Freeburn v The Queen (No 2)

[2020] VSCA 176

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:

1. 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.

   [1]Freeburn v The Queen [2020] VSCA 155.

1. 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

1. 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.

1. 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…