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.