Freeman v The Queen

[2011] VSCA 214

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:

1. 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.

1. 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. 

1. 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.

1. For reasons which follow, I have concluded that the application must be refused.

The ground of manifest excess

1. 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.

1. 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].

1. 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