R v Foley [1999] VSC 278

Supreme Court of Victoria|1999-06-11|Before: Hampel J

CRIMINAL LAW - Sentencing - Murder - Son stabbed father - Exposed to extreme physical and sexual abuse of young children by father - Consideration of mercy - Pleaded not guilty - Accused gave evidence confirming guilt - Provocation not available at law but considered in sentencing - No likelihood of re-offending - Remorse - No prior convictions - 25 years of age.

I think it is in everyone's interests that I should deal with the matter now.

This is a most tragic case of a young man who has been convicted of murder and it is the only case in which, after the jury convicted the prisoner, I saw fit to tell the jury that extreme considerations of mercy should be extended to him. My impression was that that was also the jury's feeling, and that is perfectly understandable. Indeed, it is the view of Mr Horgan for the Crown, from what I have perceived right throughout the trial and on the plea today. I agree with Mr Shwartz' submission that no right-thinking member of the community would feel otherwise.

The reason for this, of course, is that this was a tortured, troubled young man who was exposed to the knowledge and who, to a large degree, witnessed extreme sexual and physical abuse, almost to the extent of torture, by his own father of young children, including perhaps himself. At least, that was his perception. This continued over a long period of time. In the words of the experts what was a natural love and admiration for his father, turned into ever-growing turmoil and hatred. So much became obvious when one saw his interview with the police and his attitude in the witness box.

The trauma that this young child underwent was not imaginary. It was very real and was constantly confirmed. As a result, he had a very difficult childhood marked by all sorts of behavioural problems, family difficulties, problems which required medical attention and institutional attention. Ultimately from a very early age he developed this obsession or belief that he had been a failure because he failed to protect the children from his father's actions. This grew and became so obsessive that, as has been described in evidence, he, throughout his teenage life and up to the day of this killing, believed constantly that there was no real reason why he should not kill his father. Yet at the same time I think he knew right from wrong, as apparently he does now, and so the strength of this obsession must have been tremendous to culminate in the events of 16 February.

It is significant that it was on that day and around that time that he was confronted with the fact of the abuse of other people. I think that may have had the triggering effect that produced his going down there and stabbing his father as he did. I think it is graphic and probably correct when he said that he kept hearing the screams of the abused child and the flashbacks of recollection of these events ever present to him, possibly even on this day, but certainly over this whole period.

As I said earlier, my impression was that he has been extremely truthful throughout this whole tragedy. There was nothing in his record of interview or in his evidence of trying to pull the wool over people's eyes as to what really happened. I think he showed the integrity of which other people have spoken today. I can understand why he - and despite admitting all the acts which were necessary to constitute the crime of murder - why he felt that he could not plead guilty given the turmoil in him and the perception he had about those events. He of course, did not have the knowledge that provocation was not available to him in law given the circumstances. But something short of provocation, something which, in reality, must have driven him to this state is present and whilst it could not be taken into account in the trial process it must be taken into account very significantly in sentencing..

I do not think it is necessary to dwell on the extent of his trauma. All that appears in the reports which have been exhibited. His present position is that he appears to have accepted and realised his plight. He appreciates the wrongness of the act and whilst I think Mr Horgan is correct in saying that what he has demonstrated is not true remorse of the kind which is often significant in these courts, for the purpose of considering the prospect of rehabilitation, it is really remorse in the sense that he understands that he has done a terribly wrong thing and probably understands why he was driven to do it.

The evidence from both Dr Walton and Dr Udovicic is that he has insight into his position, he is motivated to adjust, he communicates well and, most importantly, that the anger that produced this crime was focussed totally on his father. I would have been much more concerned if I had any glimmer of an attitude of the kind which might put others at risk; namely, a general aggressive and possibly violent attitude towards people who commit crimes of this kind against children. That does not appear to be the case, and one can understand that it is not, because, although the hatred of his father came about because of the sexual abuse and other abuse of children, nevertheless, it has had - I think from what I understand of Dr Walton - very much a focus of the feeling of failure by being unable to protect these children against his own father, a father whom he idolised and then hated.

Murder, of course, is the most serious offence. Nevertheless, the legislation provides a complete discretion in what sentences can be imposed, and for good reason. This case, I think, marks one of the reasons why the discretion needs to be so wide. Having said all that, I think it is important to refer to what may be a trite proposition but an important one enunciated by Kirby J in R v. Osland at page 207 where His Honour said:

"No civilised society removes its protection of human life simply because of the existence of a history of long-term physical or psychological abuse."

His Honour, of course, was speaking in terms of the issues of provocation and self-defence, but I think in sentencing one must also remember that no matter what the subjective considerations are the sanctity of human life must be paramount and a sentence for murder must reflect that consideration. I think one of the reasons why the discretion is so wide is that the law contemplates that there may be cases so unusual, as this one is, that those sort of considerations may be, to a great extent, minimised by the personal circumstances and the whole of the circumstances of the crime committed.

In sentencing this prisoner, I think it is very important to remember that he is not one who suffers from a mental disability and therefore a hospital order is not appropriate. Nevertheless, he is a person who is psychologically vulnerable and has been all his life. It is, as Mr Shwartz rightly said, very much in the interests of society that when he is released he should be given every opportunity to integrate back into society.

He is at this stage 25 years of age, has no previous convictions or history of violence, and has been described throughout and in the material, which I have only briefly perused, as an honest person of integrity and one who is concerned for others.

This is not a case in which one can give a benefit for a plea of guilty, because that was not what happened. I think because the way the trial was conducted - that is only on the basis that provocation may be applicable, which I held was not, and more importantly, because he gave evidence which, in effect, confirmed his guilt of this crime, one can differentiate between this case and many others where the accused's conduct at a trial does not reflect as favourably on him. So one has to put on the one side of the scale the considerations of the sanctity of human life and the seriousness of the crime of murder, and on the other all these mitigating factors, including his own terrible background and difficult life, the fact that he has not offended, the fact he is relatively young, the fact that he has every prospect of rehabilitation and the fact that there is little, if no, likelihood of reoffending.

I think the sentence to be imposed must reflect, although at the lowest end of the scale, the fact that this is, nevertheless, a very serious crime resulting in the loss of a life. It must not be unduly diminished by the imposition of the non-parole term, although it has been conceded that a substantial gap between the head sentence and the non-parole part is appropriate.

Giving effect to all those considerations, I think the sentence in this case should be one of 10 years' imprisonment. I fix a period of four years before which he will not be eligible for parole. I declare that 480 days have been served pursuant to this sentence and that should be entered in the records of the court.

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Judgment (18 paragraphs)

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