Re Faltusz

[2005] TASSC 131

[2005] TASSC 131

CITATION:              Re Faltusz [2005] TASSC 131

PARTIES:  FALTUSZ, Anthony Leigh, Re

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  C221/1991
DELIVERED ON:  20 December 2005
DELIVERED AT:  Hobart
HEARING DATE:  8 December 2005
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Other matters – Tasmania – Application to resentence murderer – Murder of former girlfriend premeditated and without motive.

Criminal Code (Life Prisoners and Dangerous Criminals) Act 1994 (Tas).
Veen v R (No 2) (1988) 164 CLR 465, applied.
Aust Dig Criminal Law [911]

REPRESENTATION:

Counsel:
             Applicant:  J F W Crotty
             Respondent:  D G Coates SC
Solicitors:
             Applicant:  James Crotty
             Respondent:  Director of Public Prosecutions

Judgment  Number:  [2005] TASSC 131
Number of paragraphs:  19

Serial No 131/2005
File No C221/1991

RE ANTHONY LEIGH FALTUSZ

REASONS FOR JUDGMENT  UNDERWOOD CJ

20 December 2005

1. About 6.45pm on 8 July 1989, 15 year old Tania Shaw was walking home from the Greenpoint Road Shopping Centre.  It was dark.  Anthony Lee Faltusz ("the applicant") was in the same area as Miss Shaw.  He was then aged 16 years.  He ran up to Miss Shaw from behind and stabbed her with a knife.  He pushed her to the ground, hit her on the head and then ran off.  The knife wound penetrated Miss Shaw's spinal muscles.  The applicant did not know his victim and the attack on her was completely random. He was unable to offer an explanation as to why he attacked her, other than to say "it's like the other two, sort of, I can't explain it, not, I've seen so many doctors who says there's nothing wrong with me. I don't know why I did it."  He said he was a little bit upset that night because someone had taken his place in the football team and his coach had not picked him up.  The reference to "the other two" is a reference to the two crimes that he committed after this one and before he was caught and charged.

1. At about 4.40pm on 2 August in the same year, 12 year old Belinda McNeill was on her way from school to her home in Bridgewater.  At that time the applicant also lived in Bridgewater.  He ran after miss McNeill and stabbed her no less that 23 times.  There were serious wounds to the scalp, the neck and the chest.  The applicant then dragged his unconscious victim some distance and tried to kill her by dropping stones on her head.  Amazingly, his victim lived, but only just, for her wounds necessitated her being resuscitated before she got to the hospital.  As was the case with his previous victim, the applicant did not know Miss McNeill other than by sight as someone who lived in his district.  There was no motive for this attack by a 16 year old youth who was then attending Elizabeth Matriculation College.  In order to divert attention from himself, the applicant telephoned police and gave a false account of having seen Miss McNeill and a male and a female in her vicinity.

1. On the afternoon of 19 October 1990, the applicant struck again.  He was then not quite 18 years old.  His victim was Miss Humes, his 16 year old former girlfriend.  This time the applicant murdered his victim, but was detected as a result of a phone call that he made to her in order to arrange a meeting.  The applicant and Miss Humes were in a relationship between October 1989 and March 1990.  The friendship came to an end when the applicant became interested in another girl.

1. On the day of her death, Miss Humes was at home with a friend when she received a telephone call from the applicant at approximately 12.40pm. The applicant suggested they meet and they arranged to do so.  Miss Humes told her friend, "Tony has something on his mind and wants to talk about it".

1. Miss Humes left the house at about 1.25pm and told her friend that she would be about half an hour.  The applicant walked from his home to meet Miss Humes and took with him a tomahawk that was concealed in either clothing or a bag.  He took the weapon with him with the intention of killing his former girlfriend.  The applicant waited for her at the end of Walsh Avenue and together they walked into an area of light bushland.  They walked past the Seventh-Day Adventist School oval and crossed the boundary of Chung's Market Garden.  The applicant deliberately killed the deceased by striking her to the head with a tomahawk.  He struck her at least six times with the edge of the tomahawk.

1. Miss Humes sustained multiple lacerations to the scalp, both left and right sides. She received multiple compound comminuted fractures and depressed fractures to the skull at two major sites, which were fatal, perforating the brain.  The severe head injuries sustained involved the use of significant force and established that an implement such as a tomahawk was used and that the injuries could not have been caused by a piece of wood.

1. The applicant then dragged Miss Humes from where she fell to an area approximately 7 - 10 metres away beside a fallen tree which was partially obscured by undergrowth and blackberries and left her there in a state of partial undress.  He returned home and changed his clothing.

1. The applicant was interviewed the day after Miss Humes' disappearance, but denied making the phone call and said that he had not seen her for three months.  Her body was found the next day.  On 24 October, police again spoke with Faltusz and he agreed to provide a blood sample but maintained his denials. When pressed about the phone call that he had made, the applicant broke down and confessed.  Whilst he confessed to having killed Miss Humes, he said he had picked up a piece of wood and killed her with that.  Forensic evidence established that death was caused by blows from the tomahawk.  He lied to police by telling them that he killed her because she had insulted him about losing his job.  He also told the police that Miss Humes had crawled into the position where she was ultimately found, but her injuries were such that this could not have been the case.  The applicant also told police that he had hit her once and then thought if he did not kill her, she would go and tell police.  He said that he knew that he had injured her because he could see a little bit of blood in her hair, so he hit her three or four more times, intending to kill her.

1. There was no remorse.

1. At some stage after his arrest, the applicant confessed to the attacks on his other two victims.

1. On 20 August 1991, Cox CJ sentenced the applicant upon his pleas of guilty to wounding Miss Shaw, attempting to murder Miss McNeill, and to murdering Miss Humes, to one year and eight years' and life imprisonment respectively.  The finite sentences were ordered to be served cumulatively.  They were backdated to commence on 24 October 1990, the day he was taken into custody.

1. The applicant has applied for re-sentencing for the crime of murder in accordance with the provisions of the Criminal Code (Life Prisoners and Dangerous Criminals) Act 1994.

1. To describe this murder as very grave criminal conduct is to understate the criminal conduct.  It was committed shortly after two previous attacks, both of which could have resulted in death.  The impact of the applicant's criminal conduct on Miss Humes' family has been totally devastating.  Other than the plea of guilty, there are no mitigating circumstances surrounding the commission of the crime.  The applicant planned to kill his former girlfriend for no apparent reason.  There was absolutely nothing she had said or done to provoke any violence at all.  This was not a killing in the heat of passion or jealous rage.  It was not a killing by a person who has limited intellectual capacity or who was psychiatrically ill.  This was not a killing while the mind was deranged by reason of drugs or alcohol.  This was a chilling, cold-blooded murder, without any reason, by a young man who had struck before.

1. Upon the hearing of the application I was handed a large number of psychiatric reports, some of which were prepared at the time the life sentence was ordered but not handed to the sentencing judge, and some were prepared subsequently.  In December 1990, Dr Sale wrote that the attack on Miss Shaw was "particularly disturbing" and "intuitively one feels that there must be some pathological state of mind to account for such an incident, but regrettably I cannot find any evidence of such a state of mind other than the incident itself."  With respect to the murder, Dr Sale wrote in July 1991:

"I interviewed your client on the 24th July last at the Special Unit at Risdon Prison.  This further assessment arose out of a recommendation carried in the report of Dr Williams.  The interview was predominantly used to examine with your client the motivation behind various violent incidents in light of the pathologist's report.

Mr Faltusz now concedes that his previous account was a 'cock and bull story', and had been contrived to give an account of circumstances that might be regarded as 'acceptable'.  He now concedes that he had intended to kill his victim, and that he had woken that morning with this intention.  He could give no reason as to why it should be that particular victim other than her name came into his mind.  He described waking feeling in a rage, and also increasingly keyed up and light-headed.  He denied any sexual pleasure, and reported that he did not particularly want sex with the victim, and got it over with fairly quickly.  He estimates that he killed her approximately one minute after completing sexual intercourse, striking at her without warning of his intentions.

He told me that he thinks a great deal about the various violent incidents he has been involved in, but denied savouring them, or deriving any pleasure from the memory.

He was specifically asked if he thought he might have killed again if he had not been apprehended.  He said that this would probably have happened.  I would agree with him.

Your client's account is still not entirely consistent with other information.  He cannot give any explanation for the widespread bruises on the victim's body, and insists that the violence he inflicted was confined to several, perhaps six, blows with the axe."

1. In 2000, Dr Sale wrote that "the pattern of [the applicant's] offending cannot help but concern" and "the killing of Miss Humes was a pre-mediated rather than impulsive act".  In 2005, in preparation for the re-sentencing hearing, the applicant consulted Dr Reid, a colleague of Dr Sale.  The applicant told Dr Reid that he did not have a plan to murder Miss Humes, although he did agree that he took a tomahawk with him when he left home.  Dr Reid's report referred to the applicant having, in effect, matured since he had been in prison.  Dr Sale and Dr Reid subsequently conferred and expressed the joint opinion that there still is a risk of future violence and/or rape and they were unable to predict what circumstances may give rise to the risk becoming a reality.  The joint opinion accepted that since he was sentenced in 1991, the applicant may well have become less impulsive, but added that there was nothing impulsive about the murder of Miss Humes.  Finally, the joint opinion advises that a "useful start in reducing the risk of re-offending might be an honest acknowledgement of what happened".

1. The applicant's counsel put to me that the applicant had honestly acknowledged what happened because fifteen minutes before the commencement of the re-sentencing hearing, the applicant instructed him to state that he frankly acknowledged that the murder was premeditated in that he planned it that morning and he intended to kill her with the tomahawk that he took with him when he left home.  In view of his history of giving false accounts, one can but suspect that these very late instructions are no more than an attempt to reduce the sentence that will be imposed and the length of the non-parole period. 

1. I find that there is a substantial risk of the applicant re-offending upon release.  Whether this remains the position is a matter for the Parole Board to assess at the expiration of the non-parole period.  The protection of the public is a significant matter in this re-sentencing exercise.  In making that observation I refer to the passage in the joint judgment of Mason CJ, Brennan, Dawson, and Toohey JJ in Veen v R (No 2) (1988) 164 CLR 465 at 473, applied in Re Kemp 143/1997:

"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence.  The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."

1. I am well satisfied that this was a very serious murder, in particular because of the frightening absence of motivation, the clear premeditation and absence of remorse.  I acknowledge that the applicant expresses remorse in a letter that his counsel handed to me on the hearing of this application, but the history of this matter gives this expression little credence.  Further, there exists a risk that upon release the applicant may re-offend.  The protection of society makes it necessary to see that if the applicant is released upon parole at some date in the future, that release should be conditional and therefore revocable for the rest of his life.

1. The orders of the Court are a conviction for murder, a sentence of imprisonment for the term of the applicant's life and an order that he not be eligible for release on parole until he has served 16 years of that sentence.  It is necessary to ensure that the sentences imposed by Cox CJ for the wounding of Miss Shaw and for the attempted murder of Miss McNeill take effect.  In order to ensure that this occurs, the order of imprisonment for the term of the applicant's life is to commence on 24 October 1996.