R v F.A.P. [2007] NSWSC 905

New South Wales Supreme Court

CITATION : R v F.A.P. [2007] NSWSC 905

HEARING DATE(S) : 01/06/2007, 03/08/2007, 17/08/2007

JUDGMENT DATE : 17 August 2007

JUDGMENT OF : Howie J at 1

DECISION : The offender is convicted of murder and sentenced to a non-parole period of 14 1/2 years. The sentence is to commence on 8 January 2005 and the non-parole period expires on 7 July 2019 the date upon which the offender is eligible to be released to parole. There is a balance of term of 5 years to commence on 8 July 2019.

CATCHWORDS : Criminal Law - Sentence for Murder after plea - child killing by father - Aboriginal offender with depreived background and low intellect.

CASES CITED : R v Fernando (1992) 76 A Crim R 58

PARTIES : Regina v F.A.P.

FILE NUMBER(S) : SC 2006/1160

COUNSEL : P. Barnett - Crown P. Bolster - Offender

SOLICITORS : S. Kavanagh - Crown Adamson Solicitors - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

FRIDAY 17 AUGUST 2007

2006/1160 REGINA v F.A.P.

REMARKS ON SENTENCE 1 HIS HONOUR: On 30 June 2007 the offender was arraigned before a jury panel on an indictment for murder. He entered a plea of not guilty of murder but guilty of manslaughter, however the Crown refused to accept the plea in discharge of the indictment. A jury was then empanelled. However, before the Crown opened the case to the jury, the offender asked to be re-arraigned and then pleaded guilty to the charge of murder. 2 At the date of the offence, the offender lived with his de facto and their three children in a private residence at Wauchope. The offender is of Aboriginal descent and was then aged 24 years. The deceased was the offender's youngest child, a male aged 15 months, and at the time of his death on 1 January 2005 was residing with his parents and siblings. 3 On the day of the killing at about 9.00am, the mother of the deceased child left their home to go for a walk with the two elder children in order to obtain cannabis. The youngest child remained in the care of the offender who had been asked to shower him while the mother was away. At the time that the mother left the home, the child appeared in good health, although he was crying and upset possibly because of a minor viral infection or possibly because of injuries already inflicted upon him by the offender. 4 The mother returned home at about 10.00am. She saw the child leaning against a couch or lying on a mattress in the lounge room of the house but noticed that he did not respond to her as he normally would. However, thinking that he was "fine", she put him into a cot and went into the kitchen. She returned to the lounge room a short time later. She then saw that the child was lying down and checked to see if he had a temperature. His legs were stiff and he had something wrong with his eyes. 5 Believing that something "wasn't right" with the child and knowing that a neighbour worked at a doctor's surgery, the mother went to the neighbour's house to seek assistance. This was at about 10.00am. When the neighbour answered her front door, the mother asked her to look at the child because she was worried about him. The neighbour went to the offender's home where she saw him holding the child on the front patio. The neighbour noticed what she described as a "big bruise on one of the child's cheeks [and] bruising across the front of his forehead." She could not elicit a response from the child. 6 The neighbour then took the mother and child to Wauchope hospital where a doctor examined him. It was now about 10.30am. The doctor observed "an area of bruising over the left frontal region with no significant swelling…blue colour… bruising across the front of his forehead." The doctor accompanied the child to Port Macquarie Base Hospital where they arrived at about 2.00pm. 7 The child was examined by Dr Doyle, the Consultant Paediatrician, whose observations included visible bruising to the left side of the face and forehead, a recent haemorrhage to the left eye and later, a new haemorrhage in the right eye. A CT scan revealed that the child had a fractured skull and swelling to the brain including a blood clot. 8 Dr Doyle spoke to the offender and asked what had happened to the child during the time he was left in his care. The offender stated that he had left the child unsupervised in a shower for a period of time and provided no other explanation for the injuries. Dr Doyle concluded that the child "was suffering a severe non-accidental head injury of recent origin, that is within two hours of initial assessment…". The bruising became more developed while the child was in the hospital and an area of bruising was boggy to touch. 9 At about 6.00pm the child was transferred by emergency air flight to the Westmead Children's Hospital where an emergency craniotomy was performed. This revealed significant swelling of the child's brain and acute subdural haemorrhaging. The child was placed on life support however his condition deteriorated to a point that on 2 January 2005 an examination revealed an "absence of all brain stem reflexes". 10 The offender made his way to Westmead Hospital but stopped at Taree where he spoke to his aunty. He told her that when the baby was in the shower he heard a noise and went outside the bathroom. When he returned the child was lying on his back in the shower. 11 After consultation with the offender and the mother at Westmead Children's Hospital, the various life support devices were switched off and at about 3.15pm on 2 January 2005 the life of the child was pronounced extinct. In the opinion of Dr Jacobe the death of the deceased "occurred as a result of cerebral swelling caused by severe trauma to the head occurring very shortly prior to his presentation to Wauchope Hospital". 12 The results of an autopsy on the body of the child revealed that he had a fractured skull, retinal haemorrhaging consistent with being seriously shaken, and evidence of older trauma in the rib area that was weeks old and caused by force. There was other bruising and bleeding in the abdominal cavity that pre-dated the injuries causing death. The cause of death was found to be "head injury" with bleeding within the brain. This injury was consistent with the child's head being struck with considerable force against a flat surface. Reviews of the medical evidence by various experts concluded that the head injury was "non-accidental". 13 When interviewed by police on 6 January 2005, the offender could not provide an account that explained the child's injuries. He agreed that the child had been in a normal state of health when the mother had left home and that he was the only person who had contact with the child during the period of her absence. He told police that he put the child in the shower, leaving him unattended for about ten minutes while he watched television. He also stated that he did not see the child fall or otherwise injure himself nor did he notice any injuries on the child during this time. Later that day the offender was arrested and charged in relation to the child's death. 14 Following his arrest, the offender was subjected to a risk assessment by prison officers when he was admitted into prison on remand. This took place on 8 January 2005 and was recorded on video. During the assessment the offender said, "I don't know, I think I killed my son but I don't know how I killed my son. I can't remember nothing". He also said that he was a good father and did not mean to do anything to his son. 15 On 15 and 16 May 2007 Professor Greenberg, a forensic psychiatrist, interviewed the offender in relation to the death of the child. During the interview the offender admitted that he had started to physically abuse the child because he wanted him to be quiet. He claimed that he did not know what had come over him. He said that he could not take the child's crying and had felt helpless and anger towards the child and that he had just snapped. He admitted that he had repeatedly hit the child with his fists, dropped him to the ground and repeatedly slammed him into the floor. 16 The offender stated that he had been abusing the child for about a week before he died. He said that his intention had been to hurt him but had no intention of killing the child. He said that he had never abused the child in front of his mother and that the thought had occurred to him that, if he kept abusing the child, he might kill him and he would end up in gaol. He did not tell the mother about his abuse of the child because he thought she might leave him. 17 The offender had a difficult and troubled upbringing. He was one of a number of children, although each of his siblings had been put up for adoption. I should add that there are in the various reports different accounts by the offender of how many children his parents had ranging from three to nine. His father drank heavily and he often witnessed his father being physically abusive towards his mother, eventually causing her to leave the relationship when the offender was about 7 years of age. For a time the offender lived with one parent or the other until he came under the care of his grandparents. It appears that the grandmother was inadequate to the task and he suffered neglect. She had difficulty in controlling him and most school mornings he could not be found. She was unable to provide adequate supervision for the offender and the hygiene standard at the residence was quite low. He was dirty and without adequate food most of the time and wandered the streets late at night. He reports that his grandfather physically abused his grandmother. 18 At about the time he commenced at pre-school it was first discovered that the offender had hearing difficulties. They were later diagnosed as being a result of repeated middle ear infections and perforated eardrums. His poor hearing resulted in a delay of approximately two to three years in his language development. 19 Reports indicate that, while at pre-school, the offender often appeared unkempt and unclean. This affected his socialisation with, and acceptance by, other children. This was exacerbated by the fact that there were no other children of Aboriginal descent in the group with whom the offender was placed. He was often absent, and, due to financial difficulties at home, was seen to lack adequate warm clothing and was usually sent to school without lunch. 20 The offender suffered poor health and poor nutrition throughout pre-school and primary school. This was reflected in symptoms such as a persistent cold, runny nose and congested chest and on occasion boils, head lice and impetigo. He possessed low self-esteem and demonstrated a lack of self-confidence. Teachers commented on his unhappy emotional state although he was seen to have an affectionate nature, responding well to adult attention. 21 The offender had great difficulty in adjusting to the formal structure of a primary school programme. Although presenting as an intelligent child, his language skills were assessed as being greatly underdeveloped, a result of his severe hearing problems. The offender displayed disruptive and aggressive behaviour and poor social development that was seen to be reflective of the frustration he felt as a result of his hearing difficulties and his lack of discipline in an unstable home environment. 22 During 1987 intervention by the Itinerant Support Teacher for Hearing saw the offender fitted with grommets in both ears, designed to assist his hearing. The offender was then required to undertake regular hearing tests to monitor his fluctuating hearing loss. Concern was raised that, if the offender was left without consistent and ongoing medical and educational care, he could suffer permanent hearing loss. 23 The offender continued to have a high rate of absence from school, attending only two or three days in ten. On occasions Youth and Community workers found him wandering the streets on school days. Irregular attendance, non compliance with teacher directions and lack of special teaching help, made the opportunities for the offender to reach his potential seriously limited, inevitably resulting in him falling even further behind in his schooling and having to repeat Year 5 more than twice. The offender appears to have been a bully at school who picked on weaker children. 24 His carers rarely followed through with medical checkups arranged for him. The Itinerant Support Teacher for Hearing assessed that, without the right home environment and support services, he was a child whose welfare was at severe risk. NSW Department of Community Services records indicate that between 1986 and 1992, ten Risk of Harm reports were made regarding the offender's welfare. The reports primarily related to neglect and inadequate care issues. 25 The offender completed schooling up to Year 9 at which time he was placed in juvenile custody for aggravated robbery. He has poor reading and writing skills. 26 The offender first drank alcohol when he was aged 15 years. Between the ages of 18 to 20 he regularly participated in binge drinking. He smoked cannabis from the age of 14 on a daily basis, as did both his parents. When he was aged 16 he commenced using heroin and took the drug on a daily basis for the next two or three years. After stopping his use of heroin, he then used amphetamines. The offender has never attended a rehabilitation facility for either drugs or alcohol. At the time of the offence he was a user of amphetamine, cannabis and alcohol. However, he denies using any intoxicating substance on the day of the killing. 27 The offender has at one time worked as a small motors mechanic, fixing lawnmowers. He also received work from a Community Development Programme run by the local Lands Council. He had a child to a previous relationship when he was aged about 15 years. He no longer has contact with the mother of his first child and last saw that child about three years ago. The mother of this child separated from the offender because of his violence toward her. The offender has not had contact with the mother of the deceased child since the time of the offence. He denies ever being physically abusive to the mother but agreed that he had verbally abused her. The Department of Community Services has never been involved with the family. 28 The offender has no family history of mental illness and there are no grounds to believe that he suffers from a mental illness or mental disorder. However tests by a psychologist reveal that he is mildly intellectually disabled and Dr Nielssen diagnosed him as mildly mentally retarded. Dr Westmore diagnosed him as having a conduct disorder arising in adolescence. He has at times while in custody been treated with an anti-psychotic medication and anti-depressants. Dr Nielssen thought that he might possibly have an underlying psychotic illness. Dr Greenberg was of the opinion that he had a personality disorder with antisocial features. He has on all accounts a substance abuse disorder. 29 The relationship was an unsettled one and the two often split up and then resumed co-habitation before again separating. One such separation occurred when the mother was pregnant with the deceased child and the offender first saw the child when he was aged about 6 months. He moved in to live with the family in the early part of 2004. Both parents smoked cannabis and drank alcohol but not to excess. 30 The maximum penalty for murder is life imprisonment and there is a standard non-parole period prescribed of imprisonment for 20 years. Because the offender pleaded guilty the standard non-parole period does not strictly determine the sentence to be imposed but it remains an important guidepost to the sentence that should be imposed for an offence to which it applies. The offender's counsel submitted to the Court that the offence was one below midrange on an objective assessment of the facts of this particular case. In order to establish this fact the Court was directed to other cases of child killing not so much for the relevance of the sentence imposed but because of the facts of the matters. As defence counsel accepted the sentences imposed in those cases are now affected by the existence of the standard non-parole period. 31 The present case is aggravated by the fact that the applicant admitted having physically abused the child before. So the acts leading up to the killing cannot be seen as isolated or uncharacteristic behaviour. Further the applicant was aware that there was a risk that further abuse of the child might result in serious injury even death. The injuries that the child suffered were not the result of a single blow. Although I do not believe that the offender intended to kill the child, he certainly intended to inflict very serious injuries upon him. He was probably recklessly indifferent to the death of the child, but it does not matter particularly what was his mental state given the age of the child and the serious injuries inflicted upon him. 32 The offence is also aggravated because of the position of trust that was placed on the offender to care for the child, flowing both from the fact that he was the child's father, and hence ought to have been his protector but also because he had been left in charge of the child in the mother's absence. The offender was careful not to abuse the child in the presence of the mother so that although he may have gone further than he intended on this particular day in assaulting the child, he had deprived the mother of her ability to care for the child and protect him from the offender. 33 It is apparent that the applicant did not kill the child in cold blood but was enraged by the child's crying and behavioural difficulties probably caused by some infection or injury that was troubling him. There is no suggestion that he had harmed the other children of this relationship or his earlier relationship. The offence was unplanned and unpremeditated. 34 I would imagine that it must be difficult for persons in the community, especially for the relatives and friends of the victim of a murder, to understand that there can be a range of cases of murder such that a court is called upon to decide whether one murder is worse than another and to describe a particular case as being of midrange in seriousness or less than midrange. To those who loved and cherished the victim it must be galling to hear that the death of a particular victim is not the most serious case of murder or that it is at the lower end of the scale of seriousness for such an offence. But this is what is required of a sentencing judge particularly since the provisions relating to the standard non-parole period have come into operation. 35 It seems to me that this is a murder just short of the midrange of objective seriousness of all murders although there are aggravating factors to which I have referred. That finding of course does not mean that the offender is to receive a sentence of imprisonment just short of 20 years because the Court is required to take into account mitigating factors personal to the offender. This is the type of case where general deterrence is significant notwithstanding that the offender's mental state and reasoning power might be reduced significantly below the general population, even of Aboriginal persons. Those with the care and control of young children simply have to understand that they cannot take out their anger or frustrations on such victims. In the present case the offender did have a realisation at least before the day of the killing that further abuse could kill the child. Yet he gave into his urges yet again when the child's mother was absent. However given his intellectual and other deficiencies I will moderate the need to reflect general deterrence somewhat. I do not believe that specific deterrence is warranted. 36 Although there was a strong circumstantial case against the offender even without his admissions, it must be said that his voluntary statements to the psychiatrist as to the events leading to the injury of the child advanced the Crown case considerably, at least so far as the charge of murder was concerned. Therefore, he is entitled to some leniency over and above the utilitarian value of the plea, by reason of these admissions that are also evidence of his contrition. The utilitarian value of the plea cannot in my opinion be assessed at any more than 10 per cent. 37 The offender has a criminal record as a child including an aggravated robbery, assault offences and dishonesty matters. He served a short gaol sentence in 2000 and at some period spent a not insignificant period of time in custody on remand for an offence for which he was ultimately acquitted. However, as I have already noted, there have been no offences since 2000. The record does not provide him with any leniency except that in light of his background and juvenile record it suggests that he was making the effort to rehabilitate himself, even though he was using illegal substances at the time. 38 The offender's background has given him very few advantages, either subjectively or of a material kind. He has low intelligence, poor hearing, lack of insight into many of his problems such as drug abuse, and his upbringing did not dispose him to be able to cope with the behaviour of the child. He made what must be considered to be disastrous choices about the child's welfare through fear of his wife leaving him. This would hardly be mitigating except that it is understandable given his background. He is a very immature and inadequate person who simply cannot be judged against the standard of other members in the community. 39 He is on protection at his own request. This is unsurprising given that he has killed a very young child but I know nothing about the nature of his custody so I cannot take it into account in any significant way. Many of the sentencing considerations that were referred to in Fernando are relevant here. The offender has been particularly disadvantaged as a result of his upbringing despite the best endeavours of persons in the community to assist him. He was introduced both to alcohol and drug use at a young age within the community in which he lived. 40 It is a difficult sentencing exercise. On the one hand members of the community generally and those close to the mother would be outraged that a young child can be so brutally injured by the person who is responsible for its care and safety with so little provocation. On the other hand the offender is very much a product of his upbringing with his immaturity, low intelligence and inadequacies. Although there would be reasons in many cases to find special circumstances it appears to me that the statutory proportion will adequately permit the offender to have such assistance as he may need on release to parole. He does not present a danger to the community unless he finds himself again in the care of a young child but that will be after hopefully some maturity by reason of the passage of time serving this sentence. 41 I am departing from the standard non-parole period because the offence is slightly less serious than midrange, the discount by reason of the plea of guilty and the applicant's personal circumstances that moderate the need for general deterrence and punishment generally. 42 The sentence I would have imposed but for the discount for the plea of guilty would be 22 years. It is reduced to about 19 years 6 months. 43 The offender is convicted of murder and sentenced to a non-parole period of 14½ years. The sentence is to commence on 8 January 2005 and the non-parole period expires on 7 July 2019 the date upon which the offender is eligible to be released to parole. There is a balance of term of 5 years to commence on 8 July 2019. **********