DPP v Freeburn [2018] VSC 616

2 Elizabeth was 29 years old, and had a mild intellectual disability. In November 2015, her parents had obtained a guardianship order at VCAT, because of their concerns about her inability to protect her own interests. At times, Elizabeth tried to assert her independence, and to resist her parents' efforts to safeguard her welfare. She was eager to find a partner and start a family, just like her two sisters had done. She was guarded about her relationships, and occasionally failed to tell her family where she was. All of those factors created a particular vulnerability on her part, of which you had at least some understanding.

3 The two of you met on an internet dating site in late May 2016. At the time of her death, you had been in a relationship for some five or six weeks. Over that period, you saw each other regularly, and Elizabeth often stayed overnight at your place. At the time, you were renting a room in a shared flat, above a disused shop in High Street, Kew.

4 You were seen on several occasions in June 2016 demonstrating considerable jealousy, anger and verbal aggression when Elizabeth interacted with other men. On the last of those occasions, which occurred only a few hours before Elizabeth was last seen alive, she confided to an acquaintance that she was petrified of you.

5 On various occasions during June 2016, Elizabeth told her father and a mutual friend, Christopher, that you had been violent towards her: pulling her hair, putting your weight on her chest so she couldn't breathe, and kicking her.

6 Forensic searches of your laptop computer revealed three internet searches made in the second half of June on the topic of cheating partners. You were overly possessive, particularly in respect of someone you had been dating for such a short period of time.

7 You also accused Elizabeth's parents of being overly controlling of her. You tried to persuade her to regain control of her welfare payments, and to minimise contact with her family.

8 Elizabeth was last seen alive in CCTV footage captured on the morning of 30 June 2016. That footage shows the two of you moving around the kitchen of your flat, behaving in an apparently normal manner, before going upstairs to your room.

9 CCTV footage shows you leaving the flat at 4:50 pm on 2 July. Elizabeth's body was found by police in your room three days later, after her father reported her missing. She had died as a consequence of the numerous and extensive injuries you inflicted on her sometime between the morning of 30 June and when you left on 2 July.

10 Elizabeth was found lying face-down on the bedroom floor, in a narrow gap between the bed and the wall. She was naked, but covered up to her waist in an open sleeping-bag. Her wrists were crossed over each other above her head, with clearly visible restraint marks on her wrists. The heater was on, and the room was hot.

11 She sustained at least 43 separate injuries, including extensive bruising across her head, face and upper body, and a broken finger and nose. The majority of the injuries were soft tissue injuries, caused by moderate blunt force trauma. One injury to her back was in the 'tram track' form, suggesting the use of some sort of implement.

12 There was also multifocal axonal injury to Elizabeth's brain, caused by multiple blows to the head. That would have been likely to cause a concussion, and may have rendered her unconscious. However, she survived after that injury for a period which could have been anywhere from tens of minutes up to several days. Although the brain injury was not fatal in itself, it contributed to her death.

13 You bound Elizabeth's wrists, and wrapped adhesive tape around her neck and face, in what the evidence suggests may initially have been consensual sexual activity. But the prolonged physical assault to which you subsequently subjected her went far beyond the bounds of any consensual activity.

14 The autopsy revealed that Elizabeth had consumed the drug GHB before she died. The circumstances in which she did so are unknown. The expert evidence suggested that the physiological side-effects of the drug may have contributed to her death. However, in finding you guilty of murder, the jury must have rejected your counsel's suggestion that her death could have been caused solely by Elizabeth having taken an overdose of GHB after you left.

15 It is not possible to say whether the multiple injuries were caused in one or multiple episodes of violence, or exactly when Elizabeth died. Phone records suggest she may still have been alive and able to operate her phone in the early hours of 2 July.

16 When you left the property later that day, you took your computer and several suitcases with you. Given the forensic evidence, it is entirely possible that Elizabeth was still alive - albeit unconscious and fatally injured - when you left. But the fact that she did not use her phone after you left, even though it was charged and within reach, suggests she was in no condition to help herself.

17 At some stage before you left, you must have removed the ligatures you had put on her wrists (although you left the wrists above her head, apparently in the same position that they had been tied in) and partially covered her with a sleeping bag. Perhaps you turned the heater on at that time too. These actions suggest you thought she was still alive at this stage. But you made no attempt to call 000 or her parents, or to obtain any assistance for her, despite the extent and obvious severity of her injuries.

18 When you left the property, you caught a taxi, under a false name, to the Southern Cross train station. From there, you travelled to the house of Erin, a woman whom you had only met over the internet in April 2016. You stayed at Erin's house until the police went there, looking for you, on 6 July.

19 During those four days, you began a sexual relationship with Erin. You told her several times that you had lost control with your girlfriend, and you thought she was pretty hurt. You asked Erin what you should do, and she tried to reassure you that your girlfriend would be okay.

20 You also sent a series of text messages to Reverend Dennis Webster, an acquaintance of yours. You sent four rather cryptic messages over the afternoon and evening of 2 July, saying that you were 'trying to solve a problem but may not be able to'; that it 'may be a matter of safety' but that it was 'too much to explain right now'. Around 11.00 pm, you texted Reverend Webster, asking if he could gain access to a property in Kew because there 'may be a girl in trouble there that needs help'. When he responded '?No' the next morning, you did nothing to follow up.

21 What you said to Erin and Reverend Webster suggests that you believed Elizabeth to still be alive at the time you left. Although your comments might demonstrate some concern for Elizabeth's condition, you did not give either of them sufficient information to secure assistance for her, or to convey the true seriousness of her condition. The fact that you immediately commenced a sexual relationship with Erin also suggests that any concern for Elizabeth was secondary to your own self-interest.

22 After leaving Erin's house, you spent some time in the Warrnambool area. You told staff at Centrelink you were planning on travelling to South Australia. You were arrested by police in Warrnambool on 9 July, but released without charge.

23 As far as the seriousness of the offending is concerned, I accept that the assault was not premeditated. The prosecution case was that you assaulted Elizabeth with an intention to cause really serious injury, not an intention to kill. In itself, that does not necessarily call for a lesser sentence; it is necessary to look at what actually occurred. Whether the assault occurred over a long or short period of time, it involved a sustained and violent assault on a vulnerable woman, who was in a drug-affected state, restrained at the wrists, and unable to defend herself. The assault involved multiple applications of blunt force trauma, especially to the head and upper body. You left Elizabeth, dying and alone, on the floor of your room; thereafter, you made only half-hearted and totally ineffectual efforts to obtain assistance for her.

24 Whether or not you were motivated by sexual jealousy and anger at her relationship with another man (as the prosecution suggested), you clearly lost control of yourself without any justification, and subjected her to a brutal and sustained assault. At the time of the offending, you were a regular drug user, and you suffered from a personality disorder and long-term anger management problems; all of those may well have contributed to your actions, in so far as they would have affected your judgment and your ability to make calm and rational choices.

25 Courts have repeatedly spoken of the primary importance of general deterrence, denunciation and just punishment in cases of domestic violence. The taking of a domestic partner's life undermines the foundations of personal relationships and family trust upon which our society rests. Although your relationship with Elizabeth had not been a long one, she was (as you well knew) in a more vulnerable position than many partners might have been; by reason of her intellectual disability, she was less able to protect herself from exploitation and abuse.

26 Victim impact statements were filed by Elizabeth's parents, her two sisters, Catherine and Alice, and other members of her close-knit family. It is clear that Elizabeth was a loving and much-loved member of her family, and her death has affected them greatly in many different ways. They describe an affectionate, happy, generous, exuberant and adventurous young woman, who loved singing and dancing, learning new skills and meeting new people.

27 They also describe an open and trusting young woman, who was not able to protect herself from people who did not have her best interests at heart. They are shocked and devastated - not only by her death, but also by the circumstances in which she died. Some of them feel a sense of guilt at having been unable to protect Elizabeth from what happened.

29 You were born in October 1989 and are now 29 years old. You were born in the Newcastle area of NSW, the youngest of five siblings, to parents whose relationship was volatile and characterised by substance abuse and family violence. Your parents separated when you were 3 or 4 years old.

30 After living with your mother for a few years, you went to live with your father when you were 7. He introduced you to alcohol, cigarettes and marijuana. After your father seriously assaulted you, when you were 9, the Department of Community Services placed you in a series of children's refuges and foster placements. You exhibited difficult behaviour in those placements (including engaging in property damage, assaults, verbal abuse and intimidation), and were rejected by both your parents. You were made subject to a permanent placement order when you were 12.

31 You frequently absconded from refuges and foster placements, and lived on the streets in the company of older children and adults. By your early teens, you had started using a wide variety of illegal drugs, including amphetamines, heroin and speed. You later starting using ice.

32 Although you were assessed in your mid-teens as being very intelligent, you attended little schooling beyond primary school.

33 You experienced a period of relative stability between the ages of 15 and 18, living in public housing, under regular medical treatment, and working occasionally as a bricklayer.

34 In your early childhood, you had been diagnosed with attention deficit hyperactivity disorder (for which you were prescribed medication), oppositional defiant disorder and conduct disorder. You engaged in serious acts of self-harm. In your late teens, your mental health deteriorated after you ceased taking your prescription medication, and relapsed into substance abuse. At various times, you demonstrated resistance to accepting mental health assessment or treatment.

35 Your long involvement with the criminal justice system began while you were still a minor, and you spent brief periods of time in juvenile detention.

36 Between May 2008 and October 2013, you appeared before adult courts in NSW on eight occasions, for a mixture of property and violence charges. Your violent offending include convictions for recklessly wounding another person, assault occasioning actual bodily harm, common assault, assault with intent to rob armed with offensive weapon, inflicting actual bodily harm, and assaulting corrections officers. The victims of your violence include your father, a neighbour, people known to you, and complete strangers. On some occasions, you used weapons such as knives and a hammer. While none of earlier offending was as serious as this, on each occasion when you were sentenced to a period of imprisonment, you appear to have re-offended soon after your release from prison. Specific deterrence and community protection are very relevant considerations in sentencing you.

37 After spending most of the first half of your 20s in prison, you were released on parole in 2014. You worked in door-to-door sales and telemarketing jobs, and in charity fundraising. You moved to Canberra that year, after forming a relationship with a woman who lived there. When the relationship broke down, you became depressed and started to experience delusional beliefs about government agencies and monitoring. After reconciling with your partner, the two of you moved to Melbourne in early 2015. You had a brief period of employment in charity sales, and volunteering at a church food centre, before injuring your foot in an accident in late 2015. You began abusing pain medications, and using more illegal drugs.

38 On 9 July 2016, you were arrested and interviewed in relation to this offence. You were then returned to prison in NSW, due to the cancelation of your parole order, where you served out the rest of that sentence of imprisonment.

39 Whilst in prison in NSW, you showed signs of mental illness, including paranoid delusional beliefs about prison officers. You were commenced on antipsychotic medication, but continued to deteriorate. You were placed in a hospital mental health unit between September and December 2016, and prescribed a mood stabiliser.

40 Since your extradition to Victoria, you have ceased to receive antipsychotic medication, although the reasons for that are not entirely clear. You are still experiencing some delusional symptoms about prison officers. You are currently on antidepressant medication.

41 Dr Anthony Cidoni, a psychiatrist who assessed you for the purposes of this sentence, agrees with the diagnoses of schizophrenia, antisocial personality disorder and polysubstance dependence, which were previously made in the NSW prison system. He believes that your mental health is such that you would experience imprisonment as more onerous than a person in normal health. He also believes that there is a significant risk that your mental health will deteriorate after sentencing, although it is possible that risk may be reduced to some extent if you are placed back on antipsychotic medication (as he believes you should be). It is not disputed that the fifth and sixth principles in Verdins apply in your case, so as to moderate your sentence to some extent. However, it is not suggested that any of the other Verdins principles apply in this case.

42 You are currently classified as a management prisoner, and have been confined to a single cell for 21 hours each day. Given your history of mental health problems, and involvement in violent prison incidents (most of which seem related to your paranoid delusions about corrections officers), I accept that you are likely to remain in more restrictive conditions than many other prisoners, at least for the immediate future. You are also socially isolated, and do not receive visits or contact from any family members or acquaintances in the community. The prosecution accepts that the harsher conditions in which you are being held may act to moderate your sentence, even though they have been imposed because you are a management, rather than a protection, prisoner.

43 You still experience considerable pain from your foot injury in late 2015, for which you receive prescription painkillers.

44 The prison chaplain notes that you have engaged in various pro-social activities whilst in custody in Victoria, which is to be encouraged. However, I agree with Dr Cidoni's assessment that your prospect of rehabilitation are guarded, and contingent (at the very least) on ongoing treatment for mental health and substance abuse.

45 To what extent you may be able to overcome the aggressive behaviour patterns that seem to have become entrenched, as a result of your difficult background and your antisocial personality, remains to be seen. Unless and until you are able to do so, community protection remains a very relevant sentencing consideration.

46 At various stages before the jury was empanelled, you had offered to plead guilty to manslaughter, on the basis of either criminal negligence or an unlawful and dangerous act. In his closing address, your counsel submitted that the jury could convict you of negligent manslaughter, because of your failure to call for medical assistance. At trial, you did not dispute that you had caused many (but not all) of the injuries to Elizabeth; however, you did dispute that those injuries had caused her death, and you suggested she died as a result of ingesting GHB after you left. You are not to be punished for having defended the murder charge in the way you did. However, your plea offers need to be understood in light of the fact that you were facing a murder charge at the time, and the evidence that you were the only person who could have inflicted the injuries was extremely strong.

47 Between your return to custody in NSW on 9 July 2016 and 17 March 2017 (the date when you were charged in relation to this offence), you were serving a NSW term of imprisonment. Your time in custody since 17 March 2017 is treated as pre-sentence detention under this sentence. That earlier period of imprisonment has some relevance to totality principles.

48 For the murder of Elizabeth Wilms, I sentence you to 25 years' imprisonment. I fix a period of 20 years as the period you must serve before becoming eligible for parole.

49 Further, I declare that the period to be reckoned as already served under this sentence is 637 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

50 I will also make the property disposal order requested by the prosecution.