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Freeman v The Queen

Freeman v The Queen

Case [2011] VSCA 349 9 November 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

ARTHUR PHILLIP FREEMAN	S APCR 2011 0097
ARTHUR PHILLIP FREEMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, NETTLE JA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2011
DATE OF JUDGMENT:	9 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 349
JUDGMENT APPEALED FROM:	[2011] VSC 139 (Coghlan J)

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CRIMINAL LAW – Appeal – Sentence – Leave to appeal refused by single Judge of Appeal – Election to have application determined by Full Bench of Court of Appeal – Murder of infant daughter by father – Motive of spousal revenge – Sentence of life imprisonment with non-parole period of 32 years – Whether non-parole period manifestly excessive – Whether non-parole periods set in other cases of spousal revenge homicide demonstrative of manifest excess – Whether sentencing judge erred in assessment of applicant’s psychological illness and prospects of rehabilitation – R v Hili (2010) 272 ALR 456, applied; R v Fitchett [2010] VSC 393; R v Farquharson [2010] VSC 462; R v Acar [2011] VSC 310, referred to – Application dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D L Brustman SC with Mr C B Boyce	Victoria Legal Aid
For the Respondent	Ms C M Quin	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

I invite Nettle JA to deliver the Court's judgment.

NETTLE JA

On 27 July 2011, Maxwell P[1] refused the applicant leave to appeal against a sentence of life imprisonment, with a non-parole period of 32 years, imposed on him following his conviction of the murder of his four year old daughter, Darcey. This is a renewal of the application for leave to appeal against sentence pursuant to s 315(2) of the Criminal Procedure Act 2009.
[1][2011] VSCA 214.

The facts of the offending

The applicant is a graduate in computer science who worked as a computer programmer. At the time of the offence, he was 35 years of age and recently divorced from Peta Barnes, who was Darcey’s mother. They had married in 1999 and in the early part of 2000 had moved to the United Kingdom where three children of the marriage were born: Benjamin (born 1 February 2000); Darcey (born 11 February 2004); and Jackson (born 24 February 2006). They remained in the United Kingdom until June 2006 before returning to Australia and residing in Hawthorn. Ms Barnes then commenced work and the applicant remained at home looking after the children before gaining employment at some stage in December 2006. In March 2007, the marriage failed, despite marriage counselling, and the couple divorced in June 2008.

The applicant moved to Geelong but continued to look after the children during the day. Later, he moved to a flat in Hawthorn. At that stage, the couple were sharing custody. But in August 2008 the applicant returned to the United Kingdom in an unsuccessful attempt to obtain a British passport and he remained in…

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.

Continue reading Freeman v The Queen

Details

AGLC: Freeman v The Queen [2011] VSCA 349
Case: [2011] VSCA 349
Decision Date: 9 November 2011

CaseChat Overview and Summary

Freeman appealed against his conviction and sentence for the murder of his infant daughter, motivated by spousal revenge, to the Court of Appeal. The case was initially dismissed by a single judge, but Freeman elected to have it heard by the Full Bench. The primary legal issue was whether the non-parole period of 32 years was manifestly excessive, given the nature of the crime and the applicant’s psychological condition and prospects for rehabilitation. The court also considered whether the non-parole periods in other similar cases could be seen as demonstrating a manifest excess.

The court found that the non-parole period imposed was not manifestly excessive. It held that the sentencing judge had properly considered the factors relevant to the case, including the heinous nature of the crime, the motive of spousal revenge, and the evidence of the applicant's psychological condition. The court emphasised the importance of the individual circumstances of each case and concluded that the sentence was proportionate and appropriate. The Full Bench found no error in the sentencing judge's assessment of Freeman's psychological illness and prospects of rehabilitation, nor did it find any point of principle that warranted further appeal. The application was dismissed.

There were no orders to be made as the application was dismissed.

Orders