Lock her up and throw away the key?

The NSW Court of Criminal Appeal has just reduced by 10 years the head sentence of Kathleen Folbigg, who was convicted of the murder of 3 of her infant children and manslaughter of a fourth over a 10 year period. The head sentence was reduced from 40 to 30 years and the non-parole period from 30 to 25 years. The CCA felt that the trial judge’s original sentence had been “crushingly excessive” and “jeopardised her prospects for rehabilitation, and was a life sentence by another name“.

Given the smaller reduction in non-parole period (only 5 years), the decision isn’t quite as outrageous as it sounded from the ABC report. But it’s still questionable at the very least IMO. The CCA essentially agreed with the following observation by the trial judge (see full decision here):

“Dr. Guiuffrida and Dr. Westmore agree that the offender’s condition is for the most part untreatable. Her chronic depression may respond to medication. Her feelings of vulnerability and failure may respond to psychotherapy, though there may be doubt whether it will be possible to offer her the fortnightly services that Dr. Westmore considers necessary for that purpose. She will always be a danger if give the responsibility of caring for a child. That must never happen. She is not a dangerous person generally, however, and her dangerousness towards children does not disentitle her to eventual release upon parole on conditions which will enable risks to be managed.”

The CCA only took issue with the bolded words, opining that they were far too “speculative” and amounted to imposing a term of preventive detention against the risk of future conduct that might never occur. I suppose it is speculative, in the sense that one cannot know definitely whether Folbigg will come in contact with children upon her eventual release. But should we take the risk?

In one sense the CCA’s injunction against preventive detention sounds reasonable, but it depends how you package such a question. The desirability of incapacitation has always been a proper and relevant factor to take into account in sentencing serious offenders, and that inherently requires an assessment of future risk to the extent that it can be undertaken in light of the evidence. Here we have powerful and undisputed evidence that this woman’s condition is untreatable, and that it resulted in her murdering 4 children over a 10 year period. The trial judge also said (and the CCA agreed it was proper) that:

“Because of the intractability of her condition, the offender’s prospects of rehabilitation are negligible. She is remorseful but unlikely ever to acknowledge her offences to anyone other than herself. If she does she may very well commit suicide. Such an end will always be a risk in any event.”

Surely in those circumstances it’s reasonable to aim at incapacitating imprisonment for long enough to ensure that she’s too old to do any harm by the time she’s released. Folbigg is 37 now, and with a 30 year non-parole period she would have been at least 67 on release, and could have been subject to parole supervision for another 10 years to ensure children weren’t placed in danger. The result of the CCA’s decision is that she could be released at 62 and only supervised for 5 years thereafter. One can reasonably argue that the CCA has given excessive weight to the offender’s situation and inadequate attention to issues of community protection.

That’s especially so given that the CCA also thought the trial judge had given insufficient weight to Folbigg’s interest in and prospects of rehabilitation! But what rehabilitation? The psychiatric evidence was that her medical condition was untreatable and that she would probably never have insight into/take responsibility for her murderous actions. Rehabilitation just isn’t a realistic prospect, and surely should have taken a back seat to community protection even if it had been.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Dave Ricardo
Dave Ricardo
2022 years ago

She’ll be unsupervised at 67 as opposed to being unsupervised at 77. I don’t see a huge amount of difference. Either way, she’s not going to have any more kids of her own. What you’re saying, Ken, is that as a sprightly 67 year old, she could harm a kid down at her local park, but not as a decrepit 77 year old. Maybe, but I think that is a bit of a stretch.

Ken Parish
Ken Parish
2022 years ago

Dave

I don’t think it’s a stretch at all. Most 62 year olds are “sprightly” as you put it. Most 77 year olds aren’t. The bloke who murdered my mother in law (who was 73 at the time) was 60. I doubt he would have managed it had he been 77.

C.L.
2022 years ago

Observing my own parents, I think Ken’s right about the big difference in sprightliness in the two age ranges. Huge difference in many cases.

This struck me: “…her dangerousness towards children does not disentitle her to eventual release…”

That’s quite a claim for the judge to have made isn’t it Ken? Not sure. No lawyer me.

James Farrell
James Farrell
2022 years ago

I wonder if Folbigg cares. If you have no prospect of enjoying a single minute’s happiness for the rest of your days, what would it matter whether you were in jail or out? Her life is stuffed, isn’t it?

Ken Parish
Ken Parish
2022 years ago

James

Presumably she cares, otherwise she wouldn’t have instructed her lawyers to appeal.

David Tiley
2022 years ago

Is she a danger to children other than her own?

Ken Parish
Ken Parish
2022 years ago

David

As I reproduced above, the trial judge concluded that: “She will always be a danger if give the responsibility of caring for a child.” He didn’t confine it to her own children. The CCA took issue with this conclusion, but only on the basis that it was speculative, not on the basis that it wasn’t open on the psychiatric evidence. I just looked back at the original Supreme Court decision by the trial judge, but it doesn’t reproduce the psychiatric evidence on which Barr J’s conclusion must have been based (because it would not have been open to a trial judge to make such a finding without expert evidence to support it).

susoz
2022 years ago

From memory, I don’t think she has any surviving children. So she’s not going to have grandchildren. Who on earth would leave a baby or young child with her, at 67? I agree that the sentence was ‘crushingly excessive’ and I don’t think infanticide can be equated with an adult murdering another adult, in terms of someone being a ‘danger to society’.

C.L.
2022 years ago

Oh come off it. First the sociopathy of “abortion on demand,” now infanticide gets the green light. Next there’ll be a ‘he said “yes” when I asked “does my bum look big in this”‘ defence for man-slaughter.

This case points to a disturbing development in the thinking of the Australian legal establishment: it’s now bordering on ‘no big deal’ for women to kill people.

Ken Parish
Ken Parish
2022 years ago

susoz

You’re quite right that killing an infant can’t be equated with killing an adult. It’s much worse, because of the breach of trust involved in taking the life of a helpless human being committed to the killer’s care, when they had the whole of their life ahead of them. And it’s multplied by 4 in Folbigg’s case, because she killed all 4 children successively over 10 years. I frankly don’t understand the mentality of someone who could minimise the severity of such crimes.

From another persepctive, however, whether the previous sentence was ‘crushingly excessive’ raises other questions worth considering. Under NSW law, life imprisonment (i.e. life means life) is imposed for the worst category of murder. Here’s what the trial judge said on that issue (see http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/2003/895.html?query=title+%28+%22folbigg%22+%29):

“However, even with these mitigating features one would not hesitate, without the evidence of the events of the offender’s childhood and their eventual effect on her behaviour as an adult, to say that, taken together, her offences fell into the worst category of cases, calling for the imposition of the maximum penalty. As the Crown said in its written submissions, the real issue that arises is whether the offender’s dysfunctional childhood provides any significant mitigation of her criminality.

I think that it does. I think that notwithstanding the stable family environments afforded by the Platt and Marlborough families and by Mr Folbigg the effects on the offender of the traumatic events of her childhood operated unabated. She was throughout these events depressed and suffering from a severe personality disorder. I accept the evidence of Dr Westmore that her capacity to control her behaviour was severely impaired. ”

Folbigg was tried before a jury and found guilty of 3 counts of murder. Compare her situation (and the objective severity of the offences) with that of Anu Singh. The crime/s themselves are clearly much worse than Singh’s (although Mr and Mrs Cinque would no doubt see it diifferently), but it appears that Folbigg’s psychiatric impairment was almost certainly vastly greater than that of Singh. Why didn’t Folbigg get off on manslaughter for diminished responsibility? It’s difficult to avoid the conclusion that it was at least partly because she couldn’t afford a top lawyer or a battery of tame psychiatrists, and because she didn’t (or couldn’t) choose to be tried by a judge alone.

But if we accept that the defence of diminished responsibility should exist (something about which I have mixed feelings), and that Folbigg probably qualified, how should she have been dealt with given the gravity of her crimes and the danger she poses to children if free in the community? At the very least IMO it ought to be possible for a court to order compulsory sterilisation and close parole supervision for the rest of her life after release, to ensure that children are not placed in danger.

susoz
2022 years ago

CL: I wrote that infanticide can’t be equated with adult murder “in terms of someone being a danger to society”.

Mark Bahnisch
2022 years ago

Perhaps C.L. is a closet postmodernist when he reads comments???

Ken Parish
Ken Parish
2022 years ago

susoz’s qualification of “not being a danger to society” is a meaningless one. It is possible that a woman who kills her child[ren] would not be a danger to anyone else (other than her own biological children), but the court specifically found in this case that she WAS, and presumably on the basis of the psychiatric evidence. One can also say in a lot of adult-on-adult homicides that they were situationally specific, and therefore that the person is not likely to be a major general danger to the community on release. You can’t generalise, it depends on the facts of the particular case. Therefore I can’t help reaching a similar conclusion to CL (albeit without the general anti-feminist overtones) i.e. susoz intended to minimise the seriousness of infanticide by a woman in general terms, a proposition that is both wrong and repugnant.

derrida derider
derrida derider
2022 years ago

Clearly, neither motives of “community expectations of justice” (ie tabloids stirring up atavistic vengeance) nor deterrence should be considerations in this case. Folbigg was clearly not a free agent in any meaningful sense of the term.

The argument here is about incapacitation. Given that she is only ever likely to be a danger to small children left for significant periods of time in her unsupervised care, it seems to me that a fairly short sentence with a long supervised parole period, including stipulations that she not work in child care, etc, would have fitted the bill.

And it’s awful that we ‘have’ to lock her up for a huge stretch because we “doubt whether it will be possible to offer her the fortnightly [psychotherapy] services that Dr. Westmore considers necessary”? Wouldn’t it be cheaper (not to mention more humane) to try paying for this first and then reassess her prospects? A shorter sentence and longer parole period would facilitate this.

Ken Parish
Ken Parish
2022 years ago

DD

I think I agree, although it may well be that legislative change would be needed to permit the sort of length and intensity of probation supervision that would clearly be needed. And, as I said in an earlier comment, given that she’s still of child-bearing age, maybe a power to compulsorily sterilise as well.

However, despite the fact that I think she’s a far clearer case of truly diminished repsonsibility than Anu Singh (who I suspect was/is just a spoiled brat verging on sociopathy), there’s still a need for a substantial term of imprisonment for retributive reasons. The psychiatric evidence did not support an insanity defence, only diminished responsibility (and the jury didn’t even accept that). I reckon a term of imprisonment of (say) 10 years then sterilisation if she hasn’t reached menopause by then, then very close parole superivision including intensive psychotherapy for the rest of her life.

suzoz
suzoz
2022 years ago

I calmly write to say that I agree with the NSW Court of Criminal Appeal, who have reduced Folbigg’s sentence to 25 years non-parole. I’m then accused of giving the “green light to infanticide” and of taking a “wrong and repugnant” position which intentionally minimises the seriousness of infanticide.

There’s a bit of hysterical anti-feminist projection going on here, I reckon.

James Farrell
James Farrell
2022 years ago

‘…a substantial term of imprisonment for retributive reasons.’

I’m not so sure, Ken. With Anu Singh, one had the impression that she found reasons to forgive herself pretty quickly, hence our gut feeling that she literally got away with murder. Letting her free was society’s slap in the face to the Cinques. But as per my earlier comment, I’m confident, and imagine others probably are too, that Folbigg is living in her own private hell. On top of this the prison sentence seems redundant, except for confinement and deterrent reasons. Then again, prehaps this argument is undercut by the fact she didn’t plead guilty.

By the way, I agree you’ve been harsh on Suzoz. If she made an error in generalising, as I think you showed she did, why isn’t it enough to point that out, without drawing the conclusion that she meant to excuse infanticide?

Ken Parish
Ken Parish
2022 years ago

James

If susoz agrees she made a mistake, I would certainly accept that I was overly harsh on her. But her response suggests she acknowledges no such thing, and still doesn’t understand why someone might reasonably react with anger to her original statement. Framing the responses she generated as “anti-feminism” is both arrogant and obtuse.

James Farrell
James Farrell
2022 years ago

It’s not really any my business, I suppose, but ‘repugnant’ to my ear is more provocative than ‘antifeminist’, and you went first.

jen
jen
2022 years ago

Parish get off your snorting high horse. Yes she’s carrying on like a 2 bob watch but jaysus you should be used to that by now.

What I don’t understand is how the murder of children
‘[cannot] be equated with adult murder “in terms of someone being a danger to society”.’

I would have thought the murder of children strikes at the heart of our society – Parish, I am with you on that one m’boy.

Susoz, I’m wondering if I have misunderstood what you mean? How is the murder of children less dangerous to the social fabric than the murder of adults?

jen
jen
2022 years ago

James I don’t think it has anything to do with tit for tat. I’m beginning to think that susoz did not mean what she said. That proposition was repugnunt as Ken pointed out. Perhaps she’d meant something else and then when she was feeling attacked hit back with the anti-feminist thing. Poor Parish, he isn’t even slightly anti-feminist and that kind of unjustified accusation heaps insult upon his outrage at susoz comment about infanticide.

C.L.
2022 years ago

That’s what I wondered. Mark thinks it has something to do with postmodernism.

Mark Bahnisch
2022 years ago

That would be my high school education coming through, C.L.

James Farrell
James Farrell
2022 years ago

As I understood it Suzoz’ comment had nothing to do with the severity of the crime and went only to the need for confinement, i.e. the risk posed by letting Folbigg loose. She used the word infanticide (not ‘killing children’), presumably because she meant killimg your own babies or babies in your own care, as opposed to the behaviour of, say, a killer paediphile. In short, as Ken himself said it, Suzoz thought the crime might be ‘situationally specific, and therefore that [Folbigg] is not likely to be a major general danger to the community on release’.

So Ken, unlike CL, actually did understand what Suzoz meant, and he proceeded to explain that the argument had already been considered and disposed of in the original sentencing. He the went off the rails and concluded with no justification that Suzoz is soft on infanticide. It would have been enough to tell her to go and read the rationale for the sentence.

jen
jen
2022 years ago

But James, I would have thought that there are two dangers to the society here. One is that the reduction in sentencing will give Folbigg an opportunity to murder again that the original sentence did not. (debatable) I think the second danger to the community is a perception that our justice system will sanction infanticide. I guess that is why it is so vital that these sentencing decisions are seen to be ‘right’ because they strike at the heart of what we value as a society.

James Farrell
James Farrell
2022 years ago

Jen

Yes, ‘danger to society’, broadly understood, could mean both those things, but I thought Suzoz was trying to make it clear she only meant the first, and Ken’s rebuttal (in his second reply to her) ultimately acknowledges that. He begins by saying the qualification is meaningless but then proceeds to show that the argument about Folbigg being no direct threat to babies is mistaken, which it can’t be if it’s meaningless.

Evil Pundit
2022 years ago

I think that susoz is tending toward the feminist position that it’s okay for any woman to kill anyone, anytime — because it’s impossible for a woman to do anything evil.

I suspect her position would be different if it was the father who had killed his own children.