Freeman v The Queen
[2011] VSCA 214
•27 July 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0097
| ARTHUR PHILLIP FREEMAN |
| v |
| THE QUEEN |
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| JUDGE | MAXWELL P |
| WHERE HELD | MELBOURNE |
| DATE OF JUDGMENT | 27 July 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 214 |
| JUDGMENT APPEALED FROM | R v Freeman [2011] VSC 139 (Coghlan J) |
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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal – Murder of daughter by father – Sentence of life imprisonment with non-parole period of 32 years – Whether manifestly excessive – Whether adequate weight given to applicant’s depressive disorder, remorse and prospects of rehabilitation – Questions of weight determinable only as particulars of manifest excess – Grounds of appeal not reasonably arguable – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| There was no request by the applicant for a hearing of the application for leave to appeal. The application was determined on the papers. | ||
MAXWELL P:
After a trial in the Supreme Court, the applicant was convicted of one count of murder. He was sentenced to life imprisonment, and the judge fixed a non-parole period of 32 years. He now seeks leave to appeal against sentence.
Under the new criminal appeal procedure operative in this Court since 1 March 2011, an oral hearing of an application for leave to appeal against sentence (or conviction) is only held if requested by the applicant. Although this applicant initially signified in his written application a desire for an oral hearing, he did not subsequently confirm that request as required.
Accordingly, the application has been dealt with on the basis of the written submissions. I should add that the submissions filed on behalf of the applicant set out fully and clearly the basis of his application.
For reasons which follow, I have concluded that the application must be refused.
The ground of manifest excess
The first ground of appeal is that the minimum term of 32 years is manifestly excessive. In support of this contention, there are three further grounds contending that inadequate weight was given to various matters.
It is a basic principle of sentencing law that there is no single correct sentence in a particular case. On the contrary, there is a ‘sentencing range’ within which views can reasonably differ as to the appropriate sentence.[1]
[1]R v MacNeil-Brown (2008) 20 VR 677, 680 [8].
A sentence will only be ‘manifestly excessive’ if it falls outside that range, that is, if it was not reasonably open to the sentencing judge to impose that sentence. This is a stringent standard, difficult to satisfy. It reflects the fact that sentencing is a task which the law commits to sentencing judges. Sentencing is not the task of appellate courts, except where clear error is shown.[2] As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[3]
[2]R v Abbott (2007) 170 A Crim R 306, 309 [14].
[3]Lowndes v The Queen (1999) 195 CLR 665, 672 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
Manifest excess will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[4] It must be shown that it would not have been reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[5] It is for this reason that complaints about the weight given to particular factors will stand or fall with the ground of manifest excess.[6]
[4]R v Boaza [1999] VSCA 126, [42] (Winneke P).
[5]DPP v Karazisis [2010] VSCA 350, [127]–[128].
[6]DPP v Terrick (2009) 24 VR 457, 459–60 [5].
The present case
Leave to appeal is only granted where one or more of the proposed grounds of appeal is shown to be capable of reasonable argument. In the present case, I do not regard it as reasonably arguable that the non-parole period of 32 years was outside the sentencing range open to the sentencing judge in the circumstances of this case.
The judge’s findings about the seriousness of this offence were very clear, and are not challenged on this application. His Honour identified the following as matters of aggravation, that is, matters which made the offending more, rather than less, serious:
(1)This was the killing of an innocent child.
(2)The circumstances of the killing were horrible. The throwing of your four year old daughter from a bridge more than 50 metres above the ground could not be more horrible. What Darcey’s last thoughts might have been does not bear thinking about, and her death must have been a painful and protracted one.
(3)Your conduct is a most fundamental breach of trust and it is an attack on the institution of the family which is so dear to the community.
(4)The killing was in the presence of your son, Benjamin, who was then six, and your son, Jack, who was two. The community hopes Jack will be too young to remember.
(5)Any motive which existed for the killing had nothing to do with the innocent victim. It can only be concluded that you used your daughter in an attempt to hurt your former wife as profoundly as possible.
(6)You chose a place for the commission of your crime which was remarkably public and which would have the most dramatic impact.
(7)It follows that you brought the broader community into this case in a way that has been rarely, if ever, seen before. It offends our collective conscience.
(8)The threats to your wife on the telephone were in the presence of your children, who were in a position to have heard them.[7]
[7]R v Freeman [2011] VSC 139, [17] (Coghlan J) (‘Reasons’).
The judge found that the applicant’s anger was the operative emotion. His Honour said:
I accept that your offending was not premeditated but related to your increasing anger towards your former wife over the Family Court proceedings, exacerbated by your being late for Darcey’s first day at school. It should be noted that Professor Burrows [the psychiatrist called by the defence] did not doubt that you were angry at the time you killed your daughter. I have no doubt that the resentment your bore your wife had been building up for some time …[8]
[8]Ibid [50].
Relevance of depressive condition
It was common ground at the trial that, at the time of the killing, the applicant was suffering from a depressive condition. With the exception of the defence expert, Professor Burrows, however, the experts were of the view that the depression was only of moderate severity.
In his reasons, the judge set out relevant passages from the expert reports and said:
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.
The first of the subsidiary grounds of appeal is that the judge gave inadequate weight to the principles set out by this Court in R v Verdins.[9] That case summarises the six ways in which impairment of mental functioning may be relevant to sentencing.
[9](2007) 16 VR 269 (‘Verdins’).
Although the sentencing court will almost always rely on the expert opinions of psychiatrists and psychologists, the question for the sentencing court is one of fact. The court
needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead up to it – or is likely to affect him/her in the future.[10]
A successful challenge to a finding on any of these matters depends upon showing that the finding was not reasonably open on the evidence.[11]
[10]Ibid 272 [13].
[11]Carroll v The Queen [2011] VSCA 150, [18].
As to whether the particular condition can be said to have reduced the offender’s moral culpability, the Court in Verdins said:
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence.[12]
[12]Verdins (2007) 16 VR 269, [25].
The question for the sentencing court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?[13]
[13]Ashe v The Queen [2010] VSCA 119, [14], [19]; Davey v The Queen [2010] VSCA 346, [25]; MC v The Queen [2011] VSCA 2, [20]–[21]; Bowen v The Queen [2011] VSCA 67, [28], [29], [33]; DPP v HPW [2011] VSCA 88, [28], [63]; Pettiford v The Queen [2011] VSCA 96, [32]–[34].
No such submission was advanced in this case, presumably because (with the exception of Professor Burrows’ testimony) there was no evidence of that kind before the court. The applicant has provided no account of his state of mind and intentions immediately prior to, or after, putting his daughter over the side of the bridge. He has consistently said that he is unable to recall what happened. Professor Mullen, for example, expressed the following opinion in his report:
In the absence of such information, in my opinion, all that can be concluded is that Mr Freeman had a depressive disorder, probably with suicidal preoccupations, at the time he killed his daughter. No clear connection between that depressive disorder and his actions on the Westgate Bridge can be made on the basis of the information available to me.
It is notable that defence counsel declined the judge’s request to state to what extent the applicant’s depressive condition reduced his moral culpability. The Verdins submission was put at a very high level of generality, involving little elaboration of the assertion that the applicant had a ‘depressive disorder’ which engaged the Verdins principles. As the Court in Verdins emphasised, diagnostic labels are of little assistance. What matters is what the evidence shows about how the particular condition is likely to have affected the mental functioning of the offender at the relevant time.[14]
[14]Verdins (2007) 16 VR 269, 272 [15]–[16].
The judge was exceptionally well placed to assess the Verdins submission. The only issue in the trial was whether the applicant’s defence of mental impairment succeeded. His Honour therefore had the benefit of hearing direct evidence from several of the experts and also from a number of the witnesses whose observations of the applicant in the critical period formed a key element in the experts’ assessments of his mental state.
The findings which his Honour made about the relevance of the applicant’s condition were clearly open on the evidence. As I said earlier, the complaint that his Honour did not give enough weight to the applicant’s depressive condition stands or falls with the manifest excess ground.
Reference to comparable cases
The applicant’s submission refers to two recent cases which are said to indicate ‘appropriate sentences’. Both cases were cited by defence counsel on the plea and the judge referred to them in his reasons.
The first is R v Fitchett.[15] In that case, a mother killed her two children. She was sentenced to 17 years on each of two counts of murder. With cumulation of 10 years, the total effective sentence was 27 years. A non-parole period of 18 years was fixed.
[15][2010] VSC 393.
Fitchett was a very different case from the present. First, the judge in Fitchett accepted that there was a causal link between Mrs Fitchett’s depression and the offending. In the present case, as I have said, no such submission was made and the evidence did not support any such finding. Secondly, Mrs Fitchett was found to be ‘profoundly’ remorseful. No such finding was made in the present case.
Thirdly, and most significantly, the judge was sentencing Mrs Fitchett following a retrial. Her Honour recognised that she was constrained by the sentence which had been imposed at the time of Mrs Fitchett’s original conviction. As her Honour pointed out, it is well established that the sentence imposed following the first trial should ordinarily be regarded as the upper limit of the sentence to be imposed following the second trial.
The sentence first imposed on Mrs Fitchett in July 2008 was substantially reduced because of the serious mental illness from which she was suffering at the time of sentence. Although the judge on that occasion did not regard her moral culpability as significantly reduced by her mental condition at the time of the killings, by the time of the sentencing she was severely depressed and at a high risk of suicide. The judge said:
As to general deterrence, I consider that your present and projected state of mental health of themselves warrant a significant reduction in sentence. To adopt and adapt the words of Allen J in R v Engert,[16] the sympathy which your condition is likely to attract in the eyes of others in the community generally is such that to sentence you with the full weight given to general deterrence would not be useful. Additionally, I consider that the risk of imprisonment having a further substantial adverse effect on your mental health,[17] and the fact that imprisonment will weigh more heavily on you than someone of normal mental health,[18] further mitigate the punishment which it is necessary to impose.[19]
[16]R v Engert (1995) 84 A Crim R 67, 72; Verdins (2007) 16 VR 269, 274 [21].
[17]R v Vardouniotis [2007] VSCA 62, [30]–[31]; Verdins (2007) 16 VR 269, 276 [29]–[30].
[18]R v Smith (1987) 44 NSWR 587, 589; R v Van Boxtel (2004) 11 VR 258, 266 [29]; Verdins (2007) 16 VR 269, 275 [27].
[19]R v Fitchett [2008] VSC 258, [38].
Such was the state of Mrs Fitchett’s mental illness that the judge was satisfied that he should make a hospital security order under s 93A of the Sentencing Act 1991. The order was based on the certificate of a psychiatrist stating that, because of her mental illness, her detention and treatment in an approved mental health service was necessary for her mental health and safety.[20]
[20]Ibid [40].
The second case relied on in this application was R v Farquharson.[21] In that case, a father drowned his three children by driving the family car into a dam. He was sentenced to life imprisonment on each of the three counts of murder, and a minimum term of 33 years was imposed.
[21][2010] VSC 462.
It is unnecessary to explore the similarities and differences between that case and this. As this Court has made clear, the relevance of comparable cases lies in the ascertainment of the available sentencing range in a particular case.[22] It is sufficient to say that there is nothing about the sentence imposed in Farquharson which suggests that the sentence here in issue was outside the range open to the judge.
[22]Hudson v The Queen [2010] VSCA 332; Hasan v The Queen [2010] VSCA 352.
The conclusion that the present sentence was within range is reinforced by a recent sentence imposed on a father who murdered his infant daughter.[23] On 1 July 2011, a judge of the Supreme Court sentenced Ramazan Acar to life imprisonment with a non-parole period of 33 years. In that case as in this, the offender was found to have been motivated by animosity towards the mother of the child.
[23]R v Acar [2011] VSC 310.
Remorse and rehabilitation
Finally, the applicant contends that the judge gave inadequate weight to his remorse and to his prospects of rehabilitation. The judge rejected the defence submission that the applicant’s conduct after the killing demonstrated remorse. He said:
I accept that [the conduct] does demonstrate that by that time you appreciated the enormity of what you had done and there was some aspect of regret. I am not satisfied that it does show remorse. Your behaviour through the whole of this period of your life was self-centred, with a strong tendency to blame others. You are yet to say sorry to anyone for what you have done.
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.[24]
[24]Reasons, [51]–[54].
It is submitted for the applicant that it was an error to equate self-centredness with an absence of remorse and that there was no basis for the conclusion that the applicant’s prospects of rehabilitation were bleak. It is important to point out, however, that neither is said to be a specific sentencing error. Rather, as I have pointed out, the contentions merely concern the weight which ought to have been given to these matters, and they stand or fall with the manifest excess ground.
I would in any event have concluded that it was well open to his Honour to come to the conclusions he did about remorse and rehabilitation. As I have said, the judge had heard in the course of the trial detailed accounts – and evaluations – of the applicant’s behaviour at every relevant stage of these events, and these findings of fact were well open to him on the evidence presented.
No arguable basis has been established for appellate intervention in this sentence. Leave to appeal is accordingly refused.
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