R v F.A.P - [2007] NSWSC 905

CITATION: R v F.A.P. [2007] NSWSC 905

HEARING DATE(S): 01/06/2007, 03/08/2007, 17/08/2007

JUDGMENT DATE :
17 August 2007

JUDGMENT OF: Howie J at 1

DECISION: The offender is convicted of murder and sentenced to a non-parole period of 14 1/2 years. The sentence is to commence on 8 January 2005 and the non-parole period expires on 7 July 2019 the date upon which the offender is eligible to be released to parole. There is a balance of term of 5 years to commence on 8 July 2019.

CATCHWORDS: Criminal Law - Sentence for Murder after plea - child killing by father - Aboriginal offender with depreived background and low intellect.

CASES CITED: R v Fernando (1992) 76 A Crim R 58

PARTIES: Regina v F.A.P.

FILE NUMBER(S): SC 2006/1160

COUNSEL: P. Barnett - Crown
P. Bolster - Offender

SOLICITORS: S. Kavanagh - Crown
Adamson Solicitors - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HOWIE J

FRIDAY 17 AUGUST 2007

2006/1160 REGINA v F.A.P.
REMARKS ON SENTENCE

1 HIS HONOUR: On 30 June 2007 the offender was arraigned before a jury panel on an indictment for murder. He entered a plea of not guilty of murder but guilty of manslaughter, however the Crown refused to accept the plea in discharge of the indictment. A jury was then empanelled. However, before the Crown opened the case to the jury, the offender asked to be re-arraigned and then pleaded guilty to the charge of murder.

2 At the date of the offence, the offender lived with his de facto and their three children in a private residence at Wauchope. The offender is of Aboriginal descent and was then aged 24 years. The deceased was the offender’s youngest child, a male aged 15 months, and at the time of his death on 1 January 2005 was residing with his parents and siblings.

3 On the day of the killing at about 9.00am, the mother of the deceased child left their home to go for a walk with the two elder children in order to obtain cannabis. The youngest child remained in the care of the offender who had been asked to shower him while the mother was away. At the time that the mother left the home, the child appeared in good health, although he was crying and upset possibly because of a minor viral infection or possibly because of injuries already inflicted upon him by the offender.

4 The mother returned home at about 10.00am. She saw the child leaning against a couch or lying on a mattress in the lounge room of the house but noticed that he did not respond to her as he normally would. However, thinking that he was “fine”, she put him into a cot and went into the kitchen. She returned to the lounge room a short time later. She then saw that the child was lying down and checked to see if he had a temperature. His legs…

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.

Continue reading R v F.A.P

Details

AGLC: R v F.A.P [2007] NSWSC 905
Case: [2007] NSWSC 905
Decision Date: 17 August 2007

CaseChat Overview and Summary

In the case of R v F.A.P, the appellant was convicted of the murder of his child and subsequently pleaded guilty to the charge. The case was heard in the Supreme Court of Australia, where the primary focus was on determining an appropriate sentence for the appellant, who is an Aboriginal man with a background marked by significant deprivation and cognitive challenges. The legal issues before the court involved the consideration of the appellant's personal circumstances, including his background, intellectual capacity, and the impact of these factors on his culpability and sentencing.

The court was tasked with balancing the gravity of the offence with the appellant's background and cognitive limitations. It needed to determine whether these factors warranted a departure from the usual sentencing principles applicable to murder cases. The central question was whether the appellant's deprived upbringing and low intellect should significantly mitigate his sentence, given the heinous nature of the crime. The court also had to consider the principles of proportionality and deterrence in the context of the appellant's background and the societal impact of the crime.

The court, in its reasoning, acknowledged the profound impact of the appellant's deprived upbringing and low intellect on his actions and moral reasoning. It recognised that these factors contributed to his inability to fully comprehend the gravity of his actions. However, the court also emphasised the heinous nature of the crime and the need to maintain public confidence in the justice system. After a thorough analysis, the court decided that while the appellant's background and intellect were significant mitigating factors, they did not entirely absolve him of responsibility for his actions. The court concluded that a sentence reflecting both the severity of the crime and the appellant's mitigating circumstances was appropriate.

The final orders of the court resulted in the appellant being sentenced to a term of imprisonment with specific considerations for his personal circumstances, ensuring that the sentence was both just and reflective of the unique factors presented in this case.

Orders