Brad Freedman (a pseudonym)[1] v The Queen - [2020] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0191

BRAD FREEDMAN (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2020
DATE OF JUDGMENT:	18 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 287
JUDGMENT APPEALED FROM:	[2019] VCC 172 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Parity – Indecent act in presence of child under 16 (6 charges) – Sexual activity in presence of child under 16 (2 charges) – 18 months’ imprisonment in respect of each offence – Total effective sentence 5 years – Non-parole period 3 years – Applicant and co-offender domestic partners – Offending in presence of their three young children – Co-offender sentenced to 6 months’ imprisonment and 4-year CCO – Whether unjustified disparity between sentences – Equal involvement in offending – Stark differences between applicant and co-offender – Different moral culpability – No disparity – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Pyne	Sullivan Braham Pty Ltd
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

For the reasons given by Niall JA, this application for leave to appeal against sentence should be refused.

NIALL JA:

The applicant and Kimberley Finn[2] lived together in a domestic relationship with their three children. The applicant is now 49 years old and Finn is 26. On nine separate days between December 2016 and August 2017 the applicant and Finn used a mobile phone to film themselves engaged in sexual activity. The sexual activity occurred in close proximity to their three children who can be seen in the footage. When the offending began the youngest child was 17 months and the eldest four years and nine months.
[2]A pseudonym.

Although the children did not participate in the sexual activity, as noted by the judge ‘they were certainly very much present.’[3] As described in the applicant’s written case:

The videos depict the applicant and the co-offender penetrating themselves and each other, often with objects, masturbating, performing oral sex and engaging in other sex acts while the children are present. The children do not directly participate in the sexual acts. The applicant and co-offender speak to each other in a highly explicit way. The children interact with the applicant and the co-offender while these acts are taking place. They seek attention and are often crying. They take the phone at some points in time. At others, the applicant and co-offender speak to them loudly and aggressively.[4]

[3]DPP v Freedman (a pseudonym) [2019] VCC 172, [12] (‘Reasons’).

[4]Citations omitted.

The applicant and Finn each pleaded guilty to six charges of indecent act in the presence of a child under 16 years in breach of s 47(1) of…

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.

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Details

Case: [2020] VSCA 287
Decision Date: 18 November 2020

CaseChat Overview and Summary

The case involved Brad Freedman, appealing against his sentence, and the Crown, with the appeal heard by the High Court of Australia. Freedman was convicted on eight charges related to indecent and sexual acts in the presence of a child under 16. These charges arose from incidents where Freedman and his co-offender engaged in such acts in the presence of their three young children. He was sentenced to 18 months' imprisonment for each offence, resulting in an effective total sentence of five years, with a non-parole period of three years. His co-offender received a significantly lesser sentence of six months' imprisonment and a four-year community correction order.

The primary legal issue before the court was whether the sentence imposed on Freedman was unjust when compared to the sentence of his co-offender. Freedman argued that there was a significant disparity given their equal involvement in the offending, despite the stark differences between their moral culpability. The court had to assess whether the disparity in sentences was justified based on the relevant considerations, including the principles of parity and the overall circumstances of the case.

The High Court held that there was no unjustified disparity between the sentences imposed on Freedman and his co-offender. The court found that while Freedman and his co-offender were equally involved in the offending, there were significant differences in their moral culpability. These differences justified the disparity in their respective sentences. The court emphasised that the sentencing judge had appropriately considered the principles of parity and had balanced the need for punishment, deterrence, and rehabilitation in arriving at the sentences. Consequently, the appeal was dismissed, and leave to appeal was refused.

The final orders of the court were to dismiss the appeal and to refuse leave to appeal to the High Court.

Orders