Freeburn v The Queen (No 2)
[2020] VSCA 176
•1 July 2020
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.
[1]Freeburn v The Queen [2020] VSCA 155.
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 parents obtained a guardianship order in respect of her. In the ensuing years, they closely supervised her activities and kept careful track of her whereabouts, in order to protect her.
In May 2016, Elizabeth met and befriended the appellant on the internet. Shortly thereafter, they commenced an intimate relationship. At that time, the appellant was living in a rented room above a shop in High Street, Kew (‘the premises’). During their short relationship, Elizabeth would stay with him at the premises from time to time. The appellant was jealous and possessive of Elizabeth, and at times was violent to her.
Shortly before 30 June 2016, Elizabeth visited the appellant at the premises, and she remained there for the following period. She was last depicted on the CCTV camera, that was installed at the premises, at 10.45 am on 30 June. At about 5.00 pm, on 2 July, the appellant was depicted departing the premises carrying with him a number of belongings including a large suitcase. He travelled to Terang to the home of another woman, who he had met on the internet, Ms Erin Dober. He remained there for two days. During that time, he told Ms Dober that he had ‘lost control’ and that his girlfriend was ‘pretty hurt’. He was apparently concerned about what had happened between himself and Elizabeth at the premises, although as we will discuss, his concern was not necessarily directed to what had happened to Elizabeth.
In the meantime, Elizabeth’s parents became concerned about her wellbeing. She was reported missing to the police on 4 July. On the following day police attended at the premises and located her deceased body. Elizabeth was lying facedown on the floor, her arms extended in front of her and crossed at the wrists, with a number of bruises and other marks on her upper body and arms. An autopsy, that was conducted on the following day, revealed that she had suffered multiple soft tissue injuries caused by moderate blunt force trauma. They included bruising and abrasions to the head, face, back, arms and legs. There was some evidence of a minor brain injury of a kind which commonly results in mild concussion. That injury was not considered, of itself, to have been fatal. Toxicological testing of samples taken in the course of the autopsy revealed the presence of the narcotic gamma hydroxybutyrate (GHB) at a level of 39 milligrams per litre of blood.
At the trial, the principal issues concerned whether the soft tissue injuries inflicted by the appellant had been a substantial and operative cause of Elizabeth’s death, and, if so, whether, in inflicting those injuries, the appellant had intended to cause Elizabeth really serious injury. We interpolate that the prosecution did not, ultimately, put to the jury that the appellant had intended to kill Elizabeth.
The causation issue was the subject of conflicting medical opinion. On appeal, the Court held that it was open to the jury to be satisfied beyond reasonable doubt, on the evidence of the pathologist called on behalf of the prosecution, that Elizabeth died as a consequence of the soft tissue injuries sustained by her in the context of her using GHB. On the issue of intention, as earlier mentioned, the Court concluded that, based on the evidence adduced at the trial, it was not open to the jury to be satisfied, beyond reasonable doubt, that in inflicting those soft tissue injuries, the appellant thereby intended to cause Elizabeth really serious injury. Accordingly, the jury’s verdict, and the appellant’s conviction of murder, were quashed, and, in their place, the Court entered judgment convicting him of the manslaughter of Elizabeth.
In that respect, the Court held that, based on the evidence, the jury was bound to conclude that the appellant caused the death of Elizabeth by an unlawful and dangerous act or by unlawful and dangerous acts, comprising the assaults by which he inflicted the soft tissue injuries to her. The Court also concluded (as conceded by counsel for the appellant) that the actions of the appellant, in leaving Elizabeth lying in a severely debilitated state in the premises, and refraining from obtaining any medical or other assistance for her, constituted criminal negligence for the purpose of the offence of manslaughter.
In the circumstances of this case, we consider that it is appropriate to sentence the appellant on the basis that his actions, in inflicting the injuries on Elizabeth which were a substantial cause of her death, were unlawful and dangerous, and that his actions, in subsequently departing from the premises and leaving her in a severely debilitated state, constituted circumstances that aggravated the seriousness of his offending and his moral culpability.
The victims
Before considering the circumstances of the appellant, as outlined in the plea, and in the materials put before the Court, it is appropriate that we should say something about the primary victim of the offence, Elizabeth Wilms, and her family, who have assisted the Court with the victim impact statements prepared by them. Those statements, and these remarks, are not intended, nor should they be understood, to reflect an inappropriate retributive approach by the Court to determining the sentence to be imposed on the appellant. All human life is unique and precious, and of equal value for the purpose of the system of justice. However, in sentencing the appellant, it is important for the Court to identify and acknowledge the impact and enormity of the offence committed by the appellant.
As we stated, the Court had the opportunity to read moving witness statements prepared by Elizabeth’s mother, father, two sisters, brother-in-law, three aunts and two cousins. It is clear that Elizabeth was a very special young woman. She was a loving and much loved member of her family. Elizabeth loved her family, music, dancing and singing, and she loved her life. In turn, she was a cherished member of her family. All that Elizabeth wanted was to share the great love that she had with a loving partner, and to raise a family with him.
During her lifetime, Elizabeth’s parents, and family, did all that they could, and more, to protect her against the vulnerability that was associated with her mild intellectual impairment. It must be recorded that her loving parents could not have done more to prevent the tragedy that occurred in this case. The moving victim impact statements of her family are testament to the enormity of the profound grief and suffering that have resulted from her death and the circumstances of it.
The appellant’s previous convictions
The appellant was born in October 1989. At the time of the offence, he was 26 years of age. He had a long involvement with the criminal justice system which commenced when he was a minor.
The appellant spent brief periods of time in juvenile detention. Between May 2008 and November 2013, he appeared before adult courts in New South Wales on eight separate occasions, in respect of charges involving violence and theft of property. His violent offending included convictions (on two separate occasions) for recklessly wounding another person, assault occasioning actual bodily harm, assault with intent to commit a robbery armed with an offensive weapon, robbery in company, and assaulting a law enforcement officer. The victims of his violence included his father, a neighbour, people who were known to him and strangers. On six occasions, he was sentenced to terms of imprisonment, the longest of which was three years, with a non-parole period of two years. As the sentencing judge noted, although none of his previous offending was as serious as in the present case, on each occasion on which he was sentenced to a period of imprisonment, the appellant reoffended shortly after his release.[3]
[3]Ibid [36].
On the last occasion, the appellant was sentenced to a term of 12 months’ imprisonment, with a non-parole period of six months, commencing on 21 March 2014.
The plea
The appellant was born in the Newcastle area, being the youngest of five siblings. The relationship between his parents was volatile and was characterised by both substance abuse and violence. His parents separated when he was three or four years of age.
The appellant initially lived with his mother, and then with his father. He was introduced by his father to alcohol and marijuana. When the appellant was aged nine years, his father committed a serious assault against him while he was drug-affected. The appellant ran away from home. As his mother was unwilling to have him return to live with her, he was placed in a series of children’s refuges by the Department of Community Services. Because of his behavioural problems, he was placed in numerous foster care homes. Ultimately, he was made subject to a permanent protection order at the age of 12 years (in 2001). Due to the breakdown of five separate foster placements, the appellant was placed in a motel. Although he was assessed to be of high average to superior intelligence, at that stage he had not attended school for some 18 months.
The appellant frequently absconded from refuges and foster placements. During that time, he commonly lived on the streets in the company of older children and adults who introduced him to illicit substances such as amphetamines and heroin, and prescription medications. During that period, he was poorly engaged in his education and he was expelled from school at the commencement of Year 7.
In June 2004, the appellant was admitted to Nexus, an adolescent mental health unit at the John Hunter Hospital in Newcastle, presenting in an agitated state in the emergency department with disorganised thoughts. No psychiatric symptomatology was identified at Nexus. It was noted that the appellant had previous diagnoses of attention deficit hyperactivity disorder (‘ADHD’) and oppositional defiant disorder. He had been treated for ADHD with dexamphetamine from ages eight to ten. At the age of 15 years he came under the care of an adolescent paediatrician, who again prescribed dexamphetamine. During the following three years, he achieved some stability while on that medication, obtaining occasional employment as a bricklayer. However, his mental health deteriorated again when his prescription medication ceased, and he relapsed into drug abuse. In the following years, he was engaged in repeated offending, including violent offending, which we have described. As a result, he spent a substantial part of his life between the age of 20 and 25 years in custody.
In the latter part of 2014, the appellant was released on parole. At that time, he had completed a tertiary preparation program while in custody. After his release, he formed a relationship with a woman in late 2014, and he relocated from New South Wales to Canberra with her. During that time, he worked in events marketing and promotions for musical festivals, as well as in sales and in charity fundraising.
When the appellant’s relationship with his partner broke down, he became depressed and began to experience delusional beliefs concerning Government agencies and monitoring. He convinced his ex-partner to re-join him in Melbourne, where they relocated in 2015. At that time, the appellant had a brief period of employment in charity sales, and he engaged in volunteer work at the Richmond Churches Food Centre. In September 2015, he suffered a serious foot injury which restricted his capacity to work. At the same time his relationship with his partner broke down.
After the appellant’s arrest for Elizabeth’s murder in July 2016, he was extradited to New South Wales, where he was returned to prison due to the cancellation of his parole order. While in custody, a psychiatric assessment noted that he had delusional beliefs about a chip in his hand and his eye which he considered was connected with ASIO. A forensic psychiatrist, in a letter dated August 2016, stated that the appellant’s mental health had deteriorated since his admission to the mental health services unit on 29 July. The appellant was exhibiting signs of mental illness including agitation, thought disorder and persecutory beliefs. He was commenced on the antipsychotic medication quetiapine, but his mental health continued to deteriorate. He was placed in a hospital mental health unit between September and December 2016 and prescribed a mood stabiliser.
After the appellant was extradited to Victoria on 17 March 2017, he ceased to receive antipsychotic medication. At the time of his sentencing in December 2018, he was on antidepressant medication.
The appellant was assessed by Dr Anthony Cidoni, a forensic psychiatrist, in September 2018. Dr Cidoni concluded that the appellant had an underlying psychotic illness that was most probably schizophrenia, in light of his history of delusions, disorganised behaviour and flattened affect. Dr Cidoni also considered that the appellant had a history of having an antisocial personality disorder and a significant polysubstance dependence. When Dr Cidoni assessed the appellant, his psychotic illness remained symptomatic, but was less prominent than during his period of incarceration in New South Wales. Dr Cidoni considered that the appellant’s illness had been severe in the past, and that it was likely to have had a significant effect on his judgment and ability to make calm and rational choices at the time of the offending. Dr Cidoni was of the opinion that the appellant would find imprisonment more onerous than a person of normal health, and that there was a significant risk that his mental health would deteriorate because he was not at that time receiving any antipsychotic medication. Dr Cidoni was ‘guarded’ about the appellant’s prospects of rehabilitation.
On the plea, it was submitted, on behalf of the appellant, that the evidence of Dr Cidoni was relevant to the application of the fifth and sixth principles outlined by the Court in R v Verdins.[4] That is, counsel relied on that evidence to establish that as a result of the appellant’s mental health condition, a sentence of imprisonment would weigh more heavily on him, and that there was a serious risk that imprisonment would have a significant adverse effect on his mental health. Counsel also submitted that the dysfunctional and disadvantaged circumstances of the appellant’s upbringing and their consequent effect on his psychological state, mitigated the gravity of the offending and the appellant’s moral culpability for it in accordance with the principles stated by the High Court in Bugmy v The Queen.[5]
[4](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
[5](2013) 249 CLR 571 (‘Bugmy’).
On the plea, counsel also relied on two offers made on behalf of the appellant to plead guilty to manslaughter, as a mitigating factor. The appellant had offered to plead guilty to manslaughter by criminal negligence before the commencement of the trial. Subsequently, before the empanelment of the jury, he offered to plead guilty to manslaughter by unlawful and dangerous act. It was also contended that the defence was conducted in a manner which facilitated the course of justice, in that the appellant did not deny or put in issue the fact that he had inflicted the injuries to Elizabeth. Rather, the principal matters that were in issue, were, first, the question of causation, and, secondly, the issue of whether the appellant intended to cause Elizabeth really serious injury. Counsel also relied on the delay of some two years in the commencement of the trial, and on the circumstance that, for some time, the appellant had been held in a management unit at Port Phillip Prison. As such, he had limited time out of his cell. In addition, he was isolated as he did not have any contact with members of his family.
Primary judge’s reasons for sentence
In her sentencing reasons, the judge accepted that the assault by the appellant on Elizabeth was not premeditated. Her Honour also noted that, irrespective of whether the assault occurred over a long or a short period of time, it involved a sustained and violent assault on a vulnerable woman, who was in a drug-affected state, restrained at the wrists and unable to defend herself.[6] The appellant had lost control of himself. At the time of the offending, he was a regular drug user, and he suffered from a personality disorder and long-term anger management problems, all of which may have contributed to his actions, affecting his judgment and ability to make calm and rational choices.[7] The judge also noted that Elizabeth was in a more vulnerable position by reason of her intellectual disability, which rendered her less able to protect herself from exploitation and abuse.[8]
[6]Reasons [23].
[7]Ibid [24].
[8]Ibid [25].
Submissions
In his submissions on re-sentencing, senior counsel for the appellant accepted and acknowledged that there were a number of serious features attaching to the appellant’s offending. In particular, the assault (whether it occurred on one or more occasions) was prolonged, involving multiple blows inflicted by the appellant to the head and upper body of Elizabeth. She was vulnerable, both by virtue of her intellectual impairment, and because, at the time, she had been using GHB. Counsel also accepted that the conduct of the appellant, in leaving Elizabeth in a severely debilitated state, constituted significant aggravation of the offending.
On the other hand, counsel submitted that there were a number of mitigating factors which needed to be taken into account in determining the sentence to be imposed upon the appellant. In particular, counsel submitted that the two offers made by the appellant, to plead guilty to manslaughter, before the commencement of the trial, if accepted by the prosecution, would have had a significant utilitarian benefit, particularly in light of the circumstance that the trial lasted for some thirteen days. Counsel further relied on the particularly disadvantaged and difficult background of the appellant in which he had been exposed, at an early age, to family violence, the disintegration of his family life, and drugs and alcohol. Counsel further relied on the evidence of Dr Cidoni as to the appellant’s psychiatric condition. Counsel submitted that that evidence was relevant, not only to demonstrate that a term of imprisonment on the appellant would bear more heavily on him, but also to moderate the application of general deterrence, and to mitigate the appellant’s moral culpability. In those latter respects, counsel acknowledged that the question of the relevance of Dr Cidoni’s evidence, to those two sentencing considerations, is problematic. Dr Cidoni diagnosed that, in addition to schizophrenia, the appellant had an anti-social disorder and significant polysubstance dependence. Further, counsel acknowledged that there was no direct evidence as to the appellant’s mental state at the time at which he inflicted the injuries that caused the death of Elizabeth.
Counsel outlined, in some detail, the circumstances in which the appellant has been incarcerated since his return to Victoria in March 2017. In short, the appellant, for most of that time, has been held in management units. As a result, and in combination with the restrictions imposed on all prisoners since March 2020 due to the outbreak of the COVID-19 pandemic, the appellant’s circumstances in prison have involved him spending little time out of his cell. Counsel also relied on the principle of totality, in respect of the nine months that he spent in imprisonment in New South Wales due to the breach of his parole there. Further, counsel pointed to the period of delay in this case. He was charged with the murder of Elizabeth in May 2016, was convicted of that charge in June 2018, and has been acquitted of it (by the order of this Court) in June 2020. Finally, counsel pointed to the efforts made by the appellant towards his rehabilitation.
In response, senior counsel for the respondent noted that the death of Elizabeth occurred in the context of a short but abusive relationship with the appellant. Elizabeth was very vulnerable, in light of her intellectual disability. The assault, that caused Elizabeth’s death, was violent, involving a number of blows to the head and body. It was submitted that the tram track bruising to Elizabeth’s back demonstrated that the appellant had used a weapon to inflict that injury. Further, the assault was prolonged. It was borne of anger, aggression and jealousy by the appellant towards Elizabeth. In those circumstances, it was submitted that the appellant’s moral culpability for the offending was high. Counsel further submitted that the appellant significantly aggravated his offending by leaving Elizabeth debilitated, facedown and partially covered on the floor of the premises. After leaving the premises, the appellant did nothing to help or save Elizabeth. In those circumstances, it was submitted that the offence committed by the appellant was a serious example of manslaughter.
Counsel acknowledged that the two offers by the appellant, to plead guilty to manslaughter, were relevant as mitigating factors. However, it was submitted that the evidence of Dr Cidoni was only relevant to the application of the fifth and sixth principles stated in Verdins, namely, the difficulties that the appellant will experience in imprisonment, and the consequences of those difficulties. It was submitted that the evidence did not establish that the appellant’s mental state, at the time of the offending, played any significant role in the assaults which caused Elizabeth’s death. Counsel also noted that the appellant has a long history of violent offending.
Analysis and conclusion
The offence of manslaughter, committed by the appellant, involved the taking of the life of Elizabeth Wilms by an unlawful and dangerous act, that is, by an act (or acts) which a reasonable person, in the position of the appellant, would have realised would have exposed Elizabeth to an appreciable risk of serious injury. Of itself, that was a serious offence, the maximum sentence for which is 20 years’ imprisonment.
In the present case, there were a number of serious aspects connected with the appellant’s offending. First, irrespective of whether the assaults were committed in the one incident, or in separate incidents over a period of two days, there was protracted offending, in which the appellant by multiple blows inflicted a number of injuries to Elizabeth, including to her head and back. The bruising to the back, self-evidently, meant that those injuries were inflicted on Elizabeth from behind. Based on the evidence of the pathologist, Dr Burke, we are satisfied, beyond reasonable doubt, that the tram track bruising to her back was caused by a weapon wielded by the appellant.
Secondly, there was quite plainly an imbalance of physical strength between the appellant and Elizabeth. There is no suggestion that the appellant suffered any injuries at all in the incident or incidents. On the other hand, there is little or no evidence that Elizabeth sustained any defensive injuries. Clearly, in the circumstances, Elizabeth was physically overwhelmed by the degree of violence with which the appellant assaulted her.
Thirdly, the offence occurred in the appellant’s home, where Elizabeth had a right to feel safe and secure. It occurred in the context of a relationship which, at least from Elizabeth’s point of view, should have been one in which the appellant cared for and about her. The violent assault by the appellant on Elizabeth was a gross violation and betrayal of the trust that she placed in him.
Fourth, and connected with that, Elizabeth was particularly vulnerable, by reason of her intellectual impairment. As such, she was poorly equipped to be able to detach herself, and protect herself, from the appellant. Her vulnerability was heightened by the fact that she had consumed the narcotic GHB, which acted as a central nervous system depressant, and thereby caused her to be even less capable of protecting herself.
Fifth, the offence was not an isolated or uncharacteristic episode of violence by the appellant against Elizabeth. Rather, it occurred in the course of a short but abusive relationship, in which the appellant had, repeatedly, acted in an angry and violent manner to Elizabeth, so much so that Elizabeth became frightened of him. The evidence of Peter Wilms, Raymond Allen, Christopher Belfiore and Wayne Barlow, demonstrates that in the course of their brief relationship, the appellant was given to venting his anger and rage against Elizabeth, on occasions in a physically violent manner. The fact that the offence itself was borne of that rage, anger and jealousy, in which the appellant (by his own admission to Ms Dober) had lost control, added to the gravity of the offending.
Further, there were serious aggravating factors relating to the conduct of the appellant after he had inflicted the fatal wounds on Elizabeth from which she died. First and foremost, the appellant departed from the premises leaving Elizabeth prone on the floor, partly covered, and in a severely debilitated state.
His actions in departing from the premises, leaving her in that state, were themselves callous. The CCTV footage demonstrated that, in preparing to depart the premises, and while Elizabeth lay severely injured and helpless on the floor, he went in and out of the premises on three occasions to remove luggage and belongings which he took with him as he fled the premises.
The appellant was then well aware that Elizabeth was in a dire state. His communications with Reverend Webster and Ms Dober indicate that he knew that Elizabeth was severely debilitated and that she needed help. Yet he did nothing to obtain that assistance for her, or at least to alert her family or the authorities as to her condition. His expressions of ‘concern’ to Reverend Webster or Ms Dober were clearly not borne of any remorse, or genuine care, for the well-being of Elizabeth. Rather, as the trial judge concluded in her sentencing reasons, the fact that the appellant immediately commenced a sexual relationship with Ms Dober suggested that any concern that he had for Elizabeth was secondary to his own self-interest.[9]
[9]Ibid [21].
As a matter of particular aggravation, on 4 July, the appellant deliberately misled Elizabeth’s father, Peter Wilms, as to Elizabeth’s whereabouts and circumstances. On that day, Peter Wilms sent to the appellant a text stating that he needed to check on Elizabeth’s whereabouts for her safety and asking where she was. Rather than telling Elizabeth’s father the truth, the appellant sent a text message in response stating that he did not know where Elizabeth was, and that he had not been home in a few days.
This Court has repeatedly expressed its concern about the prevalence of cases that come before the courts involving violence by men against women, particularly in the context of a domestic relationship. It is important that the courts, by sentences imposed in cases such as this, make it plain that that offending is entirely unacceptable, and that it contravenes the fundamental values of a civilised society. For that reason, denunciation has a prominent role in cases such as the present.
It is equally important that the courts, by sentences imposed in such cases, make it plain that any person, who commits that kind of offence, will be deprived of their liberty within society for a significant period of years. It is only in that way that the courts, by giving particular emphasis to the principle of general deterrence, can do their best to protect women, and other vulnerable members of the community.
As this Court recently stated in Smith v The Queen:
Male violence against women is a scourge of our society. The rate of death and serious injury suffered by women at the hands of their partners or former partners is deeply shocking. Those who engage, or contemplate engaging, in such violence — in whatever context — should be in no doubt that offending of this kind will attract very heavy sentences. By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.[10]
[10][2020] VSCA 159, [7] (Maxwell P, Kyrou and Weinberg JJA).
In addition, in light of the appellant’s previous convictions, specific deterrence, and community protection, are important sentencing considerations. It is important that the appellant come to understand that, notwithstanding his difficult and most disadvantaged upbringing, it is entirely unacceptable for him to respond to his feelings of anger and frustration by engaging in acts of violence, particularly towards women.
In determining the sentence to be imposed on the appellant, it is accepted that there were a number of significant mitigating factors which must be taken into account and given appropriate weight.
The first mitigating circumstance is the offers made by the appellant to plead guilty to manslaughter, and in particular the offer that he made, before the empanelment of the jury, to plead guilty on the basis of manslaughter by an unlawful and dangerous act. If that offer had been accepted, it would have been of significant utilitarian benefit. It would have saved the community the expense of a thirteen day trial, and, more importantly, it would have spared witnesses, and in particular Peter Wilms and Alice McCann, the burden of giving evidence in a contested trial. The weight to be attributed to the offer is moderated, albeit only to a degree, by the circumstance that, at the trial, the appellant did contest his guilt on the basis of manslaughter by an unlawful and dangerous act, by putting in issue the question of causation. However, it must be recognised that the principal purpose of the defence, in contesting that issue, was to resist the charge of murder.
Secondly, and importantly, the appellant had a most dysfunctional, disadvantaged and traumatic upbringing. It is clear from Dr Cidoni’s report, and indeed it may be inferred from the circumstances of the case, that his background, of deprivation and abuse, played a material role in shaping his responses, and thus in his offending. In that respect, the following principles, discussed by the High Court in Bugmy are relevant:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[11]
[11]Bugmy (2013) 249 CLR 571, 594–5 [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citation omitted).
In particular, the severe dysfunction and disadvantage experienced by the appellant during his formative years were relevant to an appropriate evaluation of his moral culpability for the offending. As this Court stated in DPP v Drake:
In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[12]
[12][2019] VSCA 293, [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
We take into account that in light of the appellant’s severely disadvantaged background those principles apply in this case.
The mitigating effect of the appellant’s psychological condition, and in particular his schizophrenia, is more problematic. As accepted by the sentencing judge based on the evidence of Dr Cidoni, it might be accepted that the appellant’s mental health is such that his experience of imprisonment will be more onerous than for a person in normal health.[13] In addition, there is a significant risk that his mental health will suffer detrimentally as a result of incarceration.
[13]Reasons [41].
However, on the evidence, we are not persuaded that the appellant’s mental health, or his schizophrenia, played a sufficiently material role in the offending as to mitigate the appellant’s moral culpability.
In particular, there was no evidence as to the appellant’s mental state in the period leading to, or at the time of, the offending. Certainly, after the appellant’s arrest, his mental state was florid. However, the witnesses who saw the appellant in the days immediately preceding the offence did not describe any signs that the appellant was acting in a psychotic or delusional manner. As mentioned, those witnesses did observe that the appellant acted in a manner that was angry and jealous towards Elizabeth. However, there was nothing in their descriptions of his reactions which demonstrated, or suggested, that the appellant, at that time, was suffering from his underlying psychiatric condition. Nor did Ms Dober describe any feature of the appellant’s condition which might have suggested that his mental state, at the time of the offending, was in any way depleted. Rather, it would seem that during the short period in which he resided with Ms Dober, the appellant acted relatively normally, acknowledging (which was accurate) that he might have severely hurt or injured a person by losing control of himself.
Secondly, there was no evidence as to the circumstances in which the assault or assaults took place. That is, there was no evidence as to what precipitated the appellant’s multiple assaults of Elizabeth. Certainly, his actions, and his conduct in the period preceding the offence, revealed that the appellant’s conduct at the time was borne of anger and jealousy towards Elizabeth. However, there was no evidence as to precisely what might have precipitated the outburst or outbursts of anger that drove the offending.
In those circumstances, there is insufficient evidence to support a conclusion, on the balance of probabilities, that the appellant’s psychotic illness had any material effect on his offending in a manner which would have mitigated his moral culpability for it.
As we have outlined, since his incarceration, the appellant has suffered one or more episodes of active psychotic symptoms. To a limited extent, it may be accepted that the weight to be given to the sentencing purpose of general deterrence should be moderated, on the basis that the appellant, by virtue of his condition, is not an appropriate instrument for the full application of that sentencing principle.[14]
[14]Verdins (2007) 16 VR 269, 276 [32]; R v Yaldiz [1998] 2 VR 376, 383 (Winneke ACJ).
Further, we accept that there are other relevant mitigating considerations. The materials provided by counsel, in the course of sentencing submissions, demonstrate that since his return to Victoria, the appellant has been held in custody in a management unit or a protection unit. While his placement, in those sections of the prison, has at least in part been due to the appellant’s conduct while in custody, it was correctly accepted on the plea, and on this appeal, by the respondent, that that circumstance nevertheless, reflects that his time in custody has been more onerous than would otherwise be the case.
In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic, and that have been applicable to the appellant and indeed to other prisoners in Victoria. As a result of those restrictions, the appellant has not had the opportunity to have contact visits, and the COVID-19 restrictions have been an additional factor (apart from his placement in a management unit) limiting the time that he might be able to spend out of his cell each day. The appellant’s placement, and the COVID-19 restrictions, have also meant that the appellant has had very limited opportunity to participate in courses directed to his rehabilitation, and to engage in meaningful work. Those circumstances, together with the appellant’s psychological condition, have meant that his time in custody has been, and will, we apprehend, continue to be, more onerous than otherwise would be the case for a prisoner in normal health.
The period of delay between the charging of the appellant with murder, and his acquittal by this Court of that charge, are additional mitigating circumstances. For two years he was the subject of that charge, and for a further two years he was subject to a conviction for it. Further, applying the principles of totality, we take into account that, since his arrest, the appellant spent some nine months in custody in New South Wales which does not count as pre-sentence detention.
Those then are the relevant mitigating circumstances. Based on the materials that were tendered on the plea, we share the views of the sentencing judge that the prospects of rehabilitation for the appellant are ‘guarded’,[15] and are particularly contingent on the appellant undergoing ongoing treatment for mental health and substance abuse, and undertaking relevant courses directed to control of his anger and similar issues.
[15]Reasons [44].
In conclusion, the offending in this case was attended by a number of serious features. The appellant’s conduct after the offence aggravated his moral culpability and the seriousness of the offence. The appellant has a number of previous convictions for violent offending. The principles of general deterrence, denunciation, specific deterrence and protection of the community have particular relevance in this case, although, for the reasons we have outlined, the full weight to be given to general deterrence should be moderated to a limited degree by the appellant’s mental health.
Giving those matters proper consideration, and giving appropriate weight to the mitigating factors that we have discussed, we consider that the appropriate disposition in the present case is that the appellant be sentenced to twelve years’ imprisonment, with a non-parole period of nine years.
We therefore propose making the following orders:
(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.
Pursuant to s 18(4) of the Sentencing Act 1991, we declare that the appellant has served 1202 days (not including today’s date) under the sentence, and we shall cause a notation to that effect to be made in the records of the Court.
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