COUNSEL: J Stratton SC (applicant) D Arnott SC (Crown)
SOLICITORS: Legal Aid of New South Wales (applicant) Director of Public Prosecutions (Crown)
CATCHWORDS: CRIMINAL LAW whether the sentencing judge erred in finding that the offender did not accept responsibility for her criminality and did not acknowledge the loss she caused implications of evaluating offender's remorse absent the giving of oral evidence in court whether the sentence imposed was manifestly excessive
McCLELLAN CJ at CL: The applicant pleaded guilty to the murder of her son. The child was aged 2 years 8 months when he died. The applicant was sentenced to a term of 25 years and 6 months imprisonment with a non-parole period of 19 years and 2 months. She seeks leave to appeal her sentence.
The maximum sentence for murder is life imprisonment. The standard non-parole period when the victim is a child under 18 years of age is 25 years.
The facts
The applicant was born on 10 August 1981 and was 26 years old at the time of the offence. She had three children from three different relationship, Tahlia (born 12 August 2000), Dean Shillingsworth (born 25 February 2005) and Brayden (born 14 April 2007). Brayden was the son of Clifford Connors, with whom the applicant was living in a de facto relationship at the time of the offence.
The applicant had been involved in a relationship with Paul Shillingsworth from 2002. Mr Shillingsworth was the father of Dean Shillingsworth. His Honour described the relationship between the applicant and Mr Shillingsworth as “attended by arguments, alcohol and drug abuse and domestic violence.”
In February 2006 Tahlia made a complaint that a person named Michael Campbell had done something to her. Mr Shillingsworth and the applicant reacted by seriously assaulting Mr Campbell. Mr Shillingsworth was incarcerated and that seemed to have ended the relationship between the applicant and Mr Shillingsworth. The applicant was arrested but she was granted bail after two days.
The applicant lived with the children in a refuge at Armidale, but she had an informal arrangement with Mr Shillingsworth’s mother, Ms Ann Coffey, for Ms Coffey to look after…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Pfitzner v R [2010] NSWCCA 314
Case
[2010] NSWCCA 314
Decision Date
CaseChat Overview and Summary
In the matter of Pfitzner v R, the High Court of Australia examined the sentencing of the applicant, who was convicted of murdering her seven-year-old son, Dean Shillingsworth. The case primarily revolved around whether the sentencing judge erred in their evaluation of the applicant’s acceptance of responsibility and acknowledgment of the harm caused. Additionally, the court considered the implications of assessing the applicant’s remorse without the benefit of oral evidence in court, and whether the sentence imposed was manifestly excessive.
The legal issues at the forefront of this appeal centred on the proper assessment of remorse and acceptance of responsibility in sentencing, particularly in the absence of oral testimony. The applicant argued that the sentencing judge failed to adequately consider her expressions of remorse and acceptance of responsibility. The court also had to determine the weight to be given to the applicant's remorse in the absence of her giving oral evidence, and whether the sentence, which was life imprisonment with a non-parole period of 25 years, was manifestly excessive.
The High Court concluded that the sentencing judge did not err in their assessment of the applicant’s acceptance of responsibility and acknowledgment of the harm caused. The court found that the judge was entitled to consider the applicant’s written statements and other evidence to form a comprehensive view of her remorse and responsibility. Furthermore, the court held that the absence of oral evidence did not preclude a proper evaluation of the applicant’s remorse. Finally, the High Court determined that the sentence was not manifestly excessive, taking into account the seriousness of the crime and the need for general deterrence.
The High Court upheld the sentence imposed by the lower court, affirming that the sentencing judge had correctly assessed the applicant’s responsibility and remorse. The court found no basis to interfere with the sentence on the grounds of manifest excess.
Orders
Orders of the court
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Background
Background to the litigation
The maximum sentence for murder is life imprisonment. The standard non-parole period when the victim is a child under 18 years of age is 25 years.The facts The applicant was born on 10 August 1981 and was 26 years old at the time of the offence. She had three children from three different relationship, Tahlia (born 12 August 2000), Dean Shillingsworth (born 25 February 2005) and Brayden (born 14 April 2007). Brayden was the son of Clifford Connors, with whom the applicant was living in a de facto relationship at the time of the offence. The applicant had been involved in a relationship with Paul Shillingsworth from 2002. Mr Shillingsworth was the father of Dean Shillingsworth. His Honour described the relationship between the applicant and Mr Shillingsworth as “attended by arguments, alcohol and drug abuse and domestic violence.” In February 2006 Tahlia made a complaint that a person named Michael Campbell had done something to her. Mr Shillingsworth and the applicant reacted by seriously assaulting Mr Campbell. Mr Shillingsworth was incarcerated and that seemed to have ended the relationship between the applicant and Mr Shillingsworth. The applicant was arrested but she was granted bail after two days. The applicant lived with the children in a refuge at Armidale, but she had an informal arrangement with Mr Shillingsworth’s mother, Ms Ann Coffey, for Ms Coffey to look after Dean for a few days at a time. At some point in 2006 it is alleged that the applicant said “I will kill Dean before he goes back with Ann.” However, Ms Coffey cared for Dean on subsequent occasions and had full time custody of him in the latter part of 2006 and in 2007. The applicant began a relationship with Clifford Connors in the middle of 2006 although they were not living together. On 14 April 2007 the applicant bore Mr Connors’ son, Brayden. The applicant moved to her own premises at Rosemeadow shortly afterwards. Mr Connors came to live there a short time later. In March 2007 the applicant began court proceedings to regain custody of Dean. Ms Coffey opposed this. On 4 June 2007 consent interim orders were made granting Ms Coffey custody, but giving the applicant defined access periods. After the second period of access, the applicant did not return Dean at the agreed time. Ms Coffey began proceedings in the Federal Magistrates Court for a recovery order. That application was listed for hearing on 28 September 2007. In August 2007 Mr Shillingsworth’s non-parole period expired. The applicant was later to tell police that in September she received a death threat from Mr Shillingsworth communicated by a third person. There was evidence that the applicant’s treatment of the deceased deteriorated. In the two weeks before he died bruises were seen on the deceased’s body. There were reports that she would lock him outside to punish him. However his Honour noted that no one saw the applicant punish the deceased with anything more than a slap. On 25 September 2007 the applicant told her caseworker that she wanted to give the deceased back to his grandparents because she was not coping. Unfortunately on 28 September the application for a recovery order was stood over to 11 October. On 3 October the applicant told her case worker that she did not want to go back to court and just wanted her son picked up by police and taken back to his grandparents.