Citation: Regina v Folbigg [2005] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 17 February 2005
Judge(s): Sully J; Dunford J; Hidden J
Background
The appellant was tried in the Supreme Court before Barr J and a jury between April and May 2003. The indictment contained five counts relating to the deaths of her four infant children: Caleb, Patrick, Sarah, and Laura. Each child died suddenly and unexpectedly in infancy, with no post-mortem examination able to establish an exact cause for the cessation of breathing in any case.
The appellant was convicted of manslaughter in respect of Caleb, grievous bodily harm with intent in respect of Patrick's near-fatal episode in October 1990, murder in respect of Patrick, and murder in respect of Sarah and Laura. The Crown's case rested heavily on the fact that the appellant was the primary carer for each child and was present at or near the time each incident occurred. Her husband was a heavy sleeper who attended full-time employment, leaving the appellant responsible for overnight care.
At sentencing in October 2003, Barr J imposed partially cumulated terms producing an aggregate of 40 years' imprisonment with a non-parole period of 30 years. The appellant sought to appeal all five convictions and applied for leave to appeal each of the five sentences.
Legal Issues
- Whether the convictions were unsafe or unsupported by the evidence, including in light of expert opinion regarding sudden infant death syndrome (SIDS) and similar unexplained infant deaths
- Whether the trial judge erred in admitting or directing the jury on tendency or similar fact evidence connecting the deaths
- Whether the overall sentencing result of 40 years with a 30-year non-parole period was manifestly excessive or infected by error
- Whether the practical effect of the sentences imposed amounted to a de facto life sentence, contrary to the approach taken by the sentencing judge himself
Decision
The Court unanimously dismissed the appeal against all five convictions. The four grounds of appeal against the convictions were argued and considered in turn, but the Court found no basis to disturb the jury's verdicts. The judgment does not indicate that any ground raised a sufficient doubt about the safety of the convictions.
On sentence, the Court took a different view. Sully J, with whom Dunford J and Hidden J agreed, found that the overall sentencing result was simply too high. Although Barr J had expressly declined to impose a life-means-life sentence, his Honour's reasoning for that restraint was sound, and a result that did not formally constitute a life sentence but was likely to produce the same practical effect was, in the Court's view, an error warranting intervention under s 6(3) of the Criminal Appeal Act 1912 (NSW).
Sully J noted that, as structured by the sentencing court, the appellant could not be released on parole until she was approximately 66 years old at the earliest. Taking into account the realistic operation of parole, she might not be released until her mid-seventies. The Court considered this outcome equivalent in practice to a life sentence by a different name, and one that went beyond what justice required.
The Court granted leave to appeal against sentence, quashed the sentences on Counts 4 and 5, and re-sentenced the appellant on those counts. The restructured sentences produced an overall head sentence of 30 years with a non-parole period of 25 years. The non-parole period represented approximately 83 per cent of the head sentence, somewhat above the statutory norm of 75 per cent, which the Court considered justified by the particular features of the case.
Orders Made
- Extension of time granted to permit the hearing of the appeal and application
- Appeal against all five convictions dismissed
- Leave to appeal against sentence granted
- Sentences on Count 4 and Count 5 quashed; appellant re-sentenced as follows:
- Count 4: 20 years' imprisonment commencing 22 April 2008, expiring 21 April 2028; no non-parole period set (given the overall sentencing structure)
- Count 5: 22 years' imprisonment commencing 22 April 2011, expiring 21 April 2033; non-parole period of 17 years, expiring 21 April 2028
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal found no error in the verdicts returned by the jury across five counts, including in a case relying substantially on circumstantial and expert evidence regarding unexplained infant deaths.
- A sentencing outcome that stops short of a formal life sentence may nonetheless warrant appellate intervention if its practical effect is indistinguishable from one, particularly where the sentencing judge expressly declined to impose a life sentence for principled reasons.
- Where a sentencing judge recognises that a life-means-life result is not warranted, a cumulated structure that produces substantially the same outcome can constitute a sentencing error sufficient to engage the Court of Criminal Appeal's power under s 6(3) of the Criminal Appeal Act 1912 (NSW).
- Non-parole periods above the statutory norm of 75 per cent of the head sentence remain available where the particular circumstances of the offending and the offender justify a longer minimum term.
- Comparative sentencing analysis, though necessarily inexact, formed part of the Court's reasoning in concluding that the aggregate sentence of 40 years with a 30-year non-parole period was excessive.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases:
- GK (2001) 53 NSWLR 317
- Makin v Attorney General of New South Wales [1894] AC 57
- Reg v Boardman [1975] AC 421
- Harris v Director of Public Prosecutions [1952] AC 694
- Reg v Cannings [2004] 1 WLR 2067
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen (2002) 213 CLR 606
- R v Ellis (2003) 58 NSWLR 700
- Director of Public Prosecutions v P [1991] 2 AC 447
- Pearce v The Queen (1989) 194 CLR 610
- Veen (No 2) (1988) 164 CLR 465
- Wong v The Queen (2001) 207 CLR 584