R v Freeman [2011] VSC 139

2 On that day, Darcey was to attend her first day at school at St Joseph's Primary School in Hawthorn. Your children had been in your custody overnight. Darcey and her brothers, Benjamin and Jack, had been staying at Aireys Inlet with your parents while you and your former wife, Peta Barnes, were at the Family Court conducting a case about access to and custody of your children. The case had concluded the previous evening. Consent Orders were made. The arrangements for custody and access were altered so that the previous arrangement, which had been equally shared custody, was altered so that you would have three days custody each second weekend. You would also have had custody on the afternoon and early evening of the Thursday in the other week.

3 The orders were made by consent. Much of the final debate revolved around what would happen on the alternative Thursday, but eventually the arrangement described above was reached. In general, you had regarded your experience leading up to the hearing as unpleasant, and you regarded yourself as having been unfairly treated by Dr Neoh, the Court psychologist. Dr Neoh's report formed part of the depositional material and I understand that Dr Neoh's findings and conclusions are contentious. Large portions of Dr Neoh's reports are set out in the report of Dr Lester Walton dated 4 May 2009 which was tendered on the plea. It does seem to me that the matters reported by Dr Neoh show that your attitude to the matters to be considered at the Family Court were largely self-centred.

4 In any event, at the conclusion of the proceedings, you told your friends that you were glad the proceedings were over and did not express any particular dissatisfaction with the result. You contacted your mother by telephone and told her of the result of the proceeding.

5 You reached your parents' home in Aireys Inlet at about midnight. By that time, you were distressed and did not want to talk about the events of the day. You spent an unsettled night and were still distressed the following morning, but declined your father's offer for him to accompany you on the journey or to put the journey off until the following day.

6 On the way to Melbourne, you had a long telephone conversation with your friend, Elizabeth Lam who was in England at the time. During that conversation, you were very upset and crying. You described the result of the Family Court proceedings as "having lost your children". You said that there are a lot of angry women at the Family Court and you also told her that you would continue the fight through the Family Court.

7 Not long after that conversation concluded, you received two relatively brief phone calls from Peta Barnes. In the first, you told her to say goodbye to her children, and in the second, you told her she would never see her children again.

8 You subsequently drove up to a point at or close to the highest point of the Westgate Bridge. You pulled into the extreme left hand emergency lane and turned on the hazard lights of your vehicle. The video of your vehicle thus parked was tendered in evidence. After the car had stopped, you told Darcey to climb over into the front seat. You then reached into the car from the driver's side and pulled Darcey from the car and led her over to the parapet of the bridge, where you lifted her up and threw her over the edge. She fell more than 50 metres into the water below. She died as a result of the injuries she received. You were apparently emotionless. You returned to your car and drove away in an ordinary way. Your son, Benjamin, asked if he could come into the front seat, and you stopped the car to enable him to do so. It is clear from the tape of his evidence, which was played here, that he was all too aware of what had happened to his younger sister and asked you to return to help.

9 You drove to the Commonwealth Law Courts building on the corner of William and Latrobe Streets. You parked your car lawfully next to the kerb in Latrobe Street, about half way down the block towards King Street. You then went into the court building. It was where your case had been heard over the previous two days. When you entered the building, you were carrying your son, Jack, and leading your son, Benjamin, by the hand. You tried to hand your son, Jack, to one of the security officials, saying "Take my son". The security official declined to take Jack from you. There is CCTV footage of you and your sons from that point onward. Shortly after your arrival, you appear to be greatly distressed and crying, and you were generally non-responsive both to your children and to court officials. Ms Christine Bendall, a court counsellor, took some effort to comfort and console you. When she eventually got your attention, she said, "It will be all right", to which you replied, "No", and sobbed loudly. You later said to one of the police officers, "Take me away".

10 I have no doubt that that behaviour at the court and subsequently was a result of you realising the enormity and awfulness of what you had done.

11 You have never been able to describe the events in detail. The closest came in what you said to Dr Walton when he saw you on 7 August 2009. He said in his report dated 28 September 2009:

"Mr Freeman was able to inform that he recalls being very worried that he was running late for school for the children, and once he was travelling on the West Gate Freeway, he had a feeling of being trapped. He can recall thinking 'We're never going to make it' and it seems like an enormous failure to him that he would not deliver the children on time. He remembers the traffic on the bridge travelling quite slowly and 'It felt like we were not moving at all'. There was a rising sense of anxiety and hopelessness."

12 You repeated that version, at least in part, to Dr Bell and Professor Burrows but added reference to an accident involving a motorcycle.

13 The trial was conducted on the basis that although you did not remember what you had done, you accept that you are the person responsible for Darcey's death. It was contended on your behalf at the trial that you were mentally impaired at the time of the offence. Professor Graham Burrows gave evidence in which he said that in his opinion you were suffering from severe depression and, as a result of that, you fell into a state of dissociation so that your acts were not conscious, voluntary and deliberate or intentional. That is, you were acting somewhat like an automaton. He expressed that opinion based on the history given by you on examination, your father's description of events on the night of 28 January 2009 and the morning of 29 January 2009, the description of how you appeared at least to some of the witnesses on the Westgate Bridge, and the fact that he found you highly hypnotisable. He added that people who are highly hypnotisable are more likely to dissociate. Dr Skinner and Dr Bell were of the opinion that you were suffering from mild to moderate depression, and if there was any dissociation, it was not such as to have removed your capacity to act consciously, voluntarily and deliberately or intentionally.

14 In any event, the jury rejected your defence of mental impairment, and once that defence was rejected, it was inevitable that you be convicted of murder. This case was conducted on the basis that the only two verdicts open were guilty of murder or not guilty of murder because of mental impairment. You receive some credit for limiting the way in which the case was conducted.

15 There are two major considerations to be addressed in this sentencing exercise. The first is whether the appropriate head sentence is life imprisonment. The second is whether, if I impose a sentence of life imprisonment, I should fix a non-parole period and, if so, what non-parole period.

16 In deciding whether or not a sentence of life imprisonment should be imposed, I am obliged to have regard to a number of matters. It has long been accepted in this State that a wide range of cases might lead to a sentence of life imprisonment. In some cases, there will be factors personal to a particular accused which might make the imposition of a life sentence inappropriate. It was urged on me by Mr D. Brustman SC, who appeared with Mr G. Georgiou on your behalf, that I should not impose a sentence of life imprisonment. It is fair to say, however, that he pressed his argument as to the fixing of a non-parole period somewhat more forcefully.

17 I now come to look at the matters of aggravation in this case:

(2) The circumstances of the killing were horrible. The throwing of your four year old daughter from a bridge more than 50 metres above the ground could not be more horrible. What Darcey's last thoughts might have been does not bear thinking about, and her death must have been a painful and protracted one.

(3) Your conduct is a most fundamental breach of trust and it is an attack on the institution of the family which is so dear to the community.

(4) The killing was in the presence of your son, Benjamin, who was then six, and your son, Jack, who was two. The community hopes Jack will be too young to remember.

(5) Any motive which existed for the killing had nothing to do with the innocent victim. It can only be concluded that you used your daughter in an attempt to hurt your former wife as profoundly as possible.

(6) You chose a place for the commission of your crime which was remarkably public and which would have the most dramatic impact.

(7) It follows that you brought the broader community into this case in a way that has been rarely, if ever, seen before. It offends our collective conscience.

(8) The threats to your wife on the telephone were in the presence of your children, who were in a position to have heard them.

18 I received a number of Victim Impact Statements from Iris Barnes, Wayne Barnes, Greg Cowan, Annette Bartlett, Kristine Gough, Joshua Hudson and Peta Barnes which were read out in court. I also received Victim Impact Statements from Joseph Barnes, Toni Semarek, Barry Nelson, Michelle Nelson, Colleen Spiteri and Timothy Barnes.

19 All of the material, in particular that from Darcey's mother, Peta Barnes and the members of her family, was particularly moving. The fact that in this case the devastation caused to them is an obvious result of your conduct, it is not in any sense diminished by the stating of it. They will live forever with the consequences of what you have done and their lives can never be the same.

20 I regard it as important to repeat some of what was said by Peta Barnes. She told us that she has been diagnosed as suffering from Post Traumatic Stress and that came as no surprise to me or would be any surprise to those who have to deal with matters of this kind. There are two portions of her statement which I will repeat.

"Where to start is a challenge as this statement brings to the surface all of the raw emotions I live with daily. Since the loss of Darcey I grieve on a daily basis and realistically do not see how that can ever change. The saying 'time heals all wounds' is not true for myself and I don't ever expect it to be. Not a day goes by where I do not constantly think of Darcey, where I don't miss her and wish with all my heart that she was with me.

I can feel her little hand holding mine when I walk down the street or drive in the car. I lie in bed at night and hold her in my arms. I talk to her and think of her daily wishing she was participating in the activities that were happening at that time. No words could ever truly describe the loss of a child to a parent. The emptiness that sits within you, the piece of you that no longer exists, the fact you no longer go on in life as a complete person.

Seeing little girls who have similar traits or looks to Darcey heightens my already active emotions. Holding myself back from giving the child a hug is always a struggle of self control.

Not a day goes by where I don't flashback to the emotions I felt when I was told by my ex-husband that I would never see my children again. The panic and fear these words set off inside me resonates within me even today. I feel them now in incidents of my daily life that would not have impacted me prior to Darcey's passing. I notice that I have heightened anxiety in everyday situations and have to manage myself carefully to control this"

"The events of the day of Darcey's passing are all horrific in their nature. To articulate the impact of this day and the ensuing future it has brought can not truly be expressed in a Victim Impact Statement. No one can erase the thoughts and associated feelings I have of sitting in the hospital and having to tell the hospital staff that they were allowed to turn the life support machine off. Of holding Darcey in my arms as she passed away and knowing that this decision would take her from me again and knowing that there was no other option available to me."

21 In this case, the Victim Impact material from eye witnesses demonstrates the way in which those who have had these events forced upon them are affected by your conduct, and in a sense both those witnesses and the emergency services personnel who made statements represent not just themselves, but the community as a whole in expressing their reaction to these events.

22 There were a number of matters put in mitigation on your behalf and a further report from Dr Walton dated 31 March 2011 was tendered as were his reports of 4 May 2009 and 28 September 2009. Professor Paul Mullens' report of 27 December 2009 was also tendered. I received written references from your friends Anthony Robert Luscombe and Gregory Alan Jarman. I also received references from Pam Stamalos, a neighbour, a family friend and your grandfather, John Freeman. They all speak well of you and give you their support.

23 Mr Brustman told me of your background. You were born in Geelong on 28 June 1973 and grew up there. Your father is a retired school teacher and your mother is a school crossing supervisor. You have a brother and two sisters. Your older brother is married with three children and teaches English in Japan. Both of your sisters are younger than you. The first is a teacher who is married, and your youngest sister is a horticulturalist living in Canada.

24 Your primary education was unsettled because of bullying and you received some counselling because of it. Your family life appears to have been unremarkable, although your mother did receive some psychiatric help.

25 You received your secondary education at Newcomb High School, where you did not experience the problems you had previously encountered. You went on to Deakin University, where you studied Aquatic Science, but after a year, you moved on to information technology and graduated with a Bachelor of Computer Science. You had left home shortly after commencing your university studies and lived in various shared accommodation with other students.

26 When you commenced work, consistent with your qualifications, it was in computer programming and data collection. You worked for several employers and eventually at Colonial First State, where you met your wife to be, Peta Barnes. You were married on 31 December 1999.

27 In the early part of 2000, you moved to the United Kingdom, where you remained until June 2006 and where your three children were born.

28 You were both gainfully employed in England and bought a flat in Maida Vale in the north of London. You then regarded your marriage as a happy one.

29 You returned to Australia because your wife wanted the children to be educated in one system.

30 When you returned to Australia, the family rented a house in Hawthorn. Ms Barnes commenced work and you remained at home looking after the children, although you did have a job at some stage in December 2006. In March 2007, your marriage came to an end and although there were some attempts at counselling, such efforts were unsuccessful.

31 As I understand it, although you moved to Geelong for some time, you continued to look after the children during the day, but when your then wife and children moved out of the first house, which had been rented, you rented the flat in Power Street, Hawthorn and then had shared custody.

32 In August 2008, you returned to the United Kingdom in an unsuccessful attempt to obtain a British passport because ultimately you wanted to return to Britain. You remained in England for several months.

33 You had not, prior to the event, had any treatment or any mental illness and have had no problems with alcohol and drugs. You have had a long term interest in racing cars. You were a social tennis player.

34 You are now being prescribed the anti-depressant drug, Effexor, but that may be subject to review. You are being held in Exford Unit, where there is provision for suicide watch.

35 Mr Brustman accepted on your behalf that I should give "full and appropriate consideration" to the Victim Impact Statements.

36 As I have already indicated, it was submitted that I should not impose a sentence of life imprisonment, and I was referred to two specific sentences with which I am familiar.[1]

37 Mr Brustman concentrated his submission on the imposition of a non-parole period. A large part of his submission was based on how I should apply the principles set out in R v Verdins[2]. Those principles are:

"Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[3]

5. The existence of the condition at the date of sentencing (or its foreseeable occurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."

23. Proposition 1 from R v Tsiaras was that serious psychiatric illness might reduce the moral culpability of the offence, as distinct from the offender's legal responsibility for it. As the New South Wales Court of Criminal Appeal (Spigelman CJ) said in R v Israil:

'To the extent that mental illness explains the offence ... then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.'

24**.** Unsurprisingly, the case law reveals a variety of judicial approaches to this issue. On the one hand, it has been held to be sufficient to reduce moral culpability that the mental disorder affected the offender's ability to exercise appropriate judgment. On the other hand, it has been said that:

'... moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence ... , in the sense that the psychiatric condition must have contributed to the commission of the offence.'

25**.** It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender's conduct. The effect on the Court's assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held - correctly, in our view - to be capable of reducing moral culpability.

26**.** Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of:

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(f) contributing (causally) to the commission of the offence.

As we have said, this is not to be taken as an exhaustive list."

39 Dr Bell said of your level of depression that it was of a moderate severity:

"There is minimal evidence of more pervasive and severe depressive cognitions such as thoughts of hopelessness, futility, self recrimination and despair or other neurovegetative symptoms of severe depression such as loss of libido, anorexia and diurnal mood variation. The observations of Mr Freeman's friends and family of him in the hours following the handing down of the Family Court judgement on 28 January suggest that he was in a heightened state of distress and agitation, expressing an inconsolable feeling that he had lost his children"

"All of the observations of witnesses regarding his behaviour on the morning of Darcey Freeman's death suggest that he knew the nature and quality of his conduct....Mr Freeman continued to demonstrate that he was able to think purposefully about his situation and to continue to make reasoned judgements about both his own behaviour and the behaviour of others. Unfortunately we do not know what Mr Freeman was thinking at the time he threw his daughter over the rail of the Westgate Bridge. Nevertheless there is minimal evidence to support a conclusion that at the time of engaging in conduct constituting the offence Mr Freeman was suffering from a mental illness that had the effect that he did not know that his conduct was wrong, that is that he could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong."

"I think he was suffering from - well, he was quite distressed and I think suffering from some anxiety and mild to moderate depression."

41 She disagreed with Professor Burrows' diagnosis of severe depression.

"Arthur Freeman remains in the grips of what is becoming an increasingly chronic depressive disorder. As best I can judge, this condition seems not to have been of psychotic proportions at any stage and certainly is not at present.

It is entirely appropriate that Mr Freeman undergoes quite close psychiatric monitoring at present as he is a meaningful suicide risk. He also requires active treatment for his depression and he is receiving that, although it will be timely in the near future to review his current drug regimen.

I am aware that Mr Freeman's defence of mental impairment did not succeed. I believe it is highly likely that there would be unanimity of medical opinion that Mr Freeman was in a state of clinically significant depression at the time of the offence and perhaps that may be seen by his Honour as opening up Verdins considerations in relation to sentencing, at least to some extent. Without doubt Mr Freeman is experiencing imprisonment as onerous, largely attributable to the nature of his crime but his depressed state is also relevant. I believe it is fair comment that this man's depression may well have made at least some contribution to the offending as it is well recognised that depressive disorders do erode a person's capacity to consistently exercise proper social judgement. The condition is potentially treatable and even reversible, although I suspect that Mr Freeman may well be left with long-term depression as he comes to terms with the nature of his offending. Depressive disorders are quite common and I imagine that the mitigation of general deterrence would be modest. Specific deterrence probably needs to be given no particular weight in the face of Mr Freeman's type of offending but from a psychiatric perspective, there is no particular reason to suspect that he may not fully appreciate that particular component of disposition."

43 Dr Walton and Professor Mullen in their earlier reports described you as suffering from a depressive illness, but neither concluded that you were mentally impaired. None of the above psychiatrists were of the opinion that you were suffering from a psychotic illness at the time you killed your daughter Darcey

44 Given the relative lack of seriousness of your condition and the grave seriousness of the offending, I have given weight to your condition, but not significant weight as it relates to moral culpability, denunciation and general deterrence.

45 That conclusion seems consistent with Dr Walton's opinions which are quoted above.

46 It was urged on me that there was little place for specific deterrence in this case because the circumstances seen here will be incapable of replication in the future. I do not agree with that submission. Given the length of any sentence to be served in this case specific deterrence is not a matter to which much attention need be paid.

47 Much emphasis was placed upon your relatively young age.

48 Your condition appears to have deteriorated, and I have given weight to the extent, as expressed by Dr Walton, that your sentence will weigh more heavily upon you than it would on a person in normal health. That proposition runs in parallel with the proposition that in any event your sentence will be more difficult for you because of the nature of your offending.

49 It was accepted that the very public nature of the offending was a consideration to which I should have regard. I was asked to have regard to the evidence of your father as to the extent to which you were upset, and I have included such considerations in the way I have dealt with mental impairment. I have also had regard to what Dr Bell and Dr Skinner said about that evidence and the significance of it.

50 I accept that your offending was not premeditated, but related to your increasing anger towards your former wife over the Family Court proceedings, exacerbated by your being late for Darcey's first day at school. It should be noted that Professor Burrows did not doubt that you were angry at the time you killed your daughter. I have no doubt that the resentment you bore your wife had been building up for some time and it is clear from what Dr Neoh said in her report, which is quoted in the report of Dr Walton of 4 May 2009, tendered on the plea. I do not rely upon it for any conclusion reached, but as a report of what you said to Dr Neoh about Peta Barnes.

51 It was submitted to me that I should regard your conduct at the court, when seen by Dr DuPlessis and your father, as demonstrating remorse. I accept that it does demonstrate that by that time you appreciated the enormity of what you had done and there was some aspect of regret. I am not satisfied that it does show remorse. Your behaviour through the whole of this period of your life was self-centred, with a strong tendency to blame others. You are yet to say sorry to anyone for what you have done.

52 There is a passage in the most recent report of Dr Walton which is illuminating:

"Mr Freeman indicated that he had a strong desire to be able to meet with his surviving children and explain to them all the circumstances surrounding the death of their sister. However, when I asked him to provide me with such an explanation nothing emerged other than peripheral issues."

53 I have come to the conclusion that the passage shows that your attitude to this matter is still self centred.

54 I am satisfied that you continue to lack any insight into your offending and I regard your prospects of rehabilitation as bleak.

55 Mr G Silbert SC, Chief Crown Prosecutor, who with Ms D. Piekusis, Crown Prosecutor, appeared for the Crown submitted that I should impose a life sentence on you and that I should decline to fix a non-parole period. In his brief but pointed submissions he said that this case could be characterised as one of intentionally killing a child without psychiatric illness and such conduct would ordinarily lead to a sentence of life imprisonment.[5] He submitted that this case was motivated solely by spousal revenge, was in the worst category of murder and that it was the seriousness of the offending which would also justify not fixing a non-parole period.[6]

57 I am obliged to have regard to just punishment, denunciation, general and specific deterrence. I am satisfied there are no particular circumstances in mitigation, to which I refer later on, which would lead me to conclude, having regard to the matters set out above, that I should do anything other than impose a head sentence of life imprisonment and I will impose that sentence upon you.

58 That leads me to consider whether or not I should impose a non-parole period. I understand that many will say that your crime is so serious in so many respects that I should not impose a non-parole period; i.e., you deserve to be locked away forever. I see the attractiveness of that argument, but the sentencing process is not as simple as that.

59 The question of whether or not a non-parole period should be fixed is governed by s 11 of the Sentencing Act 1991. A court is obliged to fix a non-parole period "unless it considers that the nature of the offence or past history of the offender makes the fixing of such a period inappropriate".

60 I have dealt with the seriousness of the offending. There is nothing in your past history which would make the fixing of a non-parole period inappropriate. It has been decided in this State that however the words of the section are to be interpreted, your age is a relevant consideration in deciding whether to impose life imprisonment and whether or not to fix a non-parole period.[7]

61 I am obliged to have regard to the fact that you are 37 years of age. Whatever happens, you will spend what may be regarded by many as the best years of your life in prison.

62 I have come to the conclusion that it is appropriate to fix a non-parole period. I do not regard you as being beyond redemption. You are only 37 years of age. I have had regard to your mental illness and although I do not regard it of such significance relative to the seriousness of your offending, then to lead me to fix a sentence other than life imprisonment but I have taken it into account in deciding both whether I should fix a non-parole and in deciding what that non-parole will be.

63 I have taken into account your previous good behaviour

64 I have taken into account the references tended on your behalf and the support which you have from your direct family. I have taken into account those matters put on your behalf on the plea except where I have indicated that I do not regard it as appropriate to do so.

65 One of the very unfortunate features of this case is that others seems to blame themselves for what you have done. They should not. You did what you did, you are responsible for it and nobody else is.

66 You will be sentenced to be imprisoned for life. I fix a period of 32 years before you will be eligible for parole. I declare that you have served 802 days pursuant to this sentence. I direct that this declaration and its details be entered in the records of the Court.

67 It means that the earliest date you will qualify to be released will be 29 January 2041 when you will be 67 years of age.

68 I further order that pursuant to s.464ZF(2) of the Crimes Act 1958, that Arthur Phillip Freeman undergo a forensic procedure for the taking of the scraping of the mouth in accordance with subdivision 30(A) of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database.

69 Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all of the circumstances, the making of the order is justified for the following reasons. The seriousness of the circumstances of the offending warrant making of the order, the order is not opposed and the granting of the order is in the public interest.

[1] R v Fitchett [2010] VSC 393; R v Farquharson [2010] VSC 462.

[2] [2007] VSCA 102; (2007) 16 VR 269 at 276.

[3] See, for example, Payne at 444, [43].

[4] [2007] VSCA 102; (2007) 16 VR 269 at 274-275.

[5] See DPP v Williamson [2000] VSC 115 per Cummins J at [25] and R v Quarry [2005] VSCA 65; (2005) 11 VR 337 per Warren CJ at [27] and per Batt J at [39].

[6] R v Lowe [1997] 2 VR 465 at 486.