Director of Public Prosecutions v Freedman (a pseudonym)

[2019] VCC 172

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAD FREEDMAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2018
DATE OF SENTENCE:	13 February 2019
CASE MAY BE CITED AS:	DPP v Freedman (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 172

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Roodenburg	Office of Public Prosecutions
For the Accused	Mr J. Miller	Sullivan Braham Pty Ltd

HIS HONOUR:

1Brad Riley Freedman,[1] you have pleaded guilty to six charges of indecent act in the presence of a child under 16 years of age and two charges of sexual activity in the presence of a child under the age of 16.  Those crimes carry ten years' imprisonment respectively.  You also pleaded guilty to a charge of possess a drug of dependence which was a small quantity and in these circumstances on that charge I simply convict you and discharge you.

2Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made I advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.

3You are now 46 years' of age.  You do have a criminal history but it does not relate to any form of sexual offending.  You pleaded guilty at the earliest reasonable opportunity and I accept in the overall circumstances within your limited capacities there is an element of remorse.  The plea of guilty, of course, exemplifies that.  This is a situation where you must get the utilitarian benefit of that plea of guilty and of course it is a trial where I would be very surprised if the children had been called to give evidence as the videos that were taken of the offending by both yourself and your wife would have been ample to obtain a conviction.

4Because of the nature of the offending you will be on the Sex Offender's Register and I advise you the reporting conditions will be for life.  Also because of the sentences I intend to pose, from the sex offence charges, from

[1] This is a pseudonym.

3 onwards, you will be sentenced as a serious sexual offender. 

5I am aware that that means that community protection becomes the principal sentencing purposes, that the sentences are to be cumulative unless otherwise ordered and in this situation the Crown do not seek a disproportionate sentence.  Totality demands that there be a very significant element of concurrency in these matters. 

6In your particular situation where it is clear from the medical material that you are not regarded as paedophilic and this also being very, well, unique in my experience and that of other judges, the set of circumstances, I do not think that public protection is that necessary.  It would seem to me to have been totally situational, abhorrent though it was.  In effect the eight charges extend over an extended period of months. 

7Realistically you will be sentenced for a course of conduct as opposed to trying to delineate between each individual charge and I do not propose to go through that intellectual exercise.  As will be clearly evident to anybody who reads the summary of the offending, which I am simply going to annex to these, my sentencing remarks, it will become clear that the sentencing is indeed serious.  It calls for the application of general deterrence, to a certain degree specific deterrence as well as appropriate denunciation and appropriate punishment.

8Your co-accused has, in recent times, made a suicide attempt and been very seriously hurt in that process.  Accordingly I do not propose to deal with her for a period of some months and when that occurs, that will occur.  As I indicated during the course of the plea it seems to me that the objective seriousness of the offending is the same between the two of you.  However it has become clear as the plea has progressed and further materials have been provided that there is, in my view, a very significant difference between you in terms of the subjective aspects of it and that will be a matter which will be taken into account at the appropriate time when I have to deal with concepts such as parity.

9The offending over the sex charges involves circumstances where you and your wife, in the presence of your natural children, who at the time had been born in 2012, 2014 and 2015, in a significant number of videos over hours of time performed various sexual acts in their presence.  It is not suggested that the sexual acts were directed at them and I obviously take that into account.

10It seems to me that in a situation such as this the moral culpability insofar as acts being indecent or in the presence of a child that do not involve - the direction of the acts towards the children is of less consequence than where the children are actually the subject or object of that sexual display.  It also seems to me in this situation that the words of Redlich J in SLJ v R are pertinent so it is clearly understood what the circumstances are.  He said at paragraph 23 in that decision:

"The purpose of sexual gratification is not an element of the offence though it will frequently be a feature of offences requiring an indecent act.  The act will be committed in circumstances of indecency.  When viewed objectively it has, by its very nature, a sexual connotation which offends against community standards".

11Obviously that gives rise to appropriate findings of guilt in respect of these matters.

12The nature of the acts that were performed in front of the children in themselves might be perfectly fine between consenting adults but for them to be performed in the presence of little children is almost unbelievable.  I have now seen portions of the videos and counsel were present when I saw those videos. 
The children, whilst not the subject or object of the actions, were certainly very much present. 

13You, Mr Freedman, when spoken to, have told people that you were not really aware of their presence.  Having seen it, it is clear that not only were they asked to, in some respects, assist but there is obviously some sexualised displays by one of the children. They are clearly visually present and clearly aurally present.  They are talking to each of you and your wife throughout and it must have been obvious that they were watching.  As is pointed out in some DHS material, they do not even seem shocked by it.  I sentence you for what you have pleaded guilty to, no other matters, but it is, as I say, almost unbelievable what is taking place in this situation.

14As I indicated to counsel during the course of the plea I was concerned that a judge should not take judicial notice, if you like, of the fact that offending such as this would cause harm to children.  In those circumstances the Crown have properly and counsel have had the opportunity of viewing it, provided a report from the Department of Health and Human services.  Again, as I indicated clearly during the plea and the hearing, it is not a matter for me to enter into areas which are really under the auspices of the Department.  But it is clear from the material, and I am not going to go into any detail at all, that each of the children has been, and I accept that there are other factors involved as well, been diagnosed as having a post-traumatic stress disorder.  There has been sexualised behaviour from the children and whilst the youngest one might ultimately not remember this, obviously there has been a significant effect upon them.  It was said, I think, by Dr Walton once that children who have suffered post-traumatic stress disorder in this way very rarely make happy adults.

15The consequences of your conduct, whilst I am not going to go into some great psychological elaboration, are serious and the odds are very high that, albeit the children being so young, those consequences will take a lot of fixing, if that can possibly be done.

16I accept, in these circumstances, that you could not - I just cannot believe a human being could do this with full insight into what you were doing would do to those children.  Whilst that does not give rise to the principles in Verdins it makes it a difficult sentencing proposition.  Again, as a couple of times I have indicated to counsel, it is very hard and that is why it is one of the reasons why we have extended the plea over such a period of time, not to sentence in an emotive way.  It must be delineated as to what you have done, what the consequences of it are and what the criminality of it is.

17Again, I do not believe I need to go through the - or any of the details of the Crown summary.  I indicated that the summary has adequately described the acts but now having viewed the videos it seems to me that it was appropriate that I do look at them because I do not think that the summary really displays the level of participation that the children played in all this and the video shows more clearly you and your wife's awareness of their presence.

18Obviously at that age there are no victim impact statements as such but the DHS material can be used fairly safely for that purpose.

19Tendered on your behalf were a couple of psychiatric reports on the plea done on your behalf and I am aware of your circumstances.  You, yourself, had a very dysfunctional childhood.  You were transported all over the place.  Originally born in Gippsland, went to South Australia at one stage.  It is clear from the material that you, yourself, have been sexually abused at an early age.  You clearly have various aspects of your personality which are deficient.

20In this particular set of circumstances you and your co-accused became involved in a relationship, I use that cautiously, when she was around 13.  There is a 23 year old age gap.  The assertion by both you and her, as I understand it, is there was no sexual activity between you until she was 16.  Though it is clear from the material that she must have been pregnant at 16 because of the birth of the first child.  You, yourself, had a child from an earlier relationship. 
I take into account that, sadly, that child was killed in a motor vehicle accident, as I understand it, early last year. 

21You, to your credit, have a good work history.  You worked in the fishing industry and you have since been able to support yourself.  The psychiatric reports do not give rise - and one is from a treating psychiatrist and one is from Forensicare, do not really give rise or not - in fact, they do not give rise to any of the principles in Verdins as they relate to culpability.

22The situation is that you do have a cancer.  You have been operated on and whilst the prognosis is undecided it would appear to me, fairly clear, that there is a real risk that the cancer that you have will prove terminal.   I therefore, insofar as Van Boxall and decisions such as that are concerned, I sentence you on the basis that the sentence I impose will be undergone under the belief that you may never see the light of day.  You have advised people that if it is to be terminal that you will end your life.  Well that is entirely a matter for you but
I certainly sentence on the basis that you will have the fear of never being released.  Whether that ultimately proves to be case or not, I do not know.

23There is, as I indicated tendered on your behalf, the two psychiatric reports.  You cope in gaol, you are unwell, I take that into account.  You have various problems, none of which cannot be dealt with in a custodial environment but which make it clearly harder for you. 

24By reason of this offending the three surviving children that you have, have been lost to you.  DHS' view is that there will be a permanent separation and from experience in these sort of circumstances, that is highly likely.  So your conduct, albeit understandably, has cost you those three children and you now have none.

25You have some 90 days of Renzella time because of another sentence you underwent.  A sentence was imposed on you previously which I have set aside on appeal and I simply re-impose that sentence and direct that 30 days be reckoned as having been served under that.  As I understand it, that leaves you with 267 days served.

26Again, in this situation, I do not think I need to go through the psychiatric reports.  They will remain on file and, indeed, all this material will be forwarded to the Parole Board.  There was initially discussion about a community corrections order.  The Crown submission was that a CCO in any form, insofar as you were concerned and I will deal with the co-accused later, would be grossly inadequate.  Having heard all the material I am persuaded that that is indeed the case.  I am aware that this is a unique situation and I think as I have already indicated, I cannot find another judge or any example of someone being sentenced where the sexual gratification is not directed at the children.

27The decision of SLJ which was tendered to me is a circumstance where a pornographic photo was shown to a child.  Again, even in that case, the indecency of it was directed at the child.  So I have got somebody with no priors for this sort of offending, with a good work ethic, you claim that the relationship is ongoing, you have an element of Renzella time but what occurs at the end of the day is that you must be sentenced for what you have done and the consequences of it. 

28The prospects of your rehabilitation are really up to you and it will be a matter between you and the Parole Board and what your ultimate medical diagnosis turns out to be. 

29The risk of you re-offending in this particular way, I accept for these purposes, is probably low.  There is no suggestion whatsoever that it is a paedophilic tendency.  It is just, in one sense, one of - I cannot even think of the word for it.  Overwhelmingly, well, unbelievable conduct in front of children in circumstances where the criminal law says you just have to go to gaol for this and it has to be a for a significant period of time.  Anybody who thinks that you can do this and walk away free, unless they have got very, very powerful personal circumstances, is kidding themselves.  Unfortunately in these circumstances general deterrence gets a bit lost because the decisions never get published. 

30So, in the end, taking all those matters into account and looking at the matters in mitigation as well as trying to balance set against the abhorrence of the offending and the uniqueness of the sentencing process.  You are ultimately sentenced as follows. 

31I can indicate I do not propose differentiating between the charges.  Others with a more technical mind might think that one should but I find the task intellectually ridiculous.  It is an ongoing course of conduct, each one is a separate charge brought about separate video tapes on separate occasions and accordingly there has to be a circumstance of cumulation between each of them in my view.

32So Charge 1, 18 months.  Charge 2, 18 months.  Charge 3, 18 months.  Charge 4, 18 months.  Charge 5, 18 months.  Charge 6, 18 months.  Charge 7,
18 months.  Charge 8, 18 months.  Charge 9, as I have indicted, convicted as charged.  

33I direct that six months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, six months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 6, six months of the sentence imposed on Charge 7,
six months of the sentence imposed on Charge 8 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives a total effective sentence of five years.  I direct that you serve a minimum term of three years before becoming eligible for parole.  I direct that 267 days be reckoned as having been served under this sentence.

34Pursuant to s.6AAA I say to you that but for your plea of guilty you would have been sentenced to be imprisoned for a period of seven and a half years with a minimum term of five. 

35I make it also clear, as I think I have endeavoured to do, that the circumstances with the co-accused are very, very different and I will be hearing submissions from both defence counsel and the Crown when that appropriate situation arises when her physical and mental condition has stabilised.  Are there any other orders I need to make?

36MS ROODENBURG:  I don't know if they were already made, Your Honour, but disposal orders and forfeiture orders were sought.  Disposal for the cannabis and forfeiture for the mobile phone.

37HIS HONOUR:  I would have made them at the time I think.  If I haven't, I'll put them in chambers.

38MS ROODENBURG:  I think from the transcript you did.

39HIS HONOUR:  I've done them.  They've been done.

40MS ROODENBURG:  Thank you, Your Honour.

41HIS HONOUR:  That's all right.  The 464's been done.

42MS ROODENBURG:  Yes, that's all Your Honour, thank you.

43HIS HONOUR:  Nothing else?  We have got to get him the Sex Offender's Register material.

44MR MILLER:  Yes, Your Honour.  One thing that was discussed on the plea was whether he would need to do a sex offender's program in order to be eligible for parole.

45HIS HONOUR:  Yes.  No, sorry, yes I meant to say that when I said about no paedophilic tendencies.  Thanks for that.  Yes, I will add this on the end.

46MR MILLER:  Thank you, Your Honour.

47HIS HONOUR:  It is my view, in these circumstances where the very unusual set of situation where the sexual offending, albeit in the presence of - with gross disregard for the children, was not directed at them.  In that sense it is a unique form of sex offending and it would be my view that the sex offender's program would not be necessary for this particular man.  Now obviously I am not allowed to dictate to the administration what they do.  That would be my view and it was a matter that was discussed with counsel and whilst I have indicated that the material clearly - makes no suggestion that he is paedophilic or predatory,
I should add that in fairness to him.

48MR MILLER:  As Your Honour pleases.

49MS ROODENBURG:  As Your Honour pleases.

50HIS HONOUR:  All right so Mr Miller, if you wouldn't mind going down to the dock with my associate, give him this material.

51MS ROODENBURG:  Your Honour, if I could just seek to be excused from
the co-accused’s further plea?  Because Your Honour's adjourned it to a circuit I suspect that the prosecutor on that circuit will do that further plea.

52(At this stage the court proceeded with another matter.)

53HIS HONOUR:  All right, you have nothing else you need, Mr Miller?

54MR MILLER:  I don't need anything else, Your Honour.

55HIS HONOUR:  Yes thanks for that.  Yes, you can remove the prisoner, thanks.  The only other thing perhaps - I was proposing to send this DHS material to the Parole Board.  There's no bar on me doing that?  It's not ‑ ‑ ‑ 

56MS ROODENBURG:  That's fine, Your Honour.

57HIS HONOUR:  I can do that?

58MS ROODENBURG:  There's a representative here.

59HIS HONOUR:  Yes, all right.  There's just privilege - all sorts of things arise but I'm going to send it to them unless anybody tells me I can't do it.

60MS ROODENBURG:  Can I ‑ ‑ ‑ 

61HIS HONOUR:  There's all sorts of rules about what DHS material can be used.

62MS ROODENBURG:  What, about privacy and ‑ ‑ ‑ 

63HIS HONOUR:  Yes, privacy stuff.

64MS ROODENBURG:  Could I leave the Bar table for a moment?

65HIS HONOUR:  Yes, of course.

66MS ROODENBURG:  Thank you, Your Honour.  Your Honour, Ms Norbury's in court from DHHS.  She said that the report itself, she's fine.

67HIS HONOUR:  Yes.

68MS ROODENBURG:  It's the annexures to the report that have the actual therapeutic treatment history, probably shouldn't go to the Parole Board but that report that is about three or four pages long ‑ ‑ ‑ 

69HIS HONOUR:  Well what, if at this stage, I don't do anything with that until such time as I've sentenced her?

70MS ROODENBURG:  Yes, Your Honour.

71HIS HONOUR:  He's not going to become eligible for parole for a significant period of time.

72MS ROODENBURG:  No, that's right.

73HIS HONOUR:  It just seems to me that there's matters within those annexures and the overall material where his Parole Board and potentially hers, should know.

74MS ROODENBURG:  I'll get some more instructions on that before the circuit date.

75HIS HONOUR:  Yes.  So by the time it comes up again, I won't send of this to the Parole Board at this stage.

76MS ROODENBURG:  Thank you, Your Honour.

77HIS HONOUR:  Other than for Mr Miller's benefit and my comments about the he doesn't need to do a sex offender's program.  But we'll keep the rest until later.

78MS ROODENBURG:  Thank you, Your Honour.

79HIS HONOUR:  Once I've sentenced her I've got the full material.  I mean he's now been sentenced, so that's all all right but it will be interesting to see, in the ultimate what are her instructions about all this become, I suspect.

80MS ROODENBURG:  Yes, Your Honour.

81HIS HONOUR:  As I said to Mr Weir, judges see things that occur between the body of the court and the dock that people with their back to it don't.

82MS ROODENBURG:  Yes, that's true.

83HIS HONOUR:  But anyway we'll see what happens.  All right, thanks for that.

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