, 23/07/2004, 12/08/2004 JUDGMENT DATE : 12 August 2004

JUDGMENT OF : Howie J at 1 DECISION : In respect of the murder of his wife the offender is sentenced to a term of imprisonment with a non-parole period of 16 1/2 years to date from 1 March 2003 and to expire on 31 August 2019. The balance of the term is 5 1/2 years from 1 September 2019. In respect of the murder of Mr Clarke the offender is sentenced to a term of imprisonment with a non-parole period 16 1/2 years to date from 1 March 2008 and to expire on 31 August 2024 the date upon which the offender is to be considered for release to parole. The balance of the term is 5 1/2 years from 31 August 2024 and will expire on 28 February 2030.

CATCHWORDS : Criminal Law - Sentence for conviction of two counts of murder. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - ss 44, 54B CASES CITED : R v Way [2004] NSWCCA 131 PARTIES : Regina v Robert Craig Goodwin FILE NUMBER(S) : SC 70065/03 COUNSEL : L. Gray - Crown P. Winch - Offender SOLICITORS : S. Kavanagh - Crown G. Piscioneri - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

THURSDAY 12 AUGUST 2004

70065/03 REGINA v ROBERT CRAIG GOODWIN

REMARKS ON SENTENCE 1 HIS HONOUR: On 16 June 2004 the offender, Robert Goodwin, pleaded guilty to an indictment containing two counts of murder. Both offences were committed on or about 28 February 2003 in Cooma. The victims were the offender's estranged wife, Carolyn Goodwin and her then partner, Peter Clarke, who was incidentally the Sheriff in Cooma. The offender shot them both dead at Mr Clarke's premises where the offender's wife was then residing. 2 Mr Goodwin was committed to this Court for trial, but shortly before the hearing was to commence a question arose as to the offender's fitness to stand trial. The basis for this issue was the offender's apparent inability to remember the facts and circumstances surrounding the killing. After a short hearing at which Dr Westmore gave evidence, on 15 June 2003 I found the offender fit to be tried. The following day the offender pleaded guilty to the two charges. 3 The facts can be stated very briefly and are not in dispute. The Crown tendered what I was told was an agreed statement of facts together with a number of statements and photographs from the police brief. I raised with counsel whether I was to use the witness statements as the basis of the finding of facts upon which the offender was to be sentenced or the statement of facts. I was told that the statement of facts was only a summary and that it was to be amplified by the material in the brief of evidence. I made it plain that I considered it was open for me, therefore, to find facts in accordance with the witness statements and neither counsel demurred to that proposition. 4 The offender and his wife had been married some 34 years at the time of the killing. There are two sons of the marriage, Shane Goodwin, aged 34, and Dean Goodwin, aged 19. The elder brother was at the relevant time working in the Northern Territory and the younger was residing with his father in the matrimonial home in Cooma. 5 Sometime prior to 14 February 2003, the offender's wife and Mr Clarke commenced a relationship. On that date Ms Goodwin moved out of the matrimonial home to live with Mr Clarke. They intended to relocate from Cooma to Jindabyne in the first weekend in March. 6 Just after his wife left him, Mr Goodwin spoke to his younger son, Dean, and expressed his intention to shoot his wife and Mr Clarke and then take his own life. He expressed a similar intention to his elder son, Shane, on or about the 25th or 26th of February. 7 On 26 February Ms Goodwin's solicitor sent a letter to the offender indicating that she would be seeking a divorce. 8 In the days leading up to the killings the offender was seen in Bent Street, Cooma, the street in which Mr Clarke resided. 9 On 28 February at about 10pm a resident of Bent Street heard what he thought to be two gunshots. In the early hours of the next day, 1 March, the offender rang his son Dean, told him that he loved him and gave him information as to accessing the superannuation fund held by the offender and his wife. He also told him where he could find his will. When asked whether he was coming home, he told his son that he had been drinking and had a bit of an accident. The offender informed him that Dean would have to make arrangements for collecting the family vehicles and told him where they could be located. 10 At about 4.55am that morning the offender attended Cooma Hospital suffering from a wound to the forehead and explained to hospital staff that he had fallen over. The wound was sutured and the offender discharged. He then travelled by taxi to his home, where he spoke to Dean. The offender initially told him that he had been drunk and had fallen over, but later when they were alone he confessed that he had shot his wife and Peter Clarke. He described the wounded Mr Clarke crawling on the ground while the offender kicked him in the ribs so hard that he believed he might have broken them. 11 Dean immediately went to the Clarke residence in Bent Street where he found the bodies of the two deceased. Peter Clarke was lying in the hallway and his mother in a bedroom. After determining that his mother was in fact dead, he left the premises, informing the taxi driver of what he had found. He then proceeded to recover one of the family vehicles and drove home. After arming himself with a knife, he confronted the offender. Shortly thereafter and without incident he left the house and went to a police station where he gave an account of what had occurred. 12 The offender was arrested at the family home later that afternoon. He was taken to hospital for further treatment to his forehead. He maintained that the injury had occurred when he had fallen over and denied knowledge of the death of Mr Clarke or his wife. He also denied having access to a firearm. An X ray of the offender's skull revealed metal fragments and he was taken to Canberra Hospital. There he underwent an operation for the removal of the fragments that were found to be the result of a gunshot wound to the head. 13 Police searching in the vicinity of Cooma Hospital, where a person carrying a rifle had been seen on the night of the killing, recovered a bloodstained .22 rifle. They also found blood in the area where the rifle was located and a trail of blood leading back to the hospital car park. An examination of the premises in Bent Street found blood splatters consistent with the two deceased being shot where their bodies were located. There was evidence linking the deceased with a bloody hand mark on a doorknob. Further investigations produced an overwhelming case linking the offender with the killings. 14 Peter Clarke sustained a single gunshot wound to the head, the path of the bullet being from front to back and slightly upwards. Ms Goodwin sustained four gunshot wounds to the face. The bullet paths were all front to back and downwards. One wound showed an injury consistent with the shot having been fired in close contact with the skin. The bullets recovered were found to have been fired from the .22 rifle earlier recovered by police. 15 The evidence was that a similar firearm had been owned by the offender for very many years and at one stage had been stored under the family house in two pieces. It had a broken bolt when last seen by Shane Goodwin. 16 After his arrest, the offender refused to be interviewed by police and he did not give evidence before me. On the sentencing hearing a psychological report was tendered that contains an account of the killings given by the offender to the psychologist on 13 July 2004. This is notwithstanding that the offender had earlier claimed to psychiatrists that he had no recollection of the events leading up to the shooting of his wife and Mr Clarke. This asserted lack of memory for the events was the basis for Dr Westmore's belief that the offender was unfit to be tried. The fitness proceedings before me were conducted on the assumption that the offender had no memory of the events as at the date of the hearing, that is 15 June. Yet by 13 July the offender was able to give a very full account of the shootings to a psychologist even to the extent of repeating statements allegedly made by his wife and Mr Clarke just before he shot them both. 17 It has been held that a sentencing court should not readily accept accounts by offenders of the circumstances giving rise to the commission of an offence when those accounts are contained in reports tendered to the court without sworn evidence by the offender to substantiate them or in the absence of some other reliable objective evidence that might tend to indicate that the account is true. In the present case there are some aspects of the offender's account of his relationship with his wife and the events leading up to the killing that are supported by evidence contained in the Crown brief and that I would be prepared to act upon. 18 For example the account of his relationship with his wife is supported substantially by what Shane Goodwin said about that matter in his statement to police. It seems that about 15 years before the killing the offender's wife had left him to live with another man. This resulted in the selling of what was then the family home. At that time, according to Shane, his father had made some vague threat about obtaining a weapon and shooting dead his wife. Shane believed that this threat was out of character and made at a time when his father was physically and mentally ill as a result of the separation. About 12 months later, the offender and his wife were reunited and the family house in Cooma was then purchased. 19 I am also prepared to accept that the offender was devastated when his wife left him to live with Mr Clarke and had been totally unsuspecting of the fact that his wife had been having a relationship with another man. This event was as much a shock to the two sons as it was to the offender. He was clearly in a highly distressed and disturbed state as a result of the separation. Dean told the police that his father could not sleep or eat. Although he was making threats toward his wife and Mr Clarke, Shane was more concerned that his father might injure himself because of his emotionally disturbed state. 20 I am not prepared, however, to act upon the account given by the offender of the immediate circumstances giving rise to the killing contained in the psychological report. That version suggests that he was provoked into the shooting of his wife by her verbal abuse of his family and her statement that she wished that he were dead and that she had killed him herself. I am also not willing to accept his account that he found the rifle in the family utility with a box of bullets after his wife had told him during the course of their argument at Mr Clarke's house that some person had placed a weapon there. Nor do I accept his account of taking the rifle to the house so that his wife could kill him as she had said she wished to do or that he shot Mr Clarke because he came towards him in a threatening and aggressive manner. 21 The offender told the psychologist that he did not remember much of the shooting of his wife but he remembered the conversation. He maintained that he was amnesic to many of the circumstances of the shooting, and did not remember why for example he returned to the house or why he did not simply shoot himself when he found the weapon. The answer seems to me to be obvious, and is found in the threats he had made to both his sons that he would kill his wife or his wife and Mr Clarke, and then commit suicide. There is no doubt that he acted out of depression, frustration and anger at his wife's actions. But it has to be borne in mind that the behaviour that led to these feelings and her death was merely the wife deciding to exercise her right to end the marriage and enter into a new relationship. It should be clear by now that I believe that the offender went to Mr Clarke's premises for no reason other than to kill his wife and probably Mr Clarke if he found him there. 22 The offender wrote a letter to the Court that was tendered in evidence and read aloud by me to those present at the time. It contains expressions of remorse at the killings and a desire to apologise to members of Mr Clarke's and his wife's families. I place little weight upon it. The psychological report does not refer to any expression of remorse and it repeats the offender's recriminations against his wife for her misconduct toward him including her extravagance and selfishness, her abuse of alcohol, and her violence towards the offender. He blames her for provoking him, not simply by leaving the marriage, but in slandering the family and expressing the wish that he were dead. 23 I strongly suspect that the offender initially feigned his lack of memory of the events of the shooting when it seemed to him that it might be to his advantage to do so. When he was found fit to be tried, he then gave an account to the psychologist designed to justify his actions if he could and limit the blame to be attributed to him. He would not be punished for this conduct even if I were satisfied that this what happened. But it supports my view that he is not genuinely remorseful for the death of his wife and the hapless Mr Clarke. Further, when during a conversation with Shane his son expressed his difficulty in comprehending that he had shot his wife, the offender said, "But look what the bitch was gunna do to me". Shane did not believe that his father was remorseful at that time, and he was in my view correct in that assessment. Although the offender has expressed some regret to his brother-in-law, I doubt that it was sincere or, if it was, that it was any more than a regret about the penal consequences of his actions. 24 I do not believe that the attempt at suicide was, as defence counsel submitted, an acceptance of the enormity or wrongfulness of his actions. It is relevant, however. in that it shows the level of his emotional disturbance at the time and is an indication of the depth of his despair arising from his wife leaving him. 25 Still he has pleaded guilty albeit at a late stage in the proceedings and he is to receive a benefit for that fact. Although I do not believe that the plea signifies remorse, the utilitarian effect of the plea was significant notwithstanding that it came shortly before the trial was to commence. It did save valuable court time and, perhaps more significantly, spared witnesses from giving evidence, particularly the two sons for whom it would have been a very traumatic experience. It was also an expression of his acceptance of responsibility for the killings. I believe this was a highly significant event for his sons. I noted in particular that the younger burst into tears when his father pleaded guilty before me. For these reasons the plea was important and I am prepared to give him a greater discount than might otherwise have been the case. 26 Mr Goodwin is aged 57. Despite some criminal record I am prepared to treat him as a person of prior good character. There is little in his background or personal history that seems to me to be relevant to the task of sentencing him for these crimes. He was undoubtedly a hard-working, and well-respected member of the community. He appeared to be a loving and caring father and there is no suggestion of physical abuse of his children. Any violence involving his wife was not serious and can be disregarded. 27 This particular offence is aggravated because there was an element of planning over a few days prior to the killing, and, as I have already indicated, I believe that he went to the house intending to kill his wife. The fact that he killed two persons must increase his criminality even though the killings arose from a single incident of violence and were both a result of the same emotional turmoil in which he found himself after his wife left him. I accept, however, that his culpability was however diminished by his abnormal mental state at the time as a result of anxiety and depression caused by his wife's separation from him. 28 I do not accept, however, that the acts were provoked to the degree that it can be a mitigating factor in a case of a premeditated killing. Once it is accepted that his wife's act in leaving him resulted in a disordered mental state in which he considered taking his own life as well as that of his wife, there seems to me to be little or no other relevance in the fact that the killings occurred as a result of her conduct. I accept that he is a person of good character as well as having no significant criminal convictions. It is unlikely that he will re-offend simply because of his age and the fact that he must spend a very lengthy period in custody so that there will be in a practical sense little remaining opportunity for him to form a relationship with another person such as he enjoyed with his wife. 29 There is nothing in his current physical or mental state that can impact upon the sentence to be imposed upon him, given the nature and seriousness of the offences he committed. The Crown has quite properly and fairly, in my view, conceded that by reason of his mental state at the time of the killing a life sentence is not appropriate. I agree with that concession. The sentence, however, must be a lengthy one for reasons of retribution, denunciation and general deterrence. I do not believe that his mental state significantly reduces the need for the sentence to make it clear that persons cannot react to life crises, however great they may be, by the use of violence to others as a way of obtaining revenge, seeking retribution or preventing that person's future enjoyment of life. 30 There have been placed before the Court two victim impact statements. The first was that from Shane Goodwin and was read by him aloud. I noted that during the course of it his father was occasionally brought to tears. It was no doubt beneficial to Shane, and perhaps even his father, to have the impact upon him of the death of his mother occasioned by his father, spoken aloud in his father's presence. It was a very moving, eloquent and yet restrained recitation of the effect of the killing upon every aspect of his son's life. There was also a statement tendered from the former wife of Mr Clarke. The court received neither of these statements in order to increase the seriousness of the crimes committed by the offender or the punishment to be imposed upon him. 31 I was referred to a number of sentences imposed by this Court for other cases of multiple murders but they are in my view of limited value. I reviewed some of them when I sentenced the offender Fraser for the murder of his three children. The range presented is very wide indeed as would be expected having regard to the variety of facts and circumstances that the sentences reflect. 32 Although the standard non-parole period specified under the Table to s 54B of the Crimes (Sentencing Procedure) Act does not apply because the offender pleaded guilty, it is not irrelevant as a guide or an indication of the way Parliament regards the offence of murder and how it should be punished; R v Way [2004] NSWCCA 131 at [122]. The standard non-parole period for an offence of murder, that is an offence falling within the middle of the range of objective seriousness, is imprisonment for 20 years. In my view each offence taken in isolation is one that would have fallen within that range if sentence had been imposed after a trial. Although the offence was aggravated by the fact that it was premeditated and, committed in the home of Mr Clarke where both deceased were then residing, the offender, who was of otherwise good character, was suffering from a significant mental and emotional disturbance which affected his reasoning. He is, however, entitled to a discount of 17.5 per cent for the plea of guilty. 33 There should be some accumulation in order to arrive at an appropriate total minimum term that represents the totality of the criminality in taking the two lives in the way that he did. There should in my view be a total undiscounted sentence of 33 years with a non-parole period of 26 years. Doing the best I can to apply the discounts and structure the sentence appropriately I believe that the non-parole period, therefore, in each case would be one of imprisonment for 16½ years. An appropriate total minimum period of custody in this case is nothing less than 21½ years. Although the relationship between the total term and the overall non-parole period is slightly more than provided by s 44 of the Act it is an appropriate one in my view in this particular case. The sentences are to date from 1 March 2003. 34 In respect of the murder of his wife the offender is sentenced to a term of imprisonment with a non-parole period of 16½ years to date from 1 March 2003 and to expire on 31 August 2019. The balance of the term is 5½ years from 1 September 2019. In respect of the murder of Mr Clarke the offender is sentenced to a term of imprisonment with a non-parole period of 16½ years to date from 1 March 2008 and to expire on 31 August 2024 the date upon which the offender is to be considered for release to parole. The balance of the term is 5½ years from 31 August 2024 and will expire on 28 February 2030. **********