[2005] HCA 25
McDowall v R [2019] NSWCCA 29
Muldrock v The Queen (2011) 244 CLR 120
Source
Original judgment source is linked above.
Catchwords
[2005] HCA 25
McDowall v R [2019] NSWCCA 29
Muldrock v The Queen (2011) 244 CLR 120
Judgment (15 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)
File Number(s): 2017/370100
[2]
REMARKS ON SENTENCE
HIS HONOUR: On 12 October 2018, Ethan Corey Harwood ("the offender") entered a plea of guilty to a charge in the Penrith Local Court that he, on 2 December 2017, at South Penrith in the State of New South Wales, murdered Pauline Farrugia ("the deceased").
There was a Statement of Agreed Facts before the Court. At the outset of those agreed facts, the circumstances of the offence were briefly described.
Sometime after 6pm on Saturday, 2 December 2017, the deceased was stabbed to death at her home on Chesterfield Road, South Penrith. She was killed by her grandson, the offender.
The offender was born on 7 November 1998 and had just turned 19 at the time of the offence. He was arrested on 7 December 2017 and charged with murder. He has been in custody bail refused on this charge from that date.
In arriving at the offender's sentence, the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") must be borne in mind.
The offender's sentence must be determined having regard to the maximum penalty for the offence with which he has been convicted. The maximum sentence for the crime of murder is imprisonment for life (s 19A of the Crimes Act 1900 (NSW)).
The Court may nonetheless impose a sentence of imprisonment for a specified term pursuant to s 21(1) of the Sentencing Act. That course may not be taken if the Court is satisfied that the level of culpability in the circumstances of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be only met through "a sentence of life imprisonment" (s 61(1) of the Sentencing Act).
In SW v R [2013] NSWCCA 103, Hall and Davies JJ stated at [149]:
[149] In R v Harris Wood CJ at CL (with whom Giles JA and James J agreed) said:
[84] The features required for qualification in the "worst case category" were defined in R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) where it was said (at 7):
"... in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed) ..."
(In The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]-[20], reference was made to the term "so grave as to warrant the maximum prescribed penalty").
It is for the Crown to establish that an offence falls within s 61(1) of the Sentencing Act. It did not seek to do so in this case and, in fact, submitted that this was not a case where the penalty of life imprisonment was appropriate. I accept that submission, notwithstanding the objective seriousness of the offence, having regard to factors mitigating the seriousness of the offence reducing the offender's moral culpability, the plea of guilty, the demonstration of remorse and no criminal history of the offender and will impose a finite term. I will not, therefore, impose the maximum sentence.
The standard non-parole period prescribed for the offence is 20 years imprisonment: s 54A(2) and Pt 4 Div 1A Table of the Sentencing Act.
In accordance with s 54A of the Sentencing Act, the seriousness of the offender's offence must be assessed by taking into account only the objective factors established on the evidence affecting its relative seriousness. The objective seriousness of the offender's offence was in issue between the parties.
The gravity of the offence must be viewed objectively. The maximum sentence fixed defines the limits of sentence for the most serious class of case: R v Dodd (1991) 57 A Crim R 349 at 354, adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at 556.
In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian"), the High Court stated (per Gleeson CJ, Gummow, Hayne and Callinan JJ) as follows (at [31]):
[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock") and as is provided in s 54B of the Sentencing Act.
The offender's moral culpability for his offence must also be taken into account.
In sentencing, the Court must also consider the aggravating and mitigating factors specified in s 21A of the Sentencing Act revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offender's offence, must also be taken into account.
Questions of general and specific deterrence must also be considered.
Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court discussed in Markarian at [51]. That requires that all of the factors relevant in the offender's case be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offence made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15].
Before considering the circumstances of the offence and the offender, it is appropriate to make reference to the victim impact statements of the daughters of the deceased, Nichole Reid and Sandra Hadden.
The victim impact statements came before the Court on application by the Crown, without objection by the offender, pursuant to ss 30A and 30B of the Sentencing Act.
Section 3A(g) of the Sentencing Act provides that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community".
The victim impact statements "give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way" when the court is taking into account one of the purposes of sentencing, "which is to recognise the harm done to the victim of the crime and the community" (R v Halloun [2014] NSWSC 1705 at [46] (per McCallum J), cited with approval in Sumpton v R [2016] NSWCCA 162 at [153] (per Hoeben CJ at CL, with whom Hall and Bellew JJ agreed)).
When viewed in terms of the relevant principles, the Court is satisfied in this case that the effect on the immediate family is also an aspect of harm done to the community.
The Court acknowledges the understandable statements of grief that have been expressed by the family and the continuing impact that the murder has had upon them. The effect on each of the members of the family differs but it is substantial and ongoing.
Ms Hadden stated:
I don't think I will ever have closure over mums murder as I don't know what happened that night. Each night different scenarios play out in my mind searching for an answer but nothing makes any sense to me.
…
My heart breaks seeing the pain that my children are going through and there is nothing I can do to make the hurt go away. They loved their Nanna and are in disbelief at what has happened.
Ms Reid stated:
There are now two sides of me. The one who lives in make believe, where none of this has happened, so that I can get through life. The other side of me is frozen in time, shocked and feeling shattered and broken. I am constantly in tears trying to deal with this. I feel guilty for not being there when my Mum need me most. The thought of my mum now brings me to tears because she didn't deserve to have her life end this way. My mum was still really healthy for 67 - she was active and walked a lot to keep fit and mobile. She was happy, she loved playing bingo and the friends she made, she loved traveling and was always looking to see what places she could visit next. Mum was happy and enjoying her life.
All murders are examples of a very serious offence. Nonetheless, whilst it may be difficult for the deceased's surviving family members to accept that this murder should be categorised in seriousness relative to other murders on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.
The Agreed Statement of Facts describes in some detail the background events immediately prior to the offence, the offence and the aftermath.
The offender also gave evidence at the sentencing hearing. The Crown submitted that the offender admitted he had told lies to police and psychiatrists who interviewed him with a view to making a report and that accordingly the Court should have a guarded approach to accepting "everything the offender" has told the Court and psychiatrists. The Crown submitted that the Court should bear in mind that the lies continued over some period of time and included taking drugs, namely, methylamphetamine. The Crown contended this reservation should extend to the offender's account as to the reason he went to his grandmother's house including his dislike of her.
There is some force in the Crown submission, particularly in circumstances where the offender previously lied about his knowledge and participation in the crime. However, having closely observed the offender in giving his evidence under oath, I am of the view that his account may be accepted. In particular, I accept that he did seek to purge his conceded previous lying, a process earlier commenced with Mr Sheehan, a psychologist who prepared a report concerning the offender, in order to accept responsibility for his wrongdoing and as an act of contrition. What follows is predicated upon the Agreed Statement of Facts, supplemented (without any real inconsistencies) by the evidence of the offender.
On 1 December 2017, the offender drove from his mother's house in a small town of Nhill in rural Victoria to his Aunt Josephine's home in Werrington County, on route to visit his grandfather, who lived in Forster, NSW. The offender spent the night at his aunt's home, as his uncle Phillip was having a party the next day to celebrate the move out of his home in Cambridge Park. The offender was not aware of this party before arriving at his aunt's home. He had not known his aunt growing up and had only met her after he commenced living with his mother.
On 2 December 2017, Aunt Josephine drove the offender to his Uncle Phillip's (Aunt Josephine's brother) house. The offender had left his car parked out the front of his Aunt Josephine's home. Aunt Josephine returned home, and the offender stayed at Uncle Phillip's house to help set up for the BBQ.
Uncle Phillip had invited family and close friends to the party, including his wife, Agatha's, family. Aunt Josephine and her family returned to the party later that afternoon.
The offender started to drink from lunch time. He drank beer, and later moved on to drinking bourbon then scotch. He became noticeably intoxicated by late afternoon. He started to speak loudly and swear in front of the other guests.
At about 6pm, Agatha's family left the party. Uncle Phillip told the offender that they had left because the offender was being loud and was swearing. This was not in fact true, but Uncle Phillip said this to the offender trying to "stir" him, but later told him he was just mucking around. The offender did not believe him.
The offender was seen by his Aunt Josephine to be upset by Uncle Phillip's joke about his in-laws leaving. She indicated that Agatha's family had not left because of him but the offender thought she was just "being nice". The offender continued to drink alcohol. At one point the offender's cousin placed chilli in the offender's bourbon, and the offender was "egged on" to drink it by family members. After he drank some of the drink, his Aunt Josephine took it off him as she was concerned that the chilli was too hot
At some point the offender took himself off to the toilet. Aunt Josephine went looking for him and found him in the toilet crying. He was on the phone to his mother, Tessie Spencer. Much of what he said was incoherent, however Josephine heard the offender tell his mother that "I wish I had never been born". She also heard him say that he had told his mother "too much". His mother had hung up on him. The offender told Aunt Josephine that when he was young and said "no" to his grandmother, she would hit him. Aunt Josephine consoled him and said that her mother had done the same thing to her, and that the offender was not alone. The offender told her that he wished he "hadn't been born". He was distressed.
At some point, Uncle Phillip came into the bathroom. His observation was that the offender was extremely intoxicated and could barely walk. The offender was crying. Uncle Phillip gave the offender a cup of coffee. The offender drank some but then started to vomit. Aunt Josephine took the coffee cup off him as it was still very hot. The offender asked his aunt to leave while he was vomiting. She left the bathroom, leaving the offender alone. A short time later she saw the offender running across the backyard and scale the back fence. Aunt Josephine yelled out asking where he was going, and the offender replied, "Somewhere".
The offender did not return to the house. Both Uncle Phillip and Aunt Josephine got into their cars and went looking for the offender, but could not find him. The offender had left his phone behind at Uncle Phillip's house.
The next morning Aunt Josephine filed a missing person's report with police, as her nephew had not returned and his car was still parked in front of her house, and she was concerned about the offender's mental state when he left Uncle Phillip's house the night before.
After leaving his uncle's house in Cambridge Park, the offender made his way to his grandmother's house in South Penrith by hitchhiking. It was approximately 4.5 km away. He gained entry to the house by being let in by his grandmother after he rang the doorbell. The offender had told police he had earlier smoked "ice" - which was a lie.
The offender's evidence of what actually happened that evening was as follows:
1. He went to the deceased's house to talk to her, not hurt her. He wanted to resolve whether the deceased had manipulated his mother to leave him. The Crown contended that similar statements had been made by the offender to Mr Sheehan, psychologist, and Dr Furst, forensic psychiatrist, who issued reports concerning the offender to which I shall return. The Crown submitted that it was difficult to accept that account given the background of animosity the offender had towards the deceased. He had said to police that the deceased had lied to him. Dr Furst referred to years of "emotional abuse" the offender had explained had occurred at the hands of the deceased and that he had an irrational and extreme anger towards her at the time he stabbed her repeatedly.
2. There was, no doubt, a history of resentment fuelled by his mother's assertions as to the cause of his abandonment being his grandmother. However, the applicant denied he hated his grandmother. I do not consider his conduct of the evening, as he deposed, in heading to the grandmother's house constituted a desire to hurt her but rather to have it out with her about the true account of the separation from his mother. Notwithstanding the kind of violence involved in the offence, he did not have a history of violence. Nor was it suggested in the victim impact statements that he had displayed such tendencies.
3. The stabbing was an impulsive, if not explosive, event and, as Dr Furst stated, was most likely facilitated by the offender's unstable borderline personality disorder and high level of intoxication.
4. The deceased let the offender in. She hugged and kissed him. She was happy to see him.
5. They sat down to talk and discussed things the offender had missed and holidays. The deceased offered to play a DVD featuring the offender. Things were going well.
6. The deceased gave the offender wine. By that stage he was "very very drunk". He had already consumed 10 to 20 drinks.
7. After the offender mentioned going to his Uncle Phillip's BBQ, circumstances changed. The deceased initially asked what Uncle Phillip had done but then stated she "did not care" and according to the offender "yelled" at him for leaving. She said he was "ungrateful" and she had been right that he would "never amount to anything". The discussion progressed from the lounge room to the kitchen. The deceased said that the offender's mother had turned the offender against her and that she would not let him go back to "that woman".
8. The offender felt "trapped", angry and upset. He felt torn between two sides and "the walls were caving in".
9. He then stabbed the deceased multiple times using more than one knife.
The deceased died from the stab wounds inflicted by the offender.
The offender left the house, driving away in the deceased's red Subaru Impreza. The offender left his wallet behind on the stove top in the kitchen. The stove and oven were left on, and the offender's wallet was burnt, as was food found in the oven.
The offender had removed a smoke detector from the hallway ceiling and placed it in another room. His DNA was later located on the smoke detector. He left a pair of white socks unravelled in the bathroom. They were also later matched to him by DNA analysis. His DNA was also later identified from swabs of the following items:
1. From a blood stain in the main bedroom on a built in wardrobe. The DNA recovered was not a mixture.
2. From a blood stain in the third bedroom on a built in wardrobe. The DNA recovered was not a mixture.
3. From a blood stain in the main bedroom. The DNA recovered was not a mixture.
4. From a blood stain in the hallway on the door of the linen press. The DNA recovered was not a mixture.
5. From a blood stain on a light switch in the main bathroom. The DNA recovered was not a mixture.
6. From a blood stain on a light switch in the laundry. The DNA recovered was not a mixture.
7. From a blood stain on a light switch in a second bedroom. The DNA recovered was not a mixture.
8. From a blood stain on a light switch in a third bedroom. The DNA recovered was not a mixture.
9. From a trace swab taken from each of two stove knobs. A mixture of DNA was recovered. The offender could not be excluded as a major contributor to the mixture.
10. From a blood stain on the edge of the keypad on a safe located within the house. The DNA was not a mixture. Also from swabs of blood from the bottom of the safe and the rear of the safe. Neither of those DNA samples was a mixture. The offender stated that the safe was in his former bedroom and that he had not sought money.
11. From a swab of blood from a knife handle. The DNA recovered was a mixture. The offender and the deceased could not be excluded as contributors.
12. From trace swabs of a mask that was left in the lounge room.
After leaving the house the offender was seen driving his grandmother's car in Warragamba, a suburb about 30 minutes south of the deceased's house. He tail-gated another car, with his high beams on. The passenger of that car tried to confront him, and later wrote down the car's number plate details.
The offender then drove the car to the Penrith CBD, arriving just after midnight on 3 December 2017. He parked the car in the Sopher Street car park. The car's arrival in the car park was captured on CCTV.
His movements after that point were recorded on various CCTV cameras. He is seen wearing the same clothes that he wore at his Uncle Phillip's party, however was barefooted.
He was sighted on CCTV footage at various locations, including at Southern Cross Railway Station in Melbourne early on 4 December 2017.
The offender arrived at his mother's home shortly before 3pm on 4 December 2017. Up until that point, the offender had made no contact with his family, and was listed as missing by NSW Police. His mother contacted her sister, Sandra, by phone to let her know that the offender was with her.
The offender was arrested by Victorian Police on 7 December 2017. He participated in an electronically recorded interview with police after his arrest. During the interview he told police the following:
1. He travelled up to Sydney by car as he was intending to drive to his grandfather's house in Forster.
2. He stayed overnight at his Aunt Josephine's house so he could attend a "going away party" for his uncle Phillip's house. He left his car at his Aunt's house when he went to the party the following day.
3. At the party he had probably 10 beers, a few Jim Beams, a few Scotches and a "shot" with his Uncle.
4. His uncle told him that "Agatha's family" had left the party because of him. He felt like no-one loved him and that he was depressed and wanted to kill himself, so he ended up running away.
5. He met some guy close to Kingswood Railway Station and had purchased some crystallised substance that he thought was "ice". He smoked it with the man and then blacked out.
6. He used the substance to give him courage and he planned to jump in front of a train or something. Instead he blacked out and woke up on a train.
7. He decided to go home to his mother's house in Victoria as he had lost his wallet and phone. He still had some cash on him however. He went to Central Station and purchased a train ticket to Nhill, Victoria.
8. He did not contact his family as he did not have his phone, and had not memorised their phone numbers.
9. He was told by his mother that his grandmother had been murdered. He denied knowing anything about her death.
10. He told police that he had not spoken to his grandmother for a year, "We had a falling out. She always used to lie to me and all that".
11. At the party he was crying in the bathroom, after Phillip told him his in-laws had left the party. The offender said he was really upset about this. "I was really upset about a lot of things in my life and all that... How I was treated growing up and all that".
12. He later referred to "physiological abuse" by his grandmother. When asked to explain that he said, "Like, always told I'm worthless and not good enough and stupid and all of that".
13. Later he said, "I think I felt like no-one loved me and all that and like, I don't know. It just comes up when I'm drunk".
The post-mortem findings were as follows:
1. Multiple sharp force stab wounds were present on the surface of the body with injuries to the scalp, anterior chest and left arm.
2. There was a minimum of 45 stab wounds to the torso with a large cluster to the right side of the back. There were 6 stab wounds to the head and neck. There were 5 stab wounds to the left arm.
3. The cause of death was multiple sharp force (stab wound) injuries.
[3]
Objective Seriousness
In GG v R [2018] NSWCCA 280, Schmidt J (with whom Fagan J agreed) made the following remarks regarding the assessment of the objective seriousness of the offence (at [60]):
[60] As discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27], the objective seriousness of an offence has to be assessed without reference to matters personal to the offender or a particular class of offenders and "wholly by reference to the nature of the offending". Objective seriousness must also be determined "without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case": at [31].
In BM v R [2019] NSWCCA 223, the Court stated (at [15]):
[15] In Tepania v R [2018] NSWCCA 247 at [112], Johnson J (with whom Payne JA and Simpson AJA agreed) explained that, in determining the objective seriousness of an offence, regard may be had to factors personal to the offender that are causally connected with, or materially contributed to, the commission of the offences, including (if it be the case) a mental disorder or mental impairment.
The state of mind in which a murder is committed is directly relevant to the assessment of the objective seriousness of the crime: Charbaji v R [2019] NSWCCA 28 ("Charbaji") at [180] (per Beazley P, Price and Wilson JJ); Apps v R [2006] NSWCCA 290 ("Apps") at [5] (per Hunt J) and [49] (per Simpson J).
Counsel for the offender accepted that the attack on the deceased was vicious and sustained and thereby properly conceded that the attack must have been accompanied by an intent to kill.
I accept the submission of the offender that the intent was formed shortly before the death of the deceased and the attack did not involve any degree of planning, sophistication, or premeditation, but rather bore all the hallmarks of a sudden, impulsive assault, accompanied by a catastrophic loss of control, by an immature, isolated and emotionally conflicted young man. Counsel for the offender raised various factors giving rise to a lack of "ordinary impulse control" and "self-control" all of which I will have regard to, as conceded by counsel, in dealing with the moral culpability of the offender and deterrence.
The ferocity of the attack, the level of violence and the use of a weapon or weapons increases the objective seriousness of the offence.
The Crown contended that the offence was at the mid-range of seriousness because there was no causal connection between the mental condition and the offence. The offender submitted the offence was below the mid-range of objective seriousness.
In all the circumstances, I consider the murder to be an objectively serious example of the offence of murder. It is unnecessary to place the objective serious of the offence in a range: McDowall v R [2019] NSWCCA 29 at [35]-[37] (per Adamson J, with Hoeben CJ at CL and Schmidt J agreeing). Nonetheless, I consider this offence to be slightly below the mid-range.
The knives used by the offender were weapons. As the use of a weapon is not an element of the offence, this factor excites consideration of whether the use of the knives was an aggravating factor for the purposes of s 21A(2)(c) of the Sentencing Act. I accept the submission of counsel for the Crown that the use of the a weapon is an aggravating factor but diminished in its significance because the nature of the weapon and the circumstances of its use play an important part in finding there was an intention to kill and indicate the significant objective gravity of the offending.
A further aggravating factor is that the deceased was killed in her house (s 21A(2)(eb)). This aggravating feature applies even though the offender was a relative welcomed into the home: Johnson v R [2016] NSWCCA 286.
The Crown properly conceded that a factor in mitigation, pursuant to s 21A(3)(e), was that the offender had no record of previous convictions.
I will find below that the offender pleaded guilty at the first available opportunity.
[4]
Antecedents
I turn then to the offender's antecedents.
The deceased was the mother of 5 children with her then husband Nicholas Farrugia.
In order of birth they are Sandra Hadden, Josephine Farrugia, Nicole Reid, Phillip Farrugia and Tessie Spencer. There was an 11 year age gap between the oldest and youngest child.
The offender was born on 7 November 1998, the first child of Ms Spencer. At the time of his birth, Ms Spencer was 17 years old. She was living with her defacto partner at the time of the offender's birth, but, due to domestic violence in that relationship, she moved in with her parents when the offender was three weeks old. The offender has not met his father.
Ms Spencer's relationship with her mother was difficult, and she left her parent's home when the offender was still an infant, leaving the offender with his grandparents. The offender lived with both grandparents until about 2008 when they separated, and later divorced. The offender described how the relationship was poor and they were always arguing. The offender remained living with his grandmother. After moving house a number of times, the offender and the deceased moved into the house at Chesterfield Road, South Penrith.
Before the offender moved to live with his mother in Victoria, the periods in which the offender had contact with his mother were intermittent. At one stage she lived nearby and contact was more regular but she would often leave unannounced.
The offender left High School during year 11, and commenced a carpentry apprenticeship. He left after less than a year due to being bullied at work (about which his grandmother was unsympathetic). He was unable to find other work after that. His social life out of school was limited to cousins and aunts. He had no close friends.
In July 2016, a few months after ending his apprenticeship, the offender bought a car. That same day he left the deceased's house and drove to his mother's house in Victoria. He did not say goodbye to the deceased, but left a note in the house, telling the deceased that he was leaving.
The offender did not speak to the deceased again after leaving her house.
The deceased was estranged from her son Phillip and daughter Josephine. Neither of them had spoken to their mother for many years before her death, notwithstanding that they lived a few kilometres from her house in South Penrith.
The deceased did, however, have a good relationship with her daughters, Sandra and Nicole. They regularly visited their mother at her home. Nicole had been close to the offender while he lived with the deceased, including teaching him how to drive.
The offender also spent time with his Aunt Sandra, and her family. Sandra had a son a year younger than the offender. The offender and the deceased travelled with Sandra and her family to the USA for a holiday in 2011. So far as Nicole and Sandra could see, the offender had a good relationship with the deceased until he moved away in 2016.
The offender's relationship with the deceased was at times strained. She would blame the offender for her husband leaving, refer to him as worthless or describe his mother in adverse terms.
The offender told police in his ERISP and Mr Sheehan and Dr Furst that the deceased was emotionally abusive. He described this to Mr Sheehan, stating:
She is constantly yelling at me for nothing. She blames me for everything that goes wrong. She would always blame me for why the family split up and said I ruined her life. She always calls me pathetic, useless, lazy piece of shit.
The offender contrasts this with occasions when the deceased was loving and attentive, with the result that his attachment to the deceased was insecure. Whether the offender's description of his relationship with the deceased is accurate or a function of his borderline personality disorder is not, on the offender's submission, a matter the Court needs to resolve given the submissions made as to moral culpability. Nor does it serve to detract from the tragic events of that evening; the deceased was the victim of a violent and impulsive crime. It is clear from the evidence that the deceased was a complex personality and whilst her relationship with the offender had elements of friction or hostility at times, there were also elements of compassion and love.
In that mix, one point of significant concern to the offender was the version given by his mother as to him being left with his grandparents, namely, his mother's statement that he had been abandoned because "nan had manipulated the [mother] to".
[5]
Moral Culpability
I turn to the question of moral culpability.
Dr Furst issued two reports dated 23 September and 8 November 2019, respectively.
Dr Furst referred to the offender's sense of abandonment. He referred to an earlier report of Dr Nielssen in 2018, who diagnosed the offender with a "depressive illness".
Dr Furst diagnosed the offender with a borderline personality disorder and alcohol use disorder. The diagnosis of borderline personality disorder was made on the basis of the offender's background of poor coping skills, recurrent depression, mood swings, feelings of emptiness, a fear of abandonment and repetitive self-harming since he was 15 years of age.
Borderline personality disorder was characterised by Dr Furst as follows:
People with Borderline Personality Disorder often have a history of trauma and emotional difficulties in their childhood and early adult life, including chronic feelings of emptiness, not caring about life, and periods where they feel numb alternating with anger, sadness, urges to self-harm and suicide attempts. However, the pervasive nature of these symptoms and lack of biological or melancholic features are usually more suggestive of the mood-swings and emotional problems seen in borderline personality disorder rather than major depressive illness or a more serious mental illness such as bipolar disorder or schizophrenia.
Borderline personality disorder is a personality disorder characterised by functional impairment in interpersonal relationships, perceptions, depth and variability of moods, feelings of emptiness, fear of abandonment, self-harming behaviour, reckless and self-destructive behaviour.
The disorder is to be distinguished from an antisocial personality disorder which is associated with persons who have a pervasive pattern of disregard for and violation of the rights of others.
Dr Furst opined:
…In my opinion, Mr Harwood's borderline personality disorder, cognitive distortions about his grandmother and his tendency to blame her and demonise her likely led to his irrational and extreme anger towards her when he stabbed her to death, emotions and behaviour that was also fuelled by his high level of intoxication at the time.
Dr Furst stated that the offender's prognosis is "difficult to gauge at [this] stage" as his primary mental disorder relates to borderline personality disorder and "associated depression and anxiety". He opined the principal risk was self-harm or suicide.
Whilst predictions of re-offending on release were difficult, given that involved a risk prediction many years ahead of his potential release from custody, there were a number of reassuring factors such as the absence of major mental illness, the absence of a previous history of conduct disorder or violent offending and an acceptance of guilt.
As to treatment, Dr Furst opined:
The usual approaches to therapy centre on either long-term psychotherapy, or Dialectical Behaviour Therapy (DBT). Medication is also used to augment therapy and help control the mood swings and extremes of emotions, such as antidepressants (SSRIs), and the mood-stabilisers such as Epilim. …
Mr Sheehan gave a not dissimilar diagnosis and opined:
… This information does not add a new dimension to Mr Harwood's case, but may be seen to reinforce the formulation of his offence as having been underpinned by a troubled family dynamic that has either generated or aggravated Mr Harwood's feelings of rejection, confusion and inner turmoil, with his personality pathology, depressive illness and intoxication having had the effect of amplifying his poor coping and inability to resolve his situation.
Mr Harwood's full disclosure of his offence is a step towards his rehabilitation, increasing his personal accountability, adding more legitimacy to his expression of remorse and setting a platform for future treatment to address the personal characteristics that contributed to his offence.
The submissions of the offender as to his mental disorder should, in my view, be accepted having regard to the diagnosis by Dr Furst and his opinion. The effect of that opinion was that, whilst not substantially reducing the appropriate penalty, the existence and operation of the disorder should be reflected in a mitigation in penalty because of some reduction in moral culpability. It should also be reflected in a lessening of weight being given to general and specific deterrence: Tepania v R [2018] NSWCCA 247 ("Tepania") at [112] per Johnson J (with whom Payne JA and Simpson AJA agreed).
I turn then to the further consideration of the youth of the offender.
At the time of the offence the offender had just turned 19 years old. He had no prior criminal history, or any history of interpersonal violence.
As noted above, whilst his upbringing had the superficial hallmarks of stability, with his general needs met, I accept the submission of counsel for the offender, the reality was more complex. His parents separated due to domestic violence. He was left in the care of his grandmother as an infant. His mother was an intermittent, and to that extent disruptive presence in his life, as she would frequently come into his life, and then leave without warning. His grandparents separated when he was about 9 years old. On occasions his grandmother would blame the offender for that divorce. The relationship between the offender and his grandmother was, as I have described, variable and resulted in insecurity and conflict although some parts of the offender's description of this problem may well have been a product of his borderline personality disorder.
The reasons for his abandonment by his mother and father were the subject of constant conflict between his mother and grandmother, and increasingly so in the lead up to the offence.
The accused engaged in self-harming behaviour as a teenager, and gave a history consistent with a major depressive disorder. He appeared to have limited social contacts and no intimate or long-term friends or girlfriends. To that extent he appears to be socially isolated, which no doubt increases his vulnerability.
The offender's background and youth made it more difficult for the offender to deal with conflict, the reasons for his abandonment and his relationship with the deceased. The background was confusing for a young man and exacerbated by the intermittent and conflict oriented involvement of his mother and his disorder. I accept the submissions of counsel for the offender that, in the context of the impulsive nature of the act, its aberrant nature, the offender's emotional distress and a lack of planning, the offender's youth should be taken into account in the manner: R v Hearne (2001) 124 A Crim R [2001] NSWCCA 37 at [23]-[24] (per Powell JA, Hulme and Dowd JJ).
In the circumstances of this matter, I consider the offender's youth at the time of the commission of the offence reduced his moral culpability and the weight given to retribution and general deterrence: BP v R [2010] NSWCCA 159 at [3]-[5] (per Hodgson JA).
The offender was heavily intoxicated on the evening of the offence having been provided with a large quantity of alcohol at a family function. Self-induced intoxication may not be taken into account as a mitigating factor having regard to s 21A(5AA) of the Sentencing Act: see R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 at [220] (per Bathurst CJ, Johnson and R A Hulme JJ) and Tepania at [124] and [127] (per Johnson J, with whom Payne JA and Simpson AJA agreed).
Nonetheless, intoxication may partly explain why the offender "lost self-control" and committed the offence.
[6]
Plea
The offender pleaded guilty to murder in the Local Court on 12 October 2018. There was no dispute by the Crown that the plea was entered at the earliest possible time or that a discount of 25% should be applied. I have applied a 25% discount.
[7]
Remorse
It was submitted by the offender that he had shown contrition and remorse and acceptance of responsibility for his actions and the harm he has caused and a desire to atone for his offending.
The offender gave sworn evidence of his contrition and remorse and acceptance of responsibility.
In my view, the offender has shown that he has accepted responsibility for his actions. He has shown remorse and contrition for his actions and in particular the injury and loss caused by his actions. These are mitigating factors in this matter.
[8]
Protection of Community
The Crown submitted:
Dr FURST in his report at page 7 opines that the Offender meets the criteria for the diagnosis of the mental disorders of Borderline personality disorder, Alcohol Use Disorder (alcohol abuse).
In R v Lawrence [2005] NSWCCA 91, Spigelman CJ at [20] observed that it was well established that the weight to be given to general deterrence is less in the case of an offender suffering from a mental disorder or severe intellectual handicap. The Chief Justice at [22] stated:
[22] … it is unnecessary to analyse further the detail of the psychologist's report which found the Applicant had a comorbidity of Antisocial Personality Disorder and Poly Substance Dependence with Psychological Dependence in a Controlled Environment. These two conditions are apparently to be found in the Diagnostic and Statistical Mental Disorders Manual (4th ed, 2000), generally referred to as DSM(IV). It is by no means clear to me that these particular mental conditions, notwithstanding their acknowledgement in DSM(IV) as mental conditions, are of the character which justify less weight to be given to general deterrence.
Further at [24] the Chief Justice stated:
[24] Weight will need to be given to the protection of the public in any such case. Indeed, one would have thought that element would be of particular weight in the case of a person who is said to have what a psychiatrist may classify as an Antisocial Personality Disorder.
Dr FURST at page 10 of his report states:
His risk of reoffending when release from custody is difficult to gauge at the current time, as this involves a risk prediction many years ahead of his potential release from custody.
I do not accept the Crown's submissions in this respect. My sentence does not attempt to incorporate a Veen No 2 type element concerning the danger the offender may present to the community in the future, many years from now. My reasons for that conclusion are as follows:
1. There are aberrant features to the offence.
2. By contrast to R v Lawrence [2005] NSWCCA 91 at [24] (per Spigelman CJ), the offender was not diagnosed with an antisocial personality disorder by Dr Furst. The offender suffered a borderline personality disorder which was not causally connected to the commission of the offending.
3. This conclusion is also supported by factors which also lead to a conclusion that the offender has, as will be discussed, reasonably good long term prospects of rehabilitation.
4. The age of the offender permits further maturation over the years, which makes a finding of future dangerousness problematic.
[9]
Rehabilitation
My reasons as to why the offender has reasonably good prospects of rehabilitation may be shortly stated. First, there is no evidence to suggest that the offender is generally a violent person. The behaviour at the time of the offence was aberrant in nature, particularly when compared to the offender's generally good character.
Some underlying factors which contributed to his behaviour, such as the offender's struggle with abandonment issues, his mental condition, his youth and immaturity and the stressors put on him by the dispute between his birth mother and grandmother, are matters that will likely resolve with the passage of time, and with the assistance of appropriate psychiatric treatment and counselling.
Dr Furst referred to the "reassuring factors" of an absence of a previous history of conduct disorder or a major mental illness.
Further, his recent willingness to confront his actions and acceptance of responsibility for his offending suggest insight into his behaviour and, as Mr Sheehan opined, increased his personal accountability, which, in turn, improves his prospects of rehabilitation.
[10]
Onerous Custody
As a result of the publicity generated by his offence, Corrective Services recommended that the offender be placed in a non-association (segregation) cell for his safety. He has remained in a non-association cell for most of the time since his arrest. This means that he has had no ability to engage in programs, education or work in custody and has had little ability to engage in social interaction with others. In addition, his movements were also substantially restricted, having been confined to his cell for 23 hours a day.
The offender is a young, socially naïve and physically small person. He is a vulnerable person in custody and feels that vulnerability on a daily basis.
However, there has been a shift in circumstances of the offender's custody to "Limited Association" and there have been no actual attacks on or threats to the offender; these considerations are of minor significance.
[11]
General Deterrence
As discussed, I have borne in mind the discussion in BP v R at [5] (per Hodgson JA) that immaturity may lessen general deterrence and observe, in that respect, that the offender was 19 at the time of the commission of the offence
Further the offender's mental disorder may be taken into account as reducing the need for general deterrence, but the moderation is reduced in the circumstances where the offender acts with knowledge of what he is doing and its gravity, as found by Dr Furst with respect to the offender in this case (see R v Wright (1997) 93 A Crim R 48 at 51 (per Hunt CJ at CL)).
Given the violent nature of this offence and its circumstances, I consider that general deterrence must play a role in sentencing but it is greatly reduced by virtue of the factors I have described.
[12]
Special Circumstances
I am conscious of the need to avoid double counting with other factors in sentencing when finding special circumstances and varying the statutory ratio.
This is the offender's first time in custody and he is young. He has relatively good prospects of rehabilitation.
There can be no question that the offender will require close and careful supervision and treatment to readjust to community life, particularly given the need for psychological intervention having regard to his borderline personality disorder.
Further, some allowance should be made as a custodial sentence may weigh more heavily on the offender, having regard to his mental disorder, the circumstances of his custody (having regard to the aforementioned discussion of that topic) and his youth.
As conceded by the Crown, I find special circumstances. I have made a modest downward adjustment, in that respect, mindful of the avoidance of double counting and a non-parole period which adequately reflects the objective gravity of this violent taking of precious human life.
[13]
Other Aspects
In sentencing the offender I have been mindful of the two legislative guideposts of the maximum sentence and the standard non-parole period (Muldrock at [27]) together with factors bearing upon the objective seriousness of the offence and subjective features.
The offender has been in custody since his arrest on 7 December 2017. I have taken into account that pre-sentence custody in sentencing the offender.
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required to advise you, Mr Harwood, of the existence of that Act and of its application to the offence with which you have been convicted.
Finally, before passing sentence, I extend my condolences to all those who have suffered as a result of the murder of Pauline Farrugia. Hopefully the conclusion of the proceedings today may provide some measure of relief, although I accept that some of the pain will be unrelenting.
[14]
Imposition of Sentence
Mr Harwood could you please stand.
For the reasons I have given, I now make the following orders:
1. Ethan Corey Harwood, you are convicted of the murder of Pauline Farrugia.
2. I sentence you to imprisonment for a non-parole period of 12 years commencing on 7 December 2017 and expiring on 6 December 2029 and the balance of the term of 4 years and 6 months commencing on 7 December 2029 and expiring on 6 June 2034.
Thus, you will be eligible for release on parole at the expiry of the non-parole period on 6 December 2029.
[15]
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Decision last updated: 29 November 2019