Director of Public Prosecutions v Freeman
[2025] VCC 20
•24 January 2025
R v
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01692
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW FREEMAN |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2025 | |
DATE OF SENTENCE: | 24 January 2025 | |
CASE MAY BE CITED AS: | DPP v Freeman | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 20 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW --- SENTENCE
Catchwords: Aggravated Burglary --- Plea of Guilty --- Offence committed against soft targets --- Young workers at service stations --- Degree of remorse Offender --- Immediately admitted offending --- Youthful offender --- Serious mental health history --- Chronic drug addiction --- History of treatment orders --- R v Verdins --- History of offending --- Prospects of rehabilitation with treatment --- Combination sentence
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) VSCA 102 --- Azzopardi v The Queen [2011] VSCA 372 --- R vMills [1998] 4 VR 235
Sentence: 7 months imprisonment on charge 1 --- 6 imprisonment on charge 2 --- Total Effective Sentence of 9 months imprisonment --- 2 year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Wilson | Office of Public Prosecutions |
| For the Accused | Mr Tamblyn | Victoria Legal Aid |
HER HONOUR:
1Matthew Freeman, you have pleaded guilty today to two counts of armed robbery. Those offences occurred on 13 and 14 June 2024 and were both committed against soft targets, being workers at service stations. Those are prevalent offences which require a sentence that generally deters others from committing similar offences, and which denounces the conduct on behalf of the community and which seeks to protect other members of the community from that type of violence.
2You were 24 years old when you committed these offences and are now 25.
Offending
3You first entered the BP in Mooroolbark where 21-year-old Ms Supraja Boga was working on 13 June 2024. It was early evening. You had a saw down your pants which you had taken from the place you were living which was just down the road.
4You entered and approached the front counter where you spoke to Ms Boga before lifting up your shirt to reveal the weapon. She described it as a large 'really spikey' serrated edge knife about 30 centimetre in length. No doubt that was alarming for her to see. You said to her 'Do you want this the easy way?'
5You stayed at the counter area, moving away slightly as customers came in and out of the store. One customer, Ms Dearne Isbester, came in and stood behind you. She saw you leaning across the counter talking to Ms Boga but soon became frustrated at having to wait. She enquired whether something was wrong and you moved to the side.
6Ms Isbester was obviously very astute and sensed that something was indeed wrong. She stood in between you and Ms Boga and asked quietly 'Is everything alright?' Ms Boga said 'Help me' at which point Ms Isbester offered to call someone. So as not to escalate things she left the store and immediately phoned police.
7You approached the counter again and said 'I just want money'. She gave you $200 in cash and you ran.
8Soon after police arrived and took a statement and obtained CCTV.
9The next day at about 5 pm you entered Liberty Service Station in Dandenong North where 22-year-old Mr Himanshu Sharma was working.
10You were wearing a black hoodie. Mr Sharma was suspicious of your behaviour and he locked the entry doors.
11A short time later a female customer who had been filling up petrol entered the store to pay. On letting her in, you also entered. You wandered around and waited for the female customer to pay and leave.
12You then approached the front counter, lifting up your shirt to show the weapon which Mr Sharma also believed was a knife. You said 'Give me the money otherwise there will be some serious issues with you'. You said you wanted $200. Mr Sharma opened the till and handed over four $50 noted and you then left.
13Mr Sharma contacted police and his management.
14Police attended and you were identified from CCTV footage. You were seen by Police Air Wing who were in the area, and then you were intercepted travelling on a bus. You were escorted from the bus and searched. The saw was located in the waist band of the pyjama pants you were wearing.
15You were cautioned. You said to police 'I just committed an armed robbery, and I was trying to be nice about it'.
16The money from Liberty was recovered. You were found unfit to be interviewed and were remanded. You have been on remand since that time and have accrued 224 days' pre-sentence detention up to today.
Personal Circumstances
17You are a person with a serious mental health history. As a result, a Mental Health Advice and Response Service report was undertaken very soon after your remand.
18A report authored by mental health clinician Steven Wright dated 15 June 2024 was tendered on your plea. Your diagnosis of schizophrenia is noted along with the fact you have had four psychiatric registrations starting in September 2016 when you were a 17-year-old, and 13 psychiatric inpatient admissions between that time and 7 January 2024.
19You have a chronic drug addiction which of course complicated your presentation, and you are diagnosed as having mental and behavioural disorder as a result of your drug use. In addition, you have past diagnoses of delusional and conduct disorder.
20You have had a number of treatment orders made including involuntary treatment order. The most recent involuntary classification concluded in October 2023.
21At the time of your remand you were noted to be under the treatment of Maroondah Hospital Chandler House Community Treatment Team and to have last seen your case worker on 3 June 2024. You instruct that you were compliant with depot medication injections and oral medication. Your depot injections were administered monthly, although it is not entirely clear when the last injection was prior to your offending.
22Those diagnoses are confirmed by Gina Cidoni, psychologist who assessed you in December 2024. Her report of January 2025 was also tendered on the plea. Ms Cidoni also cited a neuropsychological report authored by Mr Martin Jackson and dated February 2022.
23Mr Jackson confirmed your history of schizophrenia and noted that as the primary cause of your cognitive impairments, in particular those that impact your ability to process nonverbal information and to interpret social cues. He assesses your IQ as 81 which is a low average cognitive range.
24Your cognitive impairments extend to areas of executive function including having an impact on your ability to understand the consequences of your actions and the social appropriateness of your behaviours.
25Your insight into your mental health and to your drug use is described as limited.
26On assessment by Ms Cidoni she says you are in significant psychological distress relating to anxiety. You have difficulty managing life stressors and a tendency to feel overwhelmed. You have heightened sensitivity to interpersonal dynamics which lead to intense responses. You frequently feel anger, resentment and frustration and have difficulty controlling aggressive impulses.
27You also report mild delusions including paranoia and delusional symptoms though these are mild at present though they have been a feature of your schizophrenia in the past. You are aware they are linked to your mental health condition.
28Ms Cidoni referring to the neuropsychological report, states that your cognitive challenges result in an impaired ability to fully comprehend the consequences of your behaviour, particularly under stress or in unfamiliar situations. She says the contributing factors to your offending appear to be complex involving substance use, mental health conditions and environmental influences. Your history of methamphetamine use, which is linked to psychosis, played a significant role in impairing judgement and disinhibiting your behaviours.
29Your diagnoses, in particular schizophrenia with predominantly negative symptoms suggest ongoing mental health challenges for you. Those include symptoms of paranoia and delusions which could have distorted your perception of reality and influenced your actions. Ms Cidoni says:
The combination of these factors likely reduced his capacity to control his behaviour fully, potentially compromising his moral culpability at the time of the offending.
R v Verdins
30The impact of that opinion in combination with the references to Mr Jackson's opinion, is that Mr Tamblyn submits on your behalf the principles enunciated by the Court of Appeal in R v Verdins[1] apply. Specifically, Verdins limbs 1, 2 and 3. That is, your moral culpability is reduced on account of your mental impairment. As a result, a sentence which is different to that which might ordinarily be imposed is appropriate, and further, you are not a suitable vehicle for the full application of general deterrence.
[1] R v Verdins & Ors (2007) VSCA 102
31In addition, Mr Tamblyn relies on the opinion of Ms Cidoni to the effect that your current experience of imprisonment is particularly burdensome due to a combination of mental health challenges, your personal history and the stressors inherent in the prison environment. She notes your schizophrenia, history of psychosis, along with cognitive impairments resulting from long term substance use, significantly complicate your ability to cope with the prison environment. She notes your age and impressionability is heightened, making you particularly vulnerable to negative influences and potentially escalating cycles of offending.
32She elaborates on those matters in paragraph 79 of her report. Mr Tamblyn relies on that portion of her opinion to submit that Verdins limb 5 applies – that is, as a result of your mental impairment you are experiencing imprisonment in a more onerous way than a person without those conditions.
33The applicability of Verdins is not disputed by Prosecution. Specifically,
Mr Wilson fairly accepts that limbs 1, 2, 3 and 5 apply. The Prosecution submit however that the extent of application and the consequent moderation of those principles is complicated by your drug use.34First, I accept that Verdins applies. Members of the community would not see you as a suitable person to be held up as example on account of your serious and chronic mental impairment, that does result in some reduction of your moral culpability and consideration of a different sentence by me. It does mean imprisonment is more burdensome.
35Even with the overlay of drug use, that fact does not remove the existence of your underlying psychiatric condition. Further, I must consider your ongoing battle with drug addiction through the prism of your struggle with mental health and both the cognitive limitations that imposes on you, and the behavioural consequences of those conditions. Your ability to cope with day-to-day life is impaired.
36The lead up to this offending bears that out to an extent. You were in the
less-than-ideal setting of a boarding house, having experienced periods of homelessness. You were being bullied by a co-resident who harassed, assaulted you and coerced you in a sexual assault. That person is now in prison. That was no doubt a difficult environment to navigate and saw you increase your drug use despite your engagement with the Community Care Team.37I accept, as I have said, the principles of Verdins apply but considerations of general deterrence are not eliminated entirely given that overlay of drug use. It is a matter of degree as Mr Wilson submitted. The fact of your drug use, the seriousness of offending here and your past history increase the need for community protection.
Personal Background
38Your past history of criminal offending is concerning. There are no similar offences although there are some offences of violence by way of threats, weapons offences and persistent breaches of intervention orders. I agree with Mr Wilson that what is more relevant here is the fact that despite therapeutic community corrections orders being imposed on you, you have repeatedly breached those orders.
39However, it seems to me that you have some insight into the reasons for your breach. First, you have noted your age – 20 and 21 when those orders were imposed. You say you were not ready to commit fully to your rehabilitation. You were using drugs and although you did attend some drug counselling you were not yet fully committed to it.
40In contrast as submitted by Mr Tamblyn, you have now been in custody for seven months. You are drug free. You are expressing some insight into the need to deal with your drug addiction and that your drug use has badly impacted your life. You expressed that to Ms Cidoni and you have expressed that in your assessment today with Gregory Lane, registered nurse.
41You admitted your offending immediately, expressing some remorse to arresting police, to Mr Wright and then to Ms Cidoni. It is clear you are distressed by your bad behaviour. You receive the benefit of your early plea of guilty. Your remorse is also a positive indicator, and I take it into account. You also saved the victims from giving evidence and you saved the court and the community the cost and time of a criminal trial.
42Your relationship with your family has been strained. You were asked to leave home at 15 and finally at 18 because of drug use. You have breached intervention orders and family violence orders against your family and there is an order preventing you living at home. That has been an ongoing situation, as I understand it.
43However, your parents remain in contact with you. They visited you in custody last weekend. They are supportive of you but guarded about how much they can offer you, noting they have two other children to consider. I see contact with your parents as a real positive. Hopefully there are opportunities for you to engage with them on your release and to rebuild some relationship. The fact they visited you suggests they have not written you off and that they still love and care for you.
44You have not yet applied for an assistance package under the National Disability Insurance Scheme. As discussed with your counsel that can be a game changer for a lot of people, involving as it does intense and regular support, innovative ways to engage people with the community and prosocial activity, and assistance with daily living. You are on a Disability Support Pension in the community. I would expect the current reports along with the Maroondah Health records should demonstrate your eligibility and I encourage you and those around you to make that application as soon as possible.
45I note the recommendations made by Ms Cidoni. You must have structure and programs. Drug use must be your first battle.
Youth and rehabilitation
46You are still youthful. I take into account the principles which apply in sentencing a youthful offender[2], in particular rehabilitation and reclaiming you are paramount.
[2] Azzopardi v The Queen [2011] VSCA 372; R vMills [1998] 4 VR 235
47Mr Tamblyn submits that a sentence which sees you released to a community corrections order is appropriate. He submits you are in the best position to succeed now at a community correction order. That is because you have had that lengthy period of time of stability in custody without drug use and working in the prison environment.
48On release accommodation will be a primary concern. You say you have friends who are non-drug users who could offer you temporary solution. You are expressing interest in inpatient rehabilitation which should be considered. You have a some time girlfriend or love interest who apparently is supportive.
49Mr Tamblyn also relies on the lower level of offending here which was conceded by the Prosecution. I accept objectively and having watched the CCTV that this is a lower level of an offence which covers a wide range of offending.
50In light of the breaches of past community correction orders and the serious nature of the offending here, Mr Wilson for the Prosecution submits that a sentence with a non-parole period is the appropriate option. Although a combination of imprisonment with a community correction order was not specifically resisted by the Prosecution, and it was conceded that that would ordinarily be in range for this level of offending and given your personal circumstances, the Prosecution rightly notes your history of breaches.
Mr Wilson noted that the suitability for an order would be a question for an assessor.Current sentencing practices
51I have considered those matters. I have considered current sentencing practices and the very helpful table of similar cases provided by both
Mr Tamblyn and Mr Wilson. As always there are similarities and differences between offender and offending. Ultimately I must impose a just sentence in all the circumstances and that is what I have endeavoured to do.52The serious offences here are reflected by the maximum penalty of 25 years. Though unsophisticated and lower-level examples, there was no dispute that they should be met by a term of imprisonment. In my view it is appropriate to reflect each incident and each victim with some level of cumulation, though that would be modest given they are close in time and similar in nature.
Sentence
53You have serious personal challenges. In my view I should not reach a point where imprisonment with a non-parole period is the only option if a less stringent option is available to me.
54In all the circumstances I had you assessed for a community correction order, including a mental health assessment. Although the mental health assessor recommends that ongoing mental health and treatment be made a condition of a community correction order to promote wellbeing and reduce the likelihood of reoffending, and notes some insight expressed by you in relation to how your drug use effects your offending behaviour, the Corrections assessor ultimately determined you are unsuitable for such an order.
55That assessment is based on your past history of non-compliance, what the assessor reports is a lack of stable accommodation or employment arranged for your release, along with what she reports as your lack of insight into the precursors to your offending. She refers to your longstanding history of substance abuse and ultimately concludes that there have been no circumstantial changes that you could identify since your past community correction orders and the resulting escalation of offending.
56With all due respect to that assessor, I am not convinced that enough weight has been given to your cognitive limitations in the responses you gave. In addition, I am not convinced that enough weight has been given to the fact that you have now been in custody for about seven months and that that is a much longer period of time as compared to your previous sentences, and a much longer period of time where you have been sober. Although I understand past failures can tend away from another chance, you are still young, and every effort must be made to further your rehabilitation at this time.
57Therefore, despite the assessment made I propose to exercise my sentencing discretion to impose a combination sentence. In my view, the combination of the punitive aspect of imprisonment along with a community corrections order aimed at your rehabilitation, is the appropriate sentence in all the circumstances here. It will allow for a set release date. It will allow me to set conditions for your supervision and rehabilitation and it will allow me to monitor your progress.
58You will not be released immediately. There is a short period still to serve. It is appropriate to reflect the seriousness of the offending. In addition, it will allow for transition planning to occur to ensure you have the best chance of success on your release. If you could stand up please, Mr Freeman.
59On Charge 1, armed robbery, you are convicted and sentenced to seven months' imprisonment.
60On Charge 2, armed robbery, you are convicted and sentenced to six months' imprisonment.
61I direct that two months of the sentence on Charge 2 are to be served cumulatively on Charge 1. What that means is a total effective sentence of nine months' imprisonment.
62On both charges you are to then serve a two year community correction order which will commence upon your release from imprisonment. The conditions of that order in addition to the mandatory conditions, are that you be under supervision; that you attend for assessment and treatment for drug and alcohol addiction, and that that may include direction to inpatient treatment; that you attend for assessment and treatment in relation to your mental health.
63Additional conditions - and I will just seek some help, Mr Tamblyn for some wording - are those recommended by Mr Wright in the original assessment, namely that you maintain your involvement - and this is the wording I am looking for - with Eastern Health Case Management or should it be Eastern Health Community Care Team or their nominee?
64MR TAMBLYN: Yes, Your Honour.
65HER HONOUR: The latter?
66MR TAMBLYN: Mr Wright has said that Mr Freemen to maintain involvement with Eastern Health Case Management that is in place.
67HER HONOUR: So Eastern Health Case Management ‑ ‑ ‑
68MR TAMBLYN: Case Management that is in place.
69HER HONOUR: Or their nominee, perhaps.
70MR TAMBLYN: Yes, Your Honour.
71HER HONOUR: Yes. So not Eastern Health Community Care Team?
72MR TAMBLYN: Not in his recommendations, no Your Honour.
73HER HONOUR: No, Eastern Health Case Management, all right.
74So in other words Mr Freeman, you have to maintain your relationship and your treatment with Eastern Health, so that is Chandler House essentially for you, all right.
75OFFENDER: Yeah. Yeah.
76HER HONOUR: As they direct you. And you need to maintain your compliance with the medication regime that they tell you. Do you understand that?
77OFFENDER: Yeah.
78HER HONOUR: In addition I propose to monitor your progress, so I am going to bring you back to me so that I can hear how you are going. I anticipate that on my sentence you should be released in about mid-March. I would like to see you soon after your release because that is often a time which is a difficult transition back into the community. So I am going to bring you back mid-April, before Easter, so that will be Tuesday 15 April - and you will get all this written down - at 9.30 am. Hopefully things will be going okay and you will be able to be just on a video link from the Corrections office.
79I declare that you have served 225 days pre-sentence detention including today and that that should be reckoned as having been served under this sentence.
80But for your pleas of guilty, so if you had not pleaded guilty, the sentence I would have imposed would have been two years and six months' imprisonment with a non-parole period of 12 months' imprisonment.
81I propose to make the forfeiture order and the restitution order as sought by the Prosecution, noting they are made by consent.
82Mr Freeman, before I can impose a community correction order I need you to agree to undertake it and before I ask you if you agree, I want to make some things clear because no doubt in the past you have said 'yes I agree' and we all know three times that has not worked. Normally it is three strikes, you are out, but here is your fourth opportunity in the circumstances where you have had this lengthy time in gaol, sober, hopefully you can come out and do better on the order. Do you understand all of that?
83OFFENDER: Yeah, yeah.
84HER HONOUR: So in addition to the core conditions, so those are the things like you cannot leave Victoria without permission; you need to notify change of address, et cetera, and you cannot commit any further offending. Do you understand those core conditions?
85OFFENDER: Yeah.
86HER HONOUR: In addition to those, you are to undergo supervision; you are to undertake assessment and treatment for drug and alcohol addiction, and that can include Corrections direction you to inpatient.
87In addition you are to undertake assessment and treatment for your mental health, and I am noting what Mr Lane, who you spoke to today has said that include, that should assist you finding a GP in the community, and ensuring that you are having your Area Mental Health Service reviews and your medication and hopefully that will include some counselling and some support to apply for an NDIS package. Do you understand all of that?
88OFFENDER: Yeah.
89HER HONOUR: Okay, so those are the first three conditions. Then additional is that you maintain that involvement with Eastern Health Case Management and the medication regime that they set you. And the final condition is that you come back before me on 15 April at 9.30 am so that I can hear how you are going. Do you understand those conditions?
90OFFENDER: Yeah.
91HER HONOUR: Do you understand if you breach any of those conditions, that is you fail to do those things, you might be in breach of the order?
92OFFENDER: Yeah, I fully understand.
93HER HONOUR: And that if you reoffend, that would also breach this order.
94OFFENDER: Yeah.
95HER HONOUR: And either way, you would then come back to me and I may be then resentencing you on these armed robbery offences. Do you understand that?
96OFFENDER: Yeah.
97HER HONOUR: With the real option that you would be returned to imprisonment, do you understand?
98OFFENDER: Yes.
99HER HONOUR: All right. And you consent to the community corrections order?
100OFFENDER: Yes.
101HER HONOUR: All right. Have a seat there, it will be printed out and I will ask you to sign it. While that is being done, Mr Freeman, I understand housing is a very important factor for people, for everyone but for people on community correction orders. Having some stable accommodation is going to be very important for you and you have got about six weeks until you are released to do everything you can to try and work that out.
102So whatever help you can get in custody, whatever help you can get from non-drug using friends, that is what you need to follow up. And I am hoping that Corrections Victoria will be in contact with you before your release so that things can be put in place as soon as you get out. So there is not going to be a lag time where nothing is happening. But you have to make your mind up about what the rest of your life looks like.
103OFFENDER: Yeah.
104HER HONOUR: You are saying the right things and that is good. You have now got to put them into practice because otherwise you are going to be on this roundabout of drug use, offending, police stations, remand, imprisonment, courts. It is not a way to live your life. It is obvious that you have got some family out there. The fact your mum and dad are still in contact ‑ ‑ ‑
105OFFENDER: (Indistinct words)
106HER HONOUR: Yes, well it is difficult I know, but the fact that they are still in contact is some positive, so I do not know where things are at fully there but have a chat with Mr Tamblyn and see whether there are any hopes there.
107I just note, Mr Wilson, I am not sure whether it came to your attention that there were two CR numbers.
108MR WILSON: Yes.
109HER HONOUR: Yes, so I think because the matter has moved pretty quickly they just haven't been consolidated.
110MR WILSON: When there were two hand-up briefs originally, committed in straight hand-up brief that ordinarily there are two court numbers and they join on a single indictment.
111HER HONOUR: All right, well what I will make clear on - I just don't want any confusion about it ‑ ‑ ‑
112MR WILSON: Yes.
113HER HONOUR: ‑ ‑ ‑ or anyone to think there's two CCOs.
114MR WILSON: No.
115HER HONOUR: So I will just make clear on one of the CRs that it is a duplicate and I will make sure there's a reference to the other CR number on it.
116MR WILSON: Yes.
117HER HONOUR: Are you content with that?
118MR WILSON: Yes, Your Honour.
119HER HONOUR: Any issue, Mr Tamblyn?
120MR TAMBLYN: No, Your Honour.
121HER HONOUR: All right, that's what will happen. Mr Tamblyn you are welcome to explain that to Mr Freeman and ask him to sign it. Mr Freeman, you understand your signature on that document is your promise that you will complete that community correction order?
122OFFENDER: Yes.
123HER HONOUR: All right. Any other matters, counsel?
124MR WILSON: Nothing further, Your Honour.
125MR TAMBLYN: No, Your Honour.
126HER HONOUR: Mr Freeman, I will see you just before Easter and before that I will get a report, and it will tell me exactly how you are going. Be very careful on your release from custody. It is a very high-risk time for people because all the temptations are back out there, so you need to really make some plans in this period of time before your release, for what that period is going to look like, all right.
127OFFENDER: Yeah.
128HER HONOUR: All right, good luck. I hope you stay motivated.
129OFFENDER: Yeah, thank you.
130HER HONOUR: All right, thanks. Thank you, enjoy your break, Mr Wilson.
131MR WILSON: Thank you, Your Honour.
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