Sentence Upheld for Murder of Child - NSW Court of Criminal Appeal

The Court of Criminal Appeal dismissed an appeal challenging the sentence for the murder of a child, emphasising the need for general deterrence and the objective seriousness of the crime.

[ADDRESS] of Criminal Appeal

CITATION: Pfitzner v R [2010] NSWCCA 314

HEARING DATE(S): 3 December 2010

JUDGMENT DATE: 16 December 2010

JUDGMENT OF: McClellan CJatCL at 1; [NAME] at 47; [NAME] at 48

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - whether the sentencing judge erred in finding that the offender did not accept responsibility for her criminality and did not acknowledge the loss she caused - implications of evaluating offender's remorse absent the giving of oral evidence in court - whether the sentence imposed was manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

Butters v R (2010) NSWCCA 1 R v DN [2007] NSWSC 1252 CASES CITED : R v [NAME] [2007] NSWSC 905 R v Jalaty [2006] NSWSC 675 R v [NAME] (2009) NSWSC 153 R v Thomas (2007) NSWCCA 269

PARTIES: [NAME] (applicant) The [NAME](S): CCA 2008/17087

COUNSEL: [redacted] [NAME] ([NAME])

SOLICITORS: [redacted] Director of Public Prosecutions ([NAME])

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2008/17087

LOWER COURT JUDICIAL OFFICER: R A Hulme J

LOWER COURT DATE OF DECISION: 9 December 2009

IN THE COURT OF CRIMINAL APPEAL 2008/17087

McCLELLAN CJ at [NAME] 16 DECEMBER 2010 PFITZNER, [NAME] v R

JUDGMENT 1 McCLELLAN CJ at [NAME]: The applicant pleaded guilty to the murder of her son. The child was aged 2 years 8 months when he died. The applicant was sentenced to a term of 25 years and 6 months imprisonment with a non-parole period of 19 years and 2 months. She seeks leave to appeal her sentence. 2 The maximum sentence for murder is life imprisonment. The standard non-parole period when the victim is a child under 18 years of age is 25 years.

The facts 3 The applicant was born on [DATE] and was 26 years old at the time of the offence. She had three children from three different relationship, [NAME] (born 12 August 2000), [NAME] (born 25 February 2005) and [NAME] (born 14 April 2007). [NAME] was the son of [NAME], with whom the applicant was living in a de facto relationship at the time of the offence. 4 The applicant had been involved in a relationship with [NAME] from 2002. [NAME] was the father of [NAME]. [NAME] described the relationship between the applicant and [NAME] as "attended by arguments, alcohol and drug abuse and domestic violence." 5 In February 2006 [NAME] made a complaint that a person named [NAME] had done something to her. [NAME] and the applicant reacted by seriously assaulting [NAME]. [NAME] was incarcerated and that seemed to have ended the relationship between the applicant and [NAME]. The applicant was arrested but she was granted bail after two days. 6 The applicant lived with the children in a refuge at Armidale, but she had an informal arrangement with [NAME]'s mother, [NAME], for [NAME] to look after [NAME] for a few days at a time. At some point in 2006 it is alleged that the applicant said "I will kill [NAME] before he goes back with [NAME]." However, [NAME] cared for [NAME] on subsequent occasions and had full time custody of him in the latter part of 2006 and in 2007. 7 The applicant began a relationship with [NAME] in the middle of 2006 although they were not living together. On 14 April 2007 the applicant bore [NAME]' son, [NAME]. The applicant moved to her own premises at Rosemeadow shortly afterwards. [NAME] came to live there a short time later. 8 In March 2007 the applicant began court proceedings to regain custody of [NAME]. [NAME] opposed this. On 4 June 2007 consent interim orders were made granting [NAME] custody, but giving the applicant defined access periods. After the second period of access, the applicant did not return [NAME] at the agreed time. [NAME] began proceedings in the Federal Magistrates Court for a recovery order. That application was listed for hearing on 28 September 2007. 9 In August 2007 [NAME]'s non-parole period expired. The applicant was later to tell police that in September she received a death threat from [NAME] communicated by a third person. 10 There was evidence that the applicant's treatment of [NAME] deteriorated. In the two weeks before he died bruises were seen on [NAME]'s body. There were reports that she would lock him outside to punish him. [NAME] noted that no one saw the applicant punish [NAME] with anything more than a slap. 11 On 25 September 2007 the applicant told her caseworker that she wanted to give [NAME] back to his grandparents because she was not coping. Unfortunately on 28 September the application for a recovery order was stood over to 11 October. On 3 October the applicant told her case worker that she did not want to go back to court and just wanted her son picked up by police and taken back to his grandparents. 12 On 11 October a recovery order was made ex parte by the Federal Magistrates Court. The applicant telephoned the court to inquire whether or not a recovery order had been made but she was told no information could be given by the court over the phone because of court policy. 13 Shortly afterwards the applicant murdered [NAME]. She wrapped his body in plastic bags, placed him into a suitcase, and threw it into a nearby duck pond. 14 The applicant then went to a [NAME]'s home. She was crying and she told [NAME] that "I had to do it Twilar, I had to do it." She said that she had taken the child to the Campbelltown office of the Department of Community Services and left him there. 15 When the applicant's de facto, [NAME], arrived home at 4 pm the applicant was crying. She gave him the same explanation for the absence of [NAME] as she had given to [NAME]. 16 On 17 October a group of children found the suitcase and the body inside it. The forensic pathologist who examined the body was unable to make a definitive finding as to the cause of death, however she said that the bruising on the face and a small (11 mm by 10 mm) laceration on the upper lip were consistent with the type of injuries sustained in suffocation, "possibly due to placement of hand/s over the face." 17 On 20 October 2007 the applicant was arrested. When interviewed by police she said that when she looked at her child all she could see was his father. She said something came over her and she lost control. She said that she picked him up by his shirt and shook him from side to side. She did this for a period of "a few minutes to five minutes." She threw him to the ground and he fell on the back of his head. She realised what she had done and she started trying resuscitation. She performed CPR for about 10 minutes. 18 The sentencing judge found that the evidence did not enable him to conclude beyond reasonable doubt that the applicant had acted with the intention of killing her child. He was influenced in his conclusion by the fact that after rendering the child unconscious the applicant immediately attempted to resuscitate him. [NAME] found the offence was unplanned. He concluded that the objective seriousness of the offence was below the middle range of objective seriousness, but only slightly so. 19 The applicant has provided a summary of relevant subjective matters which I adopt for the purpose of the resolution of this appeal. 20 The applicant was born on [DATE] and so was 26 years old at the time of the offence. She was the youngest of 7 children. She was born in Blacktown and grew up in Mt Druitt. She gave a history of being physically abused by her father. Her parents separated when she was 17 years old. She felt she was blamed for the separation and at that age (17 years old) she was kicked out of home. She lived in a number of [NAME]. 21 The applicant met [NAME], an indigenous boy from Inverell. She fell pregnant with his child. That child, [NAME] was born on [DATE] when she was just 19 years old. She lived for a short time with her mother and her father, and then travelled to Inverell in the hope that Mr [NAME] would want to continue the relationship. He apparently did not wish to and the applicant moved to Tamworth where her maternal grandmother lived. 22 In Tamworth the applicant formed a relationship with [NAME] who was then in gaol. When he was released in 2004 the applicant and [NAME] set up house together in Campbelltown. Her child, [NAME] ([NAME]) was born 25 February 2005. The applicant told [NAME] that while she was with [NAME] she was frequently subjected to extreme physical and emotional abuse. Dr [NAME] noted that the applicant reported that there were a number of incidents of domestic violence when the applicant was living with [NAME] including his smashing a bottle of bourbon over her head and holding a knife to her head. 23 In September 2006 there was an incident which led to the applicant being charged with maliciously inflicting grievous bodily harm in company. The applicant's daughter [NAME] presented looking distressed and told the applicant "Pop had put his hands down her pants and rubbed her real hard". "Pop" was a reference to a relative of [NAME]. This led the applicant and [NAME] to severely assault [NAME]. 24 The applicant and [NAME] were both arrested. The applicant was granted bail but [NAME] was not. The relationship between the applicant and [NAME] effectively finished. 25 Dr [NAME], a psychiatrist who was retained by the [NAME] was of the opinion that the applicant was not suffering from a psychotic illness at the time of the offence, but suffered from a substance abuse disorder and a severe borderline personality disorder. Another psychiatrist, [NAME] was of the opinion that she suffered from a substance abuse disorder and depression. He believed she had a defence of substantial impairment open to her. 26 The applicant's criminal record was tendered at her sentence hearing. However, the way in which her criminal record was presented contained many repeat entries for a single offence because of the applicant not appearing in court. When these repeat entries are removed the applicant's criminal record in its entirety appears to be as follows:

31/8/99 [NAME] assault police (x2) $100 + $100 fines resist arrest $100 offensive language $100 receiving $100 fine

28/11/02 Penrith LC fail to pay taxi driver $100 costs

29/6/05 Tamworth LC make false accusation12month bond

13/9/05 Tamworth LC assault police 12 month bond resist arrest 12 month bond

18/2/06 Campbelltown DC mal inflict gbh 18 months gaol (suspended)

24/11/06 Bourke LC fail to appear $80 fine

3/7/06 [NAME] shoplifting 100 hours cso 27 It should be noted that the offence of "make false accusation" related to the applicant having withdrawn allegations against [NAME] that he had held a knife to her throat while she was pregnant. In her record of interview, the applicant said that these allegations were true but she had withdrawn them because she felt sorry for [NAME]. 28 It should also be noted that the offence of maliciously inflicting grievous bodily harm in company related to the assault upon [NAME]. In the remarks on sentence for that matter Judge Moore found that the applicant administered at least one kick to the head of [NAME] but noted that the [NAME] had conceded that it could not point to any specific injury attributable to the applicant's actions. 29 The suspended sentence for the offence of maliciously inflicting grievous bodily harm was revoked on 19 November 2009 because of the [NAME] offence, and the sentence of 18 months with a non-parole period of 6 months was activated to date from 20 October 2007, the date upon which the applicant was arrested. 30 It is conceded that the fact that the [NAME] offence was committed while the applicant was on a suspended sentence for this offence was an aggravating factor. Nevertheless it is submitted that the applicant's record was not so bad as to disentitle the applicant to leniency, which was apparently the view that the learned sentencing judge took of the applicant's record. 31 There are two grounds of appeal.

Ground 1: [NAME] erred in holding that he could not find that the applicant had accepted responsibility for her actions and acknowledged the loss that she caused because she did not give evidence. 32 The sentencing judge said in relation to the issue of remorse: "I am not persuaded that I should make a finding of remorse in the offender's favour. She has not given evidence herself that would enable me to conclude that she has accepted responsibility for her actions and acknowledged the loss that she caused: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. [NAME] reported that, ' [NAME] expressed guilt and remorse over [NAME]'s death' and [NAME] wrote that this appeared to be sincere. Again, not having seen and heard the offender give evidence, I have been denied the opportunity to make an assessment for myself." 33 The applicant submitted that this finding was made contrary to the decision of this Court in Butters v R (2010) NSWCCA 1 and in R v Thomas (2007) NSWCCA 269. In Butters the court made plain that s 21A(3)(1) of the Crime (Sentencing Procedure) Act does not require an offender to give evidence before a finding of remorse is available. However, it does not follow that if an offender does not give evidence and accordingly is not exposed to cross-examination that the sentencing judge may not give significant weight to the lack of evidence from the offender when determining whether a finding of remorse should be made. It is one matter for an offender to express remorse to a psychologist and a psychiatrist or even when interviewed by the police and quite another matter to give sworn evidence and be cross-examined about the issue. When interviewed by the police or by a psychiatrist or psychologist it is unlikely that the offender's response will be challenged. It may be otherwise when the offender gives evidence. Furthermore, an issue of remorse may be susceptible to evaluation by consideration of an offender's demeanour an opportunity which will be denied the sentencing judge unless the offender gives evidence. 34 In the [NAME] case the applicant pointed to a number of occasions when she is recorded as having expressed regret and may have accepted responsibility for her offending. However, there are other occasions including her account of the relevant circumstances which suggest that she may have difficulty in accepting responsibility for her actions. 35 [NAME]'s findings could perhaps have been expressed with greater clarity I do not understand him to have concluded merely because the applicant did not give evidence that he could not make a finding of remorse. If he had for that reason precluded the possibility of a finding there would be an error. However, when the paragraph is read as a whole I understand [NAME] to be saying that without evidence from the applicant there was not sufficient evidence to persuade him that a finding of remorse should be made. I am not persuaded that this conclusion was not open to [NAME] and accordingly reject ground 1 of the appeal.

Ground 2: The sentence imposed on the applicant was manifestly excessive 36 The sentencing judge indicated that without a plea of guilty he would have imposed a head sentence of 30 years. Assuming the starting point for the non-parole period was 75% of the starting point for the head sentence, the starting point for the non-parole period must have been approximately 22½ years. 37 The applicant referred to the statistics available from the JIRS database in respect of sentences for murder. However, those statistics do not discriminate with respect to offences where the standard non-parole period is 25 years. Accordingly they are of little value in relation to the [NAME] appeal. 38 The standard non-parole period of 25 years for the murder of a person under the age of 18 only came into effect on 1 January 2008. The consequence is that only one case R v [NAME] (2009) NSWSC 153 relates to an offender who has been sentenced under the revised non-parole regime. 39 In [NAME] the offender murdered his 3 year old stepdaughter. He had been drinking heavily and had argued with his wife. He subsequently assaulted the child repeatedly for a period which the sentencing judge found to be "probably in excess of 20 minutes." The sentencing judge found that the offence fell above the mid range of criminality but not substantially so. 40 [NAME] was 30 at the time of the offence and had a lengthy criminal history and was subject to bonds at the time of the offence. He was sentenced to 26 years imprisonment with a non-parole period of 20 years. There was no finding of remorse. 41 Although there are similarities between the circumstances of [NAME] and the [NAME] there are obvious differences. [NAME] was the son of a magistrate and for that reason there was no option but for him to serve his complete sentence – at least 20 years in protective custody. The sentencing judge in [NAME] made plain that she would have imposed a significantly greater non-parole period but for the fact that the sentence would be served on protection. 42 In the [NAME] case the manner in which the applicant will serve her sentence was not an issue when she was being sentenced. As it happens the applicant entered protective custody at her own request and is presently housed as a Special Management Area Placement inmate (SMAP). Inmates housed in SMAP receive access to the same range of educational courses as the normal prison population and have access to employment opportunities although not the full range of opportunities available to those in the normal prison population. For so long as the applicant remains an inmate in SMAP she will have access to her own outdoor exercise areas although she will not be able to associate with inmates in the main gaol. 43 The applicant referred to other decisions in which an offender was sentenced for the killing of a young child. R v Jalaty [2006] NSWSC 675, R v [NAME] [2007] NSWSC 905 and R v DN [2007] NSWSC 1252. However, in each of these cases the sentence was imposed when the standard non-parole period was 20 years. Accordingly their utility for [NAME] purposes is limited and they do not persuade me that the sentence imposed upon the applicant was erroneous. 44 [NAME] imposed the sentence mindful of the standard non-parole period. [NAME] determined that the offence occurred as part of a course of mistreatment of the child that had been going on for some weeks. It was not an isolated aberration. [NAME] concluded that the applicant had manifested a callous disregard for her son. [NAME] was also mindful of the fact that the applicant was on conditional liberty at the time of the offence. [NAME] was concerned to ensure that the sentence adequately responded to the need for general deterrence, denunciation of the applicant's conduct and making her accountable for her actions. [NAME] could not find in her favour that she is unlikely to reoffend or has good prospect of rehabilitation. 45 [NAME] also gave consideration whether the sentence should be made concurrent with or accumulate upon the non-parole period of the sentence that was the subject of the suspended sentence bond. Because the other sentence was imposed for an offence committed against a different victim at a different time [NAME] determined that it was appropriate to wholly accumulate the sentence for the murder of the child. To my mind this course was plainly open. 46 Although the sentence which [NAME] imposed was severe I am not persuaded that it was excessive. Although I would grant leave to appeal the appeal should be dismissed. 47 [NAME]: I agree with McClellan CJ at [NAME]. 48 [NAME]: I agree with McClellan CJ at [NAME]. **********

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