R v Faehndrich

[2008] NSWSC 877

CITATION:	R v Faehndrich [2008] NSWSC 877
HEARING DATE(S):	31 March 2008 - 11 April 2008 6 June 2008 25 July 2008
JUDGMENT DATE :	29 August 2008
JUDGMENT OF:	Price J at 1
DECISION:	Sentenced to a term of imprisonment with a non-parole period of 15 years to commence on 21 August 2006 and is to expire on 20 August 2021. Balance of term of 5 years to commence on 21 August 2021 and expire on 20 August 2026. Eligible to be released to parole on 20 August 2021. It is a condition of release to parole that psychiatric treatment and appropriate medication continue. The following steps be taken by Justice Health. 1. The prisoner should be immediately assessed by the Justice Mental Health Team. 2. The prisoner is to remain under the regular care of a psychiatrist whilst in custody and receive appropriate medication. Direct that a copy of Dr Giuffrida's report dated 7 July 2008 be forwarded by the Crown to the Justice Health Team at the prison where the prisoner is incarcerated for its immmediate attention together with a copy of these recommendations. The attention of the Justice Mental Health Team is to be directed to the "Treatment Recommendations" on page 10 of the report.
CATCHWORDS:	Criminal Practice and Procedure - sentencing - murder - jury verdict - mental illness - provocation - general deterrence - specific deterrence - departure from standard non-parole period
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 19A s 19A(2), s 19A(3), s 21(1), s 21A(3)(b), s 21A(3)(j), s 21A(3)(i)-(ii), s 21A(3)(c), s 61(1) Crimes Act 1900 s 19A(2)
CATEGORY:	Sentence
CASES CITED:	R v Engert (1996) 84 A Crim R 67 R v Fidow [2004] NSWCCA 172 R v Hemsley [2004] NSWCCA 228 R v Isaacs (1997) 41 NSWLR 374 R v Israil [2002] NSWCCA 255 R v Merritt (2004) 146 A Crim R 309 R v Previtera (1997) 97 A Crim R 76 Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	Regina John Harry Faehndrich
FILE NUMBER(S):	SC 2007/2574
COUNSEL:	Mr Barnett SC (Crown) Mr Bodor QC (Prisoner)
SOLICITORS:	Maureen Bonomini (Director of Public Prosecutions) Victoria Havryliv Ford Criminal Lawyers (Prisoner)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Price J

29 August 2008

2007/2574 R v Faehndrich

REMARKS ON SENTENCE

1 HIS HONOUR: On 11 April 2008, the prisoner John Harry Faehndrich was convicted by a jury of the charge that he on or about 13 August 2006 at Forster in the State of New South Wales did murder Dianne Condon. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of 20 years imprisonment.

2 It is my duty to determine the facts relevant to sentencing the prisoner. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the prisoner must be arrived at beyond reasonable doubt: see R v Isaacs (1997) 41 NSWLR 374 at 378-379.

3 On the first day of the trial the prisoner pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept the plea of guilty to manslaughter in full discharge of the indictment and the trial proceeded on the charge of murder. It was the prisoner’s case at trial that he was acting under provocation when he killed Dianne Condon and the partial defence of substantial impairment by abnormality of mind was raised by him. The jury was also instructed that in order to find the accused guilty of murder that they must be satisfied beyond reasonable doubt that the act causing the death of Dianne Condon was not carried out in self-defence.

4 The deceased died when she was stabbed by the prisoner with a pair of scissors and her vertebral artery was incised. They had been in a relationship of about three months duration. At the time of her death, the deceased was staying with the prisoner in a motel room at Forster. She was 36 years old when she was murdered.

5 The jury was satisfied beyond reasonable doubt that the prisoner deliberately and intentionally stabbed the deceased with the scissors and caused her death, that the acts causing her death were not carried out in self-defence and the prisoner was not acting under provocation. The jury must have found that the acts causing death were done with either an intention to kill Dianne Condon or to inflict grievous bodily harm upon her. The members of the jury were not satisfied on the balance of probabilities that the partial defence of substantial impairment by abnormality of mind had been established by the prisoner.

6 An important matter of fact in the trial was whether the deceased had attacked the prisoner with the scissors. The jury’s verdict does not determine this issue. On the issue of provocation, it was open to the jury to accept the prisoner’s evidence and find that the acts causing death were the result of a loss of self-control on his part that was induced by the deceased’s conduct towards him but to find that the deceased’s conduct was not such that it could have induced an ordinary person in the position of the prisoner to have so far lost self-control as to have formed an intention to kill, or to inflict grievous bodily harm upon the deceased. As to self-defence, it was open to the jury to accept that the prisoner genuinely believed that it was necessary to do what he did in his own self-defence, but to find that what he did in stabbing the deceased was not a reasonable response in the situation that he perceived it to be. Another basis for the verdict was for the jury to find on the issue of provocation that there was nothing in the conduct of the deceased which induced the prisoner to lose his self-control. As to self-defence, it was open to the jury to find that the prisoner did not genuinely believe that it was necessary to do what he did in his own self-defence.

7 The prisoner’s account to the jury of events that occurred in the motel room on Sunday 13 August 2006 included his waking up about midnight and finding that Miss Condon was not in the room. After he had looked without success for her, she returned and went to bed. He described being at his wits end and going for a walk near the water. When he returned after about two hours he noticed that the bed had been made and Dianne was lying on it. She had her head at the end of the bed. He observed all the bags were packed including his. He saw in her mouth what he described was like spit which he thought was unusual. His first impression was that she had overdosed or over self-medicated. He said “What have you done? Do you want me to call an ambulance?” The first thing she said was she wanted to be with her mother.

He tried waking her, picked her up and carried her into the bathroom. The prisoner said she appeared to be bringing something up in the toilet and then he actually helped her get into the shower. When she was in the shower she was laying on the floor. He kept, he said, on coming in to watch her and she said to him “Fuck off, leave me alone.” The prisoner told the jury that she came out of the bathroom, he really did not look at her but she came up to her cosmetic bag. He said he was standing over near his checkered bag which was roughly in the middle of photograph eight of exhibit E. The prisoner said he asked the deceased, “How are you?” she said, “You’re not deserting me, you cunt.” He saw her coming at him with scissors in her hand. When he first noticed the scissors she was very close to him. He went to grab hold of her, they had a struggle and then fell. The next thing he remembered was that she was bleeding from the neck area and he could remember trying to stem the blood flow. When he saw Dianne Condon with the scissors he thought that the love of his life was trying to stab him. He tried to defend himself. He said he was not angry but shocked. At the time she was dressed in a bath towel which was wrapped around her. When asked by Mr Bodor QC what happened after he tried to stem the flow of blood, the prisoner told the jury he could remember flashbacks. He could remember being panicky and a momentary attempt at cleaning that to him seemed futile. He could recall doing some re-arranging of the packed bags. He thought he actually threw the scissors into one of the bags. He said he had to get out of there and wanted to die.

8 The Crown invites me to find that the deceased did not approach, come at or attack the prisoner with the scissors. Mr Bodor for the prisoner submits that such a finding should not be made. He contends that the deceased had been volatile in the relationship as had the prisoner. The scissors were hers and in her bag. Given the fact that the prisoner, on the version given to police by the deceased on 18 June 2006 that the prisoner assaulted her, it may well be, Mr Bodor argued, that she grabbed the scissors in an attempt to either frighten or attack the prisoner. He got the better of the wrestle for the weapon and thereafter, provoked by that disloyalty as he saw it, in a rage he used the scissors. Mr Bodor further submits that this is a factual matter which the Court might not be able to resolve.

9 I find that the prisoner’s evidence as to the circumstances in which he killed the deceased to be largely untruthful. It is appropriate to observe that his account of what occurred when he returned to the room and took Miss Condon into the bathroom was not supported either by the toxicology results or the evidence of Dr Lee, a forensic pathologist, as to the consequences of an overdose of medication on the physical capabilities of the deceased. Furthermore, there was a significant difficulty with the honesty and reliability of his evidence when what he had told Dr Nielssen and Dr Giuffrida, the psychiatrists, about seeing the deceased “frothing at the mouth” was considered.

10 Forensic evidence given during the trial included Dr Lee’s testimony that the body of the deceased was located in the far corner of the motel room near the rear door adjacent to the bathroom. She was lying on her right side with her head towards the corner. A large pool of blood lay on the carpet next to the door frame of the bathroom door. A second large pool of blood lay underneath the head and neck area of the deceased. No other heavy deposits of blood were present at the scene, but a large quantity of low level splashed blood was present along the southern wall with a small quantity present on the western wall. The body was partly covered by a moderately bloodstained brown blanket and a number of towels.

11 Dr Lee told the jury that the blood patterning present on the blanket did not correspond to blood either on the deceased or on the carpet. On removal of the blanket, a heavily bloodstained towel was noted to be lying over the mid part of the trunk and left arm with patterning that again did not correspond to that part of the body. On removal, a bath towel was observed to be wrapped around the body, being approximately at mid breast level. Part of the bloodstaining on the towel in the region of the left arm corresponded to the bloodstains seen on the body, but those on the mid-back did not correspond to the injuries on the back, being of a contact type and deposited from the outer aspect. Dr Lee expressed the opinion that the most obvious thing about the bloodstained towels with the exception of the bath towel wrapped around the body at approximately breast level was that their appearance was compatible only with their placement by another individual, in other words, certainly not by the deceased. The appearance of the blood being unrelated to that of the position where they were found meant that they had been used to soak up blood from other surfaces or areas. It was quite clear, Dr Lee said, that there had been cleaning up of bloodstains within the bathroom. It may well have been, Dr Lee said, explained by some of the blood that was on the towels.

12 The most obvious feature Dr Lee could see about the scene was that there were two areas of bloodstaining within the room. One was very much under the area where the deceased’s injuries were and much of that blood could have got onto the carpet while the deceased was effectively there. But the deceased, Dr Lee said, had obviously spent a significant period of time in the area of the heavy bloodstains right next to the bathroom door and had been relatively still there, in other words, bled just into one area. Dr Lee testified that the only way this could have occurred from one site to the final site was as a result of active movement, or by passive movement. In other words, she had been moved by some other individual shortly prior to death. The bloodstains he referred to as being on the walls were all low-level bloodstains. Dr Lee opined that the deceased had not risen significantly after her first collapse. She had collapsed more or less in the area of the bathroom door and then had moved at a very low rate, not more than a few centimetres, 10 or so centimetres, above the floor to end up in the second position.

13 Dr Lee conducted an autopsy and described 11 stab wounds to the deceased. Injuries one and two were a pair of penetrating injuries of the mid-back below the level of the shoulder blades. They were consistent with a pair of scissors being opened and showed evidence, Dr Lee said, of having involved a heavy degree of force.

14 Dr Lee gave evidence of a main group of penetrating injuries to the deceased which were injuries three to 11. They were present in the right and right back of the neck and represented a single group of injuries.

15 The jury was told by Dr Lee:

“The number of injuries in the group is strongly indicative of a minimal degree of relative movement between the two parties during the course of this part of the incident. Clearly, if the deceased had been moving around, trying to get away from her attacker, running about, crawling about, whatever it was, moving her head, moving her neck, I would not have expected all of the injuries to be in this very small area in one side of the neck. These injuries certainly would be expected to have been fatal.” (T 245 l 12 to 19).

16 His examination of the deceased revealed very extensive injuries to the spinal column and upper area. He said the vertebral artery had been incised, this being expected to produce very heavy haemorrhage. That damage is well recognised to be rapidly fatal.

17 Dr Lee described an area of fracturing being on the body at C4 and a small chip fracture of the transverse process of the T7 vertebra. He explained that the spinal cord was dissected and it revealed damage to the dura mater of the neck level. There was also significant damage to the right brachial plexus.

18 The damage to the spinal cord and to the elements of the brachial plexus, Dr Lee said, would be expected to be disabling in that they would interfere with the function, of not only of the right arm, because some of the nerves of the right arm had been cut through which would interfere with that arm operating, but it would interfere with the functioning of the rest of the right side of the body because the spinal cord had been damaged. He expressed the opinion that the deceased was very significantly disabled from the time of receiving those injuries and that would have been immediate. It would certainly have made struggle and movement very difficult. Effectively, this would reduce the use of the right arm and some reduced use of the right leg. It would be fair to say, he said, that the injuries to the neck which had caused damage would represent ones where a heavy degree of force had been used.

19 In cross-examination by Mr Bodor he agreed that whilst he spoke of 11 wounds, there could be significantly less than 11 stabs, in other words, getting some pairing of wounds by the two blades going in at the same time.

20 I am satisfied beyond reasonable doubt that the Crown has excluded as a reasonable possibility that the deceased attacked the prisoner with the scissors. The only rational inference to be drawn beyond reasonable doubt from the combination of:

(i) The heavy blood stains next to the bathroom door and under the deceased’s body;
(ii) Injuries one and two being a pair of penetrating injuries to the mid-back below the level of the shoulder blades;
(iii) Injuries three to 11 the main group of penetrating injuries in the right and right back of the neck;
(iv) The deceased was 160 centimetres in height, weighed 52 kilograms and was of a slim build. The prisoner is a tall and solidly built man;
(v) The bath towel wrapped around the deceased’s body at approximately breast level. The bath towel had not been disturbed;
(vi) The deceased was lying on her right hand side with her head towards the corner; and
(vii) The presence of the large quantity of low level splashed blood along the southern wall

is that as the deceased was coming out of the bathroom she was stabbed once in the back by the prisoner with the scissors which knocked her to the ground. She was then stabbed at least a further four times with the scissors in the right and right back of the neck. Shortly after the attack, the prisoner moved the deceased’s body to where it was found.

21 I am satisfied beyond reasonable doubt that the prisoner did not genuinely believe that it was necessary to do what he did in his own self-defence.

22 During the trial, Jeffrey Marr gave evidence of text messages from the deceased and of a phone call with her. Without detailing all of his testimony, of particular relevance are the phone call and text messages on 12 August 2006 the day before the deceased’s death.

23 Mr Marr told the jury that on 12 August 2006 he received a text message from the deceased asking him if he would phone her. When he rang her she was crying. She said she had to get away from [the prisoner] and she didn’t know what to do. She needed help. Mr Marr told her to go down the road and hitch. The deceased said she was afraid of hitching. Mr Marr then discussed with her about contacting a friend.

24 Six minutes later, he received another text message from her which read: “I want to go to your [lace] and yes I am leaving John. Please help me please?”

25 When replying to that message, Mr Marr told the deceased she couldn’t come to his place because the lady he shared the house with would not agree to Dianne coming there. He suggested that she should go to Patti’s place. On the same day at 1.16pm he received a text message from the deceased which read: “I’m not going to Patti’s. Don’t worry. I will figure out something. Thanks for worrying.”

At 1.20pm he received another text message which read: “Don’t text back. He is back. I will be alright. I will figure out something”.

At 1.36pm, he received another text message which was the last he received from the deceased which read: “Don’t text until I text you. Thanks.”

26 The prisoner in his evidence said that he did not see the text messages. He testified that the deceased did not tell him she was out of there and that she was sick of it. He was aware that Dianne was in contact with Jeffrey Marr by text messages prior to the weekend. They were texting each other and that did not have any affect on him.

27 Mr Bodor submitted that not too much emphasis should be placed on this material because during the course of the relationship there had been “highs and lows.” The jury was asked to consider text message sent by the deceased to the prisoner on 9 and 10 August. Those text messages were expressions by Miss Condon of her love for him.

28 I accept that the relationship between the deceased and the prisoner was turbulent. The Crown in submissions referred to the offence occurring “in the background of a dysfunctional relationship of three months duration between two dysfunctional individuals.”

29 As I have recounted, it was the prisoner’s evidence at trial that the deceased prior to coming at him with the scissors said “You’re not deserting me, you cunt”. The inference which arises from this evidence is that the deceased attacked him as she held the belief that the prisoner was leaving her. The prisoner’s testimony, however, is to be assessed against the text messages, the telephone call deposed to by Mr Marr and the forensic evidence. In my view, it is plainly untrue that the deceased held the belief that she was being deserted by the prisoner.

30 The Crown submitted to the jury that the only rational conclusion to be drawn from Mr Marr’s evidence was that Miss Condon intended leaving the prisoner.

31 I am satisfied beyond reasonable doubt that the only rational inference is that the deceased intended leaving the prisoner and notwithstanding his evidence at trial he became aware of her intention prior to the killing. It is for this reason that the prisoner killed the deceased.

32 Having made these findings, I am comforted to some extent by the prisoner’s letter dated 31 May 2008 addressed to me on sentence (exhibit 1 on sentence) in which he writes:

“…when threatened with separation, I fought to cling to others at all costs and in my relationship with Dianne I could not accept her rejection. When confronted with the possibility that she was going to leave me, I lost self control and killed her. I agonize over this every day. ” (italics added)

What is written by the prisoner receives further consideration in these sentencing remarks at [63]-[67].

33 The attack upon the deceased was ferocious. The prisoner stabbed her a minimum of four times to the right and right back of the neck. A heavy degree of force was used causing very extensive injuries to the spinal column and upper area. The vertebral artery was incised. The pair of penetrating injuries of the mid back were significant injuries which also involved a heavy degree of force. The penetrating injury described by Dr Lee as stab wound number one being at the very centre of the back with a total track depth of 5.5 centimetres penetrated the visceral pleura and the lung. It was an awful death.

34 At the time he stabbed the deceased I am satisfied beyond reasonable doubt that he had the intention to kill her.

35 The deceased’s body was found in the motel room by the manager on the Monday morning (14 August). He had knocked on the door and there was no answer. There was no movement at all and the curtains were drawn. Having tried using the master key to open the door, he found that the inside chain lock was connected. Entry was obtained by shouldering the door open.

36 Senior Constable Phillips, a crime scene investigator, attended at the motel room at about 2.30pm. Both beds in the room, she told the jury, appeared to have been made up. There was a large red, white and blue plastic shopping bag located next to the cane chair. The zip was open. She could see items of clothing in it. On the top of the side bench were three bags one of which was a green recyclable bag. The scissors used by the prisoner to stab the deceased were found at the bottom of the bag. Items of clothing on which reddish coloured stains were observed and proved positive to the presence of blood were bundled up and piled up inside the bag. They all appeared, the police officer said, to be neatly folded. In the green bag was a white plastic bag containing ugg boots and ‘New Balance’ joggers. The white plastic bag was closed off in a knot.

37 Michelle Franco, a forensic biologist, examined a swab taken from the outside of the ugg boot and found that human blood was detected and the DNA profile matched that of Dianne Condon. She examined a swab from the inside heel of the right ‘New Balance’ jogger and found that human blood was present and that the DNA profile matched the profile of the prisoner. Upon examination of the swab from the inside left heel of the ‘New Balance’ jogger, Ms Franco found that human blood was present and that the DNA profile matched the profile of the prisoner.

38 In the navy bag and pink backpack items of clothing were found which gave a positive reaction to blood as did a reddish coloured stain on a quilt on the double bed. Senior Constable Carrington gave evidence of red staining on the outer side of the curtain meaning that portion of the curtain which faces the motel room window which gave a positive reaction to a presumptive test for blood. A small area of red staining on a white opaque curtain also tested positive for blood.

39 Between 7am to 8am, on Sunday 13 October the prisoner had spoken with Mrs Young in the reception area of the motel about extending his stay until the following Tuesday. When informed that they were fully booked on the Monday night, the prisoner asked about the DO NOT DISTURB sign as “Dianne had a rough night last night. She needs sleep”. He was told by Mrs Young that “If you put the DO NOT DISTURB sign out, the girls won’t even knock on the door.”

40 Ms Malone, a house maid, told the jury that she had walked past the room and had seen a DO NOT DISTURB sign hanging on the outside of the door. At about 9.20am she was asked by the prisoner not to “bother doing room 7, she’s [the deceased] had a very bad night and I’m letting her rest”. She responded by saying, “I will not go into that room because you have your DO NOT DISTURB sign on the door.”

41 The prisoner, I am satisfied, spoke to Mrs Young and to Ms Malone and placed the DO NOT DISTURB sign on the outside of the door in order to prevent anyone entering the room and discovering the body.

42 He had taken a taxi to Bunnings Warehouse shortly after 9am, purchased a quantity of rope and had returned by taxi to the motel.

43 I am satisfied beyond reasonable doubt that the only rational inference to be drawn from the combination of:

(i) The connected inside chain lock;

(ii) The drawn curtains;

(iii) The presence of the ugg boots and ‘New Balance’ joggers in the white plastic bag which was tied up and inside the green recyclable bag;

(iv) The evidence of Michelle Franco referred to at [37];

(v) The scissors being at the bottom of the green recyclable bag;

(vi) The brown blanket and the heavily stained towel over the mid-part of the trunk of the left arm of the deceased;
(vii) The evidence of cleaning up of bloodstains within the bathroom;
(viii) The prisoner’s conversation with Mrs Young;

(ix) The prisoner’s conversation with Ms Malone; and

(x) The trip to Bunnings

is that after the killing, the prisoner had acted calmly and coherently to ensure that what he had done would not then immediately be discovered.

44 The acts of the prisoner after the killing were of importance in the trial as they indicated that at the time of the acts causing death, his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself was not substantially impaired by abnormality of mind which was recognised by Dr Giuffrida when he told the jury in answer to a Crown question at T 437 L 31-37 :

“I have a lot of difficulty with that. I am thinking of the circumstances in which I have seen people who have committed these sort of offences be in a state of depression or psychosis. I mean, they are usually pretty disturbed afterwards. I mean, it is pretty hard for them to go about their business in an organised sort of coherent way, as he appeared to do, from what you are saying.
Q (The Crown) I appreciate it is a matter for the jury to decide whether he did it or not?
A I’m simply saying that he appeared to go about it in a coherent, organised way, which surprises me in the circumstances. Yes, I have difficulty fitting that in with everything else.”

45 The Crown acknowledged before the jury that the prisoner had a long term depressive illness. The first question for the jury’s consideration on the partial defence was whether the prisoner had established that it was more likely than not at the time of the stabbing his capacity to control himself was substantially impaired by his severe depressive illness which I am satisfied the prisoner failed to do.

46 Consistent with the approach taken at trial, the Crown did not suggest at the proceedings on sentence that at the time of the commission of the offence the prisoner was not suffering from a chronic and severe mental illness nor did the Crown suggest for the purpose of sentence that the Court would find that the killing was unprovoked. The Crown submits that the Court would be entitled to find, in relation to mitigating factors, that the prisoner was provoked by the annoying and inconsistent conduct of the deceased – that is, that it may have disposed him to become angry or lose his temper. Mr Bodor contends that something occurred that was provocative to the prisoner given his dysfunctional nature and his clear mental illness, but insufficient in law to give him the benefit of that provocation before the jury.

47 Dr Nielssen had diagnosed the prisoner as having a recurrent depressive illness, alcohol abuse and personality disorder. During his evidence, Dr Nielssen said at T 289 L 16-22:

“But I would say that it probably, his condition, as I understand it, a state of unstable mood with depression arising from an unstable personality. Because I think that’s probably my main diagnosis; that probably it would not have affected his perception of events or understanding of right and wrong to a great degree. But it may have affected his capacity to control his actions because of sudden severe mood swings associated with the condition .” (italics added)

48 Dr Giuffrida diagnosed a longstanding and pervasive severe depression. The prisoner also had a chronic anxiety disorder, panic attacks and a specific social phobia. The psychiatrist concluded that the prisoner was a very impaired man who had a constellation of anxiety depressive illnesses. He opined:

“I think that he had such a pervasive depression, I think it is inevitable to some extent it would simply have clouded this man’s judgment to a major degree. I couldn’t find anything directly from what he said, that said to me he didn’t understand what he was doing or that he didn’t understand that it was morally or legally wrong. But I think that there was probably a loss of control element in this case. I think that there is, throughout his history, a kind of impulsiveness and it is a very unfortunate combination to have that sort of personality, of impulsiveness, in the context of someone with a major depressive illness that is ongoing. So I think the loss of control element that goes towards section 23A, towards substantial impairment, was there.” (italics added)

49 In a report dated 7 July 2008 which was tendered during the proceedings on sentence Dr Giuffrida wrote:

“I remain of the view that Mr Faehndrich has probably suffered from a life-long chronic dysthymia although that in any case is quite consistent with an underlying borderline personality disorder . I remain of the view that there were very definite periods when the nature and severity of depression would satisfy the diagnosis of a major depression . I think there is more than adequate evidence on his history that he has suffered from a very significant generalised chronic anxiety disorder and has had episodes of panic disorder. He probably also suffers chronically from a range of anxiety related disorders including social phobia and agoraphobia.

In my previous report of the 5 February 2007, I said that I did not think at that time Mr Faehndrich had a borderline personality disorder , although on the further evidence available to me from the documents provided, it would seem that there is an inescapable conclusion that Mr Faehndrich does in fact suffer from a borderline personality disorder in the moderate to severe range.”

50 When reviewing the material forwarded to him which included a report dated 27 January 1995 from Dr Les Darcy, Dr Giuffrida observed that:

“Mr Faehndrich also demonstrates a picture of serious affective instability resulting from a marked reactivity of mood. There is also clearly a pattern of inappropriate and intensive anger and rage directed particularly towards those women who have attempted to break off a relationship with him.” (Italics added)

51 The prisoner told the jury that his relationship with the deceased by August was quite volatile – very nice at one moment and the next moment it would change completely. He had given evidence that her drug taking was a source of conflict between them and when she took drugs her whole demeanour would change. He recounted that the deceased had called him a “rock spider” when they were watching television on 10 August 2006 for which she apologised by text message. On the next day she bought him a bracelet. He described spending the Friday together and having their ups and downs. Things would be fine one minute and the next minute she would verbally attack him. He said he wouldn’t know whether he was coming or going. He recounted the deceased’s upset on the Saturday when he wouldn’t buy a dolphin ring for her and said that he felt “she was pushing all [his] buttons”. He felt that she was just using him, that one minute she would be building him up and the next minute she would be attacking him.

52 The text message at 6.19pm on 10 August retrieved from the deceased’s mobile phone by Senior Constable Kauter and the evidence of Miss Keating the shop assistant supported this evidence.

53 As I have said at [28], the relationship between the deceased and the prisoner was turbulent. I accept that the prisoner at times did not know where he stood with Miss Condon which was the case on the day before she died.

54 The prisoner at the time of the commission of the offence suffered from various mental illnesses which included a longstanding and pervasive depression and an underlying personality disorder. I am satisfied on the balance of probabilities that his mental illness contributed to the commission of the offence in a material way. His mental illness affected his capacity to control his anger and rage when he became aware of the deceased’s intention to leave him. The prisoner’s moral culpability for his offending is reduced by reason of his mental illness and the objective seriousness of the offence is mitigated by the presence of this factor: s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999; R v Hemsley [2004] NSWCCA 228 at [33] – [36], R v Israil [2002] NSWCCA 255 at [23].

55 I am satisfied beyond reasonable doubt that the conduct of the deceased was not such that could have induced an ordinary person in the position of the prisoner to have so far lost self-control as to have formed an intention to kill, or to inflict grievous bodily harm upon the deceased. I am, however, satisfied on the probabilities that the changes in the deceased’s attitude and behaviour towards him contributed to the loss of self-control. To this extent, I find that the prisoner was provoked by the deceased which mitigates the objective seriousness of the offence: s 21A(3)(c) Crimes (Sentencing Procedure) Act. Having made that finding, I hasten to add that Miss Condon was entitled to end the relationship whenever she chose to do so. The deceased sadly would not have been aware of the impact that her volatility in the relationship was having upon the prisoner.

56 It is a factor in mitigation that the murder was not planned: s 21A(3)(b) Crimes (Sentencing Procedure) Act.

57 As this is an offence to which a standard non-parole period applies, it is necessary to consider where the offence committed by the prisoner lies on the range of objective seriousness of the offence of murder. The Crown invites me to find that having regard to the serious mental illness of the prisoner, this killing falls into the middle range of objective seriousness. Mr Bodor does not dispute the Crown’s proposition that this murder falls within the middle range of objective seriousness but submits that it is at the lower end of that range.

58 The ferocity of the attack upon the deceased increases, to my mind, the objective seriousness of the offence and places the offence slightly above the middle range of objective seriousness. The prisoner’s mental illness, the limited provocation and the lack of planning are factors which mitigate the objective seriousness of the offence. I conclude that the offence is to be characterised in the lower half of the middle range of objective seriousness.

59 The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) of the Crimes Act 1900. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (Sentencing Procdure) Act (which authorises the passing of a lesser sentence than imprisonment for life).

60 Section 61(1) of the Crimes (Sentencing Procedure) Act provides:

“A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

61 The primary focus of s 61(1) is an assessment of how extreme the prisoner’s culpability is: see R v Merritt (2004) 146 A Crim R 309 at [52]. As I have found at [58], the prisoner’s level of culpability is not such that his crime falls within the worst category of the offence of murder.

62 The prisoner’s criminal history includes convictions for assault (1989, 1993, 1996) breaches of apprehended violence orders (1992, 1994) and breaches of apprehended domestic violence orders (1992, 1994, 1995). On 6 June 2005, for an offence of maliciously inflict grievous bodily harm, he was sentenced in the Local Court at Port Macquarie to a term of imprisonment for 6 months which was suspended upon his entering in a s 12 bond for 6 months with Probation and Parole supervision. There also appear on his record convictions for embezzlement (1992) and stealing (1988,1993). That criminal history deprives the prisoner of the considerations of leniency to which he may have been entitled if the current offence was an isolated act of criminality. I do not take his prior criminal offending into account as a factor of aggravation.

63 The plea of guilty to manslaughter was a partial acceptance by the prisoner of responsibility for the deceased’s death. He, however, during the trial maintained that he had been attacked by the deceased. In his letter dated 31 May 2008, the prisoner expresses his “deepest unreserved remorse for causing the death of Dianne Condon”. He writes that “there has not been a day go by that I have not wished that I could turn back time. I say this not because of the predicament that I now find myself in but because I am so terribly sorry Dianne is dead and that I am the cause of her death”. He expresses his deepest regret to the deceased’s family and his appreciation for the pain they must feel for her loss and the further trauma they must have experienced in giving evidence at the trial.

64 Remorse as a mitigating factor is now qualified by s 21A(3)(i)-(ii) of the Crimes (Sentencing Procedure) Act, which requires the prisoner to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them.

65 A favourable consideration of his remorse was encouraged by his acceptance in the passage from the letter that I have quoted at [32] that the cause of the death was his loss of self-control when confronted with the possibility that the deceased was going to leave him and his unconditional acceptance of the jury’s verdict. It seemed that the prisoner had totally accepted responsibility for his actions as well as acknowledging the loss and injury which they caused. What has been written in the letter, however, is to be balanced against Dr Giuffrida’s account of his interview with the prisoner on 28 June 2008 which postdates the letter. Dr Giuffrida wrote (at page 4):

“…He said that he felt remorseful about the killing and he admitted ‘my attack was excessive’. On the other hand he insisted that Diane [sic] had attacked him with a pair of scissors and that he acted in self-defence. I pointed out to him the apparent inconsistency on the one hand between his saying that he acted in self defence when Diane [sic] attacked him with a pair of scissors and his statement that his attack was excessive and more so that she was a relatively slight woman [and he] was a tall and heavily built man. He responded to this saying “I have to accept the decision of the jury. I would have found me guilty too…I lost it…I still have a blank for what happened.”

66 And further (at page 6):

“He appeared to still cling to the idea that he stabbed the victim in self defence. He was not easily disabused of that notion.”

67 It appears, notwithstanding what is stated in the prisoner’s letter to me, that the prisoner continues to maintain that he was attacked. Whilst I accept that he regrets having killed Miss Condon and has acknowledged her tragic loss, I am not persuaded on the balance of probabilities that his acceptance of responsibility extends beyond the use of excessive force and that he at this time, takes full responsibility for the killing. I take into account to this extent remorse as a mitigating factor.

68 The prisoner was born on 19 May 1956 and is 52 years of age. He was 50 years old at the time of the murder. The prisoner did not give evidence during the proceedings on sentence. During the trial, he informed the jury of his subjective circumstances. He was brought up in Waratah, Newcastle by his parents who had migrated to Australia from Germany. He described not having a normal relationship with his parents who had high expectations for him. They had grown up with the Hitler Youth and had the concept of “the Aryan race”. He had expectations placed on him as a young boy, the consequences of failure being verbal and physical abuse. There were times when he would be locked in a dark room. There would be other times when he defecated in his pants and his mother would put it in his mouth and make him eat it. His mother would strap him with a cat-o’-nine-tails. He was not allowed to have friends around and was treated in a way that he interpreted as being somewhat programmed. His studies suffered at age 15 when he felt different from other people and could not cope. There were times when he missed out on exams because he feared a bad result. He had difficulties with panic attacks and experienced claustrophobia. He had suicidal thoughts and sought medical help during his first year at university.

69 The jury was told that he married when 21 years old and the marriage lasted for some 10 years. He did not have a problem obtaining employment but experienced difficulties holding onto a job. There were times he was on sickness benefits caused by depression. The marriage broke down, he believed, because of his inability to cope with his family and his depressive state. He had consulted a number of doctors and was on medication from time to time. The prisoner entered into another relationship which ended in 1995. He described experiencing periods of severe depression and being admitted to Port Macquarie Hospital. There followed admissions to the mental health ward at Maitland Hospital and to the Port Macquarie Hospital for his severe depression. Dr Hines had diagnosed a bipolar disorder and he was placed on a series of lithium. At the time of Miss Condon’s death he was on a disability pension which, he understood, was granted for bipolar disorder.

70 I accept that the prisoner’s personal circumstances have been difficult. He has experienced over his lifetime a gradual escalating pattern of episodes of major depression. As Dr Giuffrida deposed, he was “a man with a very considerable psychological disturbance”.

71 In the prisoner’s case his mental illness renders him in an inappropriate vehicle for general deterrence and I give little weight to that factor. Such a killing in a domestic relationship would otherwise have called for a strong element of general deterrence: Hemsley; R v Engert (1996) 84 A Crim R 67 at 71.

72 On the other hand, in cases involving mental illness, there is a countervailing consideration which may arise, namely the need to evaluate the danger that the offender presents to the community. This necessitates consideration of the need for specific deterrence. Engert at [68], Hemsley at [36].

73 There is on this issue a difference in the opinions expressed by the psychiatrists.

74 In the present case there can be no doubt that as a consequence of his mental illness the prisoner found it difficult to control his anger and rage towards the deceased who was going to leave him. His inability to control his anger has affected his relationship with women, other than the deceased, which was recognised by Dr Giuffrida in the passage quoted at [50] above.

75 Dr Nielssen in a report dated 2 June 2008 (exhibit C on sentence), after noting the prisoner’s age, observed that the risk of all kinds of offending, especially violent offences declines to low levels with advanced age. He expressed the opinion that the prisoner’s “psychiatric disorder increases the risk of further impulsive behaviour associated with periods of severe depression”. Dr Nielssen observed that the prisoner seemed to have responded to consistent treatment for depression in an alcohol free environment and the effect of his unstable personality may be less noticeable if he were to remain abstinent from alcohol.

76 Dr Giuffrida made a risk assessment using the HCR–20, a risk assessment instrument. The prisoner’s score was 35 out of 40 which placed the prisoner at high risk of future violence. He wrote (at page 9):

“From a purely clinical perspective, the critical issue of future risk of violence and dangerousness relates to Mr Faehndrich’s severe borderline personality disorder and to a considerable extent the anxiety and depressive symptoms he experiences which are very considerable and indeed disabling. I note that Mr Faehndrich is now 52 years of age, an age by which most personality disorders start to ameliorate and become less destructive or disabling to self and others. On the other hand, the pattern of self destructive behaviour and relationship instability has unfortunately been fairly constant over Mr Faehndrich’s adult life. Mr Faehndrich’s pattern of intense but unstable relationships with women repeatedly over his adult years with a pattern of idealisation in the early stages of the relationship giving way to devaluation and a sense that he has been betrayed and wronged when the woman tries to break away from that relationship gives me cause for concern about his future ability to form a stable and satisfying relationship in the future. Again from a clinical perspective, it would seem that the major risk factor for Mr Faehndrich in the future relates to a fairly narrow range of risks, that being towards women with whom he forms intimate relationships. The category of persons at future risk of harm by Mr Faehndrich really narrows down to those women with whom he forms an intimate relationship and where the same pattern of intense idealisation and ultimate sense of betrayal and devaluation occurs.”

77 And (at page 10):

“In relation to the significant risk issue of Mr Faehndrich’s Borderline Personality Disorder, that condition has often proved quite resistant to a range of psychotherapeutic endeavours. Nonetheless there is some modest evidence that long term psychotherapy and one is talking about initially regular weekly therapy continuing over five years or so that there can be long term benefit. In Mr Faehndrich’s case the thrust of such therapy should ideally be aimed at achieving an understanding and insight into the nature of his intrapsychic dynamics and the way his intense psychological needs and dependency interfere with the smooth, effective and appropriate interpersonal relationships that he develops. He needs to be able to identify in particular the distortions in his perception of the other party in the relationship and the way that in turn effects his emotional responses and in turn his conduct towards the other person. Whether that is achievable remains to be seen.”

78 Mr Bodor submits that the prisoner is not the risk that Dr Giuffrida presumes and that Dr Nielssen takes a more realistic approach recognising the risk of repeated homicide offences is especially low. He refers to the prisoner’s advanced years upon release and his genuine commitment towards his rehabilitation. The Crown points out in oral submissions that the prisoner has a history of not accepting the termination of a relationship. It doesn’t flow, the Crown contends, that as he gets older in life that necessarily he will cease to have relationships with women. The nature of them may physically change but he also seems, the Crown argues, to adopt a relationship where he becomes dependent upon them, they co-dependent upon him and it is from that he has the difficulty of leaving. The Crown submits that the Court should not find he is unlikely to re-offend or has good prospects of rehabilitation. In written submissions, the Crown submits that there is a need for specific deterrence.

79 The prisoner’s efforts whilst he had been in custody towards his rehabilitation which are detailed in his letter are encouraging. They are supported by the testimonial from Reverend King, the education credit certificates and his employment record. Imprisonment, he states “has brought some structure into my life”. He acknowledges the need to continue counselling and medication and his acceptance of whatever the medical experts deem necessary as continued treatment in gaol and upon release.

80 The level of danger which the prisoner presents to the community arising from the conditions which diminish his capacity for self-control I conclude is confined to women with whom he may develop an intimate relationship.

81 I accept that the danger will decrease with age. I am not satisfied, however, that it will diminish entirely. Whilst Dr Giuffrida’s opinion might be considered to represent an overly pessimistic view of the risk of re-offending upon release, I have no doubt that much will depend upon the insight the prisoner develops into his mental illness whilst serving his sentence. There is, in my opinion, a need for a limited element of specific deterrence in the sentence. I have kept in mind the principle of proportionality and that the sentence is not to be increased beyond that which is proportionate to the crime: Veen v The Queen (No 2) (1988) 164 CLR 465.

82 I am unable to find that the prisoner has good prospects of rehabilitation or that he is unlikely to re-offend. That does not mean that I find that he has no prospects of rehabilitation. To do so would ignore the positive steps which he has taken whilst incarcerated. His future prospects remain uncertain.

83 Mental illness may be of further relevance in the sentencing task where it is established that a custodial sentence may weigh more heavily on a mentally ill person: Hemsley at [35]. That is not the case with this prisoner.

84 Victim impact statements of Jason Condon and Darren Blatch have been tendered. The contents of the statements cannot be used by me to increase the prisoner’s sentence: R v Previtera (1997) 97 A Crim R 76. I acknowledge the grief and distress of the deceased’s family and express on the community’s behalf its sympathy and compassion for them.

85 The prisoner has been in custody for the offence since 21 August 2006. Accordingly, the sentence will commence on that date.

86 The characterisation of the offence at [58] as being in the lower half of the middle range of objective seriousness, the little weight given to general deterrence and the prisoner’s age are matters which justify departure from the application of the standard non-parole period.

87 The appropriate head sentence is 20 years imprisonment. I do not find any special circumstances which justify the balance of the term of the sentence exceeding one-third of the non-parole period. The prisoner’s mental illness and age have already been taken into account in reducing the head sentence and to take them into account as special circumstances would amount to “double counting”: see R v Fidow [2004] NSWCCA 172.

88 John Harry Faehndrich, I convict you. I sentence you to a term of imprisonment with a non-parole period of 15 years which is to commence on 21 August 2006 and is to expire on 20 August 2021. I set a balance of term of 5 years which is to commence on 21 August 2021 and will expire on 20 August 2026.

89 You will be eligible to be released to parole on 20 August 2021. It is a condition of your release to parole that you continue under psychiatric treatment and receive appropriate medication.

90 In accordance with Dr Giuffrida’s report, I recommend that the following steps being taken by Justice Health:

1. The prisoner should be immediately assessed by the Justice Mental Health Team.
2. The prisoner is to remain under the regular care of a psychiatrist whilst in custody and receive appropriate medication.
I direct that a copy of Dr Giuffrida’s report dated 7 July 2008 be forwarded by the Crown to the Justice Mental Health Team at the prison where the prisoner is incarcerated for its immediate attention together with a copy of these recommendations. The attention of the Justice Mental Health Team is to be directed to the “Treatment Recommendations” on page 10 of the report.

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