R v Farfalla [2001] VSC 99

Supreme Court of Victoria|2001-05-07|Before: VINCENT, J.

Francesco Carmelo Farfalla, the jury empanelled in the trial at which you were presented for the murder of Rebecca Lee Schloss at Ardeer on or about the 15th day of October 1999, found you not guilty of the commission of that offence but guilty of the alternative charge of manslaughter. In the circumstances of your case, I consider that it would be reasonable to interpret that verdict as a finding by the jury that whilst you intended to kill the deceased or at least cause really serious bodily harm to her, the reasonable possibility that you acted under provocation, as that term is understood by the law, could not be excluded.

Accordingly, I propose to impose sentence upon you on that basis.

The circumstances surrounding the commission of the crime have been canvassed at length in the course of your trial and need only be addressed in relatively brief detail at this stage.

It appears that you were, when you met Rebecca Schloss in 1999, a single person aged in your mid-30s. Although you had a number of friends, you were, at a personal level, isolated and lonely and with a poor sense of self-esteem. You had experienced a problem with sexual impotence from the time that you were a teenager and had for that and other reasons, found yourself unable to develop what you regarded as an adequate relationship with a female over the years, although you clearly wished to do so.

Eventually, as a consequence of some increase in confidence arising from partially successful treatment for your impotence problem, you began to secure female companionship through escort agencies. It seems to be reasonably clear that you were seeking more than sexual activity through these arrangements as I understand that, on some if not most occasions, there was no sexual behaviour involved and that you simply paid for them to stay with you at your home overnight.

Soon finding the expense involved to be too great, you commenced to approach street prostitutes, in due course encountering the deceased. Miss Schloss was aged 17 years and heavily involved in heroin abuse. In order to obtain the money necessary to secure drugs she worked from time to time as a street prostitute in the St Kilda area. She lied about her age and falsely claimed that she had a child. You believed her and appear to have developed sympathy for her perceived predicament. She came to your home on several occasions and stayed overnight. Although she was generally paid for these visits, it appears that this was not always the case, and, again, it appears that there were few requests for sexual favours on your part. I understand that she would, without fee or request, also perform various domestic tasks from time to time. It is not possible to determine what prompted her to visit and stay without payment or to assist you with respect to domestic activities, but I suspect that she felt safe in your home and possibly sympathetic to your situation. She was, however, a deeply troubled young person with a need to secure money to purchase the drugs to which she was addicted.

Although you attempted to assist her with her drug problem, you did take her from time to time to areas where they could be purchased and provided her with the money necessary to obtain them. I suspect, but of course do not find, that you derived some enjoyment from that peripheral involvement in the drug culture. I note, in this context, that you have also used heroin from time to time.

Tragically, you began to perceive yourself as being involved in something more than a prostitute and client association with Miss Schloss and you commenced to contemplate the possibility that a long-term personal relationship could develop between the two of you. There is much to be said, I think, for the interpretation of the situation proffered by Mr Joblin, the forensic psychologist, in his report to the court and set out in the following passage:

"It may seem that Mr Farfalla was somewhat infatuated with her but I am not of the opinion that his infatuation was related specifically to the deceased. Rather he seems infatuated with the concept of what was happening to him. That is, he was almost able to sustain an erection and have sexual relations. He was able to smoke marijuana in the presence of a girl. She was apparently attractive and he had the company of a female in his house, on his report at times for no charge. This was extremely attractive as he had not had such a relationship before. The context therefore of the relationship is of considerable importance in relation to the strength of the feelings he had for her. Indeed, he indicated that he had hoped she would be able to get away from heroin and come to live with him in the future. Given his history and given the difficulties he had had with interpersonal relationships, the development of such a relationship is comprehensible although the context is somewhat pathetic."

Viewed from this distance, your aspirations were hopelessly unrealistic and naive. Nevertheless, you persisted with your association with Miss Schloss after you became aware that you were not told the truth about a number of different matters, including her age and having a child, and in spite of the fact that on one occasion she stole money from you. However, the evidence reveals that you were developing some resentment and an underlying sense of frustration and disappointment with respect to her. You were, I am satisfied, increasingly conscious of the possibility that you were simply being used as a source of money when you were attempting to develop a quite different relationship with the deceased. I do not consider that I need set out here the evidence concerning the various interactions between Miss Schloss and yourself during the period of your association. It is sufficient, I think, to state that by the time of your last meeting with her, you were in a highly volatile emotional state and desperate to have her express interest in your aspirations for a long-term relationship.

What transpired when you met her on the evening of her death and returned to your home cannot be determined with exactitude. However, it is apparent that a serious argument erupted between Miss Schloss and yourself. I think that it is highly likely that a number of extremely hurtful remarks were made by each of you and I consider, specifically, that comments were made about your sexual and personal capacities and characteristics. I accept that you lost control of yourself and strangled Miss Schloss to death, probably using a belt. Thereafter, you placed her body into your kitchen freezer until you disposed of it some days later in a large bin behind the bakery at which your mother worked at the time. You pretended to have no knowledge of the circumstances of the disappearance of Miss Schloss and at one stage engaged in what I consider could properly be described as a bizarre activity when you took her father on a tour of areas in St Kilda where street prostitutes are often found and made inquiries of some of them concerning her possible whereabouts. You were clearly concerned to direct attention from yourself, although I note that you were unable to maintain total secrecy and divulged to some workmates and a friend something of what had occurred.

Your effective concealment of the body of your victim and your attempts to create the impression that she may have simply disappeared must be regarded as aggravating factors in the circumstances. You engaged in a particularly cruel process of deception of your victim's parents and denied to them even the opportunity to give her a proper funeral. They have been left with the image of her body dumped, as if it was part of the rubbish in which it was finally concealed. You acted in this fashion not in the immediate aftermath of her death but after several days had elapsed and you had had ample time to consider the situation. You were obviously concerned only with your own position at that stage.

I also note, with respect to the possibility that you may have felt a strong personal attachment to Rebecca Schloss that within a very short time you approached another young drug addicted woman who was also working as a street prostitute and paid her to stay with you. There is, in this conduct, some inconsistency with your assertion that you were in love with Miss Schloss and that you experienced deep remorse following her death. Nevertheless, in spite of my reservations, I think I should accept for sentencing purposes that you did react in this way. The relationship was obviously very important to you, as Mr Coghlan QC pointed out in his submissions when he said:

"The lessons about what this relationship was like and where it was going were pretty clear but he came back."

It would be reasonable to infer that you would then have experienced a deep sense of sadness when it ended so violently.

As a consequence of your actions, a young woman is now dead and her family and friends suffer the continuing sense of loss and anguish evident in the victim impact statements before the court.

I have earlier pointed out that the jury has found you guilty not of the crime of murder but that of the lesser, but nevertheless extremely serious, offence of manslaughter.

That crime can be seen to arise in a wide variety of circumstances and there have been different formulations of it developed in our law to encompass them. The one which is applicable in your case is encapsulated by the expression manslaughter resulting through the reduction of the crime of murder where the perpetrator has acted under provocation. It is, I think, sufficient for present purposes to state that a person is perceived as acting under provocation where the jury has not been able to exclude beyond reasonable doubt, the possibility that the individual acted during a period of sudden or temporary loss of self-control occasioned by the provocative behaviour of another. That behaviour, in turn, must be regarded by the jury as being of a kind that might cause a person in the position of the perpetrator with ordinary powers of self-control to lose that self-control and act as the perpetrator did. The concept was introduced into the law a long time ago as a concession to human frailty and in recognition of the possibility that circumstances can arise in which a person with ordinary or normal powers of self-control might, as a result of the provocative conduct of another, lose that control and commit the extraordinary act of killing another.

I have set out this broad principle in order to make clear the framework of law within which the determination of the sentence to be imposed upon you has been approached.

Whilst the law treats such cases as occasions where manslaughter has been committed, it does not follow, as I have earlier indicated, that they do not involve very serious criminal activity or that substantial sentences should not be imposed upon perpetrators. This community has a powerful commitment to the sanctity and inviolability of the life of everyone who dwells within it. It is of particular importance to give full effect to this fundamental principle in cases such as the present one where the victim may be perceived as marginalised or isolated from our social mainstream. The very vulnerability of such persons can, I consider, be regarded as aggravating the seriousness of any violence employed against them. The court, through the sentences that they impose upon persons who act as you have done, must vindicate the rights of these victims, give practical effect to the stated values of the society which they represent and make it clear that the resort to violence to resolve personal issues will simply not be tolerated.

It is the common experience of Judges in the Criminal Division of this Court that extreme aggression, in the context of personal relationships, is almost exclusively employed by males and directed against victims usually, but not always, their wives or children, who possess little capacity to defend or otherwise protect themselves.

Against that background I consider that whilst the principle of general deterrence should be regarded as possessing less significance in your case, where the jury has not excluded the possibility that you acted under provocation, it should nevertheless be taken into account in the determination of an appropriate sentence. I do not consider that there is any need to have regard to specific deterrence as a sentencing consideration in this matter.

I have adverted to your history of sexual dysfunction and its impact upon your self-esteem and ability to develop relationships with females. These factors must, I consider, be regarded as reducing the level of your moral culpability in the circumstances.

You are now aged 38 years. Your family background appears to have been relatively stable and your childhood unremarkable, although I note that you described yourself to Mr Joblin as "a problem kid" and it seems that you got into trouble at school. You did not experience any learning difficulties but were disinterested and left school during Year 11. You have pursued a variety of employments but have worked regularly over the years that followed. You have an interest in motor cars, from time to time earning extra money by purchasing vehicles at auction and then restoring them for resale.

Generally speaking, you appear to have conducted yourself as a person of good character over the years. I am mindful in making this statement that you have used heroin on occasions, but I do not understand that you ever developed any addiction to that material. I have already mentioned that you have smoked marijuana for some years. Nevertheless, as I have also earlier stated, you have no history of a propensity to violence. Your actions on this occasion were spontaneous and unlikely, in my opinion, ever to be repeated.

In the circumstances of this offence and having regard to those background matters, I am of the view that your prospects of successful reintegration into the community are favourable. I note in this context that you have good family and other personal support.

You were quite forthcoming when interviewed by the police and you have indicated your preparedness to plead guilty to the offence of which you have been convicted from a relatively early stage. Those features must also be taken into account in your favour.

I am familiar with and have had regard to the sentences imposed in this Court over recent years in generally similar cases, bearing in mind that they can provide only limited assistance as each case and each offender must be considered in the light cast by all of the circumstances relevant to the offence and the offender involved.

I have been informed that a brother of the deceased who has had some involvement with the criminal law has a number of friends in the prison system who may be prepared to act against you. Accordingly, it seems likely that you will have to serve the sentence to be imposed upon you in the restrictive environment of a protection unit. The increased impact of a sentence occasioned by such circumstances is a relevant factor to be taken into account.

There are in your case a variety of complex interacting factors which had to be taken into account when determining the sentence to be imposed upon you. This, I suggest, is apparent upon even a moment's reflection upon the various matters to which I have referred. There are a number of factors which can be seen to mitigate the sentence and attention has been given to them.

However, the community and this Court are presented with a single and irrevocable reality; that is, that as a result of a violent assault perpetrated by you the life of a young woman has been unlawfully taken from her. This is a situation which must be regarded as one of great gravity.

Balancing the factors as well as I can and conscious of the principles of law applicable in the circumstances, ultimately I have decided that the appropriate sentence to be imposed upon you is one of imprisonment for nine years. I fix a non-parole period of seven years.

I declare that the period of 523 days that you have undergone as pre-sentence detention should be reckoned as having been served under the sentence hereby imposed.

I direct that this declaration and its details be entered in the records of the court.

I will also make an order for the taking of an intimate sample pursuant to s.464ZF.

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