Regina v Fraser [2005] NSWCCA 77 | Case summary

1 GROVE J: Leave is sought to appeal against severity of sentence imposed by Howie J. The applicant was convicted of the murder of his three infant children who were, at the time of their deaths, aged seven, five and four years respectively. Upon arraignment the applicant pleaded not guilty to murder but guilty of manslaughter. Those pleas were not accepted by the Crown. The issue at the following trial was whether the culpability of the applicant was reduced from murder to manslaughter by reason of substantial mental impairment as provided by s 23A of the Crimes Act 1900. As stated, he was found guilty of murder by the jury. There is no challenge to conviction. 2 His Honour sentenced the applicant to a fixed term of imprisonment of twenty three years for the murder of Ryan (aged five) commencing on 21 August 2001; to a fixed term of imprisonment of twenty three years for the murder of Jarrod (aged four) commencing on 21 August 2005; and to imprisonment for twenty five years with a non parole period of twenty years for the murder of Ashley (aged seven) commencing on 21 August 2008. The effect of such sentences was a total term of thirty two years with the earliest date of eligibility for parole being 20 August 2028, by which date the applicant will have been in custody for twenty seven years. 3 Two grounds of appeal were raised: 1. The sentence imposed by the sentencing judge was manifestly excessive, and 2. His Honour erred in not finding that there were special circumstances producing a variation in the proportion between non parole period and the head sentence. 4 Neither ground attacked findings made by the judge for the purpose of sentence and his remarks provide a convenient and reliable resource for a sketch of facts sufficient for the purposes of dealing with this application. 5 The relationship between the applicant and his wife was troubled and they separated several times. In the course of arguments he threatened that she would never see the children and he made unspecific threats of harming them. By late 1997, the applicant's wife had moved to a residence in Chippendale. For a time the applicant also resided there but in early 2001 he moved to a flat in Caringbah. Contact visits with the children were liberally arranged as Mrs Fraser encouraged this, believing it to be good for them. On occasions the applicant stayed over at the Chippendale house. 6 In May 2001 she told the applicant she wished to take the children to visit her parents in the Philippines during the school holidays. The applicant refused to sign necessary passport documentation but Mrs Fraser obtained an appropriate court order overcoming his refusal. The applicant's mother purchased a ticket to enable him to travel also, but he decided that he would not. As Mrs Fraser and the children went to board the aircraft they were stopped and informed that the applicant had obtained a form of restraining order. Immigration officials contacted the applicant who confirmed his refusal to consent and the journey was abandoned. 7 Following this Mrs Fraser instituted proceedings relating to obtaining necessary permission to take the children out of Australia to visit their grandparents and in relation to obtaining formalisation of orders for access to the children by the applicant. Those proceedings were listed for hearing on 27 August 2001. In the interim, Mrs Fraser allowed the applicant to continue to see the children as he had previously done. Of course, the hearing never took place as the children had been murdered by the applicant about a week before the scheduled hearing date. 8 The applicant learned that during July, his wife had commenced seeing a man, who was referred to throughout the trial as "Sam". The applicant began to question her about whether she was in a sexual relationship with Sam, and if so, what the nature of their activity was. Heated exchanges took place. On the weekend of the killings the applicant visited the house at Chippendale. A lengthy and emotional encounter took place between him and his wife. In the course of it, the applicant made reference to how his wife might feel if she did not have the children. In the event, the applicant left with the children in his wife's car. She went out for the evening with Sam. She last saw her children alive as they departed in her car with the applicant. 9 There was some telephone contact on the next evening and Mrs Fraser mentioned that Sam had expressed the thought that they should reconcile if there was a chance of their relationship continuing. The applicant responded "Is that because he is son of Sam the serial killer?" His Honour found that the children were probably dead by then and this remark may have been intended to offer an implication that Sam should, in due course, be regarded as responsible for what had happened. 10 Following the weekend, the applicant's mother who had been disturbed by his apparent state when she had spoken to him on the telephone earlier, arrived at Caringbah but could get no response. A locksmith was obtained to open the house. As a result of what he saw, the police were called. 11 It is a mild description to say that what was found was horrifying. At the entry point was a child's toy stuffed monkey hanging from a noose, impaled by a knife and decorated with what turned out to be tomato sauce. The applicant later told a psychiatrist that the impaled monkey toy represented his wife. 12 Ryan's body was on a mattress in the lounge room. The applicant had written on his face "I Luv U Ryan. RIP XO". He had written on the walls. The graffiti included "I'm waiting, Sam. Come to papa"; "Real fisher man do not feel sorry for the bait"; "We have nothing to beer but beer itself", and on the door of a cupboard the words of a once popular song "Che sera sera". 13 In a bedroom Jarrod's body was found. On his face had been written a message somewhat similar to that inscribed on Ryan. Above the bed upon which his body lay was written "I am not to be toyed with". It might be noted that the word "toyed" was written over the word "trifled". 14 Ashley's body was on a bunk in the second bedroom, on the wall of which was written "There is no place like home". It is important to note that post mortem examination of this little girl revealed marks consistent with pressure having been applied to her neck and other injuries apparently inflicted at the time of her death. 15 On a computer screen, arranged to appear when the instrument was turned on, was in effect a reiteration of the applicant's threats about depriving his wife of the children. 16 The applicant was found naked in a bathtub full of water. As police entered, he was in the act of drinking some white substance. His Honour found that the applicant had made a genuine attempt at suicide by ingesting a large quantity of sleeping tablets on a presumption that in the induced sleep he would drown in the bath water. 17 It was undisputed at trial that the applicant had killed the children by administering sleeping tablets in order to subdue them and drowning them in the bath. There may have been as much as twenty four hours delay between killing the infant boys and killing Ashley. 18 This ghastly scene of multiple deaths was set by the applicant with the deliberate intention that his wife would be the first to come upon it and have it permanently imprinted in her memory. 19 After arrest and whilst in custody, the applicant's behaviour seemed to be disturbed. In a monologue overheard by police he adverted to his hatred of his wife, and significantly, said that the drugs had failed to subdue the children and that they had struggled against his murderous activity. He gave more details about his failure to subdue Ashley whose injuries detected at post mortem, even if, as submitted, they were of a minor kind, were obviously received in a futile attempt at self protection. 20 The applicant had taken elaborate steps to equip himself with the drugs by visiting a number of medical practitioners. His Honour found that the fates of the children were already decided when the applicant took them away from Chippendale. 21 Howie J accepted that the applicant had consumed some substance before the killings to enable him to carry into effect his dreadful acts. His finding that this matters little because he had made his plans to kill the children and ingestion of whatever it was, was simply a step in carrying those plans into effect was plainly open to him. 22 The objective facts which I have related only in a limited way would justify the imposition of the maximum penalty of life imprisonment. The sentencing judge so observed and I would endorse his observation. 23 However, it was expressly conceded by the Senior Crown Prosecutor who appeared at first instance that this was not a case where the maximum sentence would be warranted. His Honour considered that the concession was appropriate and acted upon it. It is not sought by the Crown to resile from that concession in this Court nor to argue that his Honour's acceptance of the concession was in error. 24 The concession was based upon the culpability of the applicant being significantly reduced by reason of his mental state at the time of the killing, which was not disputed to have been highly disturbed and disordered. Although varying in their opinions on the critical issue at trial, the evidence of a number of psychiatrists supported the existence of that situation. 25 A diminution in the extent of culpability for murder, by reason of mental state, is not incompatible with the jury verdict that the mental state, as assessed by them, did not reduce culpability from murder to the lesser crime of manslaughter. 26 Although his Honour approached the assessment of sentence in accordance with this favourable concession, it is nevertheless argued that the sentences ultimately imposed were manifestly excessive. In support of this argument reference was made to a number of cases of what were described as a category of "family multiple killings". That is not a legal category but a convenient way of describing the collection of cases to which counsel wished to refer. 27 Before turning to make reference to some of these, it is apt to cite some observations of authority which are applicable when the Court is engaged in the task such as the present. 28 In Pearce v The Queen 1998 194 CLR 610 in a joint judgment McHugh, Hayne and Callinan JJ said: "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision". 29 And in Ryan v The Queen 2001 206 CLR 267 Hayne J also said: "It is because sentencing, being discretionary, admits of no single 'correct' answer that the task of intermediate appellate courts, on appeal against sentence, is to examine whether the appellant makes good the allegation that the sentencer made an error of principle, not whether they agreed with the sentence imposed". 30 I would add that the fact that I will refer to the assertedly comparable cases does not imply that a determinative conclusion on the ground advanced is to be found simply by identification of comparability. Every case is necessarily different and caution in making such comparisons is essential: see R v Morgan 1997 78 A Crim R 368. 31 The applicant referred to R v Cikos [2001] NSWSC 35. In this case there was in distinction from the case of the applicant a history of abuse of the offender by an adult victim. 32 In R v Cheatham [2001] NSWSC 560 the offender had acted on a delusion that he suffered from AIDS and believed that he would somehow infect his family. 33 In R v Jang [1999] NSWSC 1153 one victim withdrew her sponsorship by which the offender could remain in Australia. The other victim was an adult child of the first victim's previous marriage. In this case the offender pleaded guilty. 34 A head sentence of twenty five years with a minimum term of nineteen years was imposed in R v Velevski, unreported NSWSC 26 September 1997 for the killing of a wife and children consisting of a daughter aged six and twin daughters aged three months. 35 In R v Park [2003] NSWCCA 142 the offender killed his wife and infant children aged three and two. He had been unfaithful to his wife who learned of his infidelity. A sentence of twenty six years imprisonment with a non parole period of nineteen and half years was undisturbed on a Crown appeal alleging inadequacy. In a dissenting judgment, Mason P expressed favour for a resentence of twenty six years imprisonment with a non parole period of twenty two years. 36 In R v De Gruchy [2000] NSWCCA 51 the offender, a teenager, killed his mother and two siblings. An effective sentence of twenty eight years with a minimum term of twenty one years was imposed and not varied on appeal. 37 In R v Merritt [2002] NSWSC 1159 and [2004] NSWCCA 19 the offender murdered his three children aged six, eleven months and eleven weeks. A life sentence initially imposed was reduced to thirty four years with a non parole period of twenty four years. 38 In R v Folbigg [2005] NSWCCA 23, for the murder of four of her children and the manslaughter of one, an effective sentence of forty years imprisonment with a non parole period of thirty years was reduced by this Court to an effective sentence of thirty years imprisonment with a non parole period of twenty five years. 39 The submission is made that the present case should not be regarded as objectively worse than Jang, Velevski, De Gruchy or Merritt. It is observed that only the lastmentioned received a sentence comparable to the applicant. 40 In any event, in my view, Jang would be excluded from comparison by reason of his entitlement to reflection of the plea of guilty and De Gruchy would at least be excluded by reason of youth. Merritt also pleaded guilty. 41 More importantly there is one factor which is present in the circumstances for which the applicant must be sentenced, which was absent from all the cases cited, and that is that the applicant's motive in killing the children was, at least in part, to punish his wife. To that end he took steps to plan the homicides and to fulfil a threat which he had made on multiple occasions prior to carrying it out. 42 I would uphold the Crown submission that, given that anger directed towards his wife played a significant role in determining to kill the children, and that the anger was focussed upon his beliefs as to her relationship and the institution of legal proceedings, there was a heightened need for denunciation and general deterrence. Some remarks of Lander J in R v Hull [1997] SASC 6087 are pertinent: "This is a case where aspects of general deterrence are important. Many persons become involved in marital disputes and many of those disputes often become heated and some unfortunately become violent. Too often, sadly, children become pawns in those marital disputes. That is bad enough but those who do become involved in marital disputes must clearly understand that they cannot visit violence upon their children for any reason whatsoever, but in particular for the purpose of upsetting or punishing their spouse. Such action, it should be understood, will attract very severe punishment. The community ought to be able to expect that the courts will be quick to protect the defenceless, particularly children". 43 Hull had killed his ten month old son. 44 Howie J acknowledged the principle that a person suffering from a severe mental disorder may not be an appropriate vehicle for the expression of general deterrence but that does not mean that general deterrence cannot be an element to some extent in assessing sentence for such an offender: R v Letteri, unreported CCA 18 March 1992; R v Scognamiglio 1991 56 A Crim R 81. That recognized, there was no error in his Honour's finding in this case that the objective facts were so serious that the diminution in culpability by reason of mental state should be reflected largely by refraining from imposing the otherwise appropriate maximum punishment of imprisonment for life. 45 No error by the sentencing judge is pointed to. I have mentioned in brief form some of the assertedly comparable cases. It is not necessary to epitomize every reference. The essay in comparison does not demonstrate the impositions to derive from idiosyncratic assessment. The sentences are not shown to be manifestly excessive. 46 I turn to ground 2. His Honour was expressly aware that as a result of the structure of the sentences imposed, the non parole period would exceed the proportion in the statutory formula. He stated that the non parole period was the absolute minimum that, in his view, the applicant should serve as punishment. I do not doubt that his expression included a consciousness that the non parole period specified on the count for the murder of Ashley commenced after seven years, part of the fixed terms for the other killings, had been served. He specified that the minimum term was effectively twenty seven years. 47 As his Honour's remarks further reveal, on turning his mind to the question of special circumstances, and the proportion between total sentence and non parole period he concluded that there should be no reduction on that account. 48 Of course, there were circumstances which were capable of being assessed as special circumstances within the meaning of that expression in sentencing legislation, and senior counsel for the applicant has carefully and methodically referred to those which were available. It is, however, received doctrine that the mere fact that a matter is capable of amounting to special circumstances does not mean that a finding and application in favour of an offender must be made. See, for example, R v Lupton [2003] NSWCCA 200 where, as in the present case, an accumulation of sentences had been ordered and a total non parole period exceeding the proportion in the statute was allowed to stand. The situation was similar in Folbigg in the resentence in this Court. 49 Ground 2 is not made out. 50 I return to the observation that every sentence is the result of the independent exercise of judicial discretion. No error by his Honour has been demonstrated and the impositions are, in my view, within the range of the sound exercise of that discretion. 51 Given the obvious length of incarceration consequent upon the sentences, I would grant leave to appeal but I would dismiss the appeal. 52 JAMES J: I agree with the judgment of the presiding Judge. 53 BARR J: I also agree. 54 GROVE J: The order of the Court therefore is that leave to appeal is granted and the appeal is dismissed.

Regina v Fraser

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