R v FOLBIGG

Supreme Court of NSW|2003-10-24|Before: Barr J

CITATION : R v FOLBIGG [2003] NSWSC 895 HEARING DATE(S) : 01/04/03, 02/04/03, 03/04/03, 07/04/03, 08/04/03, 09/04/03, 10/04/03, 11/04/03, 14/04/03, 15/04/03, 16/04/03, 17/04/03, 23/04/03, 24/04/03, 28/04/03, 29/04/03, 30/04/03, 01/05/03, 05/05/03, 06/05/03, 07/05/03, 08/05/03, 12/05/03, 13/05/03, 14/05/03, 15/05/03, 19/05/03, 20/05/03, 21/05/03, 29/08/03 JUDGMENT DATE : 24 October 2003

JUDGMENT OF : Barr J at 1 DECISION : The following sentences are imposed. For the manslaughter of Caleb Gibson Folbigg imprisonment for ten years; for the malicious infliction of grievous bodily harm with intent on Patrick Allen Folbigg imprisonment for fourteen years; for the murder of Patrick Allen Folbigg imprisonment for eighteen years; for the murder of Sarah Kathleen Folbigg imprisonment for twenty years; for the murder of Laura Elizabeth Folbigg imprisonment for twenty-two years ; last sentence to expire on 21 April 2043; non-parole period to expire on 21 April 2033.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HIS HONOUR: The offender, Kathleen Megan Folbigg, has been found guilty by the jury of the following offences -

The manslaughter on 20 February 1989 of Caleb Gibson Folbigg;

The intentional infliction of grievous bodily harm on 18 October 1990 upon Patrick Allen Folbigg;

The murder on 13 February 1991 of Patrick Allen Folbigg;

The murder on 30 August 1993 of Sarah Kathleen Folbigg; and

The murder on 1 March 1999 of Laura Elizabeth Folbigg. 2 The offender was born on 14 June 1967. She met Craig Gibson Folbigg in 1985 and they began living together in 1986. They purchased a house in Mayfield, a suburb of Newcastle, in May 1987 and lived there. They married in September of the same year. Their first child, Caleb, was born on 1 February 1989. He was a healthy, full-term baby. He used to breathe noisily and used to stop breathing in order to feed. Accordingly he was referred to a paediatrician, Dr Springthorpe, who diagnosed laryngomalacia or floppy larynx. Dr Springthorpe thought that the condition was mild and that Caleb would grow out of it. 3 Mr Folbigg was in full-time employment and left to the offender the responsibility of caring for the child day by day. He was a very heavy sleeper who was difficult to wake. So far as the evidence shows, he never attended to Caleb or any of the couple's other children at night. The responsibility for attending to the needs of the children while the family slept was the offender's. 4 On 20 February 1989 the offender put Caleb to sleep in his bassinet in a room adjoining the bedroom used by her and her husband. During the night she arose and went to attend to Caleb. As she did so she smothered him. Only the offender was present and she has not explained why she did the act that killed Caleb. As I shall explain, the reason emerges from other evidence. Just before 3:00am she woke Mr Folbigg, screaming and saying that there was something wrong with the child. Caleb was lying on his back, dead, still wrapped in the rug in which he had been put to bed.

5 Nothing about the circumstances of Caleb's death gave rise to any suspicion that it was other than natural and a diagnosis of SIDS death was made. Such a diagnosis is made when a child of appropriate age, usually between two and six months, dies suddenly and unexpectedly and there is no reason to suspect an unnatural cause of death. 6 To those around her, particularly Mr Folbigg, the offender appeared not to be badly affected by the death. She soon resumed her former work and social habits.

7 It was believed at the time that there was a link between SIDS and the socio-economic status of families experiencing SIDS deaths. Accordingly, a local SIDS organisation recommended to the offender and Mr Folbigg that they renovate their home. They did so.

8 Their second child, Patrick, was born on 3 June 1990. He was a healthy and happy baby. A sleep study was conducted on him when he was about ten days old. The results were normal. To all appearances the offender was happy. Mr Folbigg did not return to work for several months but remained at home to help her.

9 Just after he returned to work an incident described as an acute or apparent life threatening event (ALTE) took place. Patrick was four and a half months old. On the evening of 17 October 1990 the offender put Patrick to bed in a cot in his bedroom. Mr Folbigg looked at him before he went to bed. He was lying on his back, covered with a sheet and blanket. During the night, while she was attending to Patrick, the offender cut off his air supply by the use of a hand or some soft material. As before, she screamed and woke Mr Folbigg. He ascertained that the child was breathing and started to perform cardio-pulmonary resuscitation on him. An ambulance was called. 10 The ambulance officers took Patrick straight to hospital. They noted that he was in respiratory distress and gave him oxygen. He eventually regained consciousness but began to suffer fits. Many diagnostic tests were performed on him but the cause of the ALTE was never formally determined. A paediatric neurologist, Dr Wilkinson, diagnosed epilepsy and cortical blindness. The evidence and the verdicts show that those conditions resulted solely from the offender's attack. 11 Apart from his major neurological problems Patrick continued healthy and developed normally. The responsibility for his care fell primarily upon the offender. Mr Folbigg noticed that she would often become angry with him and the child. When she did so she made growling sounds.

12 The offender had for some time been keeping a diary in which she recorded thoughts and anxieties she was having about the children. Mr Folbigg found an entry written about her inability to look after Patrick, her belief that Mr Folbigg and Patrick would be better off without her and her intention to leave the family. She wrote that Mr Folbigg and his family could look after the child better. Mr Folbigg mentioned the matter to his sister, Mrs Newitt, and she was anxious to help. They persuaded the offender to stay.

13 On the morning of 13 February 1991, while Mr Folbigg was at work, the offender smothered Patrick. Immediately afterwards she summoned an ambulance and telephoned Mr Folbigg, Mrs Newitt and Dr Wilkinson.

14 Mrs Newitt arrived first at the Folbigg house. The offender was present, crying. Patrick was lying on his back in his cot, warm but dead. Mrs Newitt went to pick him up but the offender stopped her. 15 At the hospital a physician determined that Patrick had suffered a cardiac arrest but could find no cause. A post-mortem examination was conducted but the cause of death was undetermined.

16 The offender would not talk about what had happened other than to say that she had checked on the child and found him in that state. As before, she seemed not to have been badly affected by the death. She resumed working and going out socially.

17 She and Mr Folbigg moved to a house in Thornton in the Hunter Valley. For reasons which I shall explain, it was she who pressed him to have another child. He agreed on condition that SIDS specialists were involved in its care. Sarah was born on 14 October 1992. She was a happy, healthy baby. A sleep study conducted at about three weeks showed some small apnoeas, which were considered normal. Even so, a sleep apnoea monitoring blanket was used. The offender was still anxious and doubted her ability to look after her child and the frequent false alarms to which the apparatus was prone did nothing to allay her anxieties and doubts. She wanted to abandon the use of the monitor. Of course, only she knew that Sarah was in no particular danger of spontaneous death. 18 Her fears and anxieties continued. She frequently lost her temper with Sarah, growling as before.

19 Use of the sleep apnoea blanket ceased two or three days before 29 August 1993. Sarah was unwell and unco-operative. The offender experienced difficulty putting her to bed. She growled at her and hugged her tightly to her chest, then threw her at Mr Folbigg, telling him to deal with her. He calmed her and put her to sleep in her bed at the end of his and the offender's bed. She was on her back, covered with a sheet and blanket. The family slept.

20 During the night the offender rose and took Sarah out of the room to attend to her. Then she smothered her. In the absence of any account of what happened I infer that the offender acted in a rage. She put Sarah back into her bed, woke Mr Folbigg, screaming and pretending that she had found Sarah in that condition.

21 At the post mortem examination small abrasions were noticed near Sarah's mouth. The lungs showed petechial haemorrhage, minor congestion and oedema. These signs were all consistent with death by asphyxiation by the application of mild force. Death was attributed to unknown natural causes. 22 Initially the offender appeared affected by the death. She became despondent and aimless. She refused to discuss matters except to repeat her story of having found Sarah dead. The relationship between her and Mr Folbigg deteriorated and there were several separations. 23 By early 1996 the couple were together again and living in Singleton. Their relationship had improved and they had made new friends. The offender pressed Mr Folbigg to have a fourth child. Laura was born on 7 August 1997. She was healthy. 24 Laura was tested for many genetic, biochemical and metabolic disorders. The results were all normal. A number of sleep and apnoea tests were conducted and there was at first an indication of mild central apnoea. It was not dangerous, however, and improved as Laura got older. As with Sarah, a sleep monitor was provided. Also as before, there were many false alarms and the offender found it impossible to conceal her impatience at the need to manage the superfluous machine. All her fears and anxieties continued unabated. 25 The relationship between the offender and Mr Folbigg deteriorated again. They spoke and wrote to one another about separating and about what would happen to Laura in that event. Increasingly, the offender spent her time at the gymnasium during the day and with friends at night.

26 On 27 February 1999 Laura was not well and behaved in a way that the offender found irritating. She spun round, screamed at her and knocked her over. On the following day Mr Folbigg noticed that Laura was avoiding her mother. On the next morning, 1 March, Laura was subdued and clinging to Mr Folbigg. She was upset that he was about to leave for work. The offender lost patience with her and growled at her. She pinned Laura's hands to her high chair in an attempt to force-feed her. Mr Folbigg and the offender argued. He left for work. Not long afterwards the offender telephoned Mr Folbigg at work and they agreed that they had to discuss the problems that were besetting them once again. Later in the morning, having attended her gymnasium class, the offender took Laura to Mr Folbigg's place of work. She took Laura home at about 11:30am. Something happened shortly afterwards to raise her ire once again and she suffocated Laura. She summoned an ambulance. When the officers arrived they found her performing cardio-pulmonary massage on the child, who was unconscious, not breathing, bradycardic, warm and centrally cyanosed. The officers were unsuccessful in their attempts to resuscitate her.

27 On the post-mortem examination the presence of mild myocarditis, an inflammatory condition of the heart, was detected. The pathologist considered that myocarditis was not the cause of death, however, and declined to determine a cause. 28 The offender displayed signs of grief and some friends thought them genuine. However, others had doubts. At the funeral her foster sister, Mrs Bown, heard her remark that that was such a weight off her shoulders, then saw her return to her normal self. 29 Later on Mr Folbigg came across more diaries written by the offender, recording at greater length over a long period of time her thoughts and feelings about many things, including her perceptions of her capacity to care for the children. For the most part those diary entries were received into evidence. 30 A substantial number of medical expert witnesses gave evidence at the trial. It is unnecessary to treat their evidence in any detail. In expressing any opinion about the cause of death of any child or of the event that rendered Patrick blind and epileptic each such witness was permitted to consider only the facts directly bearing upon the event concerned. None was permitted to give an opinion based partly upon the events the subject of the other charges. None was permitted to take into account things written by the offender in her diaries. 31 No such witness was prepared to say that the signs pointed only to smothering but the medical evidence generally was that the result of each event was consistent with having been caused by acute asphyxiation. The jury accepted that evidence. They had to be satisfied in respect of each of the five events that there was no reasonable possibility that it had happened naturally. 32 The arguments in favour of natural explanations for the deaths and Patrick's ALTE were unimpressive in the light of the whole of the evidence. They were these: for Caleb, SIDS properly so-called; for Patrick's ALTE and death, encephalitis or spontaneously occurring epilepsy rather than epilepsy caused by asphyxiation; for Sarah, unexplained natural causes; for Laura, myocarditis. 33 The evidence showed that natural but unexplained death was rare in the community and that there was no demonstrated genetic link to explain multiple deaths in a single family. 34 The advantage the jury had over the medical expert witnesses was that in addition to the matters the witnesses were permitted to take into account the jury could take into account the fact of the other deaths and Patrick's ALTE, with the presence at the relevant time of the offender and the improbability that all five events occurred naturally and spontaneously, and any meaning the jury gave to the offender's diary entries.

35 It is necessary to try to understand why the offender lost her temper and assaulted her children. In addition to the facts that I have related, the relevant evidence comprises the records of the Government department that had the responsibility to oversee the offender during her youth, other evidence about her early years, the diaries she kept during the latter part of the period of offending and the opinion of psychiatrists on that material. 36 The offender's first name was Kathleen Donovan and she lived with her parents until January 1969, when she was 18 months old. Her mother's sister was Mrs Platt, and she and her husband knew her well because they had looked after her for extended periods of time. In fact her mother seems to have spent little time caring for her. Mr and Mrs Platt wanted to have the offender permanently in their family and at one time her mother agreed and even signed a form of consent. The Minister approved Mr and Mrs Platt as adopting parents but her mother withdrew her consent. 37 On 8 January 1969 her father murdered her mother. He was by all accounts a violent man who made his living from crime. He was arrested and on the following day the offender was taken before a court and made a ward of the State. She was placed into the care of Mr and Mrs Platt.

38 Officers of the Department of Child Welfare visited Mr and Mrs Platt from time to time to record the progress of the offender. They were entirely satisfied with the care afforded by the Platts, and things went well until a departmental report made on 21 May 1970, when the offender was one month short of her third birthday. On 18 May 1970 Mrs Platt had said on the occasion of a home visit that she was having trouble teaching the offender the basic requirements of hygiene and acceptable behaviour. The offender was described as having severe temper tantrums and being extremely aggressive, particularly towards other children who visited the home. She seemed to have a preoccupation with her sexual organs and had been seen on a couple of occasions trying to insert various objects into her vagina. She would on occasions scream and cry incessantly and cause much embarrassment inside and outside the home. 39 The offender was referred to the Yagoona Child Health Clinic, where Dr Spencer saw her for assessment. In her report of 12 June 1970 Dr Spencer reported that Mrs Platt was then describing her as virtually uncontrollable and a disruptive influence on the marriage. She indulged in excessive sex play and masturbation. Dr Spencer commented- The social history is well known to you and it seems that (the offender) was misused by her father during infancy. 40 In a departmental report of 23 June 1970 Mrs Platt is said to have complained that the offender's behaviour was deteriorating. She was still very brutal to other children and destructive in the home. She was continuing to masturbate herself and although steps had been taken to change her sexual behaviour little was being achieved. When corrected in any way she continued to scream and cry in retaliation. 41 On 18 July 1970, when the offender was three years old, she was withdrawn from the care of Mr and Mrs Platt and sent to Bidura Children's Home. 42 On 4 August 1970 a psychologist assessed her intelligence as within the borderline retarded range. However, the psychologist qualified the measurement by remarking on her remoteness and lack of responsiveness, restlessness and inattentiveness. Subsequent experience shows that the assessment was unreliable. 43 During the same month a further report described her as unresponsive and withdrawn and rarely smiling or talking when shown individual attention. However, there were signs that she was becoming more approachable and more interested in objects and events around her. 44 During the following month she was described as much less withdrawn, chattering to other children and staff and showing a greater interest in her environment. She was still aggressive with other children when she did not get her own way, however, and readily pushed and pulled at them to achieve her objects. There were no reports of continued masturbation. 45 The offender was placed into the foster care of Mr and Mrs Marlborough in September 1970. She settled down reasonably well and though there were periods of moodiness she seemed a likable, friendly girl on the surface and showed considerable affection for both foster parents. Mr and Mrs Marlborough liked her and found her intelligent. They enquired whether they could adopt her. 46 From then until 1985, when the offender ran away, she and Mr and Mrs Marlborough got on reasonably well together. There were periods of difficulty. The offender did not always find things easy in high school. In 1982 she was admonished and discharged on two stealing charges but she must have appeared for the most part to have overcome the very difficult start she had had. 47 In 1984 she was told that her father had murdered her mother. That was something that she had to be told. The news had a profound effect upon her. She got in touch with Mr and Mrs Platt, who gave her some baby photographs and a photograph of her mother, but she did not pursue her relationship with them. Her relationship with Mr and Mrs Marlborough became worse and the final break came after a disagreement about a boyfriend. She was seventeen when she left home. She took up her relationship with Mr Folbigg in the following year.

48 Evidence was adduced on sentence from three psychiatrists. Dr Giuffrida saw the offender five times, initially as a Visiting Medical Officer in the Corrections Health Service. Dr Westmore saw her three times. Both were fully informed about her history and saw documents recording the events of her early years. They each took extensive histories from her. They understood the substance of the Crown case which had led to the convictions and saw the offender's diaries. 49 Dr Skinner did not see the offender. Although she saw an extensive range of documents, including the departmental records of the offender's early history and the diaries, her report was prepared before trial and was confined to the questions whether there was available any psychiatric defence or any evidence to support verdicts of guilty of infanticide. For those reasons her report is of limited assistance. 50 Dr Giuffrida regards as compelling the evidence that the offender was seriously disturbed at eighteen months of age. He thinks that she was probably neglected and brought up in an emotionally and physically abusive relationship. He thinks it highly likely that her father abused her mother and that the offender was exposed to that violence. He thinks that she was possibly sexually abused.

51 I accept that by the age of eighteen months the offender was a seriously disturbed and regressed little girl. I accept the opinion of Dr Giuffrida that she was by then severely traumatised. 52 It is well established that children who are neglected and suffer serious physical and sexual trauma may suffer a profound disturbance of personality development. The evidence for such a disturbance in the offender is strong, as her diaries reveal. 53 There is no evidence to show when the offender began keeping a diary. The earliest surviving entries were made in Mr Folbigg's diaries. There is this one on Patrick's birthday, 3 June 1990- This was the day that Patrick Allan David Folbigg was born. I had mixed feelings this day. wether or not I was going to cope as a mother or wether I was going to get stressed out like I did last time . I often regret Caleb & Patrick, only because your life changes so much, and maybe I'm not a Person that likes change. But we will see? 54 Even though the entry was made in Mr Folbigg's diary, I am sure that it was intended only for the offender to read. Other entries over the years are intensely private, revealing ideas she never communicated to anybody, including her husband. I do not doubt that the offender kept a diary continuously throughout her married life, but those entries written between 1990 and 1996 have not survived. Those that have show her constant concerns about isolation, her fear of being unable to bond with her children, her fear of being left alone with them, her fear of the danger of losing her temper with them, her feelings of unworthiness and depression, her desire not to let it happen again and, later on, anxious concerns about having lost her temper with Laura in spite of her desire not to do so. 55 These are some of the entries-

18 June 1996 …I'm ready this time. And I know Ill have help & support this time. When I think Im going to loose control like last times Ill just hand baby over to someone else. Not feel so totally alone, getting back into my exercise after will help my state of mind & sleeping wherever possible as well. I have learnt my lesson this time. 22 June 1996 …I watched a movie today about schizophenia, wonder if I have a mild curse of that. I change moods really quickly. In my most dangerous mood I'm not nice to be around & always want to be anywhere, but where I am. 24 June 1996 …Haven't lost that maternal instinct. Emma seemed at peace with my presence. Maybe I shouldn't be as worried as I was feeling. I had a thought that my own baby wouldn't bond with me. Craig will have to do all the work??? Still. Craig's reaction was a typical hand it to the woman - she knows what to do, truley hope that changes with (indecipherable) Ill need all the support I can get if possible. 16 July 1996 Sometimes I feel life is a film scene, just practiced and rehearsed, each actor, perfect & surreal, times I don't fit in the play, have never fit, but keep attempting to anyway for fear of being isolated & alone. Times - I feel alone anyway no matter who Im with. 21 July 1996 Moved furniture and put cot back up today. Mixed emotions, sadness, nervousness, exciting. Looked at books I've got - never opened. I do hope & pray that the next child we have will get to have them read & read them also. … Depressed a little now. Probably because it will be another couple of months before Im pregnant. Pretty sure Im not now, had or having what I think is a period - God I hope so or else these tablets will cause brain damage. Probably would be just desserts for me considering. But not fair for Craig at all. I would feel like a failure & wouldn't cope at all. Can't be dwelling on what ifs. I truley deserve anything life throws at me so my philosophy is whatever happens, happens & it's the way it shall be. I'm going to try my hardest, this time. If anything does happen Ill just leave & try to let Craig go in peace & start again - no I wouldn't I'm not that brave - Really I depend on people & other peoples help too much. 25 July 1996 Having bad thoughts about him leaving me in the same way though. Strange he's either died or left me for someone else. … thought of a baby & being left alone is a little frightening. Hope it never happens. 6 August 1996 Is it a sign don't bother, with having a child. Would be just desserts for me if it is - exactly what I deserve for my indiscretions of life. We'll see. …My egos a little busted with my problems that I seem to be having. 9 August 1996 Been feeling weird lately - Depressed, indisive, etc. not my usual self. Can't seem to put a finger on whats rong. … …Feeling lonely! I know that's silly because I have friends I can see but I suppose its because I want friends, that will come to see me & want to be with me, I usually feel that I'm intruding or pushing my way onto people. Okay enough self analysing. Its my ego & weight problem thats giving me a bashing. Rang to go back to J/C they havent bothered to return my call. Feeling left out, taken for granted, unattractive and self centered. There I've purged myself. Now to change all this, is up to me - as usual. 26 August 1996 Didnt end up going to work today. Was deeply depressed & thoughtful. 8 September 1996 …Feel now is a time for us to have another baby. Have finally realised it is the right time for me. I have Craig & he wants a child. That I can give him. And I have enough friends now not to loose it like before. 11 September 1996 …Feeling inferior doesn't help. Feeling inadequate because Im not pregnant yet. Feel as though its my fault. Think its deserved. After everything thats happened. I suppose I deserve to never have kids again. I am just so depressed. don't know what to do. Feel like taking rest of the week off. But know my pay will be grossly affected if I do. 14 October 1996 …Children thing still isn't happening. Thinking of forgetting the idea. Nature, fate & the man upstairs have decided I don't get a 4th chance. And rightly so I suppose. I would like to make all my mistakes & terrible thinking be converted and mean something though. Plus Im ready to continue my family time now. Obviously I am my father's daughter. But I think losing my temper stage & being frustrated with everything has passed. I now just let things happen & go with the flow. An attitude I should of had with all my children if given the chance I'll have it with the next one. 30 October 1996 So many things troubling me lately. Not sure where to start. Craig & I are fine as in our relationship, becoming pregnant or rather not in my case is starting to weigh me down. Think I must be suffering a stress reaction. I know as each month goes by depressions are getting worse. …Work is truley depressing me most days. …I think that the business with my mother is finally wearing me down. I just cant understand a hate so strong. …Things I remember are not good about my ubringing but, one fact remains I had a safe home, food & clothing. I a person who had a choice of that or state orphanages all her life cant expect much more. 13 November 1996 …Not sure why Im so depressed lately. Seem to me suffering mood swings. I also have no energy lately either. …Why is family so important to me? I now have the start of my very own, but it doesn't seem good enough. I know Craig doesn't understand. He has the knowledge of stability & love from siblings & parents even if he chooses to ignore them. Me - I have no one but him. It seems to affect me so, why should it matter. It shouldn't. 4 December 1996 …I'm ready this time. But have already decided if I get any feelings of jealousy or anger to much I will leave Craig & baby, rather than answer being as before. Silly but will be the only way I will cope. I think support & not being afraid to ask for it will be a major plus. Also - I have & will change my attitude & try earnestly not to let anything stress me to the max. I will do things to pamper myself & just deal with things. If I have a clingy baby, then so be it. A catnapper so be it. That will be when I will ask help & sleep whenever I can. To keep myself in a decent mood. I know now that battling wills & sleep depravaision were the causes last time. 1 January 1997 …But I feel confident about it all going well. This time. I am going to call for help this time & not attempt to do everything myself any more - I know that that was the main Reason for all my stress before & stress made me do terrible things. 14 January 1997 Not happy with myself lately. Finally starting to physically show that I'm pregnant. Doesnt do much for the self estem. Don't get me wrong. I couldn't be happier its just Craigs roving eye will always be of concern to me. I suppose this is a concept known by all women. We are vunerable emotionally at this stage. So everything is exaggerated 10 fold. …I think its stress related. I must learn to calm down & be rational & worry about things as they happen not if they do. …Im sure this is training for when baby arrives. Thats okay. Im pretty sure this time Ill handle it better. Hope so.

4 February 1997 Still can't sleep. Seem to be thinking of Patrick & Sarah & Caleb. Makes me generally wonder wether I am stupid or doing the right thing by having this baby. My guilt of how responsible I feel for them all, haunts me, my fear of it happening again haunts me. My fear of Craig & I surviving if it did, haunts me as well. I wonder wether having this one, wasn't just a determination on my behalf to get it right & not be defeated by me total inadequate feelings about myself. What sort of mother am I, have I been - a terrible one, that's what it boils down too - thats how I feel & that is what I think Im trying to conquer with this baby. To prove that there is nothing rong with me, if other women can do it so can I. Is that a wrong reason to have a baby. Yes I think so but its too late to realise now. Im sure with the support Im going to ask for I'll get through. What scares me most will be when Im alone with baby. How do I overcome that? Defeat that? 17 February 1997 Found out hes jealous already of bub. He says he only has 6 mnts left to be with me & for me. Hopefully Ive explained thats not true he should be for me, forever, just because a baby is entering our life makes no difference really. One day it will leave. The others did, but this ones not going in the same fashion. This time Im prepared & know what signals to watch out for in myself. Changes in mood etc. Help I will get if need be. I also know that my lethargy & tiredness & continued rejection of him had a bad effect. 24 February 1997 …Very emotional now, upset- feeling useless, not myself, no confidence at all, with any decision. …What do I do, I want to keep earning money for Craig, but theyve decided it's not with them. Ive let everyone down. …To upset to keep writing. Crying all the time. 13 March 1997 …Told Craig about my concerns of being alone in Sydney. But he wasn't impressed. Its something I'll just have to get over & deal with myself. Today I got the impression he just didnt want to be or have me around. 5 April 1997 … Don't hear from any of my family now, sometimes I feel as abandoned again, with no real family roots. … I don't have that security and now now that I never really did. I'm a true loner. Without the roots & family I provide myself Ide be totally alone. 28 April 1997 …I think this baby deserves everything I can give her. Concidering I really gave nothing to the others. I think even my feelings towards this one are already deeper. Shame, but thats the way it is. I think its because Im 30 now and time to settle & bring up a child. Obviously I wasnt ready before at all. 16 May 1997 …Night time & early mornings such as these will be the worst for me, thats when wishing someone else was available with me will happen. Purely because of what happened before. Craig says he will stress & worry but he still seems to sleep okay every night & did with Sarah. I really needed him to wake that morning & take over from me. This time Ive already decided if ever feel that way again I'm going to wake him up. Im glad I don't have to stay down in Sydney by myself. That prospect was really nerve racking. I would have felt so vunerable & exposed. Relying on total strangers all the time. 18 May 1997 Not feeling good about anything. Tired, achey, exhausted, can't breath properly, sick of everyone, everything, life in general. 30 May 1997 …Got myself in quite an emotional state last night. …Felt, feeling very alone, unattractive & now uncomfortable with the many thoughts that are running through my mind about the stability of our relationship. This is not the time to be upset & stressing over everything. He pulls away from me if I touch him in any other way than comforting. Feel as though I've lost him, that his feelings for me aren't the same any more. Never felt so alone in all my life. 6 June 1997 …From now on though I'm sure his attention & focus will change from me to his child. & so it should. I couldn't see that before. I was very selfish when it came to Craig's attention. Hopefully this time we have both learned how to share it but still manage to keep a little something aside for just each other. we will see…maybe then he will see when stress of it all is getting to be too much & save me from ever feeling like like I did before, during my dark moods. Hopefully preparing myself will mean the end of my dark moods, or at least the ability to see it coming & say to him or someone hay, help I'm getting overwhelmed here, help me out. That will be the key to this babies survival. It surley will. 11 June 1997 If it wasn't for my baby coming soon, I'de sit & wonder again what I was put on this earth for, what contribution have I made to anyones life. Only person I think I've made a difference too is Craig. And at times like this, I can't do anything for him so I fail there as well. 30 years, first 5 I don't really remember, rest I don't choose to remember last 10-11 have been filled with Trauma, Tradgedy, happiness, mixed emotions of all desires. Maybe from now on I'll be able to settle a little. But no. Imediate future brings turmoil, happiness, sad memors, happy ones, depression, great pride & it goes on…Life sux. You can never figure it out is anyone meant too. Don't think I'll suffer alzimers disease, my brain has too much happening, unstored & unrecalled memories just waiting. Heaven help the day they surface & I recall. That will be the day to lock me up & throw away the key. Something I'm sure will happen one day. 14 June 1997 I have no family of my own to acknowledge me, except Lea & more & more she's proving that I really really don't matter to her. …Depresses me that everyone else has a fair idea, where & what time they were born. I don't, have never been told. 26 June 1997 …This time I'm positive with support from friends etc & Craig this time everything will work out fine & the sight and visions of the future I've been having will come true this time…most of my life has been turmoil, sadness, anger etc. I think now I might of actually realised it was mostly of my own making, & stupidity that made it that way. Now I understand truley that your life & how it turns out is in your control, no one elses. 2 July 1997 … Was very upset yesterday evening, crying & being totally emotional. Couldn't think of anything else to do but cry…Was just so and still am, Scared is the word. I know that it won't be long now. 4 weeks? sounds a fair amount of time but he/she could decide to come earlier than that. If it's got any sense it will, my poor bod isn't handling it all well at all anymore. …I already know that he won't take any time off. My not working has hit him hard, all he sees is 15 grand less in his hand/bank a year now. He's already starting to worry about it. Like I stressed that he would. I'll have to accept, he won't be as much support to me as I thought he might. Change is a coming. A big one. Well just have to take day by day hour by hour & cope. Hopefully everything will prove to be different this time. It has to be. I have to be. 18 July 1997 Curious as to what happened or who is responsible for her having such a low opinion of herself. I think Steve partly, he calls her stupid, etc. Jokin or not, all comments like that hurt. Its what made me believe I was nothing or a nobody. Craig even was partly responsible for making me feel that way. He doesn't do it as often anymore. I've learnt to pull him up on it. 12 August 1997 …Craig is home with me, will be so different when the time comes for him to be gone all day. That will be my test but I hope by then I'll be able to walk okay & get back to my exercise. It will make me feel better I'm sure. 25 August 1997 Scary feelings, I've realised I actually love her & have bonded with her, wish to protect her etc. Maternal instinct is what they call it. I now know I never had it with the others. Monitor is a good idea. Nothing can happen without the monitor knowing & since I'm not game enough to not plug it in because theyde want to know why I hadn't. Everything will be fine this time. 20 September 1997 I can't even trust or depend on him to look after her properly. He refuses to bother to learn anything about her. He doesn't pay attention when feeding her, hasn't changed a nappy, doesn't do washing or ironing. only washes up once in a while. His life continues as normal. Work, come home & I look after him. He doesn't even cook tea every now and then unless I ask him too. And then it is begrudgingly. What do I do. The only break I get is when I go to aerobics - 3 1/2 hrs a week. But these are times is not enough. I know, my feelings are normal I'm just venting. But at the moment, I (indecipherable) wish I hadn't made the decision to have her, but then all I have to do is look at her & all that melts away. Well, I just pissed Craig off he's up and out of bed now. Complaining he can't sleep, I have to keep disturbing him because he snores and grinds teeth too badly. 3 November 1997 …Lost it with her earlier. Left her crying in our bedroom and had to walk out - that feeling was happening. And I think it was because I had to clear my head and prioritise. As I've done in here now. I love her I really do I don't want anything to happen. 8 November 1997 …Had a bad day today, lost it with Laura a couple of times. She cried most of the day. Why do I do that. I must learn to read her better. She's pretty straight forward. She either wants to sleep or doesn't. Got to stop placing so much importance on myself…much try to release my stress somehow. I'm starting to take it out on her. Bad move. Bad things & thoughts happen when that happen. It will never happen again. 9 November 1997 …Think I handle her fits of crying better than I did with Sarah. I've learnt to, (?) ace getting to me, to walk away & breathe in for a while myself. It helps me cope & figure out how to help her. With Sarah all I wanted was her to shut up. And one day she did. 28 November 1997 Of course that shouldn't be stopping me from walking and eating properly & less But I just don't seem to have the heart anymore. I think I knew that its all cyclolgical & connected to feelings of neglect, rejection, lonliness which brings on a depression which I disguise by eating chocolate & junk food & feeling sorry for myself most of the time. I need to get back to basics find me & the reasons for losing this weight. 11 December 1997 …depression seems to get me more now too. Must control it, not it me. 28 December 1997 Feeling depressed, unhappy with myself, know why, need will power & I'll succeed. Ward getting engaged. Goal to work towards? Something wrong with Craig and I? Haven't figured it out yet. Laura keeping us together I think. Think if I hadn't of had her, not sure we'de of survived as a couple. 31 December 1997 Funny but if it wasn't for Laura, I'de feel as though I've wasted another year of my life. Everyone seems to be enjoying themselves. Pool is getting a real workout. 12 January 1998 Not doing well, need to get some will power! Eating rong-not exercising. Too inactive. But how do I overcome; inherent laziness. Would be happy to be a sloth. Tired 90% of the time too makes life a little tougher. Must try to stope lounging around all the time. Get machines should use them. 28 January 1998 Very depressed with myself, angry & upset - I've done it. I lost it with her. I yelled at her so angrily that it scared her, she hasn't stopped crying. Got so bad I nearly purposly dropped her on the floor & left her. I restrained enough to put her on the floor & walk away. Went to my room & left her to cry. Was gone probably only 5 mins but it seemed like a lifetime. I feel like the worst mother on this earth. Scared that she'll leave me now. Like Sarah did. I knew I was short tempered & cruel sometimes to her & she left. With a bit of help. I don't want that to ever happen again. I actually seem to have a bond with Laura. It can't happen again. Im ashamed of myself. I can't tell Craig about it because he'll worry about leaving her with me. Only seems to happen if Im too tired her moaning, bored, wingy sound, drives me up the wall. I truly can't wait until she's old enough to tell me what she wants. 7 February 1998 Long days. Tiring & have been extremely short tempered. Cryed today. Told Craig lack of sleep & constant worry about Laura has got too me felt better after. Craig has tried to be helpful today. Doing chores that I have always wanted to do but never found time. What I wanted though was for him to just take her off my hands for a while. Or me go for a drive away, And be by myself. But she's not well, had her shots & feeling crappy. She's just a baby & doesn't understand. Hopefully she'll be back to normal soon. 13 March 1998 Feeling very dissatisfied tonight. With myself, my life, Craig. What can I do…I need him to take some of the stress of looking after her off me, He seems to be failing lately. 56 In spite of the early turmoil in her life the offender made progress in the Marlborough family and at school. There were intermittent social problems and some minor offending, but no pattern of violence and nothing suggesting what psychiatrists call conduct disorder. Such a disorder might lead in adulthood to a diagnosis of antisocial personality disorder. There is no history of any pattern of violence on the part of the offender towards others or towards the children she eventually killed. I accept the opinions of Dr Giuffrida and Dr Westmore that antisocial personality disorder is not an appropriate diagnosis.

57 Almost all mothers who kill their children do so because they suffer from some kind of psychotic illness. The evidence is unanimous that the offender is not psychotic. The evidence of Dr Giuffrida and Dr Westmore about the diary entries enables one to gain some understanding of the offender's state of mind when she made them. The evidence about her early life enables some understanding of why that was her adult state of mind and suggests a reason why she killed her children.

58 I find Dr Giuffrida's detailed review of the underlying facts and of his interviews with the offender valuable because his opinion, based upon the facts and the interviews, suggests explanations for events that at first seem to defy explanation. 59 All five interviews took place after the conclusion of the trial. Although there was then no question about the offender's responsibility for killing the children she dealt with Dr Giuffrida throughout as though she was not responsible. Dr Giuffrida noted in these words her matter-of-fact recounting of events- I asked Mrs Folbigg about her emotional reaction to Caleb's death which she described as heartbreaking and shocking. I noted that tears came to her eyes naturally at this point and her emotional response to this seemed genuine. … Her affect was particularly remarkable in that whilst she related comfortably and would often smile appropriately, there was always a somewhat blunted, distant even remote quality to her ability to relate. There were parts of the interview where she was able to engage somewhat warmly and more responsively, although this was always fleeting. … Although she showed tears and sadness briefly on two occasions in relation to discussing the deaths of two of her children, there was a remarkable inertness of emotional response in these discussions. Equally I was unable to elicit any symptoms suggestive of the reliving, either in the forms of dreams or flashback type experiences of the trauma of the deaths of any of her children. I thought this was highly significant given her otherwise graphic descriptions of the actual events of their deaths. One might have expected in a woman who had suffered the trauma of the deaths of four children to have been tormented, indeed tortured by reliving type experiences associated with feelings of intense grief, anxiety and depression. All of these symptoms and the associated affective response was either absent, blunted or attenuated. 60 I received much the same impression when I looked at and listened to the long video-taped record of the interview the offender had with Detective Senior Constable Ryan. Although she showed some emotional reaction almost at the end of the interview when she was asked whether she had killed her children, her attitude throughout was much as Dr Giuffrida described during his interviews. I thought the offender expansive, voluble, chatty, almost detached for the most part. Her appearance was quite out of keeping with the gravity of the occasion. When asked about the meaning of the entry of 14 October 1996 she gave these unconvincing answers to these questions- Q. Why wouldn't you get a fourth chance? A. We were having trouble with me falling pregnant. Whether it be the stress and us trying so hard, I don't know, but it took quite a while. Something that sort of never happened with Sarah and never happened before. Q. But why do you think that fate and the man upstairs have decided that you don't get a fourth chance? A. I don't know. Maybe I just thought three was s'posed to be our limit. Maybe I thought fate had, you know, that that was it. Q. Why do you say, And rightly so I s'pose? A. Again, along the lines back then, I was still thinking to myself that not trying enough or my version of being responsible had something to do with that. Yeah, I can't really say much more. Q. What's your version of being responsible? A. Just the thoughts of was I diligent enough? Was I watching? Was I listening? Was I, should I have walked in two minutes earlier, or should I've been somewhere else or done something else or spoken to someone else or got help from someone else? The list just goes on, it's just a never ending sort of thing. Q. What were your mistakes and terrible thinking? A. Just the frustrations that I might have felt with Pat, and the occasional battles of will that I would have had with Sarah. To me that, looking back at that time I thought that was a terrible way of thinking. I kept telling myself that that shouldn't have happened. Yeah, so that's sort of what I meant by that, it wasn't… Q . Did you ever feel as though that you hated the children? A. Never, nuh. I don't, I know I've come across my versions of what I think atrocious parents are, watchin' them in plazas beltin' their kids till they're red, and hearin' about other parents that have done this to their kids or humiliating and embarrassing them in public and all the rest of it. To me, that's just not socially acceptable sort of behaviour, and I always wonder whether they actually really want their kids or do they hate their kids to turn around and do that sort of thing? But no, I've never, never hated my children. How can you hate a child? They're so, they're just there, they're beings and they're yet to be developed and older. What they turn out like as adults is up to the people that they're with. Q. What do you mean by, Obviously I'm my father's daughter? A. …my natural father is just a total big loser to turn around and to do what he did, stuffin' up his own life, stuffin' up my life, stuffin' up anybody they come in contact with. To me, that's just a loser in general. So I was thinkin' along the lines of am I a loser? Is it just not meant for me to, I was very sort of down on myself in certain areas but not in others back then, so. Q. Tell me about your dad. A. He, which I found more information out just recently which doesn't help his case any in my eyes, as far as I'm concerned. He killed my mother by stabbin' her 20 odd times. This is supposed to have been over who had me when and where and why. And my natural family was responsible for hidin' me all over the place 'cause he turned out to be not a very nice sort of man. I just found out recently that he was actually one of Lenny McPherson's major hit men sort of thing, he was his right hand lieutenant man, used to go and do debt collectin' and all that sort of thing. So yeah, and I just regard anyone who could go for a life like, and be the sort of person that he was. Q. O.K Just getting back to this, obviously I'm my father's daughter. What was your version of … A. I was thinking maybe I was a loser of some kind that sort of was destined to have some sort of tragic life of some kind, but it is a passing thought. I sort of didn't, I tried not to let it dwell or anything, and. But that was more of a recrimination of him rather than me in general. 61 Dr Giuffrida found the diary entries revealing. He thought that they were the writings of a greatly tormented and exceedingly disturbed woman. He noted the prevailing theme of intensely depressed mood, expressions of worthlessness and low self-esteem and repeated references to feelings of rejection and abandonment by her husband, family and friends. 62 As the evidence shows, those feelings were irreversible and resulted from the effects upon her of the experiences she had undergone as a little child. 63 Dr Giuffrida noted the ambivalent feelings of the offender towards pregnancy and motherhood. She approached childbirth with feelings of intense anxiety and the daunting prospect of trying to bond to her baby, fearing that she would be challenged beyond her capacity to care for the child and overwhelmed by the task. He drew attention to the diary entry of 25 July 1996 and the frightening thought of having a baby and being left alone. The entry of 9 August 1996 contained a reference, in a portion which I have not extracted, to some minor illnesses the offender had suffered followed by the observation- If I was superstitious I'de take it as a sign - Not to get pregnant & that my body rejecting the idea because it's just not ready? 64 Dr Giuffrida is of the view that the diary entries well demonstrate that the offender suffered intense feelings of shame and guilt over the death of the children. He thinks that the second part of the diary note of 11 June 1997 that I have extracted above is a good indication of the degree of torment that she was suffering. However, he observes, she did everything she could to suppress and contain her feelings of guilt, shame and remorse. 65 Dr Giuffrida thinks that the entry of 25 August 1997 poignantly describes the offender's inability to bond with her first three children. A remarkable thing about the entry is that in it the offender records her realisation that she loves Laura and says that she has bonded with her and wishes to protect her. Sadly, the bond was not strong enough to protect her child from her. 66 I accept the opinion of Dr Giuffrida that the overall theme of the diaries is of a woman always coping at the margins of her capacity to bond, relate to, provide for and care for her children, a woman easily roused to panic and readily defeated by any perception on her part that she might fail to provide for her children. 67 I set out part of Dr Giuffrida's long diagnosis- Whilst I do not think Mrs Folbigg suffered from a psychotic level of depression, that is to say the state accompanied by the development of psychotic phenomena such as delusional ideas, hallucinations or a serious form of thought disorder, it is nonetheless clear to me that her state of depression was serious enough and persistent enough to have strongly contributed to a state of mind that led to her killing her children. I said earlier that Mrs Folbigg is a woman of probably at least average, if not above intelligence, although not having achieved her potential educationally. There is therefore no evidence of developmental disability. I said at the outset that women who cause the death of their children very frequently suffer from the most serious kind of personality disorder. The most common type of severe personality disorder encountered is of women who show marked features of the borderline personality disorder or dependent personality disorder or more commonly a combination of borderline and dependent personality disorder. Less commonly one finds women with serious antisocial personality disorder, many with the core features of psychopathic personality disorder. I should say in Mrs Folbigg's case that there was remarkably little to implicate any of these serious personality disorders. She certainly shows none of the usual features of borderline personality disorder nor in particular of psychopathy. In relation to the latter, there is a very significant absence of antisocial conduct or behaviour in adulthood, although there is some evidence of conduct problems in childhood in the form of two episodes of stealing. There is no criminal history or antisocial behaviour in adulthood. In fact in many respects Mrs Folbigg has been remarkably conventional in terms of her lifestyle and interests and if anything had very ordinary and conservative aspirations. Despite her difficulties in her marriage, she persisted with it and continued to contribute to the family welfare in the sense of always working when she could. There is therefore very significantly a remarkable absence in terms of the historical features or the core criteria for psychopathy. I have commented in my mental state examination and numerous others have commented on Mrs Folbigg's emotional detachment and indeed the blunted or attenuated capacity to grieve the death of her children. I spent a good deal of time taking a very detailed history of her relationship with her children and her response to each of their deaths. That response was characterised by an almost total absence of normal grief and bereavement. For a woman to lose a young child and then to lose four children suddenly is an intensely traumatic experience and it is almost invariably the case that the mourning and grieving process is both profound and long lasting. Such women often develop grossly pathological symptoms particularly of severe depression. Although it is clear that after the death of each of her children, Mrs Folbigg became depressed in the sense of becoming emotionally blunted and withdrawn, there was in each case an extraordinary absence of any of the normal mourning or bereavement signs. Given that each of the children died suddenly and assuming they died by her own hand and I presume by smothering, this would for any woman be an intensely traumatic experience and would almost invariably result in symptoms of a post traumatic stress disorder, that is a state accompanied particularly by acute anxiety, depression, usually gross cognitive impairment and most of all intense reliving phenomena in the form of flashback type experiences of the time of death of the child or of terrifying nightmares (or) the death which would be usually sufficiently intense to wake the woman from sleep, usually accompanied by symptoms of an acute panic attack with palpitations, sweating, tremor, hyperventilation and so on. As far as I could determine, Mrs Folbigg did not appear to experience any of the normal symptoms of grief or mourning, nor did she reveal any of the symptoms that I would expect of post traumatic stress disorder in these circumstances. I must say that this is a very significant phenomenon and I should attempt to explain this as far as I can. The clearest phenomenon is the lack of the capacity for bonding or attachment of Mrs Folbigg to any of her children. Her attachment to each of the children such as it was, appears to have been of a practical and mechanical kind, devoid of any sense of loving or passion. I might say that also seems to be equally true of her relationship with her husband and with her foster mother. The question arises in my mind as to how to account for this apparently inherent incapacity. I think the clues to this can be identified in Mrs Folbigg's earliest life experiences. It is clear that in her first 18 months of life that she is highly likely to have been brought up in a highly dysfunctional and probably emotionally, physically and possibly a sexual abusive relationship. It is highly likely that her father Thomas Britton, who had a history of assault and malicious wounding and who ultimately killed his wife, was abusive to his wife in the childs first 18 months of life. It seems likely that Mrs Folbigg would have been exposed to such violence. It also seems to be clear that Mrs Folbigg's mother was unable to care for her child and gave the child to her sister and her brother-in-law to look after for periods of time. My best guess in all of these circumstances is that Mrs Folbigg herself as a child was probably neglected and probably traumatised. There is some indication from the reports from the Department of Community Services at the time that she may have been subject to sexual abuse. The evidence that Kathleen Folbigg was seriously disturbed when she came to live with her aunt and uncle when she was 18 months old is compelling. It would seem abundantly clear from all of the reports available from the Department of Community Services that the child was severely regressed. It is significant that she is described as being of low intelligence and having trouble being taught the most basic requirements of hygiene, acceptable manners and behaviour. Given that we now know that Mrs Folbigg is of at least average, if not above average intelligence, the description of her level of cognitive development at that stage is, I believe, highly significant. When she was tested by a psychologist on 4 August 1970, she was described as being remote, speaking little, not responding to conversation and otherwise restless, inattentive and non cooperative. She is described as a very disturbed little girl with various behavioural difficulties, aggressive to other children and not responding to the usual social and emotional demands placed on her. This level of regression and cognitive impairment in a child of 18 months to 3 years would strongly suggest to me that the child had been severely traumatised in her first 18 months of life. What is of even greater significance to me is a 3 year old child who is said to have a preoccupation with her genitals and repeatedly tries to insert various objects into her vagina. This is evidence of a very disturbed child and I would take the fact she was inserting various objects into her vagina as prima facie evidence that she has been seriously sexually abused in her first 18 months of life. The behavioural disturbances were also characterised by "severe temper tantrums" with screaming and crying incessantly for reasons which do not appear to be clear at the time. I would take all of these behavioural changes together as evidence that the child was severely traumatised at the time. There is abundant evidence in the literature of early childhood development that children who are neglected and who suffer serious sexual and physical trauma and neglect, suffer a profound disturbance of personality development. Given the likely trauma suffered by this child at the time, it is very highly likely that she herself failed to experience any true bonding or attachment to her own mother. The fact that her mother gave her up to her aunt for periods of time before then retrieving her would reinforce that view. I note that after she was cared for by her aunt and uncle that her behaviour appeared to deteriorate further and that she was aggressive to other children and apparently destructive in the home. She continued to masturbate herself and as far as I could determine from the reports probably continued to have a preoccupation with her genitals. The history available from the Department of Community Services file is that Kathleen Folbigg remained an exceedingly difficult child and it was only with the long passage of time that her behaviour became more tractable. I believe that what happened to Kathleen Folbigg in her first three years of life was that she suffered a profound and probably irreversible impairment of her capacity to develop any meaningful emotional bonding or attachment and that this impairment contributed in some part at least to her total inability to relate, care for and protect her own children.

68 Dr Westmore interviewed and assessed the offender twice before trial, in September 2002 and January 2003 and once after trial in June 2003. On the last occasion she told him that she was maintaining her innocence. She denied feelings of anger towards the children and confirmed feelings of inadequacy in the marriage. Dr Westmore, too, observed that she spoke spontaneously and expansively but with a relatively flat tone and restricted affect. 69 Dr Westmore reviewed all the documents seen by Dr Giuffrida. He observed that the majority of women who kill children suffer from psychotic illnesses and that the offender is not psychotic. He thinks that the childhood history of the offender is likely to have influenced her personality development and that she probably experienced significant disturbances in mood state from time to time. She was probably mostly depressed, but at times the depression was likely to have expressed itself as anger and aggression. He thought her over-controlled in view of the serious circumstances in which he was assessing her, rarely showing emotional distress or any emotional response despite the traumatic nature of the charges and the result of the trial. He is of the opinion that individuals who are over-controlled may be prone to episodes of extreme angry outbursts and thinks it possible that the offender has personality characteristics of that type. He observes that the diaries may have been an outlet for her to express internal feelings of anger, frustration and perhaps homicidal impulses and thoughts. 70 Dr Westmore continues- Her own concerns about not being a good or adequate mother, combined with her personality difficulties and vulnerability and her problems dealing with emotions such as anger and depression and frustration, are all likely in combination to have led her to feel she could not cope with the children and subsequently her acting towards them in a way which caused their deaths. What is less clear is why she kept having children. Perhaps she wanted to have further opportunities to try and be a good mother, to prove to herself and perhaps others that she was capable of dealing with the demands of a child but reinforcing her own sense of failure each time she was unsuccessful.

71 Dr Westmore was the only psychiatrist to give oral evidence. He repeated his view that the offender was not psychotic. He drew attention to the problems encountered by the offender during her years of adoption, particularly as a teenager, and concluded that they were fairly typical of any teenager. He thought that the absence of behaviour properly described as conduct disorder led to the conclusion that the offender did not develop antisocial personality disorder. However, the verdicts of the jury and the diary entries, supported by evidence of the event that must have occurred during the first three years of the offender's life, led to a diagnosis of severe personality disorder of an unspecified kind. 72 He was asked to explain the relevance of the effects upon the offender of the abuse she must have suffered during her early life. He observed that she made in her diary a positive association between present feelings and the rejection and isolation she felt when younger. He thought that the effect of the first three years was to make her vulnerable to depression. He thought that the diary entries showed fairly consistent, persistent depression of a woman able to function at a superficial level but maintaining profoundly disturbed internal feelings. It was possible, he said, that the anger which manifested itself when the offender killed the children stemmed from her depression. One might also say that the anger and the depression were separate emotions. He said that it was difficult to understand the mechanism by which depression had operated because the offender's continued denials denied access to knowledge of her thought processes. However, it was possible to say from the diary entries that there was a relationship between the depression and the feelings of anger which led to the commission of each offence. 73 Dr Westmore observed that there had been occasions when the offender was obviously frustrated with a child and depressed and angry but was able to put the child on the floor and walk out of the room (and I observe that there was another occasion on which the offender thrust Laura into the arms of Mr Folbigg and demanded that he attend to her), suggesting that when the children died something else profoundly wrong was happening. His opinion is that on the balance of probabilities her capacity to control her behaviour at such times was most likely impaired. 74 Dr Westmore was cross-examined about that opinion. He was reminded of the diary entry about an imaginary conversation with the dead children in which Laura was said to have improved her chances of survival by being well-behaved, to the entries showing an increase in the degree of tension between the offender and Laura as she got older, and to the differences in the personalities of Sarah and Laura, the former more wilful and the latter less so, at least during her first year of life. Dr Westmore was asked to explain how it was that the offender only suffocated her children when there was nobody there to see what she was doing. He was unable to explain, he said, because he had no access to her thought processes. 75 He was asked whether it appeared that the primary problem of the offender was a conflict between her will and the developing will of each successive child, whether in all probability she killed each child when she was unable to deal with the fact that that child had a will of its own. He thought that that might be part of the answer but was not likely to be the only cause. He thought that the offender had a vulnerability which led her to become depressed and have trouble dealing with emotion, such as anger and frustration. He thought that a lot of the anger she experienced was generated from Mr Folbigg, occurring in the relationship of their marriage, and was displaced onto the children. He suspected that while the children may have made her angry at times the real source of her anger was problems in her marriage. There were these questions and answers- Q. Doesn't she describe in both diaries the fact that her problem with Sarah was that Sarah was exercising an independent will contrary to her mother? A. I think there were parts of that, yes. Q. How do you explain that in the context of her displacing rage from Craig? A. Yes well it's - it need not necessarily be simply displaced aggression and anger from Craig but I think that was part of it. Obviously the psychopathology - the psychological processes that led her to do this are multi-determined and multi-factorial and very complex and to link it-to try and link it simply with anger or simply with depression is really a superficial way of trying to deal with it and understand it but it doesn't - it doesn't do that I don't think. Q. Would you agree with this, Dr Westmore, that from a review of the diaries that it would appear that her primary problem was one of her will and her children's emerging will conflicting with each other? A. That wasn't my impression from the diaries. My - the overwhelming feeling I got from the diaries was the feelings of depression, followed closely by anger and frustration, followed by her sense of isolation and loneliness.

76 The court is to impose a sentence of imprisonment for life on a person who is convicted of murder if it 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. So far as the sentencing court is concerned a person sentenced to imprisonment for life will never be released. Punishment of that kind is reserved for cases which can properly be characterised as falling within the worst category of cases. 77 The assessment of the culpability of an offender has to be based on the circumstances in which the offence was committed. The assessing court puts aside matters like remorse, the prospects of rehabilitation and other subjective features. The assessment is one of the blameworthiness of the offender. In that assessment the court may consider the upbringing of the offender insofar as it may have contributed to the commission of the offence. In effect there is a two-stage process. The court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty. If it is, the court must determine whether the subjective evidence displaces the prima facie need for the maximum penalty to be imposed. 78 In deciding whether a case falls within the worst category of cases it must be possible to point to particular features which are of very great heinousness and to postulate the absence of facts mitigating the seriousness of the crime as distinct from subjective features mitigating the penalty to be imposed. 79 The maximum penalty is not reserved for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or where there is no chance of rehabilitation. The maximum penalty may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such punishment. 80 There are several features of the offender's conduct which make it liable to be viewed more seriously and as attracting a higher penalty. They are that five attacks took place on the four children. The first, on Caleb, resulted in a verdict of guilty of manslaughter. The second attack resulted in most serious consequences for Patrick, leaving him blind and susceptible to epileptic attacks. The attack was carried out with the intention to cause him really serious injury. The remaining attacks were murderous. I shall defer for the moment the question whether the offender intended at the time to kill or, as with Patrick's ALTE, merely to do really serious injury. 81 The attacks took place over a period of ten years. 82 The victims of the attacks were all little children dependent upon the offender for their nurture and survival. The offences constituted a serious breach of the trust the children placed in the offender. 83 The Crown submitted that the actions of the offender in continuing to have more children while knowing what she was capable of doing to them constituted a further breach of trust in that she was prepared to put her own desire to have children ahead of the safety and welfare of those children. I do not accept that submission. I think that when she decided to conceive each successive child the offender believed that she would be able to overcome the danger she represented to that child by succeeding at last in forming an attachment to the child and, where necessary, relying on the support of others. 84 The verdict of the jury on the first count shows that the offender may not be dealt with as having intended to kill Caleb or do him really serious injury. Post mortem records show the presence in his lungs of a substance called haemosiderin. When free blood is present in the lungs, as it will be after the deprivation of oxygen by suffocation, haemosiderin will be formed. However, there are other possible explanations for the presence of the substance and it would be unsafe to deal with the offender as though she had attacked Caleb on an earlier occasion as well. 85 The Crown submitted that the offender ought to be found to have suffocated Caleb while contemplating the possibility that he might die. The contemplation of the probability of death would, of course, have led to a verdict of guilty of murder. The Crown pointed to evidence of one of its experts to the effect that it would take a suffocating child a few minutes to lose consciousness. I do not think that the evidence justifies such a conclusion. 86 It was submitted on behalf of the offender that the preferable conclusion was that she intended merely temporarily to quieten the child. I do not accept that submission. Although the offender was then a young and inexperienced mother as likely as any other to make a mistake, the conclusion contended for is quite out of keeping with the explanation given by the expert evidence called by the offender. In my opinion the attack on Caleb, like those on the other children, resulted from the uncontrollable anger of the offender which came about in the ways the expert witnesses have explained. 87 It is proper in my view to regard the manslaughter of Caleb as having resulted from an act of smothering which was unlawful and objectively dangerous and criminally negligent, carried out in the heat of uncontrollable anger by a young and inexperienced woman of prior good character. 88 In order to find the offender guilty of the second charge the jury had to be satisfied beyond reasonable doubt that when she suffocated Patrick she intended to do him really serious bodily injury. She did not have to intend any particular kind of injury. She was quite unlikely to have intended to render Patrick blind and epileptic, not being medically trained and not understanding the mechanism by which denial of oxygen to the brain might produce such results. Even so, she is responsible for the injuries that did result and they were of the most serious kind. The blindness was irreversible. In the circumstances there is no evidence to suggest whether and how the epilepsy might have responded to treatment, but it was potentially long-lasting if not permanent. 89 I am satisfied beyond reasonable doubt that when she attacked Patrick for the second time on 13 February 1991 the offender intended to kill him. She had already suffocated him once and knew from her attack on Caleb what the consequence would be if she deprived him of air for long enough. I am satisfied that in her anger, however short-lived, she decided to rid herself of the child whose presence she could no longer tolerate.

90 In my opinion there is no room for doubt that when she killed Sarah and Laura she intended to do so. 91 The stresses on the offender of looking after a young child were greater than those which would operate on an ordinary person because she was psychologically damaged and barely coping. Her condition, which I think she did not fully understand, left her unable to ask for any systematic help or remove the danger she recognised by walking away from her child. She could confide in nobody. She told only her diary. Even when her diary was discovered and her feelings realised she was persuaded to stay with Patrick. I think that the condition that gave rise to her fears and anxieties prevented her from refusing the well-intentioned offer. 92 The attacks were not premeditated but took place when she was pushed beyond her capacity to manage. Her behaviour after each attack contained elements of falsity and truth. She falsely pretended the unexpected discovery of an accident and falsely maintained her innocence. That, I think, was because she could not bring herself to admit her failure to anyone but herself. However, her attempts to get help, including what I think was a genuine attempt to perform cardio-pulmonary resuscitation on Laura, were genuine and made out of an immediate regret of what she had done. Her anger cooled as fast as it had arisen. 93 However, even with these mitigating features one would not hesitate, without the evidence of the events of the offender's childhood and their eventual effect on her behaviour as an adult, to say that, taken together, her offences fell into the worst category of cases, calling for the imposition of the maximum penalty. As the Crown said in its written submissions, the real issue that arises is whether the offender's dysfunctional childhood provides any significant mitigation of her criminality. 94 I think that it does. I think that notwithstanding the stable family environments afforded by the Platt and Marlborough families and by Mr Folbigg the effects on the offender of the traumatic events of her childhood operated unabated. She was throughout these events depressed and suffering from a severe personality disorder. I accept the evidence of Dr Westmore that her capacity to control her behaviour was severely impaired. 95 I accept that throughout her marriage the offender was affected by the abuse perpetrated upon her during her first eighteen months of life. The effects included an inability to form a normal, loving and forbearing relationship with her children. Although she realised that shortcoming she lacked the resources to remedy it. She was unable to confide in Mr Folbigg. He never knew that she was at the end of her tether. The result was that he continued to leave everything to her and her fear of the consequences became settled. Her depression went unrelieved and on occasions turned itself into anger. The offender was not by inclination a cruel mother. She did not systematically abuse her children. She generally looked after them well, fed and clothed them and had them appropriately attended to by medical practitioners. Her condition and her anxiety about it left her unable to shrug off the irritations of unwell, wilful and disobedient children. She was not fully equipped to cope. 96 On occasions she appeared cool, detached, self-interested and unaffected by the fate of the children. In truth, she suffered remorse which she could not express.

97 Dr Giuffrida and Dr Westmore agree that the offender's condition is for the most part untreatable. Her chronic depression may respond to medication. Her feelings of vulnerability and failure may respond to psychotherapy, though there may be doubt whether it will be possible to offer her the fortnightly services that Dr Westmore considers necessary for that purpose. She will always be a danger if given the responsibility of caring for a child. That must never happen. She is not a dangerous person generally, however, and her dangerousness towards children does not disentitle her to eventual release upon parole on conditions which will enable risks to be managed. 98 Because of the intractability of her condition, the offender's prospects of rehabilitation are negligible. She is remorseful but unlikely ever to acknowledge her offences to anyone other then herself. If she does she may very well commit suicide. Such an end will always be a risk in any event. 99 Gaol is a dangerous environment for any serving prisoner. It will be particularly dangerous for the offender. In order to protect her from the danger of murder by other inmates the authorities will have to keep her closely confined for the whole of her time in custody. The number of people with whom she will have contact will be limited. So far she has been locked up for twenty-two hours in every twenty-four and the indications are that some such regime will obtain indefinitely. For these reasons she will serve her sentences the harder and is entitled to consideration. 100 The need for the sentences to reflect the outrage of the community calls for the imposition of an effective sentence which incorporates an unusually long non-parole period. So does the need generally to deter persons from committing crimes like these, which are so difficult to detect. I propose to impose a series of sentences which, partially accumulated, will produce an effective head sentence of forty years' imprisonment and a non-parole period of thirty years'. I have considered whether the offender's circumstances justify a period on parole which exceeds one quarter of the head sentence but I have concluded that they do not. In any event, a non-parole period of less than thirty years would be insufficient to reflect the objective seriousness of the offences. 101 This scheme of producing an overall sentence to reflect the totality of criminality has made it necessary to decline to fix a non-parole period on any of the first four counts and to increase the parole period on the fifth count. 102 Kathleen Megan Folbigg, for the manslaughter of Caleb Gibson Folbigg I sentence you to imprisonment for ten years. The sentence will be taken to have commenced on 22 April 2003 and will expire on 21 April 2013. I decline to fix a non-parole period. 103 For the intentional infliction of grievous bodily harm upon Patrick Allen Folbigg I sentence you to imprisonment for fourteen years. The sentence will commence on 22 April 2005 and will expire on 21 April 2019. I decline to fix a non-parole period. 104 For the murder of Patrick Allen Folbigg I sentence you to imprisonment for eighteen years. The sentence will commence on 22 April 2006 and will expire on 21 April 2024. I decline to fix a non-parole period. 105 For the murder of Sarah Kathleen Folbigg I sentence you to imprisonment for twenty years. The sentence will commence on 22 April 2013 and will expire on 21 April 2033. I decline to fix a non-parole period.

106 For the murder of Laura Elizabeth Folbigg I sentence you to imprisonment for twenty-two years. The sentence will commence on 22 April 2021 and will expire on 21 April 2043. I fix a non-parole period of twelve years, which will expire on 21 April 2033. 107 You will be eligible for release on parole on 21 April 2033.

Last Modified: 10/28/2003 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.

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