JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2015
DATE OF SENTENCE:	18 September 2015
CASE MAY BE CITED AS:	R v Freeman
MEDIUM NEUTRAL CITATION:	[2015] VSC 506

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CRIMINAL LAW – Sentence – Murder – During sexual intercourse, deceased said to accused, “What’s it like fucking a 13-year-old?” – Accused, who had been sexually abused as a child, became enraged, grabbed a kitchen knife and stabbed deceased once in the neck, severing her carotid artery – Accused rang for ambulance – Deceased died of blood loss – Accused admitted to Triple 0 operator, his sister and police that he stabbed deceased in the neck – Deceased left behind a daughter, siblings and parents – Whether deceased’s remarks provocative – Whether, and to what extent, provocation mitigates murder following abolition of provocation as a partial defence – Spontaneous offence – Some prior convictions for violence – Remorse – Trial run sparely by accused – Reasonable prospects of rehabilitation – Hardship of imprisonment in view of accused’s fragile mental health – Importance of general and specific deterrence, denunciation, just punishment and rehabilitation – Current sentencing practices – Sentence of 19 years’ imprisonment with a non-parole period of 15 years – Tyne v Tasmania (2005) 15 Tas R 221; Professor Arie Freiberg and Felicity Stewart, Provocation in Sentencing, Research Report (Second Edition), Sentencing Advisory Council (July 2009).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy QC with Ms R. Harper	Office of Public Prosecutions
For the Accused	Mr T. Marsh	Victoria Legal Aid

HIS HONOUR:

Overview

In the early hours of the morning of 21 November 2013, Anthony James Freeman was at his studio flat with his partner Yosan Solomon. They were engaged in sexual intercourse when Ms Solomon suddenly said, “What’s it like fucking a 13-year-old?” Mr Freeman, who had been sexually abused as a child, was enraged by the remark. Shortly afterwards, he took up a kitchen knife. An argument and struggle ensued during which he stabbed his partner once in the neck. The blade struck an artery. Blood spurted from the wound and all about the tiny flat. Mr Freeman rang Triple 0 for an ambulance but Ms Solomon died before medical help arrived. Police arrested Mr Freeman without incident and charged him with murder.

At his trial in this Court, Mr Freeman’s case was conducted on the basis that, in response to the insult, he deliberately and unlawfully stabbed Ms Solomon in the neck in objectively dangerous circumstances, which caused her to die, and that he was guilty of manslaughter in consequence. The only matter in issue was whether he possessed murderous intent. The jury found him guilty of murder.

On 3 August 2015, I heard a plea in mitigation. Shortly, I shall impose sentence.

The evidence at trial

I turn now to…

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 R v Freeman

Details

AGLC: R v Freeman [2015] VSC 506
Case: [2015] VSC 506
Decision Date: 18 September 2015

CaseChat Overview and Summary

In the case of R v Freeman, the respondent, Freeman, was charged with the murder of the deceased, who was killed after Freeman stabbed her once in the neck during an altercation. The incident occurred following a provocative comment made by the deceased about Freeman's sexual history. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court had to address was the extent to which the deceased's provocative comments could be considered in sentencing, given that provocation had been abolished as a partial defence to murder. The court also needed to determine whether Freeman's mental health, history of abuse, and remorse were mitigating factors, and whether these factors warranted a lesser sentence. Additionally, the court had to consider the principles of deterrence, denunciation, just punishment, and rehabilitation in light of current sentencing practices.

The Supreme Court of Victoria found that the deceased's remarks were indeed provocative and could be considered in assessing the culpability of Freeman. The court determined that the offence was spontaneous, and while Freeman's history of violence was a concern, his remorse and fragile mental health were significant mitigating factors. The court emphasised the importance of general and specific deterrence, the denunciation of the crime, just punishment, and the rehabilitation of Freeman. Ultimately, the court sentenced Freeman to 19 years' imprisonment with a non-parole period of 15 years.

No additional orders were made by the court beyond the sentence.

Orders