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Court of Criminal Appeal 3 March 2005

Regina v Fraser

[2005] NSWCCA 77

Homicide
CRIMINAL LAW AND PROCEDURE SENTENCE FOLLOWING TRIAL HEAVY SENTENCE NOT EXCESSIVE

Citation: Regina v Fraser [2005] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 3 March 2005
Judge(s): Grove J, James J, Barr J

Background

The applicant, a father, was convicted by jury of the murder of his three infant children, aged seven, five, and four years old. He had pleaded not guilty to murder but guilty to manslaughter on the basis of substantial mental impairment under s 23A of the Crimes Act 1900. The Crown did not accept that plea, and the jury rejected the partial defence, returning verdicts of murder on all three counts. The applicant did not challenge the convictions.

Howie J sentenced the applicant to fixed terms of 23 years for each of the two younger children's murders, commencing consecutively, and 25 years with a 20-year non-parole period for the eldest child's murder, commencing after the first two terms. The combined effect was a total term of 32 years with the earliest parole eligibility after 27 years in custody.

The applicant sought leave to appeal against the severity of the sentences on two grounds.

  • Whether the total sentence imposed was manifestly excessive, having regard to the applicant's mental state at the time of the offences
  • Whether the sentencing judge erred in declining to find "special circumstances" that would have reduced the proportion of the non-parole period relative to the head sentence

Decision

On the first ground, the Court acknowledged that the applicant's mental state, while insufficient to reduce murder to manslaughter, was nonetheless a relevant mitigating factor that could reduce culpability within the range available for murder. Grove J reviewed a series of comparable cases involving multiple killings of children and found that the sentences imposed by Howie J, though heavy, were not shown to be outside the range of a sound exercise of judicial discretion.

The Court noted that Howie J had explicitly considered the applicant's mental state in determining sentence and had reduced the sentences from what might otherwise have been imposed. The crimes themselves were described as being of extreme gravity, involving the deliberate drowning of three children after administering sleeping tablets to subdue them, staged in circumstances designed to maximise the psychological trauma to the children's mother. No error in the sentencing judge's reasoning was identified.

On the second ground, the Court confirmed that merely identifying factors capable of amounting to "special circumstances" does not compel a sentencing judge to make such a finding or vary the statutory proportion between non-parole period and head sentence. Howie J had turned his mind expressly to the question and concluded the non-parole period represented the minimum punishment appropriate. The Court found no error in that conclusion, and the ground was not made out.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A jury finding that mental impairment does not reduce murder to manslaughter does not preclude the sentencing court from treating that mental state as a mitigating factor when determining the appropriate sentence within the murder range.
  • No error was established in the sentencing judge's approach to accumulating sentences for multiple murders, even where the resulting total non-parole period exceeded the statutory proportional formula.
  • Under NSW sentencing law, the existence of factors capable of constituting "special circumstances" does not automatically require a finding in the offender's favour or a reduction in the non-parole period's proportion to the head sentence.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that appellate intervention in sentencing requires a demonstrated error; a heavy sentence alone is insufficient if the discretion was soundly exercised.
  • Comparable cases involving multiple child homicides supported the range within which the sentences fell, reinforcing that the assessment was not idiosyncratic.

Legislation and Cases Referenced

Legislation:
- s 23A Crimes Act 1900 (NSW) (substantial impairment by abnormality of mind)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Cheatham [2001] NSWSC 560
- R v Cikos [2001] NSWSC 35
- R v De Gruchy [2000] NSWCCA 51
- R v Folbigg [2005] NSWCCA 23
- R v Hull [1997] SASC 6087
- R v Jang [1999] NSWSC 1153
- R v Letteri (unreported, CCA, 18 March 1992)
- R v Lupton [2003] NSWCCA 200
- R v Merritt [2002] NSWSC 1159 and [2004] NSWCCA 19
- R v Morgan (1997) 18 A Crim R 368
- R v Park [2003] NSWCCA 142
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Velevski (unreported, NSWSC, 26 September 1997)
- Ryan v The Queen (2001) 206 CLR 267