R v Frawley

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Tuesday 5 December 2000 L3/97 REGINA v MAURICE PETER FRAWLEY

1 HIS HONOUR: This application concerns an existing life sentence. The applicant seeks a specified term for such sentence and the setting of a non parole period. 2 The applicant was convicted of the murder on 6 May 1988 of Janice Maree Goodwin at Umina. Following his conviction, Abadee J passed sentence upon him on 6 December 1994. The sentence imposed was penal servitude for life, and the sentence was expressed to date from 7 May 1988 when the applicant was taken into custody. 3 The lapse of time between the date of the crime and the date of sentence is accounted for by the following intervening events. The applicant stood trial twice: the first occasion was in 1990 but from his conviction after that trial the applicant appealed and on 15 September 1993 the Court of Criminal Appeal upheld the appeal and a new trial was ordered. The second trial began before Abadee J and jury on 1 August 1994 and the applicant was again convicted. It was the sentence following that second trial which has prompted the present application. To complete the narrative of court proceedings, the applicant appealed against his conviction following the second trial. There was much delay in the prosecution of that appeal but eventually the appeal was heard by the Court of Criminal Appeal on 21 August 2000 and that appeal was dismissed on 30 August 2000. 4 When the applicant was sentenced by Abadee J, the sentencing process was governed by s 19 of the Crimes Act, now repealed. The applicant lodged this application pursuant to s 13A of the Sentencing Act 1989, but it was common ground that this application is to be considered under Sch 1 of the Crimes (Sentencing Procedure) Act 1999. 5 In considering this application, I must first have regard to the circumstances surrounding the offence. 6 The applicant and his victim had been living in a de facto relationship for approximately two years before the murder. When he killed his victim, the applicant was living in her home at Umina, a house with three levels. He used a knife to bring about what the sentencing judge described as "a brutal murder". It is convenient to refer to his Honour's remarks on sentence to address the circumstances of this crime (p 5-6): "I am satisfied that between 10pm and 11pm the prisoner and the victim were on the upper level of the victim's home. A violent argument and a violent struggle took place at that location between the prisoner and the victim. Following the killing the police attended. At the scene of the murder they observed in the upstairs television or family room area that a coffee table had been upturned. The prisoner's broken wrist watch was found on the floor of the room. His signet ring, a ring normally worn by him and which had been given to him by the victim, was also found on the floor. Clumps of hair were found. Blood stains were observed on the carpet, being the blood stains of the deceased. A gold pendant was also found in the upstairs floor level. Clearly a prolonged struggle of some violence and ferocity had taken place between the prisoner and the victim. During the course of that argument and violent struggle the prisoner beat, bashed, or otherwise battered the victim, in and about the head and face causing extensive injuries, essentially externally but some internally. I am satisfied that some of the injuries were inflicted by the prisoner upon his defenceless female victim with great force and with the prisoner using his fists. On any view considerable force was applied in the inflicting of the injuries. In referring to the injuries I do not overlook the fact there were also injuries inflicted to the arms, chest wall and shoulder. There was an area of bruising close to where the top surface of the liver attaches to the body. That bruising was consistent with being caused by a punch. In addition I am satisfied that in the course of the violent assaults upon the victim in the upper level living area that the prisoner produced the knife, that he was then carrying, from his trouser's pocket. Minor abrasions to the victim's neck were probably there and then inflicted by the prisoner using that knife. I am satisfied that the victim sought to flee from the upper level downstairs and to the middle level. Indeed, a button from her blouse was later found on the steps which descend to the middle level. I am satisfied that the victim sought to flee after the initial violent assault that had taken place upon her upstairs during which she suffered, as I have indicated, many injuries. As she sought to flee the prisoner followed her. He had his knife with him. The victim managed to reach a position at the foot of the steps. She either fell or collapsed in that location, or was caught in that position by the prisoner, and punched or forced to the ground. The prisoner stabbed her with his knife. The position of the stab wounds were consistent with the prisoner sitting over the victim's chest or over the bottom of her rib cage." 7 His Honour then went on to consider the post mortem findings (at pp 6-7) "Dr Oettle, who performed the post mortem, determined the cause of death was a stab wound to the neck which in turn caused the victim to bleed to death. On the right side of the neck there was a wound that was described as being located two inches above the clavicle or collarbone. From that initial entry point the wound took two separate paths. One of the paths cut the carotid artery. It is probable that the knife was inserted, partially withdrawn and then reinserted again. Dr Oettle considered that once the carotid artery had been punctured, in the manner described and observed, that the victim would have lost consciousness almost immediately. In his opinion death could have taken a matter of minutes. It would have been 'shorter rather than longer'. In his evidence Dr Oettle said that there was a total of approximately 35 injuries found on the victim's body." 8 The applicant was at the time of committing this murder addicted to alcohol, but Abadee J found that this prior addiction "had no sufficient connection with the commission of the murder" (remarks on sentence, p 10). Whilst the judge considered that the applicant was probably under the influence of alcohol, to some extent, he accepted medical evidence that any impairment by alcohol "was not significant or substantial" (remarks on sentence, p 9). The applicant was on pain killing medication at the time of this crime but the judge did not accept the applicant again on the extent of his use of medication and said (p 20, remarks on sentence): "I do not accept that it has been established that there was such a quantity of alcohol or indeed alcohol and/or drugs that he consumed or used on the day and evening before the killing as to relevantly diminish the prisoner's culpability for the crime" 9 And further (p 21, remarks on sentence): "The brutal killing of this defenceless victim is not one I am prepared to ascribe to the consumption of alcohol and/or drugs on the evening in question." 10 Abadee J did not accept the applicant as a witness of truth. Whilst the applicant claimed to have no recall of the killing, the judge disbelieved him as to this and the assertion to this effect was contrary to admissions made shortly after the killing. It is not necessary to refer to such admissions for present purposes but they are to be found in the judge's remarks on sentence. 11 The applicant did not give evidence on the present application, and indeed the application was presented on his instructions in his absence after suitable transport to bring him from prison was not available. 12 Objectively this was a very vicious killing, as Abadee J's remarks reveal, and this factor must be given due weight on the present application. 13 The sentencing judge found that "for all intents and purposes" the applicant has no criminal record. 14 The applicant was born on 3 September 1938 so that he is presently sixty-two years of age. At the time he committed this crime he was forty-nine years old. He has five children from a failed marriage. He is a surveyor by occupation, but was on sickness benefits because of a back condition from 1987 until he was taken into custody. 15 The applicant has persistently refused to acknowledge his guilt and there is no element of contrition to be taken into account in his favour. When he saw Dr Lucas for psychiatric assessment on 15 January 1999 he told the doctor: "I don't accept that I killed Jan." 16 Lack of contrition is relevant on this application because of the impact it may have on the applicant's rehabilitation: see R v White (unreported, NSWCCA, 23 June 1998; and R v Stephens [1999] NSWCCA 80). 17 On 5 April 1999 Dr Lucas reported that he considered it unlikely that the applicant would commit a similar offence if released. Dr Lucas supported the application and, indeed, the Crown does not oppose it. 18 The applicant has done well in the period of twelve and a half years during which he has been in custody. Ms Cullen, who is the Acting Secretary of the Serious Offenders' Review Council, gave oral evidence here. The applicant is presently classified C1, which Ms Cullen acknowledged to be unusual for a prisoner serving a life sentence for murder at a time prior to the success of an application of the type presently before this Court. 19 This Court has the benefit of having placed before it a number of reports from the Serious Offenders' Review Council. A reading of the reports and the material attached to them indicates that the applicant has not come under adverse notice whilst he has been in custody. He has been persistently well behaved. A case officer, who expressed a familiarity with the applicant since he first came into custody, wrote on 7 April 2000 that whilst the applicant was of ill health he continued to be of general good nature and to be compliant with prison discipline. According to the prison officer, the applicant presented no management problems. 20 When he reported in April 1999 Dr Lucas adverted to the importance in the future that the applicant avoid exposure to intoxicating liquor and the need for counselling concerning alcohol. That is a matter that will require consideration before the applicant is admitted to parole. 21 The applicant has not enjoyed good health since he has been in prison and this has restricted his involvement in prison activities. At present he spends much of his time in his cell pursuing artwork. 22 Mr Haesler, in submitting that the applicant should be released in the immediate future, emphasised the applicant's ill health. There are two reports which address this. 23 Dr Sara was the Director of Clinical Services when he reported on 24 April 1995. In that report he referred to the applicant's back problems and his abdominal problems. In 1994 he underwent surgery for bowel cancer. It is to be observed that at the time of reporting Dr Sara considered the applicant may require periodic review for his abdominal condition and also for his back condition. 24 A more recent report which was provided was the report of Dr Matthews dated 6 November 2000. This discloses that the applicant has undergone a laminectomy and bone graft for his back. Following the abdominal operation, this more recent report discloses that the applicant developed bowel obstruction and had to undergo surgery to divide adhesions. 25 In 1998 the applicant underwent bilateral bifemoral angiography at Prince of Wales Hospital to assess the degree of arterial obstruction in the lower limbs. This obstruction was secondary to hypertension and heavy cigarette smoking. 26 The report from Dr Matthews concludes: "In summary Mr Frawley suffers from significant health problems. He has hypertension, has had a resection of a carcinoma of the colon, spinal stenosis, a right perineal nerve entrapment neurothopy, peripheral vascular disease and ischemic heart disease. He takes multiple medications for hypertension, pain relief and his peripheral vascular disease. His condition is at present stable, but he continues to smoke heavily and this will certainly have a negative effect on his peripheral vascular and ischemic heart disease. It is likely that in the future Mr Frawley will require angioplasty or femoral popliteal bypass surgery." 27 The applicant's health is a matter to be taken into account on the present application. The relevance of ill health was considered by King CJ in R v Smith (1987) 27 A Crim R 315. In the much cited passage from the Chief Justice's judgment in Smith, his Honour said: "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." 28 The relevance of ill health was also considered by the Court of Criminal Appeal in R v L (unreported, 17 June 1996) in which the court referred to Smith and reviewed other authorities in point. 29 Consistently then with the above authorities, ill health will be a factor that tends to mitigate punishment if imprisonment will impose a greater burden on the offender because of this circumstance. It will also tend to mitigate punishment if imprisonment imposes a gravely adverse effect on the offender's health. It is also to be recognised that there will be cases in which illness may call for leniency simply as a matter of common humanity (see L at 8). 30 In the present case, I accept that imprisonment has been more burdensome on the applicant than it would have been had he enjoyed good health. His ill health has restricted him in the opportunity to pursue activities away from his cell. One feature of his present condition is that he is prone to need access to toilet facilities with very limited notice. There is, however, no evidence such as would warrant a conclusion that the applicant is not being afforded adequate and appropriate treatment for his various problems within the prison system. 31 I am satisfied that this present application should be granted and I therefore propose to set a specified term and a non parole period. 32 Mr Haesler submitted that having regard to the applicant's ill health and his excellent prison history, I should determine a non parole period with almost immediate effect. Whilst recognising that the applicant has behaved well in prison, and whilst recognising that prison is and has been more arduous for the applicant than for a healthy offender, I consider that to set a non parole period to commence in the immediate future would fail to recognise the objective gravity of this offence and the interests of society in retribution and deterrence. 33 The Crown has drawn my attention to a number of decisions of the Court of Criminal Appeal in which the issue of penalty in cases of domestic murders has been addressed. In R v Chetchuti (unreported, NSWCCA, 24 December 1993) a head sentence of twenty-four years with a minimum term of eighteen years was imposed; in R v Taylor (unreported, NSWCCA, 18 April 1995) the term imposed was a head sentence of twenty years with a minimum term of fifteen years; in R v Cheung (unreported, NSWCCA, 11 December 1995) the head sentence was seventeen and a half years with a minimum term of thirteen and a half years; in R v Everett (unreported, NSWCCA, 13 December 1995) the head sentence, after the intervention of the appeal court, was reduced to twenty-one years with a minimum term of sixteen years; in R v Stephens [1999] NSWCCA 80 the total sentence was one of twenty-two years with a minimum term of sixteen years; and in R v Barry [2000] NSWCCA 138 the total sentence was one of twenty-four years with a minimum term of eighteen years. 34 Mr Haesler referred to R v Marshall [1999] NSWSC 1267, an application under s 13A of the Sentencing Act. A head sentence of nineteen years with a minimum term of thirteen years six months was determined. Mr Haesler also provided a schedule particularising eleven other cases on re-determinations under s 13A where the cases could be categorised as domestic stabbing cases. In those cases the head sentences imposed ranged from fourteen years to twenty-eight years three months and the minimum terms set ranged from ten years to twenty-one years three months. 35 I have considered those cases to which I have been referred but it would not prove helpful to record the circumstances in any one of those cases here because ultimately I have to decide what is an appropriate sentence in this case, heeding all the circumstances both objective and subjective. 36 Before expressing my conclusion on this application, I record that the Crown has tendered a victim impact statement which I have considered. However, it is now well settled that the content of this statement cannot influence my determination as to what sentence should be imposed: see R v Previtera 94 A Crim R 76; R v Bollen 99 A Crim R 510; and R v Dang [1999] NSWCCA 42. 37 Under the 1989 Sentencing Act there was no requirement on an application under s 13A to structure a sentence as normally required by s 5 of that Act. Section 44 is the counterpart in the Crimes (Sentencing Procedure) Act 1999. Under the previous statute s 13A(7) specifically provided that a minimum term and an additional term set under s 13A "are not required to comply with the other provisions of this Part", and s 5 was one of those other provisions. 38 However, Sch 1 cl 5(3) of the 1999 statute which applies to be present application provides: "The term of the sentence, and any non parole period, are to be taken to have been set under section 44, but are not required to comply with the other provisions of Division 1 of Part 4." 39 Does this mean that any sentence I structure must comply with s 44(2) of the Crimes (Sentencing Procedure) Act? I can see no reason why Parliament should have determined in 1999 that s 44(2) applied on the determination of a term for an existing life sentence when s 5(2) did not under the earlier regime. I had occasion to remark on this apparent change in R v White [2000] NSWSC 555. 40 I heard no argument on the application of s 44(2) in this case. I do not consider it is necessary to do so. I have determined upon a non parole period less than three-quarters of the term of the sentence and, if special circumstances are required, I am satisfied they exist. I identify those circumstances as being the need for an extended period of supervision when the applicant is released from custody and his chronic ill health. 41 I have concluded that the appropriate sentence in this case is one of twenty years imprisonment, with a non parole period of fourteen years. 42 I therefore grant this application, and in lieu of the existing life sentence, I impose a sentence of imprisonment for twenty years to commence on 7 May 1988 and to expire on 6 May 2008. I set a non parole period of fourteen years and accordingly the first date upon which the applicant is to be eligible for release on parole is 7 May 2002. **********

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