Freeman v The Queen
[2011] VSCA 349
•9 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| ARTHUR PHILLIP FREEMAN | S APCR 2011 0097 |
| 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 England for several months before returning to Australia late in 2008.
Custody and access proceedings came on to be heard in the Family Court on 27 January 2009 and concluded on 28 January 2009. During the proceedings, the children stayed at Aireys Inlet with the applicant’s parents. The proceedings concluded with consent orders which reduced the applicant’s share of custody from equal custody to three days custody each second weekend and custody on the afternoon and early evening of Thursday of each other week.
At the conclusion of the proceedings, the applicant told friends that he was glad the proceedings were over and he did not express any particular dissatisfaction with the outcome. He also contacted his mother and told her the result of the proceedings. But by the time he reached his parents’ home at Aireys Inlet, at about midnight, he was distressed and did not want to talk about the events of the day. He spent an unsettled night and was still distressed the following morning.
That morning, Darcey, was to attend her first day at school at St Joseph’s Primary School in Hawthorn. It had been arranged that the applicant would drive Darcey from his parents’ home in Aireys Inlet to the school and meet Ms Barnes there. Because of the applicant’s apparent state of distress, his father offered to accompany him. Alternatively, he suggested that he put off the journey to another day. But the applicant declined both options.
He drove to Melbourne with the three children seated in the rear seat of the car. On the way, he had a telephone conversation with a friend, Elizabeth Lam, in England. During the conversation, he sounded upset and was crying. He described the result of the Family Court proceedings as having lost his children. He said that there were a lot of angry women at the Family Court and he told Ms Lam that he would continue to fight through the Family Court. Not long after that conversation, he also had two relatively brief telephone conversations with Ms Barnes. During the first of those, he told her to say goodbye to her children and, in the second, he told her that she would never see her children again.
After that, he drove up to a point at or close to the highest point of the Westgate Bridge, pulled into the inbound emergency lane and turned on his vehicle’s hazard lights. He told Darcey to climb over into the front seat and, after she had done so, he reached into the car from the driver’s side and pulled her from the car. Then he led her over to the parapet of the bridge, lifted her up and threw her over the edge of the bridge to her death in the water more than 50 metres below.
During that process, he appeared to be emotionless. He returned to his car and drove away in an apparently normal manner. His son, Benjamin, asked if he could sit in the front seat and the applicant stopped the car to enable him to do so. Benjamin was aware of what had happened to his younger sister and asked his father to return to help her. But the applicant did not return.
He drove instead to the Commonwealth Law Courts building at the corner of William and La Trobe Streets, parked his car in La Trobe Street some way down the hill from the Court and then went into the Court building carrying his son, Jackson, and holding his son, Benjamin, by the hand. He attempted to hand Jackson to one of the security guards, saying, ‘Take my son’. The guard declined to take the child.
CCTV footage captured events from that point onwards. The applicant appeared to be greatly distressed and crying and generally non-responsive to his children and court officials. A court counsellor, attempted to comfort him, saying, ‘It will be all right’. But the applicant replied ‘No’ and sobbed loudly and later said to one of the police officers, ‘Take me away’. The sentencing judge found that the applicant’s behaviour at the Court and subsequently was the result of the applicant’s realisation of the enormity of what he had done.
The way in which the trial was conducted
As the judge observed in his sentencing remarks, the trial was conducted on the basis that, although the applicant did not remember what he had done, he accepted that he was the person responsible for Darcey’s death. The defence was that he was not guilty by reason of mental impairment. Professor Graham Burrows, who was called by the defence, gave evidence that, in his opinion, the applicant had been suffering from severe depression and, as a result, had fallen into a state of dissociation so that his acts were not conscious, voluntary and deliberate or intentional. But, to the contrary, Dr Skinner and Dr Bell, who were called by the Crown, gave evidence that, in their opinions, the applicant was suffering from only mild to moderate depression and, if there were any dissociation, it was not such as to have removed the applicant’s capacity to act consciously, voluntarily and deliberately or intentionally.
In the result, the jury rejected the defence of mental impairment, and thus the applicant was convicted.
The basis of sentencing
In assessing the nature and gravity of the offending, the judge stated that he took into account the following aggravating considerations:
(1) The applicant had killed an innocent child.
(2) The circumstances of the killing were horrible and the child’s death was bound to have been painful and protracted.
(3) The applicant’s conduct was a most fundamental breach of trust and an attack on the institution of the family, which is an institution dear to the community.
(4) The killing was in the presence of the applicant’s son, Benjamin, who was then six, and his son Jackson, who was two.
(5) Any motive for the killing had nothing to do with the innocent victim. It was to be concluded that the applicant killed his daughter in an attempt to hurt his former wife as much as possible.
(6) The applicant had chosen a place for the commission of the crime which was remarkably public and calculated to have the most dramatic impact.
(7) The applicant had thereby brought the broader community into the case in a way that had been rarely before been seen, and thereby offended the public conscience.
(8) The applicant’s threats to Ms Barnes when speaking to her from the car by telephone were made in the presence of his children, who were in a position to have heard them.
The judge also had regard to the deeply disturbing effects of the child’s death on Ms Barnes and on persons who had witnessed the killing.
In considering factors in mitigation of penalty, the judge paid close attention to the principles essayed in Verdins,[2] which were much pressed on the plea on behalf of the applicant, and to the expert opinions of Drs Bell, Skinner and Walton. His Honour was persuaded that the applicant’s condition had worsened since the offending and that, as a consequence, the sentence of imprisonment would weigh more heavily on the applicant than it would upon a person of normal health. But his Honour considered that, given the ‘relative lack of seriousness’ of the applicant’s condition at the time of offending, and the grave consequences of the offending, the applicant’s condition did not significantly mitigate his moral culpability or otherwise temper the need for denunciation and general deterrence.
[2]R v Verdins (2007) 16 VR 269.
The judge accepted that the offending was not premeditated. But his Honour was not satisfied that the applicant had shown remorse. He considered that the applicant’s behaviour throughout was self-centred with a strong tendency to blame others and he noted that the applicant was still yet to apologise. He concluded that, given the applicant’s lack of insight into his offending, his prospects of rehabilitation were bleak.
Finally, his Honour found that the applicant was not beyond redemption, but in view of the seriousness of the offending and the applicant’s bleak prospects of rehabilitation, it was necessary to set a period of 32 years before the applicant would be eligible for parole.
Ground 1 – Excessive non-parole period
The complaint made under proposed Ground 1 of appeal is that the non-parole period of 32 years is excessive when compared to the non-parole period of 18 years which was set in R v Fitchett[3] and the non-parole period of 33 years which was set in R v Farquharson.[4]
[3][2010] VSC 393.
[4][2010] VSC 462.
In our view, there is no substance in the argument. Fitchett was sentenced to 27 years’ imprisonment with a non-parole period of 18 years after being tried and convicted a second time for the murder of her two infant sons. After she was tried and convicted the first time, she was sentenced to a hospital security order of 27 years’ duration with a non-parole period of 17 years (on the basis of uncontested expert evidence that, at the time of sentencing, she was suffering from severe mental illness which made it appropriate that she be sentenced in that fashion). Later, the first conviction was quashed on appeal when it was held by three judges of this court that the trial judge had not sufficiently directed the jury as to what would be the consequences of them finding Fitchett to be not guilty by reason of mental impairment. By the time Fitchett was tried and convicted the second time, her mental condition had significantly improved and, other things being equal, would have warranted a greater sentence than had first been imposed. But the sentencing judge was in effect bound by the principle of double jeopardy to treat the sentence first imposed as setting the outer limit.[5] It follows that Fitchett is in no way a relevant comparator for present purposes.
[5]McL v The Queen (2000) 203 CLR 452, 459 [23] (Gleeson CJ, Gaudron and Callinan JJ) 476 [72] (McHugh, Gummow and Hayne JJ).
Farquharson is a more relevant comparator. He was sentenced to life imprisonment with a non-parole period of 33 years for the murder of his three infant sons, by driving them into a dam. He too was found to have been motivated by the wish to harm his former wife by killing their children. So far, however, from suggesting that the non-parole period of 32 years set in this case is excessive, Farquharson accords with it.
Granted, Farquharson killed three children and the applicant murdered but one. But the setting of a non-parole period is not a linear function of the number of deaths inflicted. It is a process which requires a sentencing judge to make an order that is of a severity appropriate in all the circumstance of the offence, and the ‘severity appropriate’ is to be determined having regard to the general principles laid down by the High Court Power v The Queen,[6] Deakin v The Queen[7] and Bugmy v The Queen.[8] Given that the crimes committed by Farquharson and the applicant were both of the worst possible kind,[9] and the similarities between the circumstances of each offender, it is to be expected that the non-parole periods set in each case would be similar.[10]
[6](1974) 131 CLR 623.
[7](1984) 58 ALJR 367; 54 ALR 765.
[8](1990) 169 CLR 525.
[9]Veen v The Queen (No 2) (1988) 164 CLR 465, 478; Hudson v R (2010) 205 A Crim R 199, [2010] VSCA 32, [38].
[10]Hili v R (2010) 272 ALR 465, 476 [40]–[45].
Another relevant comparator is R v Acar,[11] to which the President referred in his reasons. Acar was sentenced to life imprisonment, with a non‑parole period of 33 years, for the murder of his infant daughter. It is true that he had prior criminal convictions and there was no question of the application of the principles in Verdins. But even so, the sentence imposed in Acar adds weight to the consideration that the non‑parole period set in this case was within the range.
[11][2011] VSC 310.
Moreover, as a majority of the High Court recently observed in R v Hili,[12] appellate intervention on the ground of manifest excessiveness is not justified simply because the result arrived at below is different from other sentences that have been imposed in other cases. It is only warranted where the difference is such that in all the circumstances the appellate court considers that there must have been some misapplication of principle. In this case, having regard to the nature and gravity of the offending and to the personal circumstances of the applicant, we do not think it reasonably to be arguable that a non-parole period of 32 years is so great that the judge must have acted in error. To the contrary, we respectfully agree with his Honour that, because of the most heinous nature and gravity of the applicant’s offending, his evident lack of remorse and poor prospects of rehabilitation, a non-parole of 32 years is no more than appropriate.
[12](2010) 272 ALR 465, 480 [59].
Ground 2 – Error in the assessment of the applicant’s psychological illness
The argument advanced under proposed Ground 2 is that the judge erred in paragraph 43 of his sentencing remarks, in holding that:
Dr Walton and Professor Mullen in their earlier reports described you as suffering from a depressive illness, but neither concluded that you were mentally impaired. None of the above psychiatrists were of the opinion that you were suffering from a psychotic illness at the time you killed your daughter Darcey
and in describing the applicant’s mental condition as one of relative lack of seriousness, in paragraph 44 of his sentencing remarks, as follows:
Given the relative lack of seriousness of your condition and the grave seriousness of the offending, I have given weight to your condition, but not significant weight as it relates to moral culpability, denunciation and general deterrence.
That conclusion seems consistent with Dr Walton’s opinions which are quoted above.
We see no error in that aspect of the judge’s reasoning. It appears to us to represent an accurate summation of the weight of the psychiatric and psychological evidence which was before him and adequately to support the conclusion that the applicant’s mental condition was relatively lacking in seriousness compared to the gravity of the offending. Contrary to submissions advanced on behalf of the applicant, in our view the assessment of moral culpability required the judge to have regard to both the extent of the applicant’s mental dysfunction and the gravity of the crime in question and to consider each in light of each other.
That is to say, if an offence is but venial, a lesser mental condition may go a significant way to reducing the offender’s moral culpability. But if an offence is as serious as this was, a relatively insignificant mental condition is likely to weigh less in the scale of assessment of moral culpability. It requires a substantial degree of mental disability to result in a substantial reduction in moral culpability for this class of offending.
Ground 3 – Error in the significant attributed to self-centredness
Under Ground 3, it was contended that the judge erred in equating the applicant’s post-offence self-centredness and blame of others with an absence of remorse and that the judge was unfair in effect to criticise the applicant for failing to apologise for his actions.
We reject that contention. Relevantly, what the judge said on that subject was as follows:
There is a passage in the most recent report of Dr Walton which is illuminating:
Mr Freeman indicated that he had a strong desire to be able to meet with his surviving children and explain to them all the circumstances surrounding the death of their sister. However, when I asked him to provide me with such an explanation nothing emerged other than peripheral issues.
I have come to the conclusion that the passage shows that your attitude to this matter is still self centred.
I am satisfied that you continue to lack any insight into your offending and I regard your prospects of rehabilitation as bleak.
We are unable to detect any error in that process of reasoning or the conclusion in which it resulted.
Ground 4 – Error in conclusion as to prospects of rehabilitation
Finally, under the heading of Ground 4, it was contended that the judge’s conclusion as to the applicant’s self-centredness was not supported by evidence and thus or in any event that it was not open to the judge to conclude that the applicant’s prospects of rehabilitation were bleak.
We do not accept that contention either. The evidence is set out in the judge’s sentencing remarks and, in our view, it was open on the basis of that evidence for the judge to find as he did.
WARREN CJ:
It follows that the Court will order that the application is dismissed.
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