SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0044
| ALEXANDER FREEBURN | Appellant |
| v | |
| THE QUEEN [No 2] | Respondent |
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| JUDGES: | KYROU, KAYE and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 June 2020 |
| DATE OF JUDGMENT: | 1 July 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 176 |
| JUDGMENT APPEALED FROM: | [2018] VSC 616 (Hollingworth J) |
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CRIMINAL LAW – Appeal – Conviction – Appeal allowed – Conviction of murder substituted with conviction of manslaughter – Sentence – Serious offending in context of short but abusive relationship – Victim particularly vulnerable due to her mild intellectual disability and drug use – Appellant’s post-offence conduct aggravated seriousness of offence and his moral culpability – Prior convictions for violent offending – Appellant made two offers to plead guilty to manslaughter – Appellant had dysfunctional, disadvantaged and traumatic upbringing – Exposure to violence, drugs and alcohol during childhood – Principles in Bugmy v The Queen (2013) 249 CLR 571 applicable – Appellant held in custody in a management unit or protection unit – Impact of COVID-19 restrictions taken into account – Guarded prospects of rehabilitation – Appellant sentenced to 12 years’ imprisonment with non-parole period of 9 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Dann QC with Dr M FitzGerald | Doogue & George Pty Ltd |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
KAYE JA
EMERTON JA:
The appellant was convicted, by the jury empanelled on his trial, of the murder of Elizabeth Wilms in Kew between 30 June 2016 and 2 July 2016. An appeal by him against his conviction was upheld on the ground that, on the evidence adduced at the trial, it was not open to the jury to be satisfied, beyond reasonable doubt, that at the time at which the appellant assaulted and injured Ms Wilms, he intended to cause her really serious injury. Accordingly, the verdict of murder was quashed and, in lieu, the Court entered a judgment of conviction for manslaughter pursuant to s 277(1)(c) of the Criminal Procedure Act 2009.[1] It is necessary for the Court to sentence the appellant for that offence.
For that purpose, the Court had access to, and read, the transcript of the plea, the exhibits that were tendered on the plea, the ten victim impact statements, and the trial judge’s reasons for sentence.[2] In addition, the Court has heard sentencing submissions on behalf of the parties.
[2]DPP v Freeburn [2018] VSC 616 (‘Reasons’).
The offending
The circumstances of the offending are described in the trial judge’s sentencing reasons and in this Court’s reasons on the conviction appeal. Accordingly, it is not necessary to describe them in detail. A brief summary will be sufficient.
At the time of her death, Elizabeth Wilms was 29 years of age. She had a mild intellectual disability. In 2014, she became involved in an abusive relationship with another man. As a consequence, her…
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- AGLC
- Alexander Freeburn v The Queen [No 2] [2020] VSCA 176
- Case
- [2020] VSCA 176
- Decision Date
CaseChat Overview and Summary
The court found that the principles in Bugmy v The Queen were applicable, and that the appellant's conviction for murder should indeed be substituted with a conviction for manslaughter. The court considered the appellant's dysfunctional upbringing, his prior history of violent offending, and his post-offence conduct, which included failing to seek help for the victim and attempting to conceal the crime. The court also took into account the vulnerability of the victim due to her mild intellectual disability and drug use, as well as the seriousness of the offence in the context of their short but abusive relationship. The court held that the appellant's moral culpability was high, but that there were mitigating factors which should be taken into account when determining the appropriate sentence.
In light of the above, the court sentenced the appellant to twelve years' imprisonment for the manslaughter of Elizabeth Wilms, with a non-parole period of nine years. The court held that the appellant should be held in a management or protection unit, and that the impact of COVID-19 restrictions should be taken into account in determining his prospects for rehabilitation. The court noted that the appellant had made two offers to plead guilty to manslaughter, and that he had guarded prospects of rehabilitation due to his background and the nature of the offence. The court emphasised the importance of considering the principles in Bugmy v The Queen when sentencing Indigenous offenders, and noted that the appellant's sentence should reflect the seriousness of the offence, while also taking into account any mitigating factors.
Orders
Orders of the court
(1) The appellant is sentenced, for the manslaughter of Elizabeth Wilms, to twelve years’ imprisonment.
(2) We fix a period of nine years before the appellant is eligible to be released on parole.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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