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Supreme Court 30 March 2015

R v Colin Maxwell FARROW (No 3)

[2015] NSWSC 323

Homicide
CRIMINAL LAW SENTENCE MURDER MENTAL ILLNESS OBJECTIVE CIRCUMSTANCES SUBJECTIVE CIRCUMSTANCES

Citation: R v Colin Maxwell Farrow (No 3) [2015] NSWSC 323
Court: Supreme Court of New South Wales
Date: 30 March 2015
Judge(s): Rothman J

Background

The offender was tried by judge alone and found guilty of murdering Linda Jane Stevens on 11 April 2013 at Wollongong. He had pleaded not guilty on the grounds of mental illness, but the court rejected that defence and entered a verdict of guilty in earlier proceedings (R v Colin Maxwell Farrow (No 2) [2015] NSWSC 109). These remarks on sentence followed that finding.

The offender, a drug addict, had a prior relationship with the deceased, who sold drugs from her unit. After a falling out in which she refused to supply him on credit, the offender travelled to her home, gained entry, and killed her with a knife. He inflicted multiple wounds, three of which were independently lethal. He then destroyed evidence, wrapped the deceased's body in bed linen, bound it with duct tape and rope, placed it in the boot of her car, and drove toward what appeared to be an intended burial site before erratic driving drew police attention.

The offender was arrested on 17 April 2013 and had remained in continuous custody since that date. Although he had no memory of committing the offence, he accepted early in the proceedings that he had caused the deceased's death, which Rothman J noted as a significant saving to the administration of justice.

  • Where, within the range of objective seriousness for murder, did this offence sit?
  • What weight should be given to the offender's mental health conditions (including schizophrenia and Antisocial Personality Disorder) as subjective mitigating factors?
  • Did the offender's early acceptance of responsibility carry utilitarian or mitigating value?
  • Were there special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of term?
  • How should the various statutory purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 be balanced?

Decision

Rothman J described the murder as objectively serious, noting the planned nature of the offence (evidenced by notes the offender had compiled about potential targets), the use of a knife, the number and severity of the wounds inflicted, and the deliberate and methodical concealment of the crime. The violence exceeded that ordinarily required to commit murder, and the offence occurred in the deceased's home.

The court gave careful attention to the offender's mental health. Rothman J found that the offender suffered from schizophrenia, which, while insufficient to establish the mental illness defence, was a genuine mitigating factor reducing his moral culpability to a degree. The presence of Antisocial Personality Disorder was noted, though the court found it did not indicate a heightened danger to the community beyond what the disorder generally involves.

On the question of special circumstances, Rothman J accepted that the offender's schizophrenia and the treatment he would require meant that a longer parole period was warranted to support rehabilitation and supervision on release. This justified departing from the standard ratio between the non-parole period and the balance of term under the Crimes (Sentencing Procedure) Act 1999.

The offender's early acceptance of causation, despite having no memory of the killing, was treated as carrying some utilitarian value and reflecting a degree of remorse, though Rothman J gave it only slight weight. The court emphasised that the sentence had to reflect the seriousness of the offence regardless of subjective circumstances. Several back-up charges relating to the arrest and disposal of the deceased's property were dismissed.

Orders Made

  • The offender was convicted of the murder of Linda Jane Stevens on 11 April 2013.
  • Sentenced to imprisonment with a non-parole period of 15 years, commencing 17 April 2013 and concluding 16 April 2028.
  • Balance of term: a further 7 years' imprisonment, expiring 16 April 2035.
  • First eligible for release on parole: 17 April 2028.
  • Back-up offences (use of a weapon to prevent arrest, two counts each of resist/hinder police and assault police, and recklessly dealing with proceeds of crime) were dismissed.

Key Takeaways

  • In murder sentencing, the objective seriousness of the specific offence must be assessed across the full range of conduct constituting that offence, from the lowest level of culpability to the worst category, regardless of how inherently grave the crime is.
  • Mental illness that falls short of the statutory defence can still reduce an offender's moral culpability and operate as a mitigating factor in the sentencing calculus, even for a serious planned killing.
  • Special circumstances justifying a departure from the standard non-parole period ratio can arise where the offender's mental health condition requires a longer supervisory period on parole to support rehabilitation.
  • The victim's occupation or lifestyle, including drug dealing, carries no weight in assessing the offender's moral culpability and is irrelevant to both guilt and sentence.
  • An offender's early acceptance of causation, even without memory of the offence and in the absence of a formal guilty plea, may carry modest utilitarian value and reflect some degree of remorse, though it does not substantially reduce a sentence for murder.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- R v Colin Maxwell Farrow (No 2) [2015] NSWSC 109
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Elturk v R [2014] NSWCCA 61
- Veen v R (No 2) (1988) 164 CLR 465