HIS HONOUR: Colin Maxwell Farrow pleaded not guilty to the murder of Linda Jane Stevens (the deceased) on the grounds of mental illness and was tried by the Court, sitting as a judge alone and found guilty on 27 February 2015: R v Colin Maxwell Farrow (No 2) [2015] NSWSC 109 (the earlier judgment).
These Remarks on Sentence need to be understood in conjunction with the finding of guilt and the reasons given therefor. The Court must now sentence Mr Farrow (the offender).
There are some aspects of the process of sentencing, particularly to those unfamiliar with it, that may seem difficult to comprehend. A court, when sentencing, needs to assess the objective seriousness of an offence within the range of conduct with which offences of that kind are concerned. Therefore, somewhat counter-intuitively to the uninitiated, when dealing with a sentence for the offence of murder, a crime that would universally be considered the most serious of offences, the Court must assess the objective culpability of the offender and must determine where, in the range of seriousness of offences within this category, this particular offence fits.
The maximum sentence fixed by Parliament is imposed only in the worst category of offences. In the case of murder, the maximum sentence is life imprisonment. Parliament has set a further guidepost in the imposition of a sentence for murder, being a standard non-parole period said to be applicable to a "mid-range" offence. The standard non-parole period for murder is 20 years' imprisonment.
In order to ascertain whether a murder is in the worst category, one does not rule out such a possibility simply because one can imagine worse conduct. Unfortunately, one can always imagine worse conduct.
Instead, the Court must assess the features of the offence and the circumstances of its commission in an objective manner and, in so doing, determine which category in the scale of seriousness this offence fits in the notional range between the lowest level of culpability and the worst category of case.
R v Colin Maxwell FARROW [2015] NSWSC 323 | Case summary | Zoe
Once the moral culpability associated with the offence is determined, one imposes a sentence for purposes which are established by the legislature and these legislative purposes reflect purposes hitherto established by the common law. The objectives are: to ensure that that offender is adequately punished for the offence committed; general deterrence, being the prevention of the crime of others by an appropriate sentence; specific deterrence, being the prevention of this or other crimes by the offender; protection of the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his actions; denunciation of the conduct; and recognition of the harm done to the victim of the crime, her family and the community: see s 3A of the Crimes (Sentencing Procedure) Act 1999; Veen v R (No 2) (1988) 164 CLR 465.
Each of those purposes is, like the maximum sentence and the standard non-parole period, a guidepost to the appropriate sentence. Unfortunately, as recited by the High Court in Veen v R (No 2), they sometimes, if not often, point in different directions.
The gravity of the circumstances of an offence such as this points most obviously to the need to protect society, personal and public deterrence, and punishment. On the other hand, promotion of the opportunity for rehabilitation depends significantly on the subjective circumstances of the offender and his capacity to be rehabilitated. The process of sentencing requires that the objective circumstances of the offence and each of the subjective circumstances of the offender, to the extent relevant to the exercise of sentencing, must be considered and synthesised to achieve, to the greatest extent possible, all of the purposes of sentencing described above.
Every murder is serious. Every murder involves the taking of human life by a person who has a state of mind that elevates the seriousness of the offence to that which is the most serious of crimes in the criminal calendar. The fact, and it is the fact, that the deceased was a drug dealer does not bear on the moral culpability associated with the seriousness of this crime. The fact of drug dealing by the deceased, and drug use by the offender and the deceased, is irrelevant to the guilt or sentencing of the offender. It is mere conjecture to suggest that the murder was at least in part caused by the effect of "ice". Yet every judge is aware of the horrific effects of "ice" on its users and the risks to society by its distribution. Nothing in this or the earlier judgment ought be taken as qualifying that horror.
At the same time, a sentence is not increased because the victim was a mother and family member. Nevertheless, this murder deprived a child of the care, love and upbringing of a mother and deprived the deceased's family members of the enjoyment of a person and the relationship with a person whom they loved.
Even though the facts of this murder have been set out fully in the judgment on guilt, it is necessary to summarise briefly the circumstances of the murder.
The offender is a drug addict. He was introduced to the deceased by a mutual friend who, at first, would attend at the deceased's premises with the accused. Each of them bought and used drugs, often at the deceased's premises.
In or about February 2013, the offender attended the deceased's premises with another person. Each of them attempted to buy drugs from the deceased, but the deceased would sell drugs only to the other person seemingly because the deceased would no longer provide the offender drugs on credit.
In the meantime, the person who had introduced the offender to the deceased had a falling out with the offender and communicated to him that if he were going to continue to behave as he was, then "don't come back".
In or about this time, the offender compiled a note relating to the three people described in the note as "K", "Le" and "Ly". There is an undeniable inference that the note was written in this manner so as to hide the true identity of each of the persons. In the course of the judgment on guilt, I took the view that the reference to "Ly" was a reference to the deceased, even though she spelt her first name "Linda". The description of the circumstance of that person, including the availability of drugs and money and the limitations on time available in which to effect a robbery, made the reference to "Ly" likely a reference to the deceased. In any event, the notes suggest that the offender intended and planned a robbery.
Whatever were his motives, the offender caught the train to the deceased's unit, gained entry to the unit and killed the deceased. He stole drugs, money and jewellery from the deceased.
The murder was violent. Most murders are. The offender inflicted a number of knife wounds, three of which were particularly significant and any one of those three could have and would have caused death to the deceased.
The injuries are described in the earlier judgment. There were significant injuries to each side of the neck and a stabbing wound that pierced the breast bone, went through the heart and into the lungs behind. There were also blunt force injuries, one in particular to the back of the head.
The stabbing occurred on the deceased's bed and, with the exception of the pool of blood on the mattress and bed covering and a blood smear on the lounge, the deceased's unit was clear of blood, finger prints and DNA that would incriminate the offender.
The offender had destroyed the deceased's clothing. He also destroyed his own. He bound the deceased's body with duct tape and rope and wrapped her body in the bed linen, bundling the bed linen and the deceased's body into the boot of the deceased's car and drove it to a park. In the meantime, he had purchased a shovel and other equipment and, it seems, was intending to bury the deceased.
The erratic nature of the offender's driving alerted a number of persons who reported the driving and the state of the car to the police.
Ultimately, as a result of suspicions gained by the discovery of blood in the registered owner's premises, the deceased's body was discovered in the boot of her car by police. When discovered, the deceased was naked and wrapped in the bed linen, bound at the arms and legs with duct tape and rope.
It is convenient to quote a passage from the earlier judgment at [129], in the following terms:
"[129] The accused then went into hiding. He did not return to his own home but lived on the street. When he was at a friend's place, he did not want the friend watching the news in his presence; he sought to escape from the police when chased and to resist arrest when caught…"
Stripped of the mental condition of the offender, a somewhat artificial approach, the murder was violent (above that involved in the commission of the offence itself), involved the use of a weapon, was committed in the deceased's home and was, again leaving aside the mental illness factors, an offence above the mid-range of offences of murder covered by the provisions of the Crimes Act 1900.
I do not accept that the murder was part of a planned or organised criminal activity so as to use that circumstance as an aggravating feature. At the same time, I do not accept that the murder was not planned, so as to take it into account for the benefit of the offender. While this may again seem inconsistent to the uninitiated, in making a finding of fact on sentence, a court must be satisfied beyond reasonable doubt of those matters to be used against the offender and otherwise on the balance of probabilities.
This is consistent with my earlier judgment in which I found that while the Crown had not proved beyond reasonable doubt that the murder was planned, it was more likely to have been planned than not. The finding that the murder was likely to have been planned undermined the defence case that the accused was acting irrationally around the time of the offence. As a consequence of that and other evidence, or the lack of it, the offender did not satisfy the court on the balance of probabilities that the defence of mental illness was available.
There are a number of aspects otherwise that I take into account in dealing with this offender. First, even though the offender maintains that he has no or limited memory of the events in question, he has disclosed in his evidence before the Court on Sentence, which evidence was not challenged, significant remorse for the effect of his conduct on the victim and the victim's family, including her son.
The major issue is the effect of the drug abuse of the offender and his mental condition. Those issues affect his moral culpability, even though they do not afford him a defence. I point out that drug abuse, of itself, does not ameliorate criminal offending. In this case, however, there is a long history of dysfunctional activity and, on the evidence before the Court, psychoses involving delusional paranoia, arising, amongst other things, from continued drug abuse and post-traumatic stress disorder. These matters affect not only the culpability of the offender in the offence in question but also the difficulties of his incarceration, rendering any period of imprisonment more difficult for him than the ordinary prisoner.
It is necessary to deal at slightly greater length with the offender's mental condition. Psychiatric evidence was adduced for the purpose of the proceedings determining guilt, but the psychiatric evidence was analysed there on the basis of whether the offender's mental condition satisfied the M'Naghten Rules (a reference to the test summarised in R v M'Naghten (1842) 8 ER 718) under which an offender may prove that a verdict of not guilty by reason of insanity should be returned. Such a verdict, technically a verdict of not guilty by reason of mental illness, involves the offender satisfying the Court, as was stated in the earlier judgment, that the offender did not know the quality and nature of the act being performed or did not know that the act was wrong by the ordinary standards of right and wrong adopted by reasonable persons.
The issue for sentencing is significantly different. The mere fact that the defence of mental illness has not, on the balance of probabilities, been proved does not render the mental state of the offender irrelevant to the sentencing question: Elturk v R [2014] NSWCCA 61. The principles were summarised by the Court of Criminal Appeal in Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1. The summary in DPP v De La Rosa, above, is not exhaustive, but is relevant to the current circumstances and, notwithstanding my findings that the offender understood the nature and quality of the act performed and that it was wrong, I take the view that the offender's mental health has contributed to the commission of the offence in a material way.
The offender is partially delusional and his judgment was affected, albeit not to the extent necessary to succeed on the mental illness defence. In my view, the offender's moral culpability has been reduced and the factor relating to denunciation, namely, the denouncing of the crime to the individual offender, does not carry the same weight that it might in the case of a person who had committed this crime otherwise than under the influence of psychoses.
Further, because the offender is suffering from significant psychoses, he is an inappropriate vehicle for general deterrence. Ordinarily, a crime such as this would involve general deterrence as a significant factor in the fixing of a sentence to deter others from committing such crimes. However, in the case of a person suffering from significant mental illness, such a person is less appropriately the vehicle for fixing general deterrence in the community as a whole.
Further, as mentioned above, a full-time custodial sentence, which is the appropriate sentence to impose on the offender, will weigh more heavily on this offender than it will on the ordinary body of prisoners.
In dealing with a person with a mental illness, care must be paid to the effect of that mental illness. Some persons suffering mental illness will, as a result, present a greater danger to the community than if they were not suffering such an illness. In that sense, the suffering of a mental illness may not always ameliorate the sentence that should be imposed and, in certain instances, will lead to greater weight being given to the protection of society in the sentence that is required.
To some extent, these issues may depend upon the capacity to treat the mental illness and the level and effect of genuine remorse, which together are matters to be considered in determining whether rehabilitation is a significant prospect.
The events since the offence in question point to the ability of the offender to successfully complete rehabilitation. Those events are confirmed by the psychiatric assessments of each of the forensic psychiatrists who gave evidence during the course of the trial.
Overall, the subjective circumstances of the offender, including those circumstances that relate directly to the commission of the offence itself, require a degree of leniency and a more prolonged period of supervision in the community to ensure that any rehabilitation that may occur in prison is given effect.
It is unnecessary to repeat the findings of the psychiatrists to which reference has been made in the earlier judgment. As earlier stated, I am satisfied that the offender suffers psychoses including paranoia, schizophrenia and drug induced psychoses.
I also accept that the offender suffers from an Antisocial Personality Disorder, although not one which, as most would, discloses a greater danger to the community associated with his disorder.
For the foregoing reasons, I find that there are special circumstances warranting a departure from the prescribed ratio between the non-parole period and the remainder of the term.
Lastly, some account has been taken of the manner in which the offender has conducted the proceedings. Even though the offender had no memory of the commission of the offence, the offender, almost immediately, accepted that he caused the deceased's death and conducted the proceedings accordingly. This was a significant saving to the administration of justice, showed a degree of remorse and had a utilitarian value. I do not quantify such value, but take it into account in the process that is the determination of an appropriate sentence, albeit only slightly. Whatever be the subjective circumstances, a sentence must be imposed that reflects the seriousness of the offence and is appropriate in all of the circumstances.
The offence occurred on 11 April 2013 and the offender was arrested on 17 April 2013. The offender has remained in custody since that time, solely on account of the offence for which he is now to be sentenced and the sentence that I impose will date from 17 April 2013. I have paid little attention to the criminal history of the offender as that history relates to offences of a significantly different nature than the offence of murder for which I now sentence the offender, but the offender is not entitled to any leniency on account of being a first offender.
I dismiss the back-up offences, involving use of a weapon to prevent arrest, resist/hinder police (2 counts), assault police (2 counts), and recklessly deal with proceeds of crime, each of which relate to the arrest for this murder or the disposal of the deceased's property.
Sentence
Colin Maxwell FARROW, you are convicted that on 11 April 2013 at Wollongong in the State of New South Wales, you did murder Linda Jane Stevens.
I sentence you to imprisonment for a non-parole period of 15 years, commencing 17 April 2013 and concluding 16 April 2028, the balance of term being a further 7 years' imprisonment, expiring on 16 April 2035.
You are first eligible for release on parole on 17 April 2028.
[2]
Amendments
03 July 2015 - Amendment by consent of Crown and Defence to [44] and [46].
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Decision last updated: 03 July 2015