Supreme Court of WA|2008-06-10|Before: Mr J, Blaxell J, Heenan J

THE STATE OF WESTERN AUSTRALIA -v- FARMER [2008] WASC 115 (10 June 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- FARMER [2008] WASC 115

Criminal law - Sentencing - Assault occasioning bodily harm - Manslaughter - Two counts - Assault arising from a street fracas - Manslaughter of a 3yearold living in the offender's household - Repeated beatings of the child - Imprisonment

Assault occasioning bodily harm - 1 year, cumulative with eligibility for parole

1 EM HEENAN J: On 14 February 2008 Timothy Leonard Gordon Farmer was arraigned in this court before Blaxell J on two indictments charging him with offences:

that on 22 July 2006 at Albany he unlawfully assaulted Timothy Craig Morgan and thereby did him bodily harm contrary to s 317(1) of the Criminal Code (WA); and
that on or about 31 October 2006 at Albany he unlawfully killed Mason James Coughlan, contrary to s 280 and s 287 of the Criminal Code.

2 Farmer then entered pleas of guilty to each of the charges and was thereupon convicted of both crimes.

3 I will refer to the charge in the first indictment as the charge of assault occasioning bodily harm and to the offence in the second indictment as the manslaughter offence. After those convictions were entered and recorded Farmer was remanded in custody to appear for sentence. He came before me for sentence on 1 May 2008 when detailed submissions were made on behalf of the State of Western Australia and by counsel on behalf of Farmer and an extensive quantity of documentary material was submitted in relation to the sentences which should be imposed. I thereupon reserved my decision on the sentencing and remanded Farmer again for sentence by the court today.

4 The indictment for assault occasioning bodily harm was only presented in this court on 24 January 2008. Farmer had originally been committed to appear on the assault charge before the District Court of Western Australia and did appear on that order before his Honour Judge Wisbey on 16 January 2008. On that occasion, however, an order was made, without opposition, that he should be remanded to the sittings of the Supreme Court on 14 February 2008 so that the assault charge could be dealt with at the same time as the other charge pending in this court. As I have already said a plea of guilty to both charges was entered on 14 February 2008 and he must, therefore, be taken to have pleaded guilty at the earliest opportunity.

5 The sentence available for an assault occasioning bodily harm is prescribed by s 317(1)(b) and imprisonment for 5 years or, if the offence is committed in circumstances of aggravation, imprisonment for up to 7 years. No circumstance of aggravation was alleged in this indictment.

6 The penalty prescribed by law for the crime of manslaughter is liability to imprisonment for up to 20 years (Criminal Code s 287). The two crimes committed by Farmer occurred at quite separate places and times and must, therefore, be dealt with separately. I shall commence with the first offence of assault causing bodily harm which was committed on 22 July 2006.

7 In the morning of 22 July 2006 Farmer was walking along York Street, Albany in company with another person. Two other men who had just been to a nightclub were walking in the opposite direction. In passing, one from each pair bumped into each other leading the offender or his co-offender to make a derogatory comment to the others. The co-offender then threw a bottle at the complainant, Timothy Morgan which hit him on his head. Farmer then walked away from Morgan into Stirling Terrace and the complainant stumbled around the corner. Farmer then punched him in the head as a result of which the complainant fell to the ground and then Farmer and his companion each joined in kicking him in the head. When the complainant attempted to get up and escape both Farmer and his co-offender again kicked him in the head and neck and this went on for about 45 seconds to a minute before the police were called. They arrived quickly and an ambulance was called taking the victim to hospital.

8 The victim required 24 sutures to his face, he had a loss of vision in his left eye, a haematoma under his left eye, and cuts and grazes to his shoulders and neck as well as an injury to the thumb and ligament damage. When later interviewed by the police on 3 August 2006 Farmer admitted involvement in the offence.

9 Farmer's co-offender was also charged with a number of offences including a count of assault occasioning bodily harm as has now been charged against Farmer and admitted. The co-offender was sentenced to a total of 18 months' imprisonment with eligibility for parole after coming before his Honour Judge Goetze in the District Court at Albany on 23 July 2007. In relation to the charge of assault causing bodily harm the sentence for the co-offender was 12 months' imprisonment.

10 Counsel for the DPP expressly submitted that the State nevertheless does not seek to distinguish between Farmer and his co-offender and submits that precise parity of sentencing is appropriate in Farmer's case. For reasons which will be developed later, this submission by the DPP emphasises that any sentence imposed for the offence of assault causing bodily harm should be separate from and cumulative to, any sentence imposed for the offence of manslaughter.

11 Counsel for Farmer submitted that Farmer should receive the same sentence for the offence of assault occasioning bodily harm as had been imposed on his co-offender and did not contend for any shorter sentence. If I may say so, this appears to be an entirely proper and responsible approach and in the circumstances I consider that the sentence which should be imposed on Farmer for such a serious assault causing considerable injury and arising from no more than a wanton remark requires a sentence of imprisonment in order to punish the offender and to protect the public by deterrence of the offender and others.

12 I have considered, as I must, whether notwithstanding my conclusion that a sentence of immediate imprisonment should be imposed that the sentence might nevertheless be suspended. However, I am satisfied that nothing less than a sentence of immediate imprisonment for this offence is warranted and it is of some significance in this regard that counsel for Farmer did not submit otherwise. Had I been dealing with this offence before the commencement of the amendments contained in the Sentencing Legislation Amendment & Repeal Act 2003 (WA) I would have chosen a sentence of 2 years' imprisonment but, because of that legislation I must reduce this by one-third which results in a sentence of 16 months' immediate imprisonment. That is to be reduced further for the plea of guilty.

13 In selecting these periods I am, obviously, influenced by the approach taken by his Honour Judge Goetze to the co-offender when his Honour imposed a like sentence for the co-offender's equivalent conduct in his corresponding offence. In doing so, however, I realise that I must first be satisfied that the sentence of imprisonment is the only appropriate disposition and that I personally must select the period of imprisonment to be imposed. This is what I have done and although I am guided by the decisions made by his Honour Judge Goetze in the corresponding case and the desirability for parity, the choices which have been made and the responsibility for the sentence in this case is of course mine alone.

14 In the result, therefore, Timothy Leonard Gordon Farmer is sentenced to a period of 12 months' imprisonment for the offence of assault causing bodily harm. He has been in custody in connection with that and the other charge since his arrest on the charge of manslaughter on 31 October 2006 and, therefore, has by now spent some 19 months and 10 days in prison.

15 At the time of his arrest on the manslaughter charge he was on bail for the charge of assault occasioning bodily harm and, therefore, when it comes to giving credit for time already spent in prison it is, in my view, more appropriate to give credit for the time already served against the sentence to be imposed for the offence of manslaughter, that being the offence which led to the immediate loss of liberty which has continued since. I will, therefore, give further consideration to the issue of backdating after dealing with the offence of manslaughter.

16 This early plea is, I am satisfied, an indication both of remorse and of a desire to facilitate the course of justice and, therefore to merit a discount of 25% in the sentence which would otherwise have been imposed.

17 As just mentioned, because of the gravity of this offence, taking into account the injuries caused to the victim, previously I would have imposed a sentence of 2 years. This is reduced by one-third to 16 months for the effects of the 2003 amending legislation. A further reduction of 25% is made for the early plea of guilty and the mitigatory effects of remorse, and this reduces it to 12 months' imprisonment.

18 Timothy Leonard Gordon Farmer was arrested on 31 October 2006 on the charge that on the previous evening he had murdered Mason James Coughlan, then aged 3 years and 8 months. Farmer has been in custody since then. Although originally charged with murder, the State indicated that it would accept a plea of guilty to manslaughter and, as soon as the possibility of pleading to an indictment alleging manslaughter arose, Farmer pleaded guilty to this charge on 14 February 2008. I must proceed, therefore, on the basis that the death of young Mason Coughlan was caused by the offender but was not accompanied by any intention to kill or to do grievous bodily harm.

19 At the date of death, Mason Coughlan was the son of the woman with whom Farmer had then been living in a relationship for about two months. Farmer, his partner, the child Mason and an older child of the partner were all living together in a home at Albany.

20 Although the relationship between Farmer and his partner, and her children seemed to be satisfactory enough at first it was not long before Farmer began beating the young child Mason, ostensibly for 'correction' or 'discipline'. This began about two weeks or more before Mason's death on the evening of 30 October 2006. The beatings got steadily worse and more severe. The events which led to young Mason's death present an agonising picture of violence, cruelty and insensitivity towards a young, helpless, terrified child.

21 The post mortem report of an examination of the body of the young child conducted at the direction of the Albany coroner on 1 November 2006 (with its many annexures) makes extraordinarily grim reading, even for those acquainted with incidences of death and violence. There was almost no part of the child's body which did not show extreme bruising and multiple abrasions. Both sides of the body from the upper thighs to the armpits and the whole of the rear of the body from slightly above the knees to the middle area of the back was covered with bruising and lacerations. There were multiple bruises and abrasions on the face, on the head, on the neck and around both ears and the lower jaw. There were bruises on both arms on the inner and outer surfaces. There were extreme bruises and abrasions around the scrotum and penis, which included skin tears.

22 More extensive post mortem investigation of the internal organs and tissues showed even more severe effects. There was a right-sided subdural haematoma with cerebral swelling, extensive soft tissue injuries (bruises and abrasions) to the head, trunk, back and upper and lower limbs; soft tissues injuries to the genitals; fractured ribs; congested lungs with aspiration of blood into the airway; muscosal tears in the stomach with blood within the gastrointestinal tract and deep soft tissue bruising behind the liver, kidneys, head of pancreas, duodenum, bladder and rectum. Later microscopic examination of tissue samples confirmed those observations and discovered mild inflammatory changes within the lung, ischaemic changes within the small and large intestine and evidence of acute renal failure.

23 The more detailed reports of the close examination of the various body systems run to more than seven pages but it all amounts to severe soft tissue injuries, injuries to vital organs and associated abrasions and haemorrhages consistent with repeated, sustained and severe beatings. The overall cause of death was described as being complications arising from multiple soft tissue injuries. It is almost beyond belief that such a young child had been subjected to such trauma.

24 This violent treatment of the young boy seems to have commenced not later than 19 October 2006 when, arriving home from late night shopping, the boy's mother was informed by Farmer that he had 'smacked her children'. The next morning the mother saw hand imprint bruises on the buttocks of the deceased and was shocked. It seems that, not uncommonly for children of his age, the child was occasionally incontinent and would wet himself, the clothes he was wearing or the bed in which he was lying. This was the basis upon which Farmer decided that he should be 'smacked'.

25 Another incident before the death involved the offender hitting the young boy in the bedroom but keeping his mother outside. The next morning young Mason had bruises on and around his ears and a black eye.

26 A few days later Farmer took the young child to the toilet and his mother overheard him shouting at the boy. Later she found a red mark on the scrotal area of the child. When the mother told Farmer not to treat her son in that fashion she was told to 'mind her own business'. The next day she found that the boy had swollen genitalia and even had trouble walking. She wanted to take the boy to the hospital but Farmer said that he should be put in a bath of salt, vinegar and disinfectant, which was an old remedy which he himself had had as a child. That was done and an ice pack was applied to the boy's genital area.

27 Some days before Mason died, Farmer gave him a bath in salt water, vinegar and disinfectant but came running out of the bathroom with the child in his arms, attempting to give him mouth to mouth resuscitation. The child was hyperventilating and his mother wanted to take him to hospital but Farmer would not allow this, saying that the boy was fine. Shortly afterwards, the child appeared to revive and speak to his mother. Farmer said that there had been some incident while the child was in the bath, that water had gone up his nose and that he had swallowed a bit or had a fit.

28 The next day, that is, the morning before the night Mason died, his mother took her other child to the kindergarten but Mason was not able to go because of bruises on his face and buttock which were noticeable. He was taken home and Farmer gave him yet another salt and vinegar bath. The mother heard Farmer shouting at the young boy and saw him in the lounge room with a lump on or near his spine. It was an egg-sized lump and Farmer said it was just fluid and needed some ice, telling the mother that Mason had fallen off his chair, hit his back and that ice was needed.

29 Later that evening Mason told Farmer that he wanted to go to the toilet but Farmer responded by asking whether or not he was just playing games. He followed the young boy to the toilet, returned to the lounge room, throwing the boy's shorts at the mother, saying that the boy had wet himself. He went back to the bathroom and was heard shouting at the child. The mother went in and found Farmer with the boy across a chair on his stomach and hitting him really hard on his buttocks. He was using a hose to hit the boy, who was screaming. The mother tried to get the child out of the shower but Farmer blocked her way and picked up the young boy. This is when his mother noticed that he was not breathing. He was put on the floor in an attempt to resuscitate him, and it was apparent that he had vomited.

30 After that the child was undressed, a packet of frozen vegetables was put on his back as some sort of cure and it was then that an ambulance was called. The child was taken to Albany Regional Hospital but at that stage he was not breathing. His mother recalls that before she went into the bathroom she had heard noises coming from the bathroom like Mason's head was hitting the wall or the shower screen.

31 After all this the boy arrived at Albany Hospital on Monday, 30 October 2006 at about 10.30 pm. Farmer was carrying the child and a nurse who met them recorded that the boy was not breathing. He was put on a trolley and resuscitation was attempted but he was cold and lifeless. The examination revealed the many bruises and abrasions and the medical staff asked what had happened and Farmer replied that he had 'pissed the bed and got a smack and was put in the shower'. He said that he must have fallen in the shower or had a turn. Among the many bruises there was a large bruise covering the child's right face, right temple and right ear.

32 Needless to say, extensive inquiries and investigations were made to determine just how all this had happened. From these it emerged that Farmer had come home on the evening of 30 October 2006 from an evening out with friends to find Mason and his mother still awake in the lounge room. By then Farmer had consumed approximately six 750 ml bottles of full strength beer but said that he did not feel intoxicated. As he made preparations to go to bed, Farmer discovered that Mason had wet himself on the couch and it was then that he walked him down the hallway, grabbed a piece of garden hose and proceeded to smack the boy on the bottom. He then placed the boy in the shower and smacked him further with his hands. The child kept crying and asking for Farmer to stop hitting him but he persisted.

33 In further discussions with the police Farmer said that he himself had been 'disciplined' in a similar way when he was a child. Farmer said that he had hit the boy with his hand but when he began to bruise he used a thong. He had also hit him about the face. More detail could be given of the nature and severity of the assaults by this offender on this helpless young boy but enough has been said for the horror of this sustained abuse to be seen as unmistakably stark.

34 The death of the young boy has, as one would expect, had the most profound effect upon his mother, who is consumed with grief. Equally, the boy's father, although separated from his mother, is also greatly affected by grief at his son's loss, particularly in such circumstances. The extended family also are deeply affected. No-one who lives in our current community could be other than moved at such a cruel, senseless, wanton tragedy.

35 Farmer himself admits responsibility for the death and for the ill-treatment of the boy in the weeks leading to his death. In an interview with the police on the morning of 31 October 2006, Farmer admitted that he had assaulted the boy on other occasions over a period of about two to two 1/2 weeks before the death and, through his counsel, admitted that the fatal assault involved a degree of deliberation which in most cases of this kind is lacking. He admitted that considerable violence had been used and that he had beaten the child on occasions, variously, with a tree branch, a garden hose and a thong. His counsel plainly conceded, as was inevitable, that 'this is a form of manslaughter which would fall towards the high end of the scale of punishments for that crime and is deserving of a substantial term of imprisonment'.

36 As always, I must specifically address the principles which the law has established should be followed when sentencing an offender, but this is even more important on an occasion such as this when a crime of this magnitude attracts general concern and requires understanding by the community of how the principles of sentencing apply. Under s 6 of the Sentencing Act 1995 (WA), I must impose sentences which are commensurate with the seriousness of this offence and with the other offence of assault occasioning bodily harm. The seriousness of each offence is to be determined by taking into account the statutory penalty which, as I have already said in relation to the charge of manslaughter, is a maximum of 20 years' imprisonment; the circumstances of the commission of the offence, including the vulnerability of the victim of the offence. In this case there can be no doubt that this is an extremely serious offence and that the victim was as helpless and vulnerable as could be imagined. I must also consider any aggravating factors, and any mitigating factors. Importantly, the law requires that I do not impose a sentence or sentences of imprisonment unless I decide that the seriousness of the offence or offences is or are such that only imprisonment can be justified, or that the protection of the community requires this. In this case there can be no doubt that both the seriousness of the offences and the protection of the community require imprisonment as the only form of disposition. That was conceded by counsel for Farmer and it is quite beyond doubt. That is also the case in relation to the offence of assault occasioning bodily harm because of the seriousness of the assault, the injuries concerned, the prevalence of such offending and this offender's background which shows that he is a threat to the community. More details of this will be described a little later.

37 To return to the principles of sentencing, as described, I must consider aggravating factors or mitigating factors. Aggravating factors are those which increase the culpability of the offender. However, I must point out that an offence is not aggravated by the fact that the offender has a previous criminal record. However, the fact that Farmer was on bail at the time of the fatal assault does show a serious disregard of the law and, in the circumstances, is an aggravating factor. In this case, however, factors of aggravation hardly increase the gravity of this offence which speaks in such a shocking fashion for itself.

38 Mitigating factors are those which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which he should be punished. A plea of guilty is especially recognised as a mitigating factor and the earlier in proceedings that it is made, or that any indication is given that it will be made, the greater the mitigation. I must also take into account any assistance which Farmer has provided to law enforcement authorities as a mitigating factor. In this case, in his video records of interview with the police after the death, a full account of what he considered happened was given and that too can be treated as a mitigating factor.

39 In this present case, the admissions made by Farmer in the course of the interview, and in intimations made to the authorities via counsel that he would plead guilty to the charge of manslaughter at an early stage qualifies for mitigating treatment. I am satisfied, therefore, that this indication of his intention to enter pleas of guilty given at the earliest practical stage means that a suitable discount for a plea of guilty and cooperation with the authorities should be allowed.

40 Cases binding upon me establish that for early pleas of guilty a discount of between 20% and 35% may be granted according to the discretion of the judge in particular circumstances. It has become commonplace for a discount of approximately 25% to be given in most such cases, although a question of whether or not the plea of guilty is truly prompted by remorse and/or a desire to facilitate the achievement of justice on the one hand, or because of the high or inevitable prospect of conviction given the strength of the prosecution case on the other hand, can affect the extent of the discount granted. However, even in cases where the prosecution case is extremely strong, remorse may still be a genuine factor and the desire to accept one's responsibility and face the consequences is part of the facilitation of justice and is to be encouraged.

41 The authorities dealing with the grant of a discount for an early plea of guilty and for cooperation were reviewed by Steytler P in Bruno v The State of Western Australia [2005] WASCA 149. There his Honour referred to Little v The Queen [2001] WASCA 87, [13] per Malcolm CJ, Wallwork and Anderson JJ who said that such discounts usually fall between 25% and 35% depending upon the circumstances. Their Honours also referred to Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313, 318; Abela v The Queen [2002] WASCA 279; (2002) 134 A Crim R 392, 403, where Malcolm CJ, with the concurrence of Wallwork J, observed that it had been said that it would be unusual if a fast track plea, such as this, did not result in a reduction of sentence of at least 25% and [8] that this was essentially a matter for the discretion of the sentencing judge - see also Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 672; and Miles v The Queen (1997) 17 WAR 518.

42 Other mitigating factors are the absence of any significant prior record, the youth of the offender, indications of good character and demonstrations of remorse. Regrettably, in the present case, only the last of these makes an appearance. I shall review the personal background and antecedents of Farmer in more detail in a moment.

43 I now turn to the various options which are available for imposing sentence. These are set out in s 39 of the Sentencing Act. They range from minor to more severe punishments. At the minor end, there is a discharge without any sentence being imposed or a fine. At the upper end, there is imposition of a term of suspended imprisonment or actual immediate imprisonment. There are various options in between. I must explain and make it unmistakably clear that the law requires that a court should not use a sentencing option which is more severe than any of the other available options, unless justified by the seriousness of the offence or the need for the protection of the community. This is consistent with the long-established principle of law that a sentence of imprisonment is a sentence of last resort and that, if at all practical, some lesser sentencing option should be selected. If a term of imprisonment is considered to be the appropriate sentence, even then, I am required to consider whether, in all the circumstances, it might be suspended, notwithstanding that other factors indicate that it is the only appropriate form of sentence. I have done so in the present case but, as already remarked, there is no alternative but for immediate terms of imprisonment to be imposed for both these offences and, having reached that conclusion and formulated my ultimate disposition as appears later from these reasons, I have again considered the matter and decided that this is not a case for suspension of either of the terms of imprisonment.

44 Where a sentence of immediate imprisonment is imposed, I am required to consider whether or not any period in custody spent whilst on remand should be taken into account and, if so, whether or not the sentence should be backdated to give credit for that period. Farmer has been in custody since 31 October 2006 and both the State and his own counsel submit that credit should be given for this period of imprisonment. I accept those submissions and will backdate the sentences which I impose to the time when Farmer was first taken into custody.

45 I must also give attention to whether or not Farmer should be made eligible for parole in respect of the term affixed of imprisonment by making a parole eligibility order under s 89 of the Sentencing Act. His counsel has submitted that he should be made eligible for parole and counsel for the State also considers that a parole eligibility order should be made. You, Farmer, are facing a long term of imprisonment and in view of your past record, the difficulties which you have had with alcoholism and other problems in your life, it is plainly to your own advantage, and for the protection of the community, that you should eventually have an opportunity of returning under supervised and conditional care to the community. Your prospects of eventual rehabilitation and the need for you to be monitored when released both encourage this choice. I, therefore, will make a parole eligibility order.

46 Very significantly, in the present case the provisions of s 22 of the Sentencing Legislation Amendment and Repeal Act apply and require me to reduce by a factor of one-third the sentence of imprisonment which I otherwise would have considered appropriate to impose before that change in the law.

47 Having reached the obvious conclusion that both these offences require the imposition of sentences of imprisonment, I have proceeded to impose and combine two sentences for these offences and to direct that they should be served cumulatively. In doing so, I have given consideration to all the circumstances of the case and not merely to questions of rehabilitation of the offender - Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. I have also given consideration to the totality of the combined effect of these sentences but having regard to the degree of criminality involved, the destructive effect on the community which these offences have produced and the need, in the clearest terms, for general deterrence to be vindicated, I have considered that they should be served cumulatively.

48 Timothy Leonard Gordon Farmer was born on 25 July 1977 at Albany. He was therefore aged 30 years at the date of both these offences. He is the fifth child in a family of nine. His father died in distressing and abject circumstances at the age of about 40 when Farmer was only 10. His mother is still alive. He was educated from the age of six to 16 years and is not married, although he has had at least three serious relationships and has children by two of these. He has a long prior history of convictions dating from mid-1996 in various adult courts. He also has convictions before then, dating back to 1985 in Children's Courts.

49 A number of his adult offences have involved various sentences of imprisonment and include offences for dishonesty, alcohol related and driving offences, unlawful possession of drugs, violence, including assault, receiving and assault of a public officer. In the pre-sentence report prepared by an officer of the Department of Corrective Services it was noted that Farmer has a significant court history totalling 150 convictions.

50 He first came before the courts at the age of 12 and has continued to offend in each year except in 1992 and 1999. His offences escalated from survival type offending as a juvenile to largely traffic and substance related offending as an adult. He has also been convicted of offences of aggression and associated offences involving violence against police officers and members of the public. He has a history of becoming aggressive after consuming alcohol and has seriously assaulted his victims. This includes convictions for two breaches of a violence restraining order against one of those victims.

51 It is evident that Farmer's repeated appearances before the courts, and the penalties which have been imposed, have done virtually nothing to secure compliance with, or respect for, the law. Between 1995 and 2005 he was subject to no less than 10 various court-imposed orders, ranging from work and development orders, community-based orders, to community service orders and parole orders. His general response to these was poor and on five occasions he was breached for non-compliance or for reoffending.

52 On a slightly positive side, he has, since being arrested on this charge of manslaughter, participated in a large number of prison-based courses to address substance abuse issues and to address communication, power and control. This is an encouraging sign but the author of the PSR observed that he would need more extensive and intensive intervention in these areas to reduce his risk of reoffending.

53 His family background, as described in the PSR and enlarged upon by his counsel, shows that Farmer suffered greatly from growing up in a family stricken with alcohol abuse and violence, particularly by his father. Regular severe drunkenness, associated severe beatings of him and his mother, and an atmosphere of violence and fear pervaded his childhood. He was sent away to live with an aunt but consistently absconded, living on the streets for long periods. At the young age of 11 he overdosed on drugs, was admitted to hospital and returned to his aunt's care, where he remained until he was 15. His grandmother and one of his brothers were each murdered and his father died a disillusioned, angry and alienated man at the age of 40, after a history of profound alcoholism.

54 As earlier mentioned, Farmer has had at least two previous significant relationships with women. He is the father of a 13-year-old son from the first and another 4-year-old child from the second. There seems to be little contact with either of these children.

55 At the time of his arrest and imprisonment Farmer was working about three days a week and earning about $430 a fortnight from part-time employment. He owed more than $2700 in outstanding fines and was paying these off at $10 a fortnight.

56 Farmer is reported to be in good health. He is a fit, powerful, strong man who focuses on gym training and excels in a variety of sports, particularly basketball and football, where his prowess has attracted considerable admiration and respect in those sporting communities and for which he has won many championship awards.

57 Counsel for Farmer produced a comprehensive psychological report prepared by Dr Phil Watts, a clinical and forensic psychologist. This report is dated 17 April 2008. Significantly, Dr Watts observes that Farmer seemed to be quite remorseful and touched by the emotion related to the death of young Mason. He found no evidence of any major mental illness such as a psychotic disorder, nor was there any evidence of current depression. After describing the background of Farmer's family and the circumstances leading to and involving these offences, he offered the opinion that the intensity of his participation in the assault occasioning bodily harm may also have been triggered by his experience of having his brother fatally assaulted by a group of people and that Farmer may have overreacted due to his fear for his companion.

58 In further discussion Dr Watts offered the opinion that Farmer showed some significant emotional damage as a result of his early life experiences and points to a number of positive attributes associated with his talent as a sportsman as offering hope for rehabilitation. He commented that Mr Farmer's history of alcohol and substance abuse appeared to demonstrate a binge pattern and stressed the remorse which he had demonstrated in relation to the loss of Mason.

59 These submissions for the offender were also supported by a large number of references from people who knew Farmer, including his mother, two of his aunts and others who have known him for quite some time and who take an interest in his prospects. These all stress various positive attributes, good relationships within the extended family, conspicuous sporting achievements and the potential for Farmer to be a role model for Aboriginal youth in view of his sporting prowess. A large number of certificates of completion of various prison sponsored services, already mentioned, have also been submitted.

60 Counsel referred me to a series of authorities bearing on the sentences to be imposed. Counsel for Farmer cited R v Howard [2001] NSWCCA 309, a case involving an appeal against a sentence for manslaughter arising from the death of a child victim caused by shaking and, in particular, whether a 10% discount for a plea of guilty was sufficient and whether adequate credit had been given for pre-sentence detention. That appeal was upheld but only because insufficient credit had been given for pre-sentence detention, the court in New South Wales deciding that the particular circumstances did not call for a greater discount than 10% notwithstanding that this was 'a very modest discount for a plea of guilty which had a considerable utilitarian value and which reflected contrition'.

61 I was also referred to the decision of Cummins J in DPP v Towle [2007] VSC 551 where the offender was sentenced in relation to six counts of dangerous driving causing death and four further counts of dangerous driving causing serious injury. These were cumulated in such a way as to involve an effective total of 10 years' imprisonment with an order for eligibility for parole. That case is not, in my view, directly comparable to the present case but it was relied upon in relation to the observations made by Cummins J at [27] about the principle of totality, emphasising that the total sentence must be appropriate and just and give proper measure to rehabilitation and not be crushing. I accept that proposition and have already indicated that the issue of totality has been addressed.

62 Reference was also made to the decision of the Court of Appeal in The State of Western Australia v Walley [2008] WASCA 12 where a State appeal against a sentence imposed for manslaughter was allowed and a sentence of 3 years' imprisonment was substituted for a sentence of 1 year and 8 months. This was a death which had come about where, after the course of heavy drinking and an argument, the offender, a woman, had armed herself with three knives to try and protect herself from an assault by the victim, leading to him being fatally stabbed. Reliance was placed on the passage in the joint judgment of Wheeler and Miller JJA at [32] where their Honours observed:

Comparison with sentences imposed at trial and even in the case of R v Churchill [2000] WASCA 230 (after appeal) are seldom helpful in cases of this nature. Manslaughter is by its very nature an offence in respect of which the facts and circumstances differ widely in every case. Sentences for the offence should reflect the value placed upon human life by the legislature (R v Bangard [2005] VSCA 313; (2005)13 V.R. 146 [12], (Buchanan JA) and Taylor v The State of Western Australia [2007] WASCA 218 [54] (Miller JA)).

63 In the case of R v Cassidy [2008] ACTSC 13, Higgins CJ sentenced an offender for the unlawful killing of a young girl aged only 4 1/2 years, again because of his reaction to her incontinence. His conduct involved repeated assaults and beating of the young girl, who died from gross cerebral oedema and hypoxia, following multi-system organ failure. Higgins CJ referred to the observations of Spigelman CJ in R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520, which was a case involving the death of a 7-month-old baby from severe beating. His Honour drew attention to the passage in the judgment of Spigelman CJ at [42] where the learned Chief Justice said:

Plainly a violent attack, albeit not one accompanied by an intention to kill or inflict grievous bodily harm, by a person in a position of trust and responsibility upon a defenceless young child, is a circumstance of considerable aggravation. In this sense only can the offence of manslaughter in such cases be regarded as some form of separate category. It is a circumstance of such significance that it is entitled to substantial weight in the exercise of the sentencing discretion. The sense of outrage in the community about such a case is so strong that the element of retribution must play a prominent part in the exercise of the sentencing discretion.

64 There were some material differences between the conduct of the offender in that case and the present. His prior history of offending was much smaller, there was present a mental condition involving a bipolar disorder and there was a lack of prior violent behaviour. Higgins CJ imposed a sentence of 15 years' imprisonment and a further sentence of 3 months' imprisonment to be served cumulatively with a period of 10 years and 2 months to be served before eligibility for parole.

65 These authorities are of assistance but they emphasise that the final decision as to sentencing is very much an issue of discretion balancing a variety of factors for which a sentencing judge must accept responsibility.

66 It seems to me, with respect, that the starting point here is that this particular crime of manslaughter is among the worst category of cases contemplated by the legislation. No doubt it may be possible to imagine even more reprehensible cases of manslaughter but enough has been said to demonstrate to my satisfaction that this is, unquestionably, within the first and foremost category of seriousness for which a maximum penalty of 20 years' imprisonment was reserved. It is, indeed, unusual to commence with the maximum term of 20 years' imprisonment but I consider that this is the starting point for this dreadful crime - see Wicks v The Queen (1989) 3 WAR 372 per Malcolm CJ at 378 - 379 and per Brinsden J at 394.

67 Reducing this by a factor of one-third, as I must, because of the 2003 amending legislation, brings the maximum sentence which this court may impose down to 13 years and 4 months - a reduction of 6 years and 8 months.

68 I must then allow a suitable reduction for the plea of guilty at an early stage and the assistance given to the authorities by the disclosures made initially to the police and later through counsel. Counsel for the State submitted that the discount should only be in the region of 15% but this is significantly less than the 25% to 35% range referred to in Little v The Queen. However, I do not consider that a discount in the upper range of that band is justified because of the obvious strength of the prosecution case and the grave level of criminality involved. In my view, these factors merit a discount of about 25 % but no more, and that is only because of the prevailing trend of authority in this State. That reduces the sentence to a very small fraction less than 10 years and it seems to me that a sentence of 10 years' immediate imprisonment is both necessary and appropriate in this case.

69 I have already concluded that a separate term of 1 year should be imposed for the conviction of assault occasioning bodily harm. Because this was a quite separate and distinct offence, both in time and in place and in relation to all the circumstances, it is proper that it should result in additional punishment. I therefore consider that this sentence should be served cumulatively, making a total effective term of imprisonment of 11 years, which I have again considered from the point of view of totality to be appropriate.

70 The operation of the sentence for manslaughter will be backdated so as to commence from 31 October 2006 and the 12 months' sentence for assault occasioning bodily harm will be cumulative upon that. There will be orders for eligibility for parole in respect of both convictions.

THE STATE OF WESTERN AUSTRALIA -v- FARMER [2008] WASC 115 (10 June 2008)

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Judgment (79 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- FARMER [2008] WASC 115 (10 June 2008)

Legislation Cited (1)

Cases Cited (5)