The Queen v Freeman [2015] VSC 506

2 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.

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

4 I turn now to the evidence at trial in more detail.

5 Ms Solomon was born in Ethiopia but had come to Australia with her family as a child. She moved from Adelaide to Melbourne when she was aged 18. At the time of her death, she had been living in Port Melbourne, was aged 35 and had a nine-year-old daughter.

6 Mr Freeman, who was aged 44 at the relevant time, was living in a Department of Human Services studio flat at Unit 8, 16 Essex Street, Prahran. The unit is on the middle level of a three-storey block of 18 units.

7 Mr Freeman and Ms Solomon had been in a relationship for about a month.

8 Rodney MacPherson lived in the flat immediately above Mr Freeman. At about 12:30 a.m. on 21 November 2013, Mr MacPherson heard the sounds of an argument between and man and a woman in Mr Freeman's flat. He could not make out what was being said. He heard some "thumps and bumps" and then "a death rattle, like a moaning, like a groaning, like a gurgling, briefly". He then heard Mr Freeman, whom he knew, come out of the flat and say several times, apparently to someone on the telephone, "I've killed her, she's dead." He said Mr Freeman was "ranting and raving, unwinding like a bit of rope, having a mental breakdown", as if thinking, "Oh my God, what have I done?"

9 Glenn Yates lived in the flat above and to the right of Mr Freeman, whom he knew. Early that morning, he heard Mr Freeman yell out to a neighbour, "I killed her." The neighbour responded but he could not determine what was said. Then Mr Freeman said, "She is dead, cunt, if you don't believe me, come and have a look."

10 At 12:36 a.m., Mr Freeman rang Triple 0. He told the operator, among other things, his address, that he and Ms Solomon were having sex, that he had stabbed her in the neck and that she was dead. It appears that he believed she died during the course of the call.

11 At 12:39 a.m., Mr Freeman rang his sister Annette Eisel. He told her that he and Ms Solomon were having sex when she said words to the effect of, "What's it like fucking a 13-year-old?" He said that one of them got up to go to the bathroom, there was a struggle and he stabbed her with a knife in the neck. He sounded very upset and distressed and was saying things like, "Where are they, where is the ambulance?"

12 At about 12:50 a.m., police arrived and saw Mr Freeman on the balcony talking on a mobile phone. He told police that Ms Solomon was dead, that he had killed her and that he had stabbed her in the neck. He appeared "emotional and very distressed". He was co-operative but police handcuffed him nevertheless.

13 Mr Freeman told one police officer, "We were having sex and she just went nuts." There was other evidence that Ms Solomon had behaved oddly at times. For example, Mr MacPherson said Ms Solomon told him that his dog had evil eyes and that she was the singer Michael Jackson's doctor. Another example is that she told Ms Eisel that the two of them were related. She said that Ms Eisel's son was actually her (Ms Eisel's) mother's son. Ms Eisel also said that, one minute, Ms Solomon would be behaving normally; the next, she would be talking to the television and tapping the screen with a knife.

14 When police entered the flat, they found Ms Solomon lying on her side partly on a mattress. She was naked from the waist down, and had a wound to her neck. There was a large amount of blood on her body and on the floor, the mattress, the furniture and the walls. Her body was warm but she was dead.

15 A kitchen knife was found on the floor of the kitchenette in front of the oven. DNA analysis suggests blood on the blade came from Ms Solomon. Trace DNA, possibly from both Mr Freeman and Ms Solomon, was found on the handle.

16 Dr Michael Burke, a pathologist, gave evidence that Ms Solomon died as a result of a single stab wound to the front of her neck, just to the right side, which severed the carotid artery. The wound was horizontal, just under three centimetres wide and four to five centimetres deep. While he said it is difficult to estimate, Dr Burke was of the view that a healthy young person would lose consciousness within a minute or so of suffering such a wound and would die within another minute or so. Ms Solomon was 152 centimetres tall and weighed 44 kilograms. She had no other injuries and no defensive injuries. Seminal fluid was found inside her vagina. Her blood-alcohol reading was 0.07 per cent. There was also cannabis and nordiazepam (a metabolite of Valium) in her system.

17 After his arrest, Mr Freeman was not formally interviewed by police as he was unfit for interview.

20 Five such statements were filed with the Court.[1] They came from Ms Solomon's mother Alem Tekle Measho; her father Elfu Solomon; and her sisters Semhar Solomon, Yohana Solomon, Tsegereda Solomon-Elfu and Berikty Solomon-Hailom.

21 All of the authors describe the terrible sadness and loss they feel at the untimely death of Ms Solomon. Mrs Measho feels that the pain caused by her daughter's death will never go away. Mr Solomon finds himself staring at the television in despair. When he eventually gets to sleep, he has nightmares. Ms Solomon's sisters miss her voice and her warm, kind-hearted and friendly ways. All in the family worry about Ms Solomon's child being left without a mother.

22 The statements are powerful and moving documents. I have had regard to their contents in considering sentence.

23 On the plea, the parties made submissions as to the findings of fact I might make about the circumstances of the offending. One particular issue agitated by the parties concerned whether Mr Freeman was provoked to act as he did; and, if so, what effect, if any, such provocation might have on sentencing. I shall turn first to my findings of fact.

24 Without objection, I received two reports on Mr Freeman prepared by forensic psychiatrist Dr Kevin Ong. One was written on 21 April 2014, prior to the committal hearing; and the other was written on 25 July 2015, after the verdict.

25 In his first report, Dr Ong said this:[2]

Mr Freeman stated that [the] couple returned to their unit, where they engaged in intercourse. During this time, Mr Freeman stated that Ms Solomon made lewd comments about him "fucking [Ms Solomon's daughter]". He stated that she had previously made similar comments during intercourse about "what's it like to be in a 13-year-old?" Mr Freeman stated that he was enraged by these comments due to his own experiences of sexual abuse, though denied that he became violent as a result. Instead, he claimed that he refused to continue intercourse with Ms Solomon. During this occasion, Mr Freeman stated that it was Ms Solomon who became angered, taking a knife in her hand. He claimed that Ms Solomon swung the knife at him, scratching him on the chest. He stated that he disarmed her, and swung back, knife in hand. He claimed little memory of the ensuing events, or the first few months on remand.

26 Earlier in the report, Dr Ong noted that Mr Freeman claimed that, as a child, he had been raped by two of his brothers. They were never charged. Both have since died - one was murdered, the other suicided.[3]

27 In his second report, Dr Ong said this:[4]

I asked Mr Freeman about the offence, and enquired whether there was anything he wished to add to the account he had previously given to me. Mr Freeman stated that the account he had given me had been accurate. Moreover, he continued to claim no recall of the immediate aftermath of the offence, or his first months in custody. He acknowledged that he had been found guilty of the murder of his girlfriend, Ms Yosan Solomon. He did not plan to appeal the verdict, though continued to express his belief that he did not intend to kill Ms Solomon but, rather, had acted in self-defence.

Whilst Mr Freeman acknowledged that he had consumed up to 15 standard drinks leading up to the homicide, he claimed to be a "happy" drunk, and also claimed that he and Ms Solomon had not been arguing until he had to force her to leave their friend's abode, which he stated was as a result of Ms Solomon's intoxication. He reiterated that it was Ms Solomon's sexualised comments in regards to a "13-year-old girl" that had enraged him, though he claimed that the stabbing was in self-defence as it was Ms Solomon who had originally produced the weapon.

28 Later in the second report, Dr Ong opined as follows:[5]

Mr Freeman previously identified long-term problems with anger management, and this is likely to have been exacerbated by his substance abuse. It is likely that the combination of poor impulse control and intoxication, together with Mr Freeman becoming incensed at Ms Solomon's sexualised comments, resulted in the homicide.

29 There was no evidence of self-defence before the jury. As I understood him, Mr Marsh, who appeared for Mr Freeman, did not urge upon me that I should act on his client's claim to Dr Ong that Ms Solomon had the knife or that he acted in self-defence. Such a finding would be inconsistent with the jury's verdict in any event.

30 Both Mr Gyorffy QC, who appeared with Ms Harper for the Director, and Mr Marsh agreed that regard could be had to the evidence, in Dr Ong's reports, that Mr Freeman had been sexually abused as a child.

31 Having regard to the jury's verdict, the evidence both before the jury and on the plea, and the submissions and concessions of counsel, I am satisfied of the following matters.

a) First, Mr Freeman and Ms Solomon had been in a relationship that was, at times, volatile.[6] That said, there is no suggestion that Mr Freeman's offence was committed against a background of violence towards his partner.

b) Second, Mr Freeman and Ms Solomon were in the throes of sexual intercourse when Ms Solomon said, "What's it like fucking a 13-year-old?"

c) Third, Mr Freeman became enraged at the remark, which was provocative in nature. Further, the remark had a particular sting for him because it falsely suggested he had sexually abused a child when it was he who had suffered such abuse as a child. He lost his self-control in consequence.

d) Fourth, at some point very soon after the remark, having lost his self-control, Mr Freeman picked up a kitchen knife.

e) Fifth, given the evidence of Mr MacPherson and Ms Eisel, I am satisfied there was a short argument and struggle, lasting a matter of seconds. The absence of defensive or other injuries does not preclude such a finding.

f) Sixth, while still in a state of loss of self-control and in the course of the struggle, Mr Freeman deliberately stabbed Ms Solomon once to the neck.

g) Seventh, consistently with the jury's verdict, he thereby intended to cause her really serious injury. Given the spontaneity of the stabbing, the fact that it was not repeated and his subsequent behaviour, I am not satisfied that Mr Freeman intended to kill Ms Freeman.

h) Eighth, I accept Dr Ong's opinion that it is likely that the combination of Mr Freeman's poor impulse control and his level of intoxication also contributed to his behaviour. That said, I accept that, but for the remark and his own experiences of sexual abuse, Mr Freeman would not have lost his self-control and would not have stabbed Ms Solomon in the neck or at all.

i) Ninth, Mr Freeman immediately regretted what he had done. He was utterly distraught.

j) Tenth, he rang Triple 0 within a very short space of time after the stabbing.

k) Eleventh, the rapid loss of blood resulting from the severing of the carotid artery caused Ms Freeman to lose consciousness and then die within a minute or two of the stabbing and well before the ambulance and police arrived.

l) Twelfth, it is unlikely that even a medical expert could have saved Ms Solomon's life once her carotid artery was severed.

32 Before turning to an assessment of the gravity of the offence more generally, I turn first to the potential impact of provocation on sentencing.

33 Prior to 23 November 2005, in this State, provocation was a partial defence to murder. If a jury were satisfied that an accused had committed all of the other elements of murder but could not exclude the reasonable possibility that the accused acted under provocation, they would return a verdict of not guilty of murder but guilty of manslaughter.

34 Now that provocation has been abolished as a partial defence to murder, questions arise as to whether, and in what circumstances and to what extent, provocation might mitigate a sentence otherwise to be imposed for murder.

35 Both parties submitted that provocation can be a mitigating factor in murder. In my view, those submissions should be accepted. Any or all of s 5(2)(c), (d) and/or (g) of the Sentencing Act 1991 (Vic) are broad enough to compel this Court to have regard to provocation in sentencing an offender for murder. Further, the presence of provocation may impact on the sentencing purposes identified in s 5(1)(a), (b), (c) and/or (d).

36 There is, however, scant authority on the topic. Mr Gyorffy referred to Tyne v Tasmania,[7] where the Court of Criminal Appeal of Tasmania had occasion to consider the question after the partial defence of provocation had been abolished in that State in 2003. After rejecting (correctly, in my respectful opinion) an argument that, when sentencing for murder committed under provocation, judges now should have regard to the sentences imposed previously for manslaughter which resulted from provocation,[8] Underwood CJ (with whom Slicer J agreed) said this:[9]

It is difficult to put the matter more succinctly than did the learned sentencing judge when he said that provocation is no longer a defence to murder and the accused is to be sentenced for murder, not manslaughter. There is no longer any need to enquire into whether the insult would have deprived an ordinary person with the attributes of the accused (whatever that entails in each case) of the power of self-control. There is no longer any reason to impose a sentence for manslaughter instead of murder because of provocation. Provocation is taken into account in the exercise of the sentencing discretion for murder. The degree of provocation is just an aspect of the sentencing discretion. In a suitable case, no doubt it could be urged that greater mitigatory weight than usual should be given to the provocation because not only did the insult cause the accused to lose the power of self-control, but it was so grave it would also have caused a reasonable person to lose that power.

37 In the same case, Blow J added the following:[10]

It is worth noting that the onus of proof in relation to provocation in murder cases shifted with the 2003 amendment. Before then, when provocation was an issue on a trial, the Crown bore the onus of proving beyond reasonable doubt that the killing was not one to which s 160 applied. Since the amendment, provocation has been no more than a mitigating circumstance, as to which the offender bears the onus of proof for sentencing purposes if there is a dispute as to the facts: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

The circumstances that a sentencing judge should take into account in relation to provocation in a murder case include the nature of the provocation, its severity, its duration, its timing in relation to the killing, any relevant personal characteristics of the offender (e.g., in cases of racial abuse), and the extent of the impact of the provocative conduct on the offender. When provocation is taken into account as a mitigating factor for sentencing purposes in relation to a crime other than murder, it is not common for anything to be put to the sentencing judge as to whether an ordinary person would have been deprived of the power of self-control, nor as to whether or not there was time for the offender's passion to cool. Those matters are of course relevant, but the weight to be attached to the provocation can be readily assessed by reference to the factors I have listed. I see no reason why provocation should be dealt with as a mitigating factor any differently in murder cases from the way it is dealt with in other cases. In some murder cases, there will be relevant provocation that would not have afforded a defence under s 160. In such cases, provocation may still amount to a very significant mitigating factor for sentencing purposes.

38 Mr Gyorffy also referred to a report of Professor Arie Freiberg and Felicity Stewart, entitled Provocation in Sentencing, published by the Sentencing Advisory Council in July 2009. Helpfully, the report raises, and attempts to answer, several important questions. For example, the authors argue that, for provocation to reduce an offender's culpability, it is not necessary to show that the offender lost self-control or that the provocation was capable of causing an ordinary person to lose self-control. Rather, they argue that the foundation for mitigating provocation is the fact that the victim's words and/or conduct caused the offender to have a justifiable sense of being wronged in all of the circumstances of the case.[11]

39 Mr Gyorffy submitted that, for sentencing purposes, it must be necessary to show a loss of self-control but that the ordinary person test need not be satisfied. He also doubted the appropriateness of the use of the term "justification", since, in his submission, that tended to suggest blame on the victim, when the preferable approach is to speak of an "understandable" reaction by the offender. I understood Mr Marsh to agree with Mr Gyorffy in these respects.

40 While I incline to the view that there must be a loss of self-control but that the ordinary person test need not be satisfied, none of these particular questions need be determined in the present case. For I am satisfied[12] that Mr Freeman did lose self-control; that the provocation was capable of causing an ordinary person, fixed with his history of being sexually abused, to lose self-control; and that the words uttered, in the particular circumstances, were such as to cause Mr Freeman to have a justifiable sense of being wronged. While Mr Freeman's reaction was extreme, that is the product of his loss of self-control. Further, it is apparent that Mr Freeman's reaction came within a very short space of time after the remark - a matter of seconds, not minutes, it seems.

41 Of course, none of this excuses or justifies Mr Freeman's conduct in the way it might have done when provocation was a partial defence to murder. He is still guilty of murder, not of manslaughter. That said, these findings recognize human frailty in the face of provocative behaviour. They lead to a corresponding reduction in moral culpability, and to reduced weight being given to just punishment, general and specific deterrence and denunciation, which in turn all must lead to a reduced sentence. To be sure, these sentencing purposes still remain important.

42 Further, the resulting sentence could not, in this case, be reduced to anything like the order of sentence that might have been imposed for manslaughter when provocation was a partial defence to murder. Indeed, were that to occur, the policy behind the abolition of provocation as a partial defence to murder would be defeated. But there must be some reduction in sentence to reflect the impact provocation has on moral culpability and the relevant sentencing purposes. The extent of the reduction, of course, will vary according to the circumstances of the case.

43 In the present case, I consider the provocation to be a significant mitigating factor. This is because I accept that, but for the remark and his own experiences of sexual abuse, Mr Freeman would not have lost his self-control and would not have stabbed Ms Solomon, and because he reacted within seconds and without having had time for reflection. Far more and far less stinging examples of provocation might be imagined. It is difficult to be prescriptive about such things, but this example strikes me as falling somewhere around the middle range of provocative behaviour likely to be encountered in practice.

44 I turn now to the nature and gravity of the offence.

45 Murder is the most serious offence in the criminal calendar. In this State, murder is (mostly) a common law offence[13] the maximum penalty for which is set by statute at imprisonment for life.[14] The offence can be committed with or without motive and with an intention to kill, an intention to cause really serious injury, recklessness as to causing death or recklessness as to causing really serious injury.

46 Both counsel submitted that Mr Freeman's offence falls within the middle of the range of seriousness of murder. In so far as such labels matter, and for reasons that follow, I consider that this particular offence falls towards the lower end of the middle range of gravity.

47 First, every murder, by definition, involves the loss of a human life in grave circumstances. Ms Solomon was a relatively young woman who left behind her nine-year-old daughter, her siblings and her parents. I have already referred to the horrible sense of loss and sadness her family members have suffered and will continue to suffer.

48 Secondly, Ms Solomon's last moments alive must have been terrifying. As well as the shock of being stabbed in the neck, Ms Solomon must have been in great distress at the sight of blood pumping from her wound in great volumes. Further, she must have felt utterly helpless believing that she, and Mr Freeman, could do nothing to staunch the flow.

49 Thirdly, however, consistently with the findings I have made about provocation, the offence was not planned or premeditated. Instead, it was committed as a spontaneous reaction to provocative behaviour.

50 Fourthly, as I have indicated already, Mr Freeman was in fact provoked to the point of losing self-control within seconds of the remark by Ms Solomon.

51 Fifthly, while a knife was used, its smallish size, and the ready availability in the kitchenette of larger and potentially far more damaging knives, support the conclusion that the use of this particular knife was opportunistic.

52 Sixthly, the violence implicit in the assault is limited to a single stab wound, albeit with the most dire of consequences. This was not a frenzied, repeated, calculated or brutal attack of the type seen in many other murders, whether they be with or without provocation.

53 Seventhly, as I have already indicated, that there was only a single stab wound, coupled with the spontaneity of the stabbing, Mr Freeman's prompt calling of Triple 0 and his distress, suggests that he did not intend to kill Ms Solomon. In the result, I am not satisfied beyond reasonable doubt that he intended to kill her. Rather, consistently with the jury's verdict, I am satisfied beyond reasonable doubt that, when he deliberately stabbed Ms Solomon in the neck, Mr Freeman intended to cause really serious injury.

54 Finally, I am satisfied that, immediately after the stabbing, Mr Freeman regained his self-control and regretted his actions. Thus his call to Triple 0 and his admissions to the operator, his sister and police.

55 I turn now to the factors in mitigation. I have already referred to some aspects of the offence, including the question of provocation. But, balanced against the seriousness of the offending are the other mitigating factors on which Mr Freeman is entitled to rely.

56 Before going to those factors, I should add that Mr Freeman's personal history is set out in detail in the psychiatric reports of Dr Ong.[15] I shall not repeat all of that detail in these reasons, although I will be referring to aspects of the reports shortly.

57 First, despite his plea of not guilty, I am satisfied that Mr Freeman is remorseful for his crime of murdering Ms Solomon.

58 There are several reasons that, in combination, bring me to that conclusion. First, immediately after the stabbing, Mr Freeman regained his self-control and rang Triple 0 for assistance. It is clear from that call that he is distressed and concerned about Ms Solomon. The same is also apparent from his comments to his sister to the effect that he is concerned about the time the ambulance is taking. Secondly, Mr Freeman made admissions to the world at large, the Triple 0 operator, his sister and police that he stabbed and killed Ms Solomon. Thirdly, it was apparent to Mr MacPherson and to police that Mr Freeman was distressed and upset at what he had done.

59 The second factor in mitigation, which concerns the way in which his trial was conducted, also supports the conclusion that Mr Freeman is remorseful.

60 In Karam v The Queen,[16] the Court of Appeal (Weinberg, Priest and Beach JJA) said this:

In our view, the authorities show that the co-operation by the accused with the Crown and the facilitation (shortening) of the conduct of the trial may be a matter taken into account upon sentencing even when remorse has not been shown. The utilitarian value of such conduct, in appropriate circumstances, is a matter that might mitigate a sentence that would otherwise be imposed. That is not to say that there should always be a reduction in sentence. Each case will depend upon its own circumstances. In some cases, where admissions have been made, it might be plain that such admissions were made for good strategic reasons. In such circumstances, it may be that it is illusory to talk about a utilitarian benefit where none really exists because no rational person would have prolonged his or her trial by putting in issue matters that the Crown was plainly in a position to prove.

In considering any amelioration of sentence that might be afforded for an accused's co-operation or admissions made during the course of a trial, care needs to be taken to ensure that other accused who might not have made admissions or who might have more vigorously contested the Crown case are not penalised for exercising their legal rights to defend themselves.

61 Mr Freeman's trial was conducted in a way that suggested an acceptance of responsibility for his behaviour. Further, responsibly, the defence co-operated with the prosecution to confine the issues and shorten the trial. Mr Freeman admitted, through counsel's final address, that he was guilty of manslaughter. Further, he even admitted, through counsel, that he deliberately - not accidentally - stabbed Ms Solomon in the neck and that, in so doing, he may have even intended to cause serious injury, as opposed to really serious injury. Thus, in practical terms, only a very narrow issue fell for the jury's consideration. Yet, Mr Freeman could well have chosen to dispute a deliberate stabbing and an intention to cause any harm. He could have submitted that this was an accidental stabbing in the course of a struggle. In the result, Mr Freeman's approach not only shortened the trial; he went very close to admitting his guilt of murder.

62 It follows, in my view, that he should be given significant credit for the utilitarian value of his approach to the trial and the remorse that it implies.

63 The third matter in mitigation is that I am satisfied that Mr Freeman has reasonable prospects of rehabilitation. Those prospects are far from good or excellent, but there are some positive signs to be balanced against factors pointing towards lesser prospects.

64 Personal history: Mr Freeman's parents separated when he was five. He had seven siblings. He was placed in welfare for three years from the age of seven. He returned to live with his mother, who had remarried to a "bikie". The household was characterized by parties and alcohol. I have already referred to his being raped by two brothers. He left school after Year 9. He had disciplinary trouble and was often in fights both at school and in later life. He worked in various jobs, including in kitchens, abattoirs and in house painting. He has been on a disability pension since 2009. He has had three significant relationships and fathered four children. For much of his life, he has drunk alcohol to excess. He has also used cannabis and "ice" (i.e. methamphetamine).

65 Mental health history: Mr Freeman has had a history of impulsive self-harm, including overdoses and cutting, and has been admitted to hospital on multiple occasions. He has previously been prescribed various mood stabilizers and anti-psychotic and anti-depressant medications. He has a history of "hearing voices" since childhood, but, happily, those experiences have now ceased. Feelings of paranoia and anger have also gone. He is currently prescribed risperidone, an anti-psychotic medication, and sodium valproate, a mood stabilizer. Mr Freeman believes these drugs have helped him.

66 Dr Ong's opinion: While Mr Freeman believes he has schizophrenia, Dr Ong does not give such a diagnosis. He thinks Mr Freeman's presentation is strongly suggestive of "Cluster B" personality traits, including borderline, antisocial and narcissistic features. In Mr Freeman, this is characterized by affective instability, impulsivity, proneness to anger, fear of abandonment, grandiosity, self-harm and reckless behaviour, including substance use. On the positive side, Dr Ong considers that the (three) anger management groups in which Mr Freeman has participated while on remand are the types of reformative work that will reduce his risk of re-offending. The mood-stabilizing and anti-psychotic medications may also assist. Dr Ong considers Mr Freeman to be relatively settled at present.

67 Criminal history: Mr Freeman's criminal history is somewhat reflective of his chaotic life and poor mental health. He has nine findings of guilt or convictions for assault-related offences - one in each of 1987, 1988, 1994, 1997, 2003, 2005, 2009, 2010 and 2011. All, bar two, resulted in fines or bonds. The 1988 conviction, sustained when he was 19, resulted in seven days' imprisonment. The 1994 conviction, sustained when he was 25, resulted in two months' imprisonment. He also has several convictions for damaging property, breaching bail, stealing and breaking and entering. His longest sentence was imposed in 1994 for breaking and entering and related offences, which resulted in a two-year term of imprisonment with a non-parole period of nine months. On 11 November 2013, so only ten days before the murder, he was, without conviction, fined and placed on a good behaviour bond for making a threat to kill and using a telephone to menace. Those offences, which occurred in October 2012, involved threats made to his ex-partner over the telephone. While Mr Freeman's criminal history, including his history of assaults, does him no credit, there is nothing in that history suggesting that he is prone to the type of serious violence that led to Ms Solomon's death.

68 Concluding remarks on rehabilitation: When Mr Freeman's chaotic and impoverished early life, his mental health difficulties and his criminal history are balanced against his improved mental health in recent times, the fact that he has done anger management courses in custody, the absence of any serious violence in his criminal history and my findings as to his remorse and acceptance of responsibility, it can be seen that there is cause for some hope for his rehabilitation in the longer term. It must also be remembered that Mr Freeman was nearly 45 at the time of the offence and is now nearly 47. As will be seen shortly, he will not be eligible for release on parole until he is about 60 and that his total sentence will not expire until he is well into his 60s. It is likely that, by then, his risk of reoffending in any serious way will be relatively low.

69 The fourth matter in mitigation is that Mr Freeman's time in gaol is likely to be more onerous than it is for other persons without his borderline personality structures.

70 As Dr Ong explained in both reports,[17] those with borderline personality structures often have difficulty when incarcerated. Mr Freeman has had several placements in management units as a result of his anger and impulsivity. In Dr Ong's view, Mr Freeman is likely to find incarceration more onerous than prisoners without such personality problems. I accept that opinion.

71 A potential fifth matter in mitigation arises in this way.

72 Mr Marsh submitted that, while Dr Ong does not agree in the diagnosis of schizophrenia, he does consider that Mr Freeman's borderline personality trait of impulsivity contributed to the offence. It was submitted, in reliance on the principles discussed in R v Verdins,[18] that such impulsive behaviour stemming from an abnormality of that kind, albeit not a serious psychiatric illness, operated, in a modest way, to reduce his moral culpability and the punishment that would be just in all the circumstances.

73 On the other hand, Mr Marsh conceded that "it is not possible to examine sentencing principles in isolation" and that "the same issue of impaired mental functioning also inevitably leads to the conclusion [that] the need to protect the community is elevated in this case, due to [Mr Freeman's] capacity to respond in ill-considered anger".[19]

74 In my view, those two competing considerations effectively cancel each other out. Further, I have already indicated that, but for Ms Solomon's remark and Mr Freeman's own experiences of sexual abuse, he would not have lost his self-control and would not have committed murder. Thus, while his impaired mental functioning may have contributed to the offence, the dominant factor was the provocation under which he operated at the relevant time. While, as I have indicated, I accept Dr Ong's opinion, I do not think that his impulsivity and/or his intoxication would have caused him to react as he did in response to the remark, whereas Mr Freeman's own experiences of sexual abuse alone are likely to have had that effect.

75 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

76 In my view, general deterrence, denunciation and just punishment have a significant role to play in the circumstances of this case. While there is some moderation of the weight to be accorded to those principles on account of provocation, and while the need for just punishment in particular is moderated on account of the hardship imprisonment will hold for Mr Freeman, nevertheless, the community should understand that behaviour of the type engaged in by him is denounced by the courts and will result in punishment that reflects that a life has been taken in murderous circumstances and that the lives of Ms Solomon's loved ones have been marred forever.

77 While specific deterrence must be given weight too, particularly given the lawlessness disclosed by Mr Freeman's prior criminal history, I have given it less weight than otherwise on account of his (almost total) acceptance of responsibility, his remorse and his reasonable prospects of rehabilitation. I should add that I do not consider it likely that Mr Freeman will reoffend in a similar manner.

78 Rehabilitation remains an important sentencing purpose. Given my conclusion as to the unlikelihood of his reoffending in the same way, and my view that the weight I have given to general deterrence, denunciation, just punishment and specific deterrence will produce a very substantial sentence that protects the community in any event, I can see no need for any weight to be given to protection of the community as a separate or additional sentencing purpose. If it has any role to play in this case, protection of the community will be better served by the fixing of a sentence that maximizes Mr Freeman's chances of rehabilitation, especially given that he must be returned to the community at the expiry of his sentence in any event.

79 Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the common law principle of parsimony. I have applied this principle when fixing sentence.

80 In so far as I can determine them, I have had regard to current sentencing practices for murder.

81 Sentencing statistics show that, for the period from 2009-10 to 2013-14, the average non-life sentence for murder ranged from about 18-and-a-half years' imprisonment in 2009-10 to about 22 years' imprisonment in 2013-14; the median sentence was 20 years' imprisonment, as was the mode; and the median non-parole period was 16 years, as was the mode.[20]

82 Of course, those statistics are of limited utility, mostly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the offence, whether there were significant aggravating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

83 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. With this in mind, the parties referred me to a series cases involving sentences for murder.[21] While none of them struck me as directly comparable, three that were perhaps a bit closer than the others were R v McCullagh (No 3), Felicite v The Queen and R v Karageorges.

84 In R v McCullagh (No 3),[22] the applicant was found guilty of murder at his third trial for the same offence. He admitted he strangled his partner to death following a spontaneous argument in a car, by the roadside, during which they punched each other. He disposed of and concealed the deceased's body for four days, before confessing to police. His defences were lack of murderous intent and provocation. He had serious prior convictions for violence, including intentionally causing serious injury and false imprisonment. The judge imposed a sentence of 20 years' imprisonment with a non-parole period of 16 years. The applicant was on parole at the time of the offending and the new sentence was effectively to be served cumulatively upon cancelled parole and another sentence totalling 20 months. His application for leave to appeal against sentence failed.

85 In Felicite v The Queen,[23] the appellant pleaded guilty to the murder of his wife by stabbing her with two kitchen knives in a frenzied attack. The relationship had been characterized at times by the appellant's incapacity to control his anger, which led to property damage and threats to kill. Following his wife's disclosure that she wished to leave him for another man, the next day, the appellant took "the biggest knife [he] could find" and repeatedly stabbed her in the neck and throat region. At least part of the attack was seen by the couple's four-year-old son. The appellant was depressed at the time and had taken tablets which can have a disinhibiting effect on behaviour. He confessed to police soon afterwards, pleaded guilty to murder at an early stage and had no prior convictions. The Court of Appeal dismissed his appeal against a sentence of 19 years' imprisonment with a non-parole period of 16 years.

86 In R v Karageorges,[24] the appellant was found guilty of the murder of his wife. While the appellant had not been violent to his wife in the past, he was often jealous and suspicious of her, albeit it without foundation. On the night of the killing, he suspected that she had been unfaithful to him. After persistent interrogation by the appellant, his wife (falsely) confessed she had had affairs with other men, that two abortions she had had years earlier may have been of pregnancies resulting from those affairs, and that one of their sons might not be the appellant's. He was shocked and enraged. After a brief interval outside, he returned to the home and stabbed his wife 27 times in a frenzied attack. Later, he rang Triple 0 and said he thought he stabbed his wife. His defence at trial was provocation. He had no prior convictions. The Court of Appeal dismissed his appeal against a sentence of 18 years' imprisonment with a non-parole period of 14 years.

87 All three of those cases involved spontaneous murders of a partner following what was said to be provocative behaviour, although each involved objectively a more serious example of murder than Mr Freeman's case, whether it be by strangulation or a frenzied knife attack. Both R v McCullagh (No 3) and R v Karageorges involved failed provocation defences, although the latter is likely to have failed on the ordinary person test, but not on the issue of loss of self-control. Mr McCullagh had relevant and serious prior convictions but Mr Karageorges had none.

88 Only R v Felicite is a case decided after the abolition of provocation as a partial defence to murder. Unlike Mr Freeman, Mr Felicite pleaded guilty and had no prior convictions. On the other hand, Mr Freeman all but accepted his guilt of murder; and while he has significant prior convictions, none are for grave violence. Further, Mr Felicite's relationship had been characterized at times by his incapacity to control his anger; there was a day's break between the disclosure and the killing; and he took "the biggest knife [he] could find" and repeatedly stabbed his wife in the neck and throat region. Mr Freeman's offence, in my view, did not have the same savage brutality. Further, a significant aggravating feature in Felicite was that part of the attack was seen by the couple's four-year-old son.

89 The provocation relied on in R v McCullagh (No 3) was very thin. The provocation in both R v Karageorges and Felicite v The Queen was no doubt stinging for the offenders, but either failed or would have failed the ordinary person test. While it is far from the gravest level of provocation, for a victim of child sexual abuse to be accused, falsely, of sexually abusing a child while having sex with his accuser is, in my view, likely to be more stinging, and more likely to cause an ordinary person to lose self-control, than it is for one partner to tell another of past infidelity or that their relationship is over.

90 These comparisons might suggest that the sentence in this case should be no greater than that which was imposed in R v Karageorges. But it must be remembered that that Mr Karageorges was a person of previously good character with good prospects of rehabilitation. Further, my sense is that sentences for murder are generally higher in recent years.

91 I could go on with comparisons. But, in sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied. Nevertheless, I have found the foregoing and other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for murder, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of the process of comparison, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Freeman's offence of murder.

93 Balancing all considerations as best I can, for the murder of Yosan Solomon, Anthony James Freeman is sentenced to 19 years' imprisonment with a non-parole period of 15 years.

94 I declare that, including today, 667 days of pre-sentence detention are to be reckoned as already served under the sentence.

___________________________________

[1] The victim impact statements became Exhibits 1-5.

[2] Exhibit 8 (report of Dr Ong, 21 April 2014) at p 8.

[3] Exhibit 8 (report of Dr Ong, 21 April 2014) at p 4.

[4] Exhibit 7 (report of Dr Ong, 25 July 2015) at p 5.

[5] Exhibit 7 (report of Dr Ong, 25 July 2015) at p 6.

[6] This was an agreed fact between the parties.

[7] Tyne v Tasmania [2005] TASSC 119; (2005) 15 Tas R 221.

[8] No such argument was put in Mr Freeman's case. Nor would it have been accepted had it been put. Indeed, the parties accepted that that argument could not be correct.

[9] Tyne v Tasmania [2005] TASSC 119; (2005) 15 Tas R 221 at 227[18].

[10] Tyne v Tasmania [2005] TASSC 119; (2005) 15 Tas R 221 at 229[27]-[28].

[11] Professor Arie Freiberg and Felicity Stewart, Provocation in Sentencing, Research Report (Second Edition), Sentencing Advisory Council (July 2009) at, e.g., [8.9.3]. The report was made Exhibit 9 on the plea.

[12] In so far as provocation is to be treated as a mitigating factor, I accept, as Blow J did in Tyne v Tasmania [2005] TASSC 119; (2005) 15 Tas R 221 at 229[27], that the onus of proving falls upon the offender, on the civil standard of proof. The parties also agreed with this approach.

[13] The exception is that what was once the felony-murder rule is now put on a statutory footing - see s 3A of the Crimes Act 1958 (Vic) - which was inapplicable in this case.

[14] See s 3 of the Crimes Act 1958 (Vic).

[15] Exhibit 8 (report of Dr Ong, 21 April 2014) and Exhibit 7 (report of Dr Ong, 25 July 2015).

[16] Karam v the Queen [2015] VSCA 50 at [156]- [157] (footnotes omitted).

[17] Exhibit 8 (report of Dr Ong, 21 April 2014) at pp 11-12; and Exhibit 7 (report of Dr Ong, 25 July 2015) at p 7.

[18] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[19] Exhibit 11 (Outline of Submissions, Mr Marsh, 7 August 2015) at [30].

[20] Sentencing Advisory Council, Sentencing Snapshot (No 171), May 2015, pp 2-4.

[21] The list included: Phillips v The Queen [2012] VSCA 140 (23/19); R v Mangione [2006] VSCA 34 (22/18); DPP v Zhuang [2015] VSCA 96 (22/17); Crocker v The Queen [2013] VSCA 318 (20-22/16); Stensholt v The Queen [2014] VSCA 171 (20/16); R v McCullagh (No 3) [2007] VSCA 293 (20/16); Felicite v The Queen [2011] VSCA 272 (19/16); McPhee v The Queen [2014] VSCA 156 (18/13); and R v Karageorges [2006] VSCA 49 (18/14).

[22] R v McCullagh (No 3) [2007] VSCA 293.

[23] Felicite v The Queen [2011] VSCA 272.

[24] R v Karageorges [2006] VSCA 49.