R v Pfitzner

CATCHWORDS : CRIMINAL LAW - sentence - murder - killing of 2 year old child by mother - disposal of body in a pond

LEGISLATION CITED : Children's (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999

CASES CITED : R v PJS [2009] NSWSC 153 R v BW & SW (No 3) [2009] NSWSC 1043

PARTIES : Regina (Crown) Rachel PFITZNER (Offender)

COUNSEL : Mr M Tedeschi QC with Mr K Alder (Crown) Mr P Winch (Offender)

SOLICITORS : Solicitor for Public Prosecutions Marsdens Law Group

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: Rachel Pfitzner, the offender, has pleaded guilty to the murder of her two year old son, Dean Shillingsworth.

2 I note that the child's name has been published in the media. I can only assume that this is because a "senior available next of kin" has consented to such publication: s 11(4)(d) Children's (Criminal Proceedings) Act 1987. The section otherwise prohibits the publication of anything that would identify the deceased's siblings. In the published version of this judgment they will be identified by initials.

3 The offender was born in 1981. In August 2000 she had a daughter, T. In 2002, at the age of 21, she commenced a relationship with Paul Shillingsworth. The relationship appears to have been a stormy one. It was attended by arguments, alcohol and drug abuse and domestic violence. Dean was born on 25 February 2005.

4 In February 2006, T complained about something that a Mr Michael Campbell had done. The offender and Mr Shillingsworth responded by seriously assaulting him. They were charged by the police and remanded in custody. Officers of the Department of Community Services took Dean and T to live with Ms Ann Coffey, the mother of Paul Shillingsworth, whilst the couple were in custody. Mr Shillingsworth remained in custody and that appears to have marked the end of the relationship. The offender was released after 2 days and came and took the children back. She then lived with them in a refuge in Armidale. Thereafter there was an informal arrangement whereby Ms Coffey cared for Dean for a few days at a time. At some point in early 2006 the offender is said to have told Ms Coffey's partner, Edmund Caban, "I will kill Dean before he goes back with Ann". Notwithstanding this, Ms Coffey still cared for Dean on subsequent occasions and had custody of him on a full-time basis through the latter part of 2006 and in to 2007.

5 The offender commenced a relationship with Mr Clifford Connors around the middle of 2006 although they were not living together. They had a son, B, born in April 2007. At the end of that month the offender moved in to her own house at Rosemeadow. Mr Connors came to live with them a short time later.

6 In March 2007 the offender commenced court proceedings to regain custody of Dean. Ms Coffey opposed this. It was her son's wish that she have custody and be appointed Dean's guardian. However the offender told her Family Support Service caseworker ("the caseworker") that she loved Dean, wanted him back and wanted him to get to know his brother and sister. After a conference with lawyers at the end of May she told the caseworker that she was happy and excited about the prospect of soon being able to have access to Dean. Consent interim orders were made on 4 June 2007 with Ms Coffey having custody and the offender having defined access periods. Again, the offender told the caseworker that she was happy about the prospect of having access.

7 The offender had the care of Dean on the weekend of 9-10 June 2007 and returned him to Ms Coffey at the appointed time. She told the caseworker that it had been a happy occasion, like a big reunion, and that they put on a party for Dean. On 7 July 2007, the next scheduled occasion of access, Ms Coffey delivered Dean to the offender. She was supposed to return him to Ms Coffey at 6.00pm that evening but did not. On 24 July 2007 Ms Coffey commenced proceedings in the Federal Magistrates Court for a recovery order which would empower the police to take Dean from the offender and return him to Ms Coffey. The application was listed for hearing on 28 September.

8 Initially the offender was pleased to have Dean with her. She told the case worker on 16 July 2007 that she had not returned Dean after the last access visit because she "felt emotionally attached to him". On 19 July the case worker observed that Dean appeared well and was reacting well with the offender. On 1 August she observed that the offender was still happy that Dean was with her. He was dressed appropriately, was tidy and well behaved.

9 The situation deteriorated. The offender's parenting in relation to T and B was appropriate but her behaviour towards Dean was quite different. She became resentful of his presence and was critical of his behaviour. She began to think that Dean had been spoiled by his grandparents and was acting out. She told her case worker that she would "get that out of him". She told various people that Dean's behaviour was unreasonably wilful and disobedient. She punished him severely and frequently. She said to one of the neighbours that he was a "little bastard". To another neighbour she described him as "an asshole". She sometimes banished him from the house, forcing him to stay outside in the cold. Dean was often hungry and would forage for food but she punished him for doing so. He was not completely toilet trained but the offender blamed him for that. She said she was sick of cleaning up after him and expected him to clean up any mess that he made. Dean would seek the offender's affection but this would cause her to become angry as she thought he was being overly clingy.

10 The relationship between the offender and Dean became worse as time went on. She told people that he reminded her of his father whom she loathed and feared. Understandably, Dean turned to Mr Connors for affection and this was reciprocated. The offender, however, took exception. She told a friend, Ms Twila Daley, that "he [that is, Dean] is ruining our life".

11 No-one saw the offender punish Dean with anything more than a slap but Mr Connors, the offender's mother, Mrs Beverley Pfitzner, and Ms Daley all observed bruises on his body. Mrs Pfitzner observed this with worsening frequency in the July - October 2007 period. The offender was to later claim to her mother that this was from Dean picking at sores, although she did acknowledge that she slapped him.

12 Mrs Pfitzner described Dean as "looking great" and "a real happy kid" when he returned from being with Ms Coffey but described him as a "nervous wreck" when he was with the offender. Mr Connors described Dean as being terrified of his mother. He said that the offender would hit Dean about three times each day for doing things like wetting himself and eating leftover food. Mr Connors perceived the mistreatment of Dean as being so bad that he considered contacting the Department of Community Services. Ms Daley described Dean as being "so scared of her when she was around that it was not usual". The offender complained to Ms Daley that Dean was "getting worse; he won't listen to me. He gets up at night looking for food and he won't go in the toilet". She also said that she did not look at Dean like he was her son. Neighbours described Dean being locked out of the house and hitting the doors whilst crying and trying to get back inside. He was repeatedly heard to cry out, Mummy, mummy, I am sorry".

13 On 24 September, four days before Ms Coffey's application was listed for hearing in the Federal Magistrates Court, the offender contacted her solicitors and told them that she would comply with any recovery order made by the court. She also withdrew her instructions from those solicitors. She was later to tell the police that this was after she had been told that Paul Shillingsworth had said that when he found her he was going to kill her. She heard this around early to mid September.

14 On 28 September 2007 the application for the recovery order was stood over to 11 October. Between those two dates the offender contacted the Federal Magistrates Court on a number of occasions to advise that she did not want to go back to court and asked when someone would come to collect Dean.

15 On 25 September 2007 the offender told her case worker that she wanted to give Dean back to his grandparents because she was not coping. On 3 October she told her that she did not want to go to court and just wanted her son picked up by the police and taken back to the grandparents. She said that she could not stand Dean because he reminded her of his father and wanted him gone as soon as possible. The caseworker included in her contemporaneous notes, "the sooner the better", because she felt that something was not quite right about the way she saw Dean being treated. The case worker asked if she felt that she may harm Dean in anyway but the offender assured her that she would not. They discussed making contact with the lawyers acting for the grandparents and making arrangements to return Dean to them. The case worker offered to act as an intermediary by taking Dean herself to meet the grandparents when they came to Sydney to collect him. The offender said she would discuss it with her mother before making a decision. 16 Mrs Pfitzner's evidence includes that around this time in a telephone conversation with the offender she said, "If worse comes to worse, I'll take him, he is a good little boy". The offender did not take up the offer.

17 A recovery order was made ex parte in the Federal Magistrates Court on 11 October 2007. That morning the offender walked to the home of Ms Daley with Dean and B. Prior to arriving at Ms Daley's house the offender warned Dean not to eat anything whilst they were there. The offender used Ms Daley's house phone to call the court to inquire whether the recovery order had been made. She was not given any information because of a court policy about giving information over the phone. Ms Daley's brother and her partner brought home some food from McDonalds. It became apparent that Dean was hungry and one of the men gave him a hamburger. The offender came into the room and saw Dean eating and became enraged. She took the food from him and promptly took Dean and B home. Ms Daley observed on this day that Dean had bruises over his face and scratches and bruises on his arms.

18 The offender murdered Dean soon after they arrived home. He died from asphyxiation. She wrapped his body in plastic bags, placed it in a suitcase and then threw it into a duck pond near her home.

19 At about midday the offender returned to Ms Daley's home with T and B. She was crying and told Ms Daley, "I had to do it Twilar, I had to do it". She explained that she had taken Dean to the Campbelltown office of the Department of Community Services and left him there with a note attached.

20 Mr Connors saw that the offender was crying when he arrived home at about 4.00pm. She gave him the same explanation for Dean's absence as she had given Ms Daley. She told a number of other people the same story in the ensuing days. However, she spoke to her case worker on 15 October and told her that everything was going well, Dean had been good and that she was not as stressed and was managing alright.

21 On 17 October 2007 a group of school children discovered the suitcase floating in the pond.

22 In the early part of the police investigation there were difficulties in identifying the child. It was thought that it was a boy of four to seven years of age. Dean, of course, was aged 2 years 8 months.

23 Police attended the offender's home on three occasions in the afternoon and evening of 18 October 2007 to execute the recovery order that had been made in the Federal Magistrates Court the week before. The offender persisted with her story of having dropped Dean off at the Department of Community Services office at Campbelltown. The house was searched but nothing of interest was found.

24 Police interviewed Mr Connors in the early hours of 19 October. They had made inquiries and had discovered that Dean was not in the care of the Department of Community Services and they were concerned to locate him as a matter of urgency. Mr Connors told the officers that when Dean first came to live with the family in July it was all good but he came to notice that the offender was not relating well with him and was mistreating him. He said she treated T and B well but not Dean who came to be terrified of her. He inquired of her a few times what the problem was. He even asked whether Dean was "too black" for her. Mr Connors was unable to assist the police as to Dean's whereabouts because all he knew was what the offender had said about having taken him to the Department of Community Services office.

25 The only evidence concerning what the offender did to kill Dean is that of the forensic pathologist who conducted the post mortem examination of his body and what the offender has said on the topic herself.

26 The forensic pathologist, Dr Dianne Little, was unable to make a definitive finding as to the cause of death. She concluded, however: The pattern of bruising on the face in addition to the laceration of the mucosal surface of the upper lip would be consistent with the type of injuries sustained in suffocation, possibly due to placement of hand/s over the face.

27 The offender was spoken to by police after her arrest on 20 October 2007. She claimed that Dean's death had been "an accident". She said: I shook him. He stopped breathing and I tried resuscitation. I put him in the bag and the suitcase. I just kept seeing his father and couldn't stop myself. I could see myself doing it, but I didn't think it was me. I tried to love him. I've got to live with this for the rest of my life, but the media are portraying it as if it is real evil, but I am going to get punished in my own way.

28 She agreed to be formally interviewed. In that interview she said that after returning from Ms Daley's home she had bad memories coming into her head. All she could see when she looked at Dean was his father. Something came over her and she lost control. She picked Dean up by his jumper and commenced shaking him from side to side. She demonstrated to the interviewing officers a one handed grip in front of the throat. She said that Dean was wearing a thick hooded jumper and jeans. She said that as she was shaking him she thought that he "went into his jumper" and was making a gurgling sound. She shook him for about two minutes and then stopped. She walked a short distance away to collect her thoughts. She said that something then "rushed over me again" and she came back to Dean and commenced shaking him again in the same way. He wet himself as he was gasping for air. She said the two episodes of shaking went for "a few minutes to five minutes". She could not recall how much force she used during the shaking but said, "I must have done enough for what happened". After the second episode she threw or pushed Dean to the ground and he fell on the back of his head and started gurgling. She realised what she had done and performed CPR for about ten minutes. She then put her hand on his heart and felt that it was going "real fast and then it just all, it just stopped 'cause he had all the froth coming from his mouth". She realised that he had died. She said that at no stage had she covered Dean's mouth with anything.

29 The offender said that she undressed Dean because he was wet from having urinated. She took his body upstairs and placed it in a plastic bag before placing it in a suitcase. She put the suitcase in a pram, covered it with a blanket and took it to the duck pond and threw it in. She waited for it to sink before walking home.

30 The offender was charged with Dean's murder and remained in custody.

31 The following day, 21 October 2007, the offender telephoned her mother from gaol. Her mother asked her what she had done to Dean and she said, "I strangled him". Her mother asked her why she had told the police that she shook him but she did not reply.

32 Eleven days later police covertly recorded a conversation between the offender and her mother in the visiting area at the Silverwater Women's Correctional Centre. In the course of that conversation the offender said: I picked him up by his little jumper, I was pulling him, and I pushed him to the ground and like, he was frothing from the, from the mouth ... and then ... his heart, and it stopped, it stopped.

33 Her mother asked if she had been in a rage when she did it and she replied, "I just felt intimidated". She was asked whether she had told the police that she had suffocated Dean and she said, "He never got suffocated … It wasn't suffocating, I choked him". She was asked how and she replied, "It must have been the jumper, 'cause he had the hood on it".

34 She also explained to her mother that she had implored the Federal Magistrates Court to process the recovery order and to come and collect Dean. She said that she had decided against surrendering Dean to the Department of Community Services because that might result in her other children being taken from her.

35 The offender told Dr Olav Nielssen, a psychiatrist engaged by her solicitors: I told him to go out and play ... he wouldn't listen ... then I lost it ... I grabbed him by the shirt and jumper which had a hood and shook him ... the next thing I remember was that he was frothing at the mouth ... I panicked and tried to do resuscitation on him ... I was in a state of shock.

36 She said that she could not remember strangling him or suffocating him.

37 She subsequently told Dr Yvonne Skinner, a psychiatrist who had been engaged by the Crown, that she was, "very frustrated by Dean's behaviour because he was 'clinging' to her and would not go outside to play". However she claimed to not have a clear recollection of the events that led to his death and could not explain how he died. She said she disposed of the body out of panic. When she realised what she had done she became shocked, scared and petrified.

38 Dr Little, the forensic pathologist, was asked about the offender's claim to have shaken the child. She said that Dean's death was not, in her opinion, a result of having been shaken. However she was cross-examined at the committal proceedings in the Local Court. She was taken to two injuries seen on the child's cheek which she had regarded as supporting the proposition that the child had been suffocated. She conceded that she could not say how old those injuries were and that it is possible that they could have been sustained in the attempt to resuscitate the child as the offender had claimed. Although Dr Little maintained that the child was unlikely to have died from having been shaken, she did not contend that this was not in fact the case. A proposition was put to her that Dean had been shaken and at the same time the two sides of the hood of his jumper were pulled together in the vicinity of his neck under the chin and that this may have, in lay terms, choked him. She agreed that it was possible that the death may have been caused by, or substantially contributed to, compression of the neck in the course of these actions. 39 The offender's account given recently to Ms Anna Robilliard, forensic psychologist, was that she was annoyed and irritated by Dean's presence and told him to go away and play. She said that "he just stood there and he wouldn't go". She said she then picked him up by his jumper and proceeded to shake him from side to side. She said she stopped briefly and then repeated her actions. She claimed to Ms Robilliard, "it all happened so quick". She also told Ms Robilliard that she did not intend to kill Dean.

40 Precision as to the mechanism of death is impossible with this material. All that can be said is that Dean died of asphyxiation as a result of the actions of the offender. I will say something more about what she intended later in these reasons.

41 Victim impact statements were made by Mr Paul Shillingsworth and Ms Anne Coffey. Clearly the loss of Dean has been a most painful experience for them and one that will be an emotional burden upon them for the rest of their lives. I reiterate what I said at the sentence hearing, that they, and all of Dean's family and friends, have the condolences of the Court and myself.

42 The offender was born in August 1981 and so she was aged 26 at the time of the offence.

43 She has a criminal history. Her record includes convictions for assaulting and resisting a police officer, damaging property, and making a false accusation with intent to subject another person to an investigation in 2005. For each of those matters she was placed on a 12 month bond. In July 2006 she was ordered to perform community service for a shoplifting offence. On 6 October 2006 she was sentenced to imprisonment for 18 months with a non-parole period of 6 months for the offence of maliciously inflicting grievous bodily harm in company. This related to the incident in which she and Paul Shillingsworth had assaulted Mr Campbell in February 2006. Execution of the sentence was suspended upon the offender entering into a bond to be of good behaviour. The judge took into account that she had been in custody on remand for two days following her arrest and for almost six weeks between a breach of her bail conditions and being sentenced. She was subject to that bond when she killed Dean and that is an aggravating factor I must take into account. The record also includes offences such as assaulting and resisting police officers and receiving stolen property which were dealt with in the Children's Court.

44 The suspended sentence bond was revoked on 19 November 2009 at the Sydney District Court, the breach of the bond being the commission of the crime for which the offender presently stands for sentence. The sentence of 18 months with a non-parole period of 6 months was activated. It was specified to date from 20 October 2007, the date of the offender's arrest for the instant offence, with the non-parole period expiring on 19 April 2008.

45 Although the Crown has submitted that the offender's prior record is one of a number of "aggravating factors", it has not submitted that I should regard it as demonstrating in the offender a continuing attitude of disobedience to the law. The submission was that it disentitles the offender to leniency. I accept that concession as correctly made.

46 Most of the information I have concerning the offender's background is to be found in reports by psychologists and psychiatrists. The offender did not give evidence. I have reports by Ms Robilliard (4 October 2006 and 4 December 2009), Dr Nielssen (12 May 2009), Dr Skinner (20 July 2009) and Dr Wayne Reid (10 September 2009). It is somewhat difficult to get a clear picture of the offender's life as there are inconsistencies in the history she gave to each of the report writers. I largely attribute this to the fact that third parties are relating a long story with varying degrees of detail and it is impossible to determine how accurately the story was told to them and how accurately they have recorded it. This is just one of the problems when an offender does not give evidence in sentence proceedings but relies upon what has been reportedly said to others.

47 The offender was born in Blacktown and she was the eldest of seven children. She grew up in Mt Druitt. Her father worked while her mother operated a small day care centre as well as being the homemaker. She has claimed that her father abused both alcohol and drugs. Her parents' relationship was marked by frequent arguments and she claims that her father was violent towards herself. She felt that her siblings were given more attention than she was and that she was not really supported.

48 Her education was limited. She failed the School Certificate. She claimed that she felt frustrated because she did not understand what was going on in classes and could not concentrate. She fell asleep in class. She felt that her teachers were too hard on her. She would go home, lose her temper and smash up her room. In Year 5 she stabbed a girl with a pencil resulting in serious injury.

49 She experienced petit mal seizures when she was a small child but could recall little detail about medication or treatment that was prescribed. She recalled that a doctor said she would grow out of it.

50 Her parents separated when she was 17 and she claims that she was blamed for the break-up. She left school and home at that age and lived in various youth refuges. She fell pregnant the following year and gave birth to T in August 2000. The father was a man by the name of Faron Blair who she had met in Inverell when visiting friends. Their brief relationship ended when he became aware of the pregnancy.

51 The offender then found accommodation with a woman in Tamworth. That was Ms Anne Coffey. Her son, Paul Shillingsworth, was in gaol at the time but she met him through his mother and they commenced a relationship when he was released in 2004. Their relationship was volatile. She told Ms Robilliard that he was schizophrenic and became violent when affected by alcohol. She told Ms Robilliard in 2006 that she could handle him and that she saw a future in the relationship, notwithstanding he was in custody on remand at that time.

52 She has used cannabis off and on since the age of 17. She sniffed solvents for about a year when she was a teenager. She has occasionally used heroin and amphetamine but not to the point of addiction. She has also abused alcohol at times, particularly during her late teens and in the time of her relationship with Mr Shillingsworth. Whilst in custody she has completed a drug and alcohol course for which she received a certificate.

53 Ms Robilliard concluded in 2006 that the offender had an "entrenched paranoid personality disorder and a highly defended and defensive character". She added that the offender "would be hypervigilant, constantly anticipating negative treatment and negative consequences". Ms Robilliard's first report was written for the purpose of the offender's sentencing hearing in October 2006. One of the needs she identified in the context of future rehabilitation was for the offender to engage in anger management courses.

54 As a measure of the degree of family support that the offender has, there have been occasional visits to her in gaol by various family members. However it has been reported that she has not seen her mother this year and, although her father does not visit he does maintain regular contact. T and B are with the same foster carer and officers of the Department of Community Services have arranged for them to be brought together to the gaol for visits.

55 The offender is studying for her Higher School Certificate through TAFE but her progress has been very slow because she has a short attention span and her reading and comprehension is slow. The course is a part-time one over a four-year period.

56 She has been in regular contact with the mental health service in custody and has seen a psychologist and a psychiatrist at regular intervals. She is receiving treatment with mood stabiliser and antidepressant medications. She described to Dr Nielssen longstanding symptoms of depression.

57 Dr Nielssen made diagnoses of Substance abuse disorder and Depression. The latter diagnosis was made on the basis of the offender's account of longstanding symptoms as well as on the basis of her presentation at the second of two interviews. Dr Nielssen saw other features independent of the history given by the offender that supported the diagnosis.

58 Dr Reid, a clinical neuropsychologist was given a history of her formative years, her education, drug and alcohol use and relationships that is broadly consistent with that which she gave to the other report writers. Dr Reid administered a number of psychometric tests and the like. They indicated intellectual impairment in a variety of respects including in her memory and ability to reason. Dr Reid concluded as follows: The detailed analysis of her responses on the Personality Questionnaire appear to reflect accurately the history that she reports and that which has previously been documented where she has ongoing problems with distrust, impulsivity, anxiety, unusual ideas and beliefs, feelings of helplessness, suspiciousness, alcohol abuse, hostility and bitterness, a history of anti-social behaviour, poor control over her anger, depression, drug abuse and sensation seeking behaviour and impaired empathy.

The Personality Assessment also highlights characteristics such as her being easily angered, having difficulties controlling expression of her anger and having little control over her behaviour once she is angered. Her aggressive behaviour may be further exacerbated by features such as psychotic symptoms, agitation and there are also indications that she had recurrent thoughts related to suicide and self harm must be viewed as a suicide risk (sic).

Overall from my assessment of Ms Pfitzner she clearly shows impairment in her intellectual and cognitive functioning which appears most likely due to her current mental state. It is recommended she have a further assessment by a neurologist and that her treating psychiatrist be consulted with regard to her psychiatric diagnosis as the above diagnoses only represent those arising from her reported symptoms. It is also recommended that she undergo an intensive psychological management program aimed at reducing her impulsive behaviour, anger management and risk of self harm.

59 In contrast to the history of long standing symptoms of depression given to Dr Nielssen, when the offender was asked by Dr Skinner whether she had suffered from depression she is reported to have said that she felt depressed as a child but said nothing of being depressed since that time until she came into custody in October 2007. She told Dr Skinner that her mood was "up and down", that it was a "vicious cycle" and that she feels depressed and "lashes out" and then is in trouble with prison staff. Dr Skinner reported that the offender had been involved in two fights in two days and had been charged with internal disciplinary offences. She was subject to a formal requirement that she was not to intimidate, assault or harass other inmates. She told Dr Skinner that she has no control over her aggression. She did not know how to handle her aggressive impulses. Dr Skinner asked how she behaved and whether she shouted and she replied, "I don't shout, I punch". By way of example, on the second occasion Dr Skinner attended upon her she had swelling on her right hand and explained that she had punched a wall after a telephone conversation with her mother.

60 Dr Skinner did something that it appears none of the other report writers had the opportunity of doing and that is to view a DVD recording of the police attempting to execute the recovery order on 18 October 2007. She observed that in speaking with the police officers the offender showed no signs of depression or anxiety, mental illness or mood disorder, and at no point appeared emotionally distressed or detached.

61 Dr Skinner made diagnoses of "Substance abuse (presently in remission) and Borderline personality disorder". She described persons with borderline personality disorder as having: (A)n unstable self-image, a pattern of unstable intense interpersonal relationships and marked impulsivity. They have difficulty with anger management and often engage in self-harming behaviour. They fear abandonment and often experience periods of anger, panic or despair.

62 Dr Skinner expressed this opinion about the offender: I consider that Ms Pfitzner has a diagnosis of severe personality disorder such that she could not cope with the management of her children and stresses of daily life. She had engaged in self-harming behaviours since early adolescence, resulting in delayed maturation of personality and difficulty in coping with the demands of her children. She lacked an understanding of childhood development and had unrealistic expectations of Dean's behaviour.

63 She described "important factors" leading to the offence as including: Alleged threats by Paul (Shillingsworth), causing fear and distress for Ms Pfitzner Heavy use of marijuana in the period leading to the death of Dean, followed by a period of several days' abstinence with agitation and irritability The absence of her partner on his first or second day of a work project leaving Ms Pfitzner feeling abandoned and lonely, as he had usually been at home to assist her Ms Pfitzner felt that she was not coping with managing Dean's behaviour, and was ambivalent about whether to return him to the care of his grandmother On the day of the (offence), she was irritated by Dean's constant need to be with her, and refusal to go outside to play.

64 Dr Skinner disagreed with the diagnosis of depression made by Dr Nielssen. She accepted that the offender experienced moods of depression but believed that these were of varying duration and intensity and probably occurred as she reacted to events. She preferred to explain the offender's description of events leading to the death of Dean, her actions causing his death and her subsequent feelings of panic as being consistent with the reactions of a person with a borderline personality disorder. She did not consider that the killing of Dean could be accounted for by substance abuse or depression, although she allowed for the possibility that abstinence from marijuana in the days before might have been a contributing factor.

65 Dr Skinner concluded her report with a note of pessimism: Personality disorder does not respond well to psychiatric treatment. Some improvement would be expected over time with increasing age. Some persons respond to psychotherapy over years with support and patience on the part of the therapist, but the person is likely to suffer relapses with mood swings and self-harming behaviour. 66 It was only this morning that I received the second of the reports by Ms Robilliard and she was called for cross-examination by the Crown. The Crown took issue with the validity of psychometric testing conducted recently by Ms Robilliard and with her qualifications to express some of the opinions in her report. I am not overly concerned about this because the testing by Ms Robilliard largely tended to confirm the opinion expressed by Dr Skinner that the offender has a "severe personality disorder". Compared to her testing in 2006, Ms Robilliard found there to be "significant increases on the levels previously achieved on the Antisocial and Sadistic/Aggressive scales". Her recent report includes: In summary Rachael's current profile described a profoundly disturbed personality construct and profoundly negative feelings of self worth, beyond that measured on testing in 2006. … On the clinical scales she demonstrated symptoms of severe personality disorder with a particular elevation on the Paranoid scale. Where this occurs along with significant elevations on the Delusional Disorder scale, as in this case, the possibility of paranoid thinking at a delusional level needs to be considered. Such individuals are likely to become periodically belligerent, voicing irrational but interconnecting delusions of a jealous, persecutory or grandiose nature. Their moods are likely to be hostile and they may feel picked on and mistreated. Elevations on the Antisocial and Aggressive scales would be demonstrated in under controlled aggressive behaviour and generalised hostility. Impulsive acting out, insensitivity and ruthlessness would be employed as mechanisms for avoiding abuse or victimization.

67 Ms Robilliard's report concludes with a note only slightly less pessimistic to that of Dr Skinner: While personality disorders are well recognised to be difficult to treat, psychotherapy aimed at assisting the individual to exercise strategies for directing and increasing behavioural control can have benefits. Increasing age and maturity is also know to moderate the more overt aspects of antisocial personality in particular.

68 The offender gave an account to Dr Nielssen of having been in "a state of depression" at the time of Dean's death. She claimed to have been "very fearful of Paul (Shillingsworth)" and also felt "very frustrated and angry with myself". She said that when Mr Shillingsworth was imprisoned in 2006 she decided to end the relationship. She cut off contact with Mr Shillingsworth and his family, notwithstanding her son was then in the care of Ms Coffey. She said that a threat by Mr Shillingsworth to kill her when he got out of gaol was communicated to her daughter's aunt. She understood that he was due for release in August 2007 and she claimed that in the period leading up to Dean's death she lived in fear that he would find out where she lived. This may, at least in part, explain why she gave up contesting the proceedings in the Federal Magistrates Court.

69 The offender told Dr Nielssen that Dean was "sometimes difficult because he wouldn't listen" and that she smacked him on occasions. Dr Nielssen asked if she ever associated Dean with his father and she is reported to have replied, "I never thought about it". She was asked if she thought there was an association between her fear of Paul Shillingsworth and her behaviour towards Dean and she replied, "I can't answer why it all happened ... because there was no thought in my head whatsoever". Ms Robilliard reported similarly. She said that the offender denied consciously associating Dean with Mr Shillingsworth or displacing feelings about Mr Shillingsworth onto the child. There is inconsistency between this and what the offender has said to others. She told police that, "all I could see when I looked at Dean was his father, Paul". When she was first spoken to by police she said, "I just kept seeing his father and couldn't stop myself".

70 The account the offender gave to Dr Skinner was that Mr Connors interfered with her disciplining of Dean, for example, by telling him that he need not listen to her. She told Dr Skinner that Dean "just wouldn't listen to me". This was making her angry and made the situation worse as she felt frustrated and did not know what to do to manage Dean's behaviour. In turn, Dean's behaviour became worse. She had arguments with Mr Connors about Dean's management.

71 She told Dr Skinner that she thought her problems had begun when she learned that Paul Shillingsworth had been released from gaol in August 2007 (Dr Skinner's report says August 2006 but that must be a typographical error). She heard third hand that he had made a threat to kill her. She became fearful that he would do something to harm her. She told Dr Skinner how Mr Shillingsworth had been violent towards her in the past. She believed he had contacts in government agencies that would enable him to find out where she was living. She said that she stopped using cannabis two or three days before the offence because she had no money. She became frustrated, irritated, agitated and felt depressed.

72 There is some support for the offender's claim of being in fear of Mr Shillingsworth in that Dr Skinner noted in the records of Ms Paenga, the caseworker, that Ms Paenga had noted that the offender was fearful of him and that these fears seemed very real for the offender. She also saw a note to the effect that the offender was very calm when she said that she could not stand Dean because he reminded her of his father.

73 Notwithstanding that fear, the offender has corresponded with Mr Shillingsworth whilst in custody. In a letter of 4 September 2008 she acknowledged his hurt and anger, said she wanted to give him answers but that she was still trying to come to terms with "it" herself. She wished him well, and similar, and signed off with "love always". In a letter of 24 January 2009 she expressed similar sentiments.

74 While on the subject of these letters I should also record that there is a passage that tends to support what Dr Skinner said about the offender's personality, particularly in relation to anger management. The offender wrote: I'm locked down for 5 days in segro. It's my 3rd inside charge, for knocking people out. This time I punched a girl with a hard knock, split her nose at the top, broke it and gave her a black eye which is causing her problems. The slut deserved it, wanting to run her mouth with me and push me. No cunt in here scares me. I seen the area manager, he's making me hold a mediation with this girl as it's the second time I bashed her.

75 The history given recently to Ms Robilliard included that in the weeks leading up to Dean's death the offender knew that she was struggling to cope with him and was losing control. She claims that she was not given the support or assistance she was asking for. She told Ms Robilliard that she had asked her mother to take Dean and her mother refused. She also claimed to have asked her family support caseworker to take her to the Department of Community Services with the idea of surrendering Dean but was told not to do so as the other two children may also have been removed. I do not accept this history. It is contrary to other evidence which I have referred to earlier that is more reliable. 76 Trying to find a reason, or the reasons, for the offender killing her young son is a difficult exercise. The Crown submitted that there were multiple different and sometimes conflicting motives. I accept that there was a multiplicity of factors which are relevant but I would not describe them as "motives". Rather, they are factors which were influential in the offender's thinking at the time of the offence. I am satisfied beyond reasonable doubt about the following matters.

77 In the weeks leading up to the murder the offender displayed considerable inappropriate and unjustified anger towards Dean. She had an irrational perception that he was deliberately misbehaving and defying her. Making him clean up after himself when he had a toileting accident and locking him out of the house are just two examples of her attitude of mistreatment of him. The fact that the offender had adequate and appropriate parenting skills in relation to her two other children demonstrates that her behaviour towards Dean was not an inherent inadequacy of skills but something that was targeted at him alone.

78 I am satisfied that she came to loathe Dean because he reminded her of his father towards whom she held ambivalent feelings. I am satisfied that in the weeks prior to the murder she was in fear of Mr Shillingsworth and, in that period, she more hated than loved him. She was also concerned that by retaining custody of Dean there was a greater prospect of Mr Shillingsworth finding out where she was living and doing her harm.

79 Nevertheless, despite these feelings about Dean, she did not want to voluntarily surrender his care to others. She had ample opportunity to do so. Her caseworker was supportive of her and offered assistance which was not taken up. Her mother had also offered to assist.

80 I am satisfied that at the time she killed Dean the offender believed that the arrival of the police to execute the recovery order and take Dean from her was imminent. Even though she was not given any information when she called the Federal Magistrates Court that morning she must have assumed, and thereby believed, that the order was made as expected.

81 There is psychiatric opinion to the effect that the offender was feeling agitated and irritable from having abstained from cannabis abuse in the days leading up to the murder. I accept this but do not regard it as a factor of great significance.

82 I do not accept that the killing of Dean was the subject of any real planning by the offender. The Crown has pointed to the statement that she is said to have made the previous year - "I will kill Dean before he goes back with Ann" - in support of its submission that the offender had for some time had it in mind that killing him was an option. Mr Winch informed me this morning that there is a dispute about whether the offender made that statement. That is not something I need to resolve, although I should make the observation that there is no contradictory evidence. The conclusion I have reached is that I do not accept the Crown submission. Assuming that the statement was made, it was made so far in the past and had not been acted upon that I would be unable to conclude to the required standard that it was a continuing thought in the offender's mind of a possible course of action to take.

83 My conclusion is that on the morning of 11 October 2007, under the influence of the various matters I have just outlined, the offender gave in to her anger and deliberately set about causing Dean really serious bodily harm. The mechanism by which death was caused is not sufficiently established to enable satisfaction beyond reasonable doubt that she acted with an intention to kill. The fact that she immediately attempted resuscitation, if it be true, also tends to cast doubt upon her wanting the child dead. Her reaction in the immediate aftermath was one of panic, partly for what she had done but more so out of fear of being found out for what she had done. Dumping the child's body in the duck pond was a further sign of loathing for him. The offender's behaviour in maintaining a false account of Dean's whereabouts to friends, family and the police over the course of the following week was calculated and callous. Her hope was that Dean's body would never be found and she would escape unpunished. This conduct is consistent with the personality disorder Dr Skinner diagnosed.

Objective seriousness of the offence and whether the standard non-parole period should be imposed

84 Factors relevant to the assessment of the objective seriousness of the offender's crime include the following.

85 The offence was not planned but was spontaneous.

86 There was an intention to inflict grievous bodily harm rather than to kill. In her mind was the complex of thoughts and emotions I have outlined earlier.

87 She acted in breach of a position of trust and authority in respect of a victim who was her own son. Dean was entitled to love, protection and nurture but instead she took away his very life.

88 The fact that the victim was a child is inherent in the offence that is the subject of the 25 year standard non-parole period but that applies to any person under the age of 18 years. In this case the child was extremely young, 2 years 8 months, and so it remains a matter in aggravation. It is axiomatic that a child of 2 is considerably more vulnerable than a child of 17.

89 The killing occurred in the light of the offender's awareness that he was about to be recovered by the authorities and returned to his lawful guardian.

90 I am not satisfied that the offender was operating under any mental condition that reduced her moral culpability. I do not accept the diagnosis of Dr Nielssen that the offender was suffering from depression, at least at the time of the offence, which was "likely to have affected her perception of events, her capacity to judge right from wrong and her capacity to control her actions". I accept that the she may well have experienced bouts of depression but I am not satisfied that it was operative at the time, and had a bearing upon, the commission of the offence. I accept the diagnosis of Dr Skinner that the offender has a severe personality disorder. The fact that this is a mental condition does not produce an automatic consequence that it reduces her moral culpability for the offence and in the circumstances of this case I do not find that it does.

91 Lastly, it must be noted that the offence occurred as part of a course of mistreatment of Dean that had been going on for some weeks, at least. It was not an isolated aberration although obviously it was out of all proportion to what had gone on before.

92 The method of disposing of the body does not, in my view, bear upon the objective seriousness of the offence. It does, however, further indicate the offender's callous disregard for her son and her primary purpose after his death of her own self preservation. It also provides further confirmation of the antisocial aspect of her personality disorder in that she had so little empathy that her own interests prevailed against any concern for her dead son.

93 Weighing up all of the circumstances, some of which point in different directions, I am satisfied that the offence is below the middle of the range of objective seriousness for the crime of murdering a child but, I hasten to add, only slightly so.

94 The standard non-parole period is applicable to an offence that falls within the middle of the range where there is conviction after trial. Here, of course, the offender pleaded guilty. So, there are two immediately obvious reasons for not imposing the standard non-parole period but it still remains relevant as a benchmark against which to assess the appropriate sentence.

95 There are some further factors which must be taken into account in the assessment of sentence. There is the fact that the offender was on conditional liberty in the form of the suspended sentence bond at the time of the offence. This is an aggravating factor as I earlier observed. There is also the offender's plea of guilty which the law requires me to take into account in her favour.

96 The plea of guilty came almost 2 years after the offender was arrested and charged, 10 months after she was committed for trial and almost 3 weeks before her trial was scheduled to commence. I accept that she made admissions to the police following her arrest. There was no issue insofar as I am aware of her fitness to be tried. There was an issue as to whether the defence of substantial impairment could be made out but she did not enter a plea of guilty to anything until 5 June 2009 when she pleaded guilty to manslaughter. The Crown did not accept that plea. There had been an earlier offer to plead guilty to manslaughter that was communicated to the Crown by a letter from the offender's solicitors in October 2008. The Crown did not accept that offer. 97 The offender was re-arraigned on 18 August 2009 and pleaded guilty to murder. She has, thereby, acknowledged that by her deliberate act she caused the death and that accompanying her act was at least an intention to inflict grievous bodily harm. These circumstances are not exceptional in my view so as to warrant a discount "towards the top of the range" as was submitted on the offender's behalf. The plea did, however, have some utilitarian value for the criminal justice system and I propose to reflect it with a discount on the sentence I would otherwise have imposed in the order of 15 percent.

98 I am not persuaded that I should make a finding of remorse in the offender's favour. She has not given evidence herself that would enable me to conclude that she has accepted responsibility for her actions and acknowledged the loss that she caused: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Ms Robilliard reported that, "Rachael expressed guilt and remorse over Dean's death" and Ms Robilliard wrote that this appeared to be sincere. Again, not having seen and heard the offender give evidence, I have been denied the opportunity to make an assessment for myself.

99 Another matter I should mention is that in assessing the sentence to impose I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. In a matter involving the murder of a young child, general deterrence, denouncing the offender's conduct and making her accountable for her actions are particularly important. 100 I am not prepared to make findings in her favour that she is unlikely to re-offend or that she has good prospects of rehabilitation. The psychiatric and psychological evidence which I accept, particularly that of Dr Skinner and Ms Robilliard, warrants considerable scepticism about those matters.

101 I was provided with references to a number of other cases involving the murder of children. The vast majority are concerned with sentencing prior to the enactment of the standard non-parole period for the murder of a child and for that reason alone they are of very limited utility. I was informed that there have been two cases since that enactment - R v PJS [2009] NSWSC 153 and R v BW & SW (No 3) [2009] NSWSC 1043. I am well aware of the latter. The circumstances of that case were significantly different to those of the present case, involving as it did the killing of a seven year old girl by deliberate starvation over an extended period of time after years of the most profound mistreatment and neglect. R v PJS involved the violent killing of a three year old step-daughter by both blunt and sharp force trauma over a sustained period whilst the offender was intoxicated. He was convicted after a trial and continued to profess his innocence. There were no subjective mitigating features. The sentence imposed was one of 26 years with a non-parole period of 20 years. However I note that the sentencing judge found that the offence fell "above the mid-range of objective criminality, although not substantially so". She said that if it was not for the fact that the offender was in protective custody a sentence involving a non-parole period of 26 years would have been imposed. These cases do not establish any tariff or range and so I do not find them to be of any great assistance.

102 There is a question as to whether the sentence should be concurrent with, or accumulative, either partially or wholly, upon the non-parole period of the sentence that was the subject of the suspended sentence bond. In my view it would be appropriate to wholly accumulate the sentence upon the non-parole period for that sentence because it was imposed for an offence committed against a different victim at a different time. The non-parole period was relatively modest, only 6 months, and so I do not think that the totality principle calls for any degree of concurrence.

103 Convicted Sentenced to a term of imprisonment comprising a non-parole period of 19 years 2 months and a balance of the term of the sentence of 6 years 4 months. The sentence will date from 20 April 2008. The offender will be eligible for release on the expiration of the non-parole period on 19 June 2027. That is a total sentence of 25 years 6 months. Without the plea of guilty the sentence would have been one of 30 years. **********

10/12/2009 - Heading inserted after paragraph 94 - Paragraph(s) After 94

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