AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
19
Court of Criminal Appeal 16 December 2010

Pfitzner v R

[2010] NSWCCA 314

Homicide
CRIMINAL LAW

Citation: Pfitzner v R [2010] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 16 December 2010
Judges: McClellan CJ at CL; Hislop J; Price J

Background

The applicant pleaded guilty to the murder of her two-year-old son. The sentencing judge found that the killing, though unplanned and not proven to be intentional, occurred at the end of a course of mistreatment lasting several weeks. The applicant wrapped the child's body in plastic bags, placed it in a suitcase, and disposed of it in a nearby pond, before giving a false account to others about the child's whereabouts.

The applicant was sentenced in the Supreme Court by Hulme J to 25 years and 6 months imprisonment, with a non-parole period of 19 years and 2 months. That sentence was to be accumulated on a pre-existing suspended sentence. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had erred in his assessment of her remorse and acceptance of responsibility.

The applicant had a significant history of disadvantage, including childhood physical abuse, domestic violence in adult relationships, and time spent in youth refuges. These subjective matters were placed before the Court of Criminal Appeal.

  • Whether the sentencing judge erred in finding the applicant did not accept responsibility for her criminality and did not acknowledge the loss she caused.
  • What the proper approach is to evaluating an offender's remorse where the offender did not give oral evidence at the sentencing hearing.
  • Whether the sentence of 25 years and 6 months imprisonment (non-parole period: 19 years and 2 months) was manifestly excessive.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. McClellan CJ at CL, with Hislop J and Price J agreeing, found no basis to conclude the sentence was excessive or that any error had been established in the sentencing judge's approach.

On the question of remorse, the Court noted the difficulty in assessing an offender's true state of mind absent oral evidence. The sentencing judge had before him material including a psychologist's report, which noted the applicant's expressed regret, but he was also entitled to weigh other evidence bearing on her attitude toward the deceased. The sentencing court's conclusions on that issue were open on the material available.

The Court observed that the offence fell only slightly below the middle range of objective seriousness for murder, and that the conduct was part of a course of mistreatment rather than an isolated event. The standard non-parole period for murder where the victim is a child under 18 years is 25 years, and the sentencing judge had that figure plainly in mind.

Comparative cases from earlier years, including several where offenders received sentences for killing young children, were noted to have limited utility because they were decided when the standard non-parole period was 20 years rather than 25 years. The Court concluded that the sentence, though severe, was not excessive given all relevant factors, including the applicant's conditional liberty at the time of the offence, the need for general deterrence and denunciation, and the inability to find in the applicant's favour on prospects of rehabilitation or unlikelihood of reoffending.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is entitled to reach conclusions about an offender's remorse and acceptance of responsibility on the whole of the available material, even where the offender has not given oral evidence at sentence.
  • Comparative sentencing decisions involving the killing of young children carry limited weight where those sentences were imposed under a lower standard non-parole period regime than that applying to the offence under consideration.
  • A finding that an offence forms part of a course of mistreatment, rather than an isolated act, is a factor properly weighed against an offender at sentence, even where the killing itself was found to be unplanned.
  • Where an applicant seeks to establish manifest excess, it is not sufficient to show the sentence was severe; the Court of Criminal Appeal must be persuaded it was actually excessive having regard to all relevant objective and subjective factors.
  • Accumulation of a murder sentence on an existing non-parole period is appropriate where the earlier offence involved a different victim at a different time.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Butters v R [2010] NSWCCA 1
- R v DN [2007] NSWSC 1252
- R v FAP [2007] NSWSC 905
- R v Jalaty [2006] NSWSC 675
- R v PJS [2009] NSWSC 153
- R v Thomas [2007] NSWCCA 269