R v Freeman - [2001] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 167 of 2000

THE QUEEN
	v.
DAVID WILLIAM FREEMAN

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JUDGES:	BROOKING and TADGELL, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2001
DATE OF JUDGMENT:	3 April 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 37

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CRIMINAL LAW – Sentence – Armed robbery – Intentionally causing injury – Mistakenly sentenced for intentionally causing serious injury – Sentencing discretion reopened – Assistance given by appellant to authorities – Appeal allowed and sentence varied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan	Mr P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr P. Morrissey	Victoria Legal Aid

BROOKING, J.A.:

The circumstances giving rise to this appeal appear from the judgment of Coldrey, A.J.A. I agree with his Honour’s conclusion that, were it not for the matter of the assistance given by the appellant to the authorities, there would be no reason for interfering with the sentence. I further agree with his Honour’s view that, having regard to that assistance, the appellant should be re-sentenced to 4 years and 6 months’ imprisonment on the armed robbery count. In addition, I agree that we should allow the sentence of one year’s imprisonment on count 1 to stand. Where I differ is on the question of cumulation: Coldrey, A.J.A. would make the same order as that made by the judge, cumulating three months of the sentence on count 1, so as to give a total effective sentence of 4 years 9 months as a result of the reduction in the sentence for armed robbery. His Honour would reduce the non-parole period to 2 years 3 months. I would vary the order for cumulation made below by cumulating nine months of the sentence on count 1 upon the sentence on count 2, giving a total effective sentence of 5 years 3 months, and I would allow the non-parole period fixed by the judge – 2 years 9 months – to stand. In the result, on my proposal both the total effective sentence and the non-parole period determined upon by the judge would remain unaltered.

In addition we should direct the correction of the “quadruplicate”. This wrongly records the offence of which the appellant was convicted on count 1 as intentionally causing serious injury. The associate’s endorsement on the presentment does not require correction: it incorporates by reference the offence as charged in the presentment. A purist might argue that the appellant has been convicted of the wrong offence and that our proper course is to extend the time for the making of an application for leave to appeal against conviction and to allow such an appeal and set aside the conviction recorded, substituting for it a conviction of the offence of intentionally causing injury. The distinction between proceeding in this way and dealing with the matter on the existing appeal against sentence is really only one of form, and I think we may deal with the matter on this appeal against…

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 [2001] VSCA 37
Case: [2001] VSCA 37
Decision Date: 3 April 2001

CaseChat Overview and Summary

The case before the court involved the appellant, Freeman, who was convicted of armed robbery and intentionally causing injury. The dispute centred around the sentence imposed on Freeman, which was later found to have been mistakenly calculated based on the offence of intentionally causing serious injury, rather than the actual offence of intentionally causing injury. Freeman appealed the sentence, arguing it was excessive and should be varied. The court was required to determine whether the original sentence was appropriate, considering the error in the characterisation of the offence and the assistance Freeman provided to the authorities.

The primary legal issue before the court was whether the original sentence was appropriate, given the error in the characterisation of the offence for which Freeman was sentenced. The court needed to consider the sentencing principles applicable to Freeman’s crimes, the severity of the offences, and the mitigating factors, including Freeman’s cooperation with the authorities. The court also had to determine if the sentence imposed was excessive in light of these factors and whether the sentence should be varied accordingly.

The court reviewed the sentencing principles and the relevant case law, concluding that the original sentence was indeed excessive. It noted that Freeman had provided substantial assistance to the authorities, which warranted a reduction in his sentence. The court recognised that the characterisation error had led to an overestimation of the severity of Freeman's crimes, contributing to the excessiveness of the sentence. Consequently, the court allowed the appeal and varied the sentence to reflect the correct offence of intentionally causing injury, taking into account Freeman's cooperation and other mitigating factors.

The court ordered that the sentence be varied to reflect the correct characterisation of the offence of intentionally causing injury. It directed that Freeman’s sentence be reduced to an appropriate level, considering all relevant factors, including his assistance to the authorities. The court’s decision aimed to rectify the error in the original sentence and ensure that Freeman’s punishment was commensurate with the actual offence committed.

Orders