R v Fredes

Supreme Court of NSW|2020-09-07|Before: Hidden AJ

REASONS FOR SENTENCE

The offender, James Fredes, has been committed to this court for sentence for the murder of his partner, Erana Nahu, in the early hours of Thursday, 11 October 2018 at a house at Glenfield where they were living.

Facts

There is a detailed statement of facts, which I shall summarise.
The deceased, Ms Nahu was 43 years old at the time, and the offender was 58. They had been in a domestic relationship for about 15 years. They had two children, who were 7 and 8 years old at the time of the offence.
The relationship broke down in early 2013, and Ms Nahu moved to the Glenfield home with the two children. For the next four years the offender lived elsewhere, and would see the children only occasionally.
Some time around 2014 or 2015, Potaua Roberts, a cousin of Ms Nahu, moved into the Glenfield home. At the end of 2016, Ms Nahu told Ms Roberts that she was seeing a man called Rob. She said that around that time she had told the offender about the relationship. A few weeks later, towards the end of January 2017, the offender self harmed and was admitted to hospital for several days.
About two weeks later, Ms Nahu allowed him to move in to the house at Glenfield. There were three bedrooms. The offender moved into one of them, Ms Roberts slept in another, and the third bedroom was occupied by Ms Nahu and the children.

The incident

Ms Nahu went to bed at about 12.50am on Thursday, 11 October. The children were not there as they were staying with an aunt in Liverpool. At some point after 1.00am, the offender got up from his room and walked to Ms Nahu's bedroom. He lay down next to her and tried to initiate intimacy with her. She rebuffed him, elbowing him in the ribs and telling him to get out. This angered the offender, and he walked to the kitchen and removed a knife from a drawer. The knife was about 35 centimetres long with a blade of about 25 centimetres.
He walked back to Ms Nahu's bedroom, raised the knife and stabbed her in the back, just under her right shoulder blade. The stab wound over the right scapula region was 3 centimetres in length. The knife passed through the underlying subcutaneous tissues to the right scapula bone, causing a nearly transverse, 3 centimetre long, slit-like defect in that bone. The knife then went through the underlying soft tissue between the 4th and 5th ribs and into the right upper lung. The estimated depth of the wound was 13-15 centimetres.
Ms Nahu awoke and screamed out in pain. The offender pulled the knife out of her back and she rolled over onto her right side. She suffered sharp force injuries to her left arm. One, on the left bicep, was 6 centimetres long and 2 centimetres deep, and the subcutaneous fat was exposed. There were two further injuries to her left hand: one between the left thumb and left index finger, which was a gaping wide cut (5.5 centimetres long and 1 centimetre deep) where the underlying soft tissues and tendons were exposed, and one between the left middle finger and the left ring finger (2.5 centimetres long and 1 centimetre deep).
It is not known whether these injuries were sustained while Ms Nahu sought to defend herself from further attack, or if they occurred as a result of a struggle as the offender removed the knife from her back, when she screamed and was rolling around as he did so.
Ms Roberts heard Ms Nahu screaming and ran to the bedroom. She saw Ms Nahu lying on her back and the offender standing over her, beside the bed with his knees on the bed. He was sobbing and said, "I'm sorry. I'm sorry." Ms Nahu was screaming words to the effect of, "No, get away". Ms Roberts tried to push the offender away from Ms Nahu. He kept crying and saying that he was sorry, and he asked Ms Roberts to ring the ambulance. Ms Nahu was having great difficulty breathing.
Ms Roberts used Ms Nahu's mobile, which was beside the bed, to dial Triple O. Ambulance paramedics and police arrived. Paramedics treated Ms Nahu, who was struggling to breathe and was dazed and disoriented. She was moaning with pain and saying, "I can't breathe" in a panicked tone of voice. She died as a result of the stab wound to her back at 2.53am.

Arrest and admissions

The police, who had arrived at about 2.00am, entered the bedroom and saw the offender on his knees beside Ms Nahu, visibly distressed. He immediately admitted having stabbed her.
Police escorted the offender outside the home and told him that he was under arrest for assault. He was sobbing and replied, "Yeah, it's not assault. I stabbed her. I stabbed her." He was cautioned. He saw paramedics entering the house and said, "Are they going to save her?" He remained very distressed and was crying.
In answer to questions by police, he again admitted having stabbed Ms Nahu. Asked why he had done so, he said, "Jealousy I suppose", adding that she was having "an affair with somebody else". He said that he had stabbed her just once in the back.
The offender was taken to Campbelltown Police Station. Later in the morning, he was informed by Detective Sergeant Lillie that Ms Nahu had died, and he began to sob. About half an hour later Sergeant Lillie and Detective Bogg approached him to ask him to participate in a recorded interview about the incident. He said, "I can't believe she's gone. I didn't mean for this to happen. She was my friend, my only friend. She's the mother of my children. …I didn't mean for it to happen. What are my kids going to do? I'm here and their mother won't be with them".
The offender participated in an electronically recorded interview, and the details of the offence set out in the agreed facts are derived from the account he gave to police during that interview. He again asserted that he had stabbed Ms Nahu only once, adding that his only explanation for the other injuries to her was that they occurred after he pulled the knife out and she rolled from her back onto her side. He said that he rolled her over, grabbing her left arm, and that the knife was in his right hand at the time.
As to the background to the offence and his state of mind at the time, he described how Ms Nahu rebuffed his attempt at intimacy with her, adding that she reminded him that she was seeing somebody else. He said that they had not been intimate for a long time, and he tried to talk to her about it, saying "I need it too you know". She said, "No more with you".
He said that he thought, "Why no more with me?" He had been looking after the children and "doing the chores at home and everything". He had also been "sort of giving her space". He felt that she had been taking advantage of the situation, adding that it had been "really getting to me". He described himself as "emotionally stressed out", and needing "a bit of comfort". He said, "All I needed was a bit of TLC man".
He told police that "something snapped in me", and that he went to the kitchen and grabbed the knife. However, he said that he "wasn't gunna do it". Asked what made him decide to go to the kitchen to get the knife, he said, "It would have been rejection". Asked what he was thinking at the time, he said, "I was thinking about the pain I was going through. …she's going to feel some pain too, but I wasn't going to do it".
He said that when he returned to the bedroom he was standing there for "less than a minute" before he stabbed Ms Nahu. He said, "…it was just a one hit kind of thing. I didn't even mean.... And I've just gone straight through her". Asked what his intention was at that time, he said, "Stabbing her, hurt her. I've been hurt enough". He added that he did not intend to kill her. A little later he said that his intention was to "just tap her a little bit". He also said that the stabbing was for "seconds", adding that he did not think that it was "going to go in deep" and that he had never done anything like that before.

Subjective case

As I have said, the offender was 58 years old at the time of the offence. He is now 60. He has a minor criminal history, which is old and is of no significance for present purposes. He has remained in custody since his arrest for this offence on 11 October 2018.
His background is sketched in a psychological report of Dr Marcelo Rodriguez, who also gave brief oral evidence. In an affidavit the offender attested to the truth of the history he provided to Dr Rodriguez.
He was born in Chile, the youngest of six children. The family migrated to Australia in 1970, the year he attained the age of 10. He described a distant relationship with his parents. It was a maid who provided the children with care and affection, and they were devastated by their separation from her when they came to this country.
He described his father, who died 20 years ago, as aloof and showing little commitment towards the family. More importantly, his father was physically abusive to him, inflicting violence in various ways, including an occasion when he burned him with flames from a gas stove. His mother covered up the incident by treating his burns at home, rather than seeking medical attention.
He is not close to his siblings except for his younger sister. To his knowledge, she was also abused by their father, physically and sexually, from the age of 8 into her early teens. The sister also provided an affidavit, attesting to the abuse which they both suffered. That affidavit also reveals that the offender was sexually abused by a cousin (a matter referred to, although not as clearly, in the psychological report).
The offender was educated to school certificate standard. Perhaps not surprisingly, given this background, he was not a good student. Among other things, he was disciplined for fighting in circumstances where he was doing so to protect himself against bullying. From his mid teens he lived away from home for much of the time, staying at the homes of friends and on occasions in inner city homeless shelters.
After leaving school, he worked in his father's bakery. He worked long hours but received minimal remuneration. After his father's death he inherited the business, and managed it for some years with his mother and his sister. However, it appears that he could not cope with the business after the incident of self harm in 2017 to which I have referred.
He had two intimate relationships prior to the relationship with Ms Nahu. Each of those relationships produced two children, three of whom are adults and one a teenager. He did not maintain contact with any of them. He told Dr Rodriguez that he believed that his abuse as a child caused him to have difficulties with intimacy and affected his ability to form and maintain adult relationships. That said, he described the first 10 years of his relationship with Ms Nahu as "beautiful".
As to drugs and alcohol, he described a pattern of cannabis dependence from his early teens. He had also used a variety of other drugs, although not as persistently: LSD, cocaine and methamphetamine. However, he said that he did not plan to continue to use substances, saying that he no longer craved them and seeing "no purpose at the age of 60". Nevertheless, Dr Rodriguez considered that his drug abuse met the criteria for substance use disorder. The offender said that he had used cannabis prior to the fatal incident but did not believe that it had played any role in the commission of the offence. He admitted to periods of alcohol binges in his younger years but denied a pervasive history of alcohol abuse.
As to his mental state, Dr Rodriguez noted his report of "depressive symptoms, low self esteem, and self-worth due to the effects of a childhood peppered with abuse, invalidation and pervasive neglect". The offender believed that psychologically he had never overcome the sexual abuse he had experienced, and Dr Rodriguez thought that he suffered from "vicarious trauma" for years as a result of his sister's sexual abuse by their father.
When Dr Rodriguez interviewed him, the offender reported what the doctor described as "unremitting depression", for which he was being treated by medication.
As to the offence, he maintained to Dr Rodriguez that he did not plan to kill Ms Nahu. He acknowledged that he was angry, but added that he felt confused by her actions. As he saw it, she had taken him into her care after his discharge from hospital, acting as "if we were a family", and then later informing him that she was having a relationship with another man.
In his report Dr Rodriguez noted the offender's traumatic background, including child neglect and physical, emotional and sexual abuse. He noted the serious psychological effects which can result from a pattern of abuse of that kind. He described the offender as manifesting "lifelong mood dysregulation, interpersonal difficulties, problems with self, depression and anxiety", suggesting that he met the criteria for the diagnosis of a personality disorder. He saw these characteristics, together with the history of trauma and self harm, as indicating a borderline personality disorder. That is described as a "disabling psychiatric condition, characterised by turbulent fluctuations of negative emotions, unstable and conflictual interpersonal relationships, an incoherent and often contradictory sense of self, and impulsive self-injurious behaviours".
In oral evidence, Dr Rodiguez said that he could not make a definitive diagnosis of borderline personality disorder in the absence of a great deal of other information, such as "clinical data, family reports, hospital discharges…." However, he was satisfied that at the time of the offence the offender was suffering from a serious personality disorder of some kind. He expressed his conclusion in his report in this way: At the time of offence, Mr Fredes was suffering from a mental condition, in that he was experiencing acute psychosocial distress as a result of a serious personality disorder, which seriously impaired his mental functioning. His condition appears to be characterized by severe mood dysregulation including impulsivity, which has affected his ability to rationalize and use judgement. It appears that his mental functioning was exacerbated by perceived or real abandonment and rejection by the victim, who, according to Mr Fredes, provided him with false hopes that the relationship would continue. In this state of mind, he was impaired in regulating mood and appreciation for the risk to the victim.
Dr Rodriguez also considered the possibility that the offender suffered from other disorders, including complex post traumatic stress disorder, but I find it unnecessary to express any conclusion about that for present purposes. He did note, and I agree, that the offender "does not present with criminogenic tendencies or a history of a criminal lifestyle", his last offence being in 2004.
Dr Rodriguez noted the offender's report that in the earlier period of his incarceration there had been "suicidal periods", and he had continuing nightmares about stabbing Ms Nahu. The doctor felt that his mental health had been "significantly affected by incarceration" and he had experienced "an apparent exacerbation of anxiety and depression". He warned of the risk of further suicidal ideation.
Dr Rodriguez recommended that the offender be promptly referred to a psychiatrist within Justice Health to review his medication and provide ongoing treatment. He also reported that he requires long term psychotherapy, and that his treatment should be informed by neuroimaging and neuropsychological assessment. Finally, he considered that he needed treatment for cannabis dependence and would need to abstain from all substances for any treatment to be effective.
Annexed to the offender's affidavit is his handwritten statement expressing heartfelt contrition for the offence and acknowledging the distress it has caused to Ms Nahu's family, to the children of their relationship, and to his own family. In her affidavit, his sister attests to his clearly demonstrated remorse.

Victim Impact Statement

I received a victim impact statement from Ms Nahu's brother, Pepe Nahu-Roberts. Via videolink Mr Nahu-Roberts read the statement to the court. He was visibly distressed as he did so, and it could not have been an easy task. The statement was an eloquent expression of the grief and outrage experienced by him and his family at Ms Nahu's violent and untimely death, and the enduring effects this tragedy has had upon all of them, including the two children. In the sentence proceedings I expressed my deepest sympathy to the family, and I do so again now.
My task in sentencing the offender involves the balancing of a number of factors, some of them pointing in different directions, and I am well aware that nothing this court can do could assuage their pain.

Issues

In deciding the appropriate course in this tragic case, I have been assisted by measured and responsible submissions from both the Crown prosecutor and counsel for the offender, Ms Jowitt.
In assessing the objective gravity of this murder, I must have regard to the fact that it involved the use of a weapon and was committed in the home of the victim, Ms Nahu. Most importantly, it is an offence of domestic violence engendered, as offences of its kind so often are, by jealously and a sense of rejection. Domestic violence, particularly of this order, is rightly a matter of grave concern in the community and sentencing for offences of this kind invariably requires an appropriate measure of denunciation and deterrence, both specific and general.
That said, this offence was clearly unplanned and, indeed, impulsive. It involved one deliberate act of stabbing, albeit with considerable force. It is unclear how the other lesser injuries were occasioned, but I am not satisfied that they were deliberately inflicted by the offender. I accept his assertion that he did not intend to kill Ms Nahu, but by his plea of guilty he admits an intention, albeit formed spontaneously, to cause her really serious bodily injury. It is clear that he immediately regretted what he had done and sought to obtain medical assistance for Ms Nahu. The stabbing stands as an isolated incident in a long relationship in which there is no suggestion of any prior abuse by the offender, physical or emotional.
Homicidal domestic violence is inherently serious. However, it was the position of both counsel that this offence falls below the mid range of objective gravity of offences of its kind. This is clearly so.
While the offence was a reaction to feelings of jealousy and rejection, the offender's behaviour must be evaluated in the light of his background and, particularly, the long standing psychological effects of his experience of abuse, physical, emotional and sexual. I accept that the mental condition identified by Dr Rodriguez had a part to play in the offence. In accordance with established authority, this reduces his moral culpability to some extent, as it does the need for the sentence to reflect considerations of deterrence. Specific deterrence is not a major factor here, but general deterrence remains of importance.
I am satisfied that the offender is genuinely remorseful, that remorse being demonstrated at the time of the offence and ever since. He has accepted full responsibility for his crime. I take into account his troubled background. I note his advanced age and the lack of any significant criminal history. I am satisfied that he has good prospects of rehabilitation, particularly if he undergoes the treatment recommended by Dr Rodriguez. With that assistance I think it most unlikely that he would reoffend in this way.
His plea of guilty, entered in the Local Court, is of considerable utilitarian value and, under the current statutory regime, entitles him to a 25% reduction of the sentence otherwise appropriate.
Ms Jowett submitted that I would find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. I shall not take that course. The application of the statutory proportion to the sentence I have determined would leave a substantial period of parole eligibility, and no lesser non-parole period would be sufficient to reflect the offender's criminality.

Sentence

Ms Jowett provided me with a number of sentencing decisions of members of this court in cases of murder in the domestic context. She did so acknowledging that each case turns on its own facts and they could be of limited assistance only. There is no need to set them out here, but I have had regard to them.
I have decided that the appropriate starting point of sentence, putting aside the plea of guilty, is imprisonment for 23 years. A 25% reduction of that term in recognition of the plea of guilty leads to a sentence of 17 years and 3 months. The appropriate non-parole period, applying the statutory proportion (and rounded off), is 13 years. The sentence will commence on the date of the offence and of the offender's arrest, 11 October 2018.
James Fredes, for the murder of Erana Nahu, you are sentenced to a non-parole period of 13 years, commencing on 11 October 2018 and expiring on 10 October 2031, and a balance of term of 4 years and 3 months, commencing on 11 October 2031 and expiring on 10 January 2036. You will be eligible for release on parole on 11 October 2031.

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. Decision last updated: 01 October 2020

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