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].
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- AGLC
- Freeman v The Queen [2011] VSCA 214
- Case
- [2011] VSCA 214
- Decision Date
CaseChat Overview and Summary
The court noted that the sentence of life imprisonment with a non-parole period of 32 years was within the range of sentences that could be imposed for murder, and that the sentencing judge had considered the applicant’s depressive disorder, remorse, and prospects of rehabilitation. The court held that the sentence was not manifestly excessive and that the sentencing judge had given adequate weight to the relevant factors. The court also held that the grounds of appeal were not reasonably arguable, as the sentence was not so high as to shock the conscience of the court or be outside the range of sentences that could be imposed for murder.
The court refused the application for leave to appeal, finding that the sentence was not manifestly excessive and that the grounds of appeal were not reasonably arguable. The court held that the sentence was within the range of sentences that could be imposed for murder and that the sentencing judge had properly considered the relevant factors. The court found that the applicant’s depressive disorder, remorse, and prospects of rehabilitation were relevant considerations, but that they did not outweigh the seriousness of the offence or the need for general deterrence. The court held that the sentence was not so high as to shock the conscience of the court or be outside the range of sentences that could be imposed for murder.
Orders
Orders of the court
Leave to appeal is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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