New South Wales Supreme Court CITATION : R v Fraser [2004] NSWSC 53 HEARING DATE(S) : 12/12/2003 JUDGMENT DATE : 13 February 2004 JUDGMENT OF : Howie J at 1 DECISION : On the first count of murder relating to the child Ryan the offender is sentenced to a fixed term of imprisonment of 23 years from 21 August 2001 to expire on 20 August 2024. On the second count of murder relating to the child Jarrod the offender is sentenced to a fixed term of imprisonment of 23 years to commence from 21 August 2005 and to expire on 20 August 2028. On the third count of murder relating to the child Ashley the offender is sentenced to imprisonment for 25 years to commence on 21 August 2008. There is to be a non parole period of 20 years to expire on 20 August 2028 the date upon which the offender is eligible to be released to parole. CATCHWORDS : Criminal Law - Sentence for conviction for 3 counts of Murder LEGISLATION CITED : Crimes Act 1900 - s 23A Crimes (Sentencing Procedure) Act 1999 - ss 21(1), 61(1), 61(3) R v Harris (2000) 50 NSWLR 409 Veen v The Queen (No. 2) (1988) 164 CLR 465 CASES CITED : R v Oliver (1980) 7 A Crim R 174 R v Shankley [2003] NSWCCA 253 R v Cheatham [2002] NSWCCA 360 PARTIES : Regina v Steven Anthony Fraser FILE NUMBER(S) : SC 70013/03 COUNSEL : M. Tedeschi QC with J. Cash - Crown J. Stratton SC with G. Ikners - Accused SOLICITORS : C.K. Smith - Crown B. Sandland - Accused. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION HOWIE J FRIDAY 13 FEBRUARY 2004 70013/03 R v Steven Anthony FRASER REMARKS ON SENTENCE 1 HOWIE J: On 20 October 2003, the offender Steven Anthony Fraser was convicted by a jury of three counts of murder arising from the death of his three young children on the weekend of 18-19 August 2001. At the outset of the trial he pleaded guilty to a count of manslaughter in respect of each of the killings on the basis of the defence of substantial mental impairment under s 23A of the Crimes Act. The Crown, however, refused to accept the pleas in discharge of the indictment and the trial proceeded. The only issue for the jury to determine was whether they were satisfied on the balance of probabilities that the defence under s 23A had been made out by the offender. Clearly the jury rejected that defence. 2 The facts upon which the offender is to be sentenced are not substantially in dispute and are as follows. The offender and his wife, Maria Chona Fraser, commenced a relationship in 1993 and married in 1995. There were three children of the relationship: Ashley, who was born on 6 June 1994; Ryan, born on 20 September 1995; and Jarrod, born on 11 December 1996. Therefore, on the date of their deaths the children were aged respectively 7 years, 5 years and 4 years. 3 The relationship between the offender and his wife was a troubled one, and on a number of occasions they separated and then reconciled. On more than one occasion during their many arguments, the offender threatened that, if his wife ever left him, she would never see the children again and he made unspecific threats of harming the children. 4 In late 1997, Mrs Fraser again separated from the offender and moved into a house in Chippendale, with the children. She had formal custody of them four days a week. However, the offender and his wife adopted a flexible arrangement in relation to custody of, and access to the children. Sometimes the offender would take the children for a few days, and on other occasions only for a few hours. At times he would baby-sit the children at their home while his wife was at work. For a period of about 15 months the offender lived at the house in Chippendale. At all times Mrs Fraser encouraged the offender to spend time with the children, believing that it was good for them. 5 In early 2001 the offender moved into a flat in Caringbah having told his wife that he did not intend to live with her again because he had never loved her. He remained in contact with the children and would take them out on the weekends. On occasions he stayed at the house at Chippendale. 6 In May of that year Mrs Fraser informed the offender that she intended to take the children to the Philippines to see her parents during the July school holidays. The offender told her that he did not want the children to go without him but he signed passport forms for the children. However, the offender refused to allow passports to be issued to the children and Mrs Fraser obtained a court order permitting her to obtain them. The offender's mother purchased him a ticket to the Philippines but eventually he decided he would not make the journey. On 21 June 2001, when the wife and children were about to board the aircraft to fly to the Philippines, they learned that the offender had obtained an order preventing them from leaving the country. When immigration officials spoke to the offender, he refused his consent for the children to leave Australia and Mrs Fraser and the children returned home. 7 This led Mrs Fraser to make an application to the Local Court to permit her to take the children to the Philippines. She also applied for a variation of the access orders reducing the period during which the offender would have formal access to the children. These applications were set down for hearing on 27 August 2001. In the meantime, the offender continued to see the children as he had done previously. 8 At some time during the July school holidays Mrs Fraser began a relationship with another man, who throughout the trial was known as Sam. On Monday 13 August, Sam was at the house in Chippendale when the offender's mother arrived and saw him there. Later Mrs Fraser rang the offender's mother and informed her that she and Sam were seeing one another. When the offender learned of this relationship, and having confirmed it with one of the children, he expressed his concern to his mother that he might lose the children. He said that he was in "emotional pain". 9 The following Thursday night, 16 August, the offender rang his wife and began questioning her about whether she was having a sexual relationship with Sam and the nature of their sexual activities. The offender was aggressive and abusive at times during this conversation, to the point that his wife finally terminated the call. He called her again later that night but this time his tone was more conciliatory although he was still pressing for information about her relationship with Sam. 10 On the following day, the offender contacted his wife to make arrangements to collect the children for the weekend. It was arranged that they would meet at the Rocks at about 12.30 pm. However on Saturday the offender arrived at the house at Chippendale and tried to persuade his wife to break with Sam and recommence their relationship. He promised to allow her to take the children to the Philippines if she went back to him. The conversation continued over many hours and was a highly emotional one for both parties. 11 At about 4pm that afternoon, Mrs Fraser suggested to the offender that he should leave and take the children with him. However, he continued to further question his wife about her intentions with Sam and to press her for a reconciliation. During this conversation, he said words to the effect, "You will never have these children. How would you feel if you didn't have these children?" Although these remarks made Mrs Fraser anxious, the offender joined the family in a meal and seemed to become calmer. At one stage in the afternoon he appeared to have a fainting fit but recovered. 12 At about 7pm that evening, Mrs Fraser told the offender that she was going out with Sam that night and that he was welcome to stay at the house or take the children as he chose. The offender asked his wife not to go out and to stay with him and the children, but she refused. Eventually the offender left with the children in Mrs Fraser's car. This was the last time that she saw the children alive. 13 Late on the Sunday evening, the offender rang his wife in an angry mood. He told her that he had phoned the night before and she had not been home. He began to question her about intimate details of her relationship with Sam. At one stage, after his wife told him that Sam thought that she and the offender should be reconciled, if there were any chance of the relationship continuing, the offender said, "Is that because he is son of Sam the serial killer?" The significance of that statement was lost on Mrs Fraser at the time. During this conversation the offender said to his wife words to the effect that she would be the one left behind to take the blame. They both became angry and she terminated the call and disconnected the phone. 14 That evening the offender spoke to his mother in a highly emotional state telling her of his conversations with his wife and her intention to continue the relationship with Sam. He was having difficulty speaking and was sobbing such that his mother was concerned about his welfare. She asked him whether he had taken anything but the offender simply told her he was tired and wanted to go to sleep. So concerned was his mother, that she made contact with a private hospital seeking assistance, but was told to ring back the next morning. 15 At 9.00am Monday morning the offender's mother rang the hospital but she was told that they were unable to assist her. She then went with her sister to the offender's flat but could not get any response from her son. The front door was locked. She contacted a locksmith who eventually arrived and opened the front door. He entered the premises but quickly returned outside and advised the offender's mother not to go inside. He said, "They are all gone". She did not enter the flat but could see from the doorway a mattress on the floor and one of her grandsons lying on it. 16 When police entered the building they found that the three children were dead and the offender naked in a bath full of water. He was conscious and in the act of drinking a milky substance. 17 There was no dispute at the trial that the accused had killed his children by drowning them in the bath after having administered sleeping tablets to them in order to subdue them. He had killed the two boys about the same time and some hours, perhaps as much as 24 hours, before killing his daughter. He had then consumed a large quantity of sleeping tablets and got into the bath expecting that he would fall asleep and drown. In all probability the children were dead when he telephoned his wife and his mother on the Sunday night. The reference to Sam being a serial killer in the conversation with his wife may well be a reference to the fact that the children were dead and Sam was responsible. 18 Before attempting suicide the offender had prepared the unit in the belief that his wife would be the first person to enter the premises on the Monday morning. He had deliberately set out to create a horrifying spectacle for her benefit. It was to be a scene from her worst nightmare and one that she would never forget. Immediately on entering the unit, his wife would have been confronted with the sight of one of the children's toys, a stuffed monkey, hanging from a noose and with a knife through its body. The hands had been severed and were lying on the floor. The offender had placed tomato sauce around the entry and exit points of the knife through the toy and on the floor beneath to give the appearance of blood. The offender later told a psychiatrist that this represented his wife and his anger toward her. 19 Next she would have come across the body of Ryan lying on a mattress in the loungeroom. The offender had written on the child's face, "I love you Ryan, RIP. XO". The last two letters evidently were meant to indicate a kiss and a hug. On one of the loungeroom's walls he had written, "I'm waiting, Sam. Come to Papa". Alongside this was written "Real Fisherman do not feel sorry for the bait!" On another wall there was written, "We have nothing to beer but beer itself". There appeared to have been attempts made to wipe the writing from the walls. On the door of the linen cupboard the offender had written out the words of a once popular song, "Che sera sera". 20 Next in the main bedroom was the body of Jarrod lying on the double bed. The offender had written on his face, "I love you Jarrod, RIP", the word "love" being represented by a heart. There were also symbols representing kisses and a hug. Above the bed was written, " I'm not to be toyed with!" The word "toyed" was written over the word "trifled". 21 In the second bedroom was the body of Ashley lying on the bottom of a double bunk. On the wall of that room was written, "There is no place like home!!" Post-mortem examination of Ashley revealed marks consistent with pressure having been applied to her neck and other injuries apparently inflicted at the time of her death. They are consistent with her having struggled violently against the offender's efforts to drown her. 22 On the offender's computer there was a screen saver on which was written the following: " chona, you were forever telling me that you would take our children from me … .i always promised you that come what may, Ashley, Ryan, and Jarrod would be with me forever together, always … always … with or without you " The evidence was that on 19 August 2001 the computer had been programmed so that this screen saver would automatically be displayed when the computer was turned on. 23 The offender was removed from the bath after a struggle during which he attempted to put his head under the water. With some difficulty he was restrained and removed from the unit. He asked arresting police to let him kiss his children. He was conveyed to hospital under restraint. 24 Initially the offender acted in a bizarre manner, with severe mood changes. He sobbed, wailed, and thrashed about in an apparent endeavour to injure himself. At one point he appeared to reach out and cried out, "Don't die. Don't die". He indicated to a police officer guarding him by signs that he wanted the officer to shoot him with his service pistol. Eventually, however, he began to regain his senses and spoke to the police officer for some time about general matters unrelated to the killing of the children. At one stage he whispered something to a security guard. When the police officer repeated to a superior officer what he had been told by the security guard as being said by the offender, the offender interrupted to correct him. He thereafter commenced a lengthy monologue concerning the death of the children. 25 As best as his statements could be taken down by the police officer they were as follows: " I love my kids more than anything. My kids were going to be taken away by my wife and I told her that my kids would always be with me. No way I was going to leave them do that to my children, put them through misery for the rest of their lives, to be driven insane by the unreciprocated love. I loved my wife. We had problems. More than anything I wanted my children to have their mother and father together. She called me a sperm donor, that she doesn ' t want a man in her life. She is fucking another guy. She had an abortion at Christmas and I still came back. I said we ' d go to counselling. She ' s a cold bitch. She will say that she is sucking her new partner ' s cock, but he doesn ' t eat my pussy like you do. I was seeing my children all weekend. She wanted to take them to the Philippines. I was molested when I was a child and I ' m scared the same thing might have happened to them. I wasn ' t a good husband. My children were my world. I killed my kids because I had to protect them. I tried to get Rohypnol, but I couldn ' t get them. Two years ago I could have got it, but now it ' s restricted. I didn ' t want to slit their throats or hurt them. My kids are in peace now. They don ' t have to go through the shit I had to. You ' ve all been abused through your lives. I didn ' t kill my children for nothing. It was so that they didn ' t have to go through what I had to. The tablets weren't ' t strong enough so I had to drown them. I did Ryan first, then Jarrod, but I spent the day with Ashley. She was drugged though. She vomited up the stuff and it was so hard. I wanted her to be in a coma. She kept waking up. I gave her 15 tablets, she wanted to play. I gave her another 15 tablets, she vomited. I put her in the bath. I couldn ' t just drown my kids when they could feel pain. I wanted them to be in a coma. I put her in the bath, but she wouldn ' t drown, so I kung-fu hit her in the neck with my hand so she ' d go. I had to put it off for a whole day before I did her. I gave them mogadon. I gave them 15 each. You ' d think that would knock them out, but it didn ' t. They were struggling in the bath, tried to stop me from drowning them. I couldn ' t stop though, not once I started. I thought I couldn ' t let my children live the rest of their life thinking their father had died of a drug overdose. In one way I feel relieved because I stopped them from feeling pain. " 26 Another police officer, who also overheard what the offender said, recorded him as saying, amongst other things, "Do you know how hard it was for me to kill my children? I took drugs to do it, otherwise I couldn't have done it." 27 A doctor who was present recorded the offender as saying that he was relieved "that they are resting in peace but I will probably go to hell for it." That doctor was of the view that the offender was at the time a high suicide risk. 28 Later when Detectives spoke to the offender he said, "I know what you think of me. I only did it for my kids. I don't want them to suffer like I did." When he was informed that they were investigating the death of Ashley, the offender said, "Is she dead? Is she dead or was she saved? I hope that she is dead. I don't want her to suffer any more like I did." Later when informed that the three children were dead, the accused stated, "They are dead. They are all dead. I'm glad they won't suffer like me. They won't be abused like I was. Everybody's been abused and molested. You've been abused haven't you?" Later he said to the police, "I don't want them to suffer. I don't want them to be abused. You're going to send me to gaol where I will get raped". 29 Subsequent investigations by police revealed that prior to the death of the children the offender had attended on a number of medical practitioners principally in an attempt to obtain Mogadon or some similar medication. 30 On 15 August while Dr Haddad was in the course of a home visit to a patient he was asked to speak to the offender who was present in the premises at the time. The offender indicated that he was having trouble coping and was being frustrated over his children. He explained that he had certain ideas about the way he wanted to live his life with his family. He asked the doctor to prescribe Rohypnol, but he refused to do so. He gave the offender a script for Mogadon. 31 The offender saw a number of doctors on 16 August. He told Dr Mak that he was stressed and could not sleep because he was separated from his wife and there were court proceedings regarding custody of the children. The offender asked for sleeping tablets and was prescribed Mogadon. 32 He attended his local general practitioner, Dr Orphanides. He told the doctor that he was concerned that he had less access to his children and that his wife was taking them overseas, having tricked him into signing the passports. He also referred to a court case. The offender asked the doctor for Mogadon. However, despite the offender's insistence that he be prescribed that drug, the doctor refused to do so. 33 The offender also went to the Miranda Medical Centre and was given a prescription for Mogadon. 34 At about 6pm that evening the offender attended the surgery of Dr Ullman who had treated him on a number of occasions since 1993 for tension and anxiety. The offender said that he required Mogadon to help him sleep and was agitated about a pending court case. 35 An inspection of the offender's computer revealed that searches of the Internet had been made for the words "Mogadon", "Rohypnol" and "methods of suicide". Searches had been conducted for the words "Rohypnol", "Mogadon" and "Serepax" on 17 August 2001. 36 The killing of the children should be seen against the fact that in January 2001 the offender had told Dr Orphanides that he might commit suicide and take the three children with him. The doctor was so concerned at the offender's mental state that he arranged for him to be taken by ambulance to the Prince of Wales Hospital. Dr Orphanides had referred the offender to a mental health team on a number of occasions, the latest being in December 2000 because he was distressed and hypomanic. The doctor believed that the offender suffered from a severe mood disorder and has on occasions prescribed medication to relieve his depression. 37 The facts surrounding the killings show it to be a most serious act of criminality when viewed objectively. I refrain from using more emotive words to describe what the offender did in taking the lives of his innocent children. The killings were planned before he attended the house to collect them on the Saturday at least on a contingency basis in case he did not get his own way with his wife. When he failed to convince her to give up her relationship with Sam, I have no doubt the children's fates were already decided as he drove them away from their mother and the safety of their home. 38 I am satisfied beyond reasonable doubt that his motivation in killing the children was at least in part to punish his wife for her conduct toward him. The offender was frustrated in his desire to control his wife and children and intended to make his wife pay for her defiance of his wishes. He did not want her to take the children to the Philippines, he was concerned about the imminent custody case, and he saw the relationship with Sam as the end of any chance of his being reconciled with his wife and living with her and the children. The offender had made it plain to his wife that, if he were forced to take action against the children in order to deprive her of them, it would be her fault and she would have to live with the guilt. No doubt in part this has turned out to be true. 39 Some of the things that the offender wrote on the walls of the unit are chilling proof that the killings were to be used as an act of revenge for his wife's defiance in refusing to cease the relationship with Sam. In particular the statement, "Real fisherman do not feel sorry for the bait" is terrible in its implications as to his purpose in killing the children. The statement "I'm not to be trifled (or toyed) with" is clearly a message to his wife. The killings were to some extent symptomatic of the offender's self-centeredness in his marital relationship. Much of his complaints to the medical practitioners, who saw him before the killings, concerned his frustration at being thwarted in his desire to control his wife and continue the relationship on his terms. To this extent the killings were a selfish act of spite or, at least, were to be used as such. 40 There are a number of aggravating features attending the killings that make it objectively a very serious case of multiple murders. The fact that the victims were vulnerable children is itself a matter of aggravation. The offender as their father was under a duty, and in a position of trust, to care for them while they were absent from their mother. As I have already mentioned, the killings were planned with the applicant obtaining the drugs before he saw his wife on the Saturday. He had been searching the Internet to obtain relevant information as to the effect of various drugs for the purpose of killing the children and himself. The killings occurred over the weekend and Ashley was murdered some significant time after the two boys. The children, in particular Ashley, died violently struggling against the hands of the person who should have been protecting them. Ashley was injured in her attempts to resist the offender and it is clear that he physically assaulted her in some way in order to subdue her. Of course the offender had wished to drug the children, no doubt hoping to save them the horror of drowning, but he proceeded with this method of killing notwithstanding that they were not rendered unconscious by the drugs he gave them. 41 It is also a matter of aggravation that one of the motives that the offender had in what he did was to punish his wife and to take the children away from her. I will say more about the applicant's mental state and his object in killing the children, but in so far as he intended their deaths to be a lesson to her, that it would produce the consequence that she would lose the children, and that she was to be held responsible for his actions, the killings were cruel over and above a consideration of the acts that brought about the death of the children. 42 A matter in contest during the trial was whether the offender had consumed some substance before the killings to enable him to perform such a dreadful act. I have no doubt that he did. This is what he told the police the next morning and he said the same to Dr Carne and Dr Westmore. It matters little what it was or how it affected him. He had decided to kill the children and took the substance to make it possible for him to put his plans into effect. Generally speaking it is a matter of aggravation that a person consumes some drug, often alcohol, in order to be able to commit a criminal offence. But in this case that fact must be seen against the offender's disturbed thought processes arising from his underlying mental condition to which I will refer shortly. 43 The maximum penalty for murder is life imprisonment. That sentence is generally reserved for a case falling within the worst category of murder. Section 61(1) of the Crimes (Sentencing Procedure) Act states: A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. Section 61(3) states that nothing in subs 1 affects s 21(1) of the Act. Section 21(1) provides that for any offence, which carries a maximum sentence of imprisonment for life, the court may impose a sentence for a specified term. 44 It has been recognised that there is a tension in the terms of section 61 between, on the one hand, the apparent mandatory requirement to impose life imprisonment where s 61(1) applies and, on the other, the retention of a discretion whether to impose such a sentence preserved by s 61(3). The tension is resolved by acknowledging that, notwithstanding that s 61(1) would apply to the facts of a particular case, the sentencing court nevertheless retains a discretion not to impose a life sentence. That discretion might be exercised where the subjective features of a particular case displace the prima facie need for the maximum penalty. 45 It has been held that the fact that there were multiple murders committed could be taken into account in determining whether a life sentence was required for any one of the offences; R v Harris (2000) 50 NSWLR 409. It was also recognised in that case that a particular offence could be so heinous in its objective facts that little, if any, regard should be given to the subjective circumstances of the offender. But the subjective circumstances there being referred to are those matters which would normally suggest that leniency is called for as a matter of compassion or in aid of the rehabilitation of the offender. 46 Considering simply the objective facts surrounding the killing of the children the offences would, in my view, be of such seriousness that they would justify the imposition of the maximum penalty of life imprisonment. They are offences falling within the worst category of murders. It should be noted that the maximum penalty is not preserved for the worst case imaginable and, unfortunately, it is always possible to think of factual scenarios that, for some reason or other, may be considered to be worse than the offence before the court; Veen v The Queen (No 2) (1988) 164 CLR 465 at 385. With the offence of murder, in particular, there will often be cases that justify the imposition of the maximum penalty even though such a sentence has been imposed for offences which are more heinous or dreadful, or where the offender poses more of a threat to the community, than the case before the court. The simple fact is that life imprisonment is the most severe sentence that can be imposed and, therefore, it may be the appropriate sentence for a range of factual scenarios which, as between themselves, differ in the degree of seriousness of the offence committed or the moral culpability of the offender. 47 During the course of submissions on sentence the Senior Crown Prosecutor conceded that this was not a case that warranted the imposition of a life sentence, notwithstanding s 61 or the objective facts that I have so far recited. This concession was made both orally and in writing by the State's most senior and experienced prosecutor, Mr Tedeschi QC. It was a considered stance and one made on the basis of well-established legal principles and the facts of this particular case. It was made notwithstanding that the Crown, having refused to accept pleas of manslaughter, had vigorously pressed the jury for verdicts of murder. I understand that this concession, having been erroneously attributed to me by one or more members of the media, was met with condemnation by at least one public commentator. 48 The Crown's concession was not based upon considerations of unmerited leniency or a failure to appreciate the objective seriousness of the acts of the accused in taking the life of his children. Rather it was a proper acceptance of the fact that the offender's culpability for the killings was significantly reduced by reason of his mental state at the time of the killings. The Crown conceded that the offender's culpability was not such that s 61 applied. The Crown, as the representative of the community and knowing all the facts and circumstances surrounding the killings, accepted that the community's interest in retribution, punishment, protection, and deterrence did not warrant the imposition of a sentence of life imprisonment. That concession was well founded. It ought not to be called into question by those who merely react emotionally to the appalling objective facts that are presented without any understanding or acknowledgement of sentencing principles or the law as laid down by Parliament. 49 The fact that the jury rejected the defence based upon the offender's mental condition at the time of the killings does not mean that a sentencing court can have no regard to his mental state when determining what punishment is to be imposed upon him for his criminal conduct. The Crown, as it had to, accepted that it was a relevant factor in determining the appropriate sentence. There has never been any dispute that the offender was in a highly disturbed and disordered mental state at the time of the killings and in the days leading up to them. The evidence of the three psychiatrists called at the trial was that the offender was at the time of the killings suffering from a severe mental disorder as a result of a long-standing underlying mental abnormality. The only dispute was as to whether the condition fell within the, somewhat, technical requirements of s 23A of the Crimes Act. The jury's rejection of the defence under that section can be understood to be a result of their assessment of whether the offender should, by reason of his mental state, be found guilty of manslaughter rather than murder. As I told the jury repeatedly in the summing up, this was a matter for them and not the psychiatrists giving evidence. It was a moral judgment based upon their assessment of his mental state and his physical acts. 50 Even without evidence of the psychiatrists, it must be obvious that the offender was mentally disturbed at the time of the killings. There is no dispute that he loved his children dearly. Paradoxically the killings were in part a testament to his deep feelings for them. There is nothing to suggest that the offender had ever harmed his children before this weekend. He only seriously thought of injuring them when he became so mentally disturbed that he was suicidal. Under the effects of his mental disorder, he became obsessed with their safety and their welfare, fearing that they would be sexually molested or mentally abused if they were permanently separated from him. And yet he believed that the only way they could be saved was to kill them. The evidence of the state in which he set up the unit and the ritualistic way he placed the children after he had killed them, clearly shows how disturbed his mind was at the time. 51 The offender acted with conflicting emotions and motives. As I said earlier, I am satisfied that he acted to punish his wife by taking the children from her and causing her to believe that she was responsible. But I am also satisfied that he intended to kill himself and believed that it was necessary to save the children from what he foresaw would be the harm they would suffer without him. There is no doubt at all that he genuinely attempted suicide after killing the children. There was something symbolic in the fact that he attempted to drown himself as he had drowned the children. 52 Although there was a dispute at the trial between the psychiatrists as to whether the offender fell within the mental condition as described in s 23A, that controversy was only as to the degree of his disturbance and whether his capacity to judge the wrongfulness of his actions was substantially impaired. The only factual dispute was whether the offender had needed, and obtained, Dutch courage by consuming alcohol or some other substance before the killings and what that revealed about his mental capacities. Although I am satisfied that he did take some substance to steel himself to carry out the killings, I do not think that the jury's verdicts were based upon a resolution of this dispute in favour of the Crown. I believe that the jury were not persuaded that in all the circumstances the accused should be relieved of a finding of murder because of his mental condition, notwithstanding that he was clearly suffering from a mental disorder at the time. I am of the opinion that a significant matter in the jury reaching their verdicts was the fact that the offender, in part at least, killed the children to punish his wife. The nature of the killings was also, in my view, a highly relevant matter in the jury's determination that the appropriate verdict in each case was murder rather than manslaughter. 53 I am satisfied that the offender's culpability is reduced by reason of his mental condition, as the Crown conceded. In particular his ability to judge the moral wrongfulness of his actions was disturbed. I see nothing inconsistent in the offender being of the disordered belief that it was necessary to kill his children for their benefit but not having the courage of his conviction without strengthening his resolve by the use of alcohol or drugs. 54 However, the offender is to be sentenced in accordance with the jury's verdicts; that means a sentence appropriate to reflect the fact that he intentionally and with premeditation murdered three young children by drowning them. As I have already indicated, I believe that the objective facts would warrant the imposition of a life sentence. But the offender's culpability, and therefore his punishment, is to be reduced by reason of his impaired reasoning at the time when he was planning to take their lives and at the time of the killings. He realised what he did was wrong, in the legal sense, but he acted in part from a belief that it was a necessary evil in the best interests of the children. 55 The offender is 35 years of age, with no prior criminal record of any kind. There is nothing to suggest that he was normally a violent man or that in his right mind he would harm the children or his wife. Clearly a relevant matter to an understanding of the offender's mental disturbance was that his parent's separated when he was very young and he had been sexually abused when aged 10 years. He had to give evidence in court against the perpetrator and the experience left him fearful of attending court. This added to his anxiety about the forthcoming custody case. 56 He had an unhappy childhood at boarding school where he was constantly bullied and mistreated by other boys. This resulted in a lack of confidence in himself and a difficulty in maintaining relationships with others. He is to a significant degree immature for his age. His selfishness and self-centeredness is part of his pathology. 57 Shortly after he left school the offender suffered his first bout of psychiatric disturbance resulting in a suicide attempt. He was diagnosed as having schizophrenia and received psychiatric treatment. There was another suicide attempt in 1987 followed by another admission for treatment. In 1989 he received further psychiatric treatment resulting in his being prescribed anti-psychotic medication. During the period between admissions he lived with his mother and worked in various occupations. In 1992 he again attempted suicide after the person with whom he was then in a relationship had their child aborted. The diagnosis was that he was suffering from depression rather than schizophrenia. In 1993 he met his wife. 58 It is unnecessary to detail the psychiatric findings. The offender has been occasionally mentally disturbed since the age of 19 as a result of an underlying mental condition. During the relationship with his wife, at times of conflict, he would threaten suicide or to take the children way from her. In the days before the killings he become preoccupied with thoughts of his own death and the resulting harm to the children who, he believed, would be at risk of abuse and trauma such as he had suffered. In particular he believed that any person who commenced a relationship with his wife would sexually abuse the children. These thoughts were obsessive at the time of the killing. Although he had spoken before about killing himself and the children, it appears that he made no preparations to carry out his threat nor attempted in any way to put these thoughts into action. I think that they were more likely empty threats made in an attempt to control his wife and their relationship. However, as he came to the realisation that it was certain that the relationship would come to an end, so these thoughts of suicide and killing the children took on a different complexion. 59 The killings took place on this particular weekend because of a combination of stresses that resulted in the offender becoming suicidal. These were the threat of the children being taken to the Philippines, the impending custody case, and the end of his relationship with his wife because of her relationship with Sam. The killings occurred when they did, not simply because he provided himself with Dutch courage but because he had reached the point where he believed that his fears were going to become facts. 60 Dr Carne diagnosed the offender as possibly suffering from a personality disorder with borderline and paranoid characteristics. He believed that on those occasions when he was admitted to psychiatric hospitals he was suffering from a stress-related episode of paranoid illness. He thought that at the time of the killings the offender was possibly in a psychotic depressive episode with delusions in relation to the safety of the children. Dr Carne was unavailable to give evidence at the trial. However, I do not accept that the offender was suffering from a psychotic state at the time of the killings although I do accept he was deeply mentally disturbed. 61 Dr Westmore, who examined the offender on a number of occasions, diagnosed him as suffering from a severe personality disorder of a mixed type with borderline narcissistic and immature traits. He described the offender as a deeply disturbed man with a profoundly troubled personality. The doctor formed the opinion that, although the offender knew it was legally wrong to kill the children, he was unable to appreciate it in a moral sense. Although the doctor accepted that the offender might have taken drugs to allow him to overcome his repugnance to killing the children, he did not believe that this meant that the offender appreciated the moral wrongfulness of what he was doing. 62 Dr Skinner gave evidence for the Crown. She made a similar diagnosis to Dr Westmore but parted company with him on the question of the capacity of the offender to understand the moral wrongfulness of his actions. To that extent Dr Skinner, while believing that the offender was deeply disturbed at the time of the killing, came to the view that he did not fall within the defence under s 23A. I should note that Dr Skinner changed her opinion in that regard having initially given the Crown advice that the offender did have a defence under the section. I found her reasons for the change in her opinion unconvincing. Nor was she aware of all of the facts surrounding the killings at the time of her second report. 63 Although by law and in a moral sense he has to be sentenced on the basis of wilful murder of the three children, his culpability is reduced by reason of his mental state at the time. He is not a danger to the community in general unless he enters into an unstable relationship in which there are young children. Given the length of time he will be required to serve before being eligible for release, it is very unlikely that he will find himself in such a situation. I accept Dr Westmore's assessment that he presents more of a risk to himself than to any other person. 64 The Crown has submitted that general deterrence is of particular importance because of the fact that the offender intended by his acts to punish his wife as a result of the breakdown in his relationship. If that were the only motive or purpose behind the killing of the children, I would agree with the submission. But general deterrence would always be an important consideration where a person unlawfully takes the life of another on the basis that it was in that person's best interest, however and for whatever reason that belief arises. The question in the present case is, to what degree, if at all, should the sentences reflect general deterrence. 65 It is a well-established principle of sentencing that an offender suffering from a severe mental disorder is not usually an appropriate subject for the expression of general deterrence to the same degree as a person without such a disorder. This does not mean that a sentence cannot reflect general deterrence where the offender is suffering from some mental abnormality. In a case where, as here, at the time of the commission of the crimes, the offender was aware of what he was doing, appreciated that it was unlawful, and understood the gravity of what he was doing, then the moderation of the weight to be given to general deterrence need not be great. 66 It should be apparent then that the Crown's concession in relation to the inappropriateness of a life sentence was not only fair but also completely justified. A Crown Prosecutor fulfilling his duty to the Court could not have submitted otherwise. However, the overall sentence must be a very lengthy one and this fact was acknowledged by both the Crown and Mr Stratton SC who appeared for the offender. I have previously indicated that there were aggravating features in the commission of these killings that must be reflected in the sentence. The court is under a duty to denounce the killing of these children and must exact appropriate retribution for their loss of life. The offences are so serious in their objective facts that the diminution in his culpability by reason of his mental state is reflected largely in withholding the maximum sentence available and which would otherwise be appropriate. Although he is not to be sentenced to life imprisonment, the sentence must nevertheless be a very heavy one. 67 The offender will no doubt spend the substantial part, if not all, of his sentence in protection. He is at risk of prisoners taking it upon themselves to punish the offender for his crimes regardless of their lack of moral or legal right to do so. Although the offender requested that he be subject to a Limited Association Order and, therefore, finds himself in protection at his own request, it is not difficult to understand why he did so. As a result of the offender's protected status, he receives only one hour out of his cell each day. Thus prison will be harsher for the offender than most other inmates and some allowance must be made for this fact. 68 I have been referred to a number of cases of multiple killings of family members. Each case of course is different and there are various considerations that lead to the exercise of a discretion in any particular case. But these cases indicate the range of sentences that have been imposed for somewhat comparable cases where the court believes that a life sentence is not warranted. In the present case on the basis of those sentences, Mr Stratton submitted that I could impose a non-parole period of no more than 20 years imprisonment. 69 However, statistical information of that kind is relevant mainly to achieve consistency in sentencing. It is a check upon an egocentric view of a particular crime by a particular judge or judges. But each sentencing judge has a discretion that should not be unduly curtailed by having regard to what sentences have been imposed in other cases. In particular the sentencer should not consider the most severe sentence that has been imposed for a particular type of offence or in respect of a particular kind of factual situation as in effect the maximum sentence that can be imposed for a similar type of offence or in respect of a similar factual situation. The most severe sentence imposed by some other court for a somewhat similar offence or factual scenario cannot constrain or limit a particular exercise of discretion. 70 It has been held that the maximum penalty prescribed by the legislature is the first initial consideration in the sentencing exercise; R v Oliver (1980) 7 A Crim R 174; R v Shankley [2003] NSWCCA 253. The penalty fixed by the statute reflects the policy of Parliament and the general seriousness with which the community regards such an offence. Its importance cannot be replaced or displaced by the sentences actually being imposed by the courts. 71 However having formed my view of the appropriate sentence to be imposed upon the offender after taking into account the various relevant factors, including the maximum penalty, I have considered how that sentence stands alongside other sentences imposed for similar offences or in similar factual scenarios with a view to determining whether the sentence is so far out of the range of sentences passed that it offends against the important policy of consistency in sentencing. 72 In particular I have had regard to the sentences imposed upon Mrs Folbigg but found them to be of little assistance because of the very peculiar facts in that case. The fact that she received a sentence of 40 years for offences against her five children, does not require me to impose a comparable sentence upon the offender whether or not I personally agree with the sentence imposed by Mr Justice Barr. Individual sentences do not form some benchmark against which some other sentence is to be evaluated. Certainly there is no mathematical equation that can be applied to indicate what sentence should be imposed upon a particular offender by reason of a sentence imposed upon some other offender or offenders. As I have indicated, in my opinion the only benchmark is the maximum penalty prescribed by Parliament and it is against that figure that a particular sentence is to be measured having regard to all the relevant facts and the sentencing principles to be applied. 73 However, a review of those sentences indicates that the range is between 22 and 28 years head sentence. In some of those cases there was no evidence of any mental disorder present to reduce the offender's culpability. The most similar is probably R v Cheatham [2002] NSWCCA 360 where the offender killed his wife, one of his children aged 3 and attempted to kill his other child, a baby. He was acting from a delusion that he had AIDS and was planning to commit suicide after killing his family. He believed it was in the interests of his family to kill them so that they would not suffer from the AIDS virus. He was required to spend his sentence in protection. He was sentenced, on appeal, to 22 years with a non-parole period of 14 years. 74 I am of the view that the present offences are considerably more serious than those for which Cheatham was sentenced. The present facts have a number of aggravating features not apparently present in that case. The offender is to be sentenced for the premeditated death of three children who died in circumstances in which they would have been aware of what was happening and struggled against their father in a vain hope to live. There is also the feature that the killings were in part intended to punish his wife in a most dreadful way. In my assessment the culpability of the offender is substantially more than Cheatham. In any event the sentence I am about to impose is what I believe to be the appropriate sentence although I have had regard to the other sentences to which I have been referred. 75 The wife of the prisoner presented a moving address to the Court by way of a victim impact statement. It is difficult to conceive of the anguish and pain that the mother of these children has suffered as a result of the actions of the offender. Clearly she feels guilt although there is not the slightest reason why she should. Nothing she did was responsible for the conduct of the offender and there was no reason why she should have behaved any differently than she did. It was the offender's abnormal reaction to her behaviour that resulted in the death of the children. He simply was not going to allow her to make decisions affecting her and the children, if they did not accord with what he wanted. Of course the Court cannot use her loss and the effect upon her life of his actions to aggravate the offender's criminality or to increase the punishment to be imposed upon him. The material was not received for this purpose. But it allowed the mother, as a victim of his crimes, to publicly state the effect of these crimes upon her, and to do so in the hearing of the offender. 76 Although the three killings occurred as part of the same criminal activity there should be some cumulation of the sentences. This is simply because the criminality involved in the killing of the three children cannot be expressed by a sentence relating to the killing of any one of them. The sentence has been reduced by reason of the offender's diminished criminal responsibility as a result of his mental condition and because of the fact that he will serve his sentence in protected and restricted custody arrangements. For substantially those reasons the prisoner is not going to be sentenced to life imprisonment. The sentence in respect of Ashley is greater than with the two boys because of the assaults and injuries committed upon her. However, it is the overall sentence that is of primary importance in ensuring that the totality of the offender's criminality is reflected in an appropriate sentence. 77 There is nothing that would require that the non-parole period should be reduced by reason of special circumstances. The simple fact is that the prisoner's sentence must be very severe and there is nothing that indicates to me that a lengthy period on parole is necessary other than to assist him reintegrate into the community after such a long period in custody. I have taken the nature of his custody into account generally in fixing the total sentence and I see no reason in this case to take it into account again in reducing the non-parole period. 78 The non-parole period will exceed that which would follow from an application of the statutory formula. This is because the non-parole period I am going to impose is in my opinion the absolute minimum that the prisoner must serve as punishment for his crimes. Nothing less will serve to denounce his conduct and serve as appropriate retribution for taking the lives of these three children in the way that he did. I appreciate that many in the community would believe that nothing less than life imprisonment would be appropriate for what the offender did. But with respect to those who hold that opinion, the proper measure of punishment must reflect an objective assessment of the offender's culpability having regard to his mental state at the time of the killings. 79 On the first count of murder relating to the child Ryan the offender is sentenced to a fixed term of imprisonment of 23 years from 21 August 2001 to expire on 20 August 2024. On the second count of murder relating to the child Jarrod the offender is sentenced to a fixed term of imprisonment of 23 years to commence from 21 August 2005 and to expire on 20 August 2028. I have imposed fixed terms because of the sentence that I am about to impose which will provide a non-parole period. On the third count of murder relating to the child Ashley the offender is sentenced to imprisonment for 25 years to commence on 21 August 2008. There is to be a non-parole of 20 years to expire on 20 August 2028 the date upon which the offender is eligible to be released to parole. 80 I intend by the sentences I have pronounced that the offender is to serve a total sentence of 32 years from 21 August 2001 with a minimum term of imprisonment of 27 years from that date. Whether he is released on the day the non-parole period expires will of course be a matter for the Parole Board. ********** Last Modified: 02/18/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.