Director of Public Prosecutions v Freeman

[2023] VCC 1398

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00485

DIRECTOR OF PUBLIC PROSECUTIONS

v

Daniel FREEMAN

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JUDGE:	His Honour Judge Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2023
DATE OF SENTENCE:	26 May 2023
CASE MAY BE CITED AS:	DPP v Freeman
MEDIUM NEUTRAL CITATION:	[2023] VCC 1398

REASONS FOR SENTENCE
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Subject:Armed Robbery – RCI

Catchwords:              Guilty plea – below midrange offending – remorse – childhood deprivation – intellectual disability – reduced moral culpability

Legislation Cited:      Sentencing Act 1991 (Vic) s 5(3)

Cases Cited:Muldrock v The Queen [2011] HCA 39; R v Mills (1998) 4 VR 235; R v Baldwin (1988) 39 A Crim R 463; Muldrock v The Queen (2011) 44 CLR 120; Postiglione v The Queen (1987) 145 ALR 408; R v Alashkar; R v Tayar [2007] VSCA 182; R v Baldwin (1988) 39 A Crim R 463; Gerbing v Croughan [2015] VSCA 209; Pitone v The Queen [2017] VSCA 3

Sentence:                  Total Effective Sentence of three years’ imprisonment with non-parole period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F. Martin	Office of Public Prosecutions
For the Accused	Mr J. Miller	Stephen Peterson Lawyers

HIS HONOUR:

1Daniel Freeman, you have pleaded guilty to:

(a)   one charge of armed robbery (Charge 1); and

(b)   one charge of recklessly causing injury, (Charge 2).

Circumstances of offending[1]

[1] The circumstances of your offending are set out in the Summary of Prosecution Opening dated 11 May 2023 (Exhibit A).

2Your offending occurred on 20 November 2021 in two separate episodes.

Federation Square

3Around 6:40 PM, you were with your then girlfriend, Chloe Jacques, at Birrarung Marr. Jacques approached two school girls, HT and MM, who were sitting on the lawn. After Jacques engaged HT in conversation, she demanded money from her. When HT said she didn’t have any cash Jacques told her she would just take her card.

4When Jacques initially approached the girls, you had walked away from them and stood at a rubbish bin five to 10 metres away. However, while Jacques spoke to the girls, you pulled a glass bottle from your backpack and smashed it on a bin. You then walked towards the girls carrying the broken bottle neck in your hand.

5As you did, Jacques punched HT to her chest and kicked her to her leg. She grabbed HT’s bag which contained her laptop, her calculator, a pair of JBL headphones, her schoolbooks and a small black purse with her student ID and $100 in cash in it.

6Jacques ran off with the bag and you followed.

7The girls were in shock and crying. They ran towards Federation Square where they asked someone to help. Police were called and arrived soon after. They took the girls to Melbourne East police station where they reported the incident.

Docklands

8Later, around 9:00 PM, while you were walking with Jacques along the Victoria Harbour Promenade, Jacques demanded money from YX who was walking with her mother, DC in the opposite direction.

9Jacques pushed YX to the chest and swung her fist at her but missed.

10When DC moved between Jacques and her daughter Jacques struck DC to her face and tried to grab her phone from her hand.

11As DC was trying to stop Jacques from assaulting her daughter you grabbed her from behind and threw her backwards. As she fell over the edge of the promenade, into the water below, her right hip struck a bollard.

12She landed headfirst in the water in darkness.

13Jacques and you ran off.

14DC managed to get to the edge of a wharf where a boat owner helped her to get out of the water.

15She was shocked and terrified by what you had done.

16When you assaulted her, you caused her a large bruise on her right hip and a shoulder strain.

Investigation and arrest

17CCTV cameras captured both incidents. I have viewed the footage.[2]

[2] Exhibit B: Two files showing the attack on HT at Federation Square; and Exhibit C: Two files showing the attack on DC in Docklands.

18Police arrested you on 5 December 2021.

19At interview, you exercised your right to remain silent.

20You were charged and remanded in custody.

21You accepted a straight hand-up police brief which avoided any witnesses being called at a committal hearing.

22After discussions with the prosecution, you agreed to plead guilty to the charges on the indictment.

Victim Impact Statements

23The girl you robbed, and her friend, were Year 11 students.

24HT was preparing for exams and couldn’t attend them because you stole her computer and schoolbooks[3].

[3] Exhibit E: Victim Impact Statement of HT.

25Understandably, your crime has taken an emotional toll on her. She fell behind in her studies and, when she goes out, she fears another attack[4].

[4] Ibid.

26Her friend, MM, has bad memories of your girlfriend confronting them. When she sees a similar face she gets anxious and distrustful[5].

[5] Exhibit F: Victim Impact Statement of MM.

27The woman who fell into the harbour when you grabbed her continues to suffer hip soreness and pain.[6] Physiotherapy hasn’t helped. She worries she could have drowned were she not able to swim. She no longer likes to go out at night because she feels unsafe. She lacks motivation and feels sad. She was relieved when police quickly apprehended you.[7]

[6] Exhibit D: Victim Impact Statement of DC.

[7] Ibid.

Criminal Record

28You have admitted a criminal record.

29Between 22 October 2020 and 10 June 2021 you appeared at the Magistrates' Court on five occasions for drugs, weapons, bail and theft offences.

30At your first court appearance, you were released on an undertaking, without conviction, for drug possession.

31At three subsequent hearings, you were fined, without conviction, and then conviction.

32On 22 June 2021, for driving offences and a bail offence, you were placed on a 12-month community correction order.

33Your crimes, before this court, have contravened the CCO.[8]

[8] Exhibit G: An extract of the CCO, a Summary of Offending, and a Contravention Report.

Personal circumstances

34You were born in September 1999. You were 22 years old when you offended. You are now 23.

35You have never known your father. You lived with your mother for a short time. When you were two years old, authorities removed you from her care. She was reportedly doing sex work at home at the time.[9]

[9] Your personal circumstances are set out in in Psychological Reports of Dr Peter Kyriakoulis (Exhibit 4), Ms Carla Lechner (Exhibit 7) and Franco Scalzo (Exhibit 13).

36You lived with many different foster families until you were 18 years old.

37You went to three primary schools and then Wonthaggi secondary school. After Year 10, you did two years of VCAL. During secondary school you had an obsession with calling emergency services which lead to school suspensions.

38Since you left school, you have had a number of casual jobs, mostly in the hospitality industry.

39After the suicide death of your then-partner in 2018, when she apparently jumped from a high-rise building while she was standing with you, you returned to live with your mother. This led to a revival of traumatic childhood memories. Additionally, your relationship with your mother is complicated by her long-standing alcohol and mental health problems.[10] You began abusing ice and GHB to cope.

[10] Exhibit 4: Psychological Report of Dr Peter Kyriakoulis.

40Childhood trauma and neglect impeded your neurodevelopment. You have been diagnosed with autism spectrum disorder, major depressive disorder, generalised anxiety disorder, obsessive-compulsive disorder, anti-personality disorder and schizophrenia.[11]

[11] Exhibit 13: Psychological Report of Franco Scalzo.

41Between 2012 and 2014 you were a client of the Korumburra child and adolescent mental health service[12].

[12] Ibid.

42In 2017 you were assessed with a mild intellectual disability.[13]

[13] Exhibit 4: Psychological Report of Dr Peter Kyriakoulis.

43In March 2022 you were psychologically reviewed for an NDIS plan.[14]

[14] Exhibit 4: Psychological Report of Dr Peter Kyriakoulis.

44You presented with significant PTSD symptoms due to the trauma of your ex-girlfriend's suicide and you reported hearing her voice from time to time.[15]

[15] Ibid.

45The psychologist described you as modest and unpretentious, self-conscious and non-assertive. He noted your evident fragile self-esteem.[16]

[16] Exhibit 4: Psychological Report of Dr Peter Kyriakoulis.

46You reported fear of abandonment and rejection by those around you. Testing showed you are impulsive and prone to self-destructive behaviours, including self-harm.[17]

[17] Ibid.

47In the psychologist’s opinion, this was consistent with your life experience.[18]

[18] Ibid.

48He recommended ongoing psychological treatment and psychiatric management, whether in the community or in prison.[19]

[19] Ibid.

49Through the NDIS, a care team had helped you to get accommodation and address your disability needs.[20] Unfortunately, Covid-19 restrictions here hindered your access to services.[21]

[20] Exhibit 6: Report of Matt Stinn (Behaviour Support Practitioner) of Different Lens Consulting.

[21] Ibid.

50When you offended, you were abusing drugs, and homeless.[22]

[22] Exhibit 7, p 5.

51You feel bad about your crimes. You understand your victims were easy targets who would have been very scared. You described the victim impact statements as humbling.[23]

[23] Ibid.

52In prison, through NDIS, you have had regular telehealth sessions with an occupational therapist[24] who reported you have shown excellent insight into your mental health, your trauma history and behaviours and have actively engaged in strategies to work towards a meaningful and productive life.[25]

[24] Exhibit 9: Report of Lauren Reinsfield, Mental Health Occupational Therapist.

[25] Ibid.

53A mental health counsellor[26] has also been working with you for two months. He reported you display 'genuine remorse for your actions, a commitment to personal growth and a strong determination to make better choices in the future'.[27]

[26] Exhibit 12: Letter of Daniel Corsetti dated 19 May 2023.

[27] Ibid.

54You have agreed to undertake a community service course to help others in the community when you are released.[28]

[28] Ibid.

55In prison, you have completed the vocational and behavioural programs made available to you.[29]

[29] Exhibit 2: Five prison program certificates.

56For your prison release, your NDIS support worker has prepared a supported independent living plan which will secure for you accommodation and provide you with a worker who will pick you up from prison and help you obtain clothes, food and medications for arriving at your new home. You will also have a consistent support worker for you thereafter.[30]

[30] Exhibit 5: Letter from Stevie Kennedy of Pheonix Specialised Youth Disability Services; and Exhibit 6: Report of Matt Stinn (Behaviour Support Practitioner) of Different Lens Consulting.

57Your workers are confident, considering your demonstrated self-improvement in prison and the supports which will be available to you, you can successfully reintegrate the community.[31]

[31] Exhibit 12: Letter of Daniel Corsetti dated 19 May 2023.

Psychological Opinions

58A clinical psychologist, Carla Lechner, assessed you on 6 April 2023.[32]

[32] Exhibit 7: Psychological Report of Carla Lechner dated 26 April 2023.

59In her opinion:

(a)   Your multiple diagnoses impact your ability to control your behaviour and regulate your emotions.

(b)   You are cognitively socially and emotionally immature.

(c)   You have a limited capacity to engage in consequential thinking and genuine difficulties with information processing and decision making.

(d)   You are inclined to act impulsively and reactively without considering the potential long-term impact, especially when you are substance-affected; and

(e)   While your mental health has re-stabilised in prison, remaining there in the longer term is more likely to lead to deterioration in your mood.  You are also a risk of being targeted by  older, more mature inmates.[33]

[33] Ibid p 6.

60I accept her opinions, which were not challenged.

Defence Submissions

61Mr Miller, who appeared on your behalf, in constructive written and oral submissions[34] acknowledged your crimes are serious.

[34] Exhibit 1: Defence Submissions dated 19 May 2023.

62He also acknowledged your victims will have been terrified by your actions.

63He submitted  your initial crime was a robbery which quickly escalated to an armed robbery when, as Jacques confronted the school girls, you smashed the bottle and approached them yourself.

64He submitted, considering you were not initially armed with a weapon but used a drink bottle as an improvised weapon to scare the girls by the sound of the glass smashing rather than to threaten them with it, the armed robbery sits below the midpoint of seriousness.

65In relation to your crime of recklessly causing injury, he submitted its objective seriousness should be assessed as an impulsive response to your perception your girlfriend was under threat.

66In mitigation of penalty, he relied on;

(a)   your lesser role as a secondary protagonist;

(b)   your early guilty plea for its high utilitarian value, and as evidence of your remorse;

(c)   your traumatic upbringing; and

(d)   your intellectual disability.

67He submitted that your intellectual disability inhibited your ability to understand the consequences of your actions and accordingly:

(a)   reduces your moral culpability;

(b)   bears on the kind of sentence I should impose;

(c)   moderates the need for general and specific deterrence;[35] and

(d)   would make prison more difficult for you than a person without a disability.

[35]Muldrock v The Queen (2011) 44 CLR 120. Ms Ball submitted that your intellectual disability makes you an

inappropriate vehicle for retribution and denunciation and therefore general deterrence should be given less

weight (at [53]-[54]).

Prosecution Submissions

68Ms Deltondo, who appeared on behalf of the prosecution, in helpful, written[36] and oral submissions, contended the seriousness of your offending warrants the imposition of a head sentence and non-parole period.

[36] Exhibit H: Prosecution Submissions.

69She submitted serious features of your offending are:

(a)   in relation to the armed robbery,

(i)the school girl you robbed was young and a soft target; and

(ii)the items you stole were of great value to her;

(b)   in relation to recklessly causing injury,

(i)throwing a person backwards towards, and over the edge of the promenade, was particularly dangerous; and

(c)   in relation to both offences,

(i)you committed them, in company with your girlfriend, in an open public place.

70She submitted the psychological material before the court is insufficient to support the submission Verdins principles are applicable.

71She acknowledged your guilty plea, while in her submission, late, attracts a sentencing benefit for its utilitarian value and as a demonstration of some remorse.

72She submitted your prior convictions for breach of bail and your breach of your CCO, militate against your prospects of rehabilitation.

73She acknowledged, nevertheless, as you are to be sentenced as a youthful offender, your rehabilitation is a primary sentencing consideration.[37] She also submitted, because of the seriousness of your offending, general deterrence still has an important role to play.[38]

[37] R v Mills (1998) 4 VR 235.

[38]R v Baldwin (1988) 39 A Crim R 463, 467–468 (Crockett ACJ).

74She helpfully referred me to several appellate decisions which, as she acknowledged, contain similarities and dissimilarities, between each other and your case.

Consideration

75The maximum penalty for the offence of armed robbery, committed in company, is 25 years’ imprisonment.

76The maximum penalty for the offence of recklessly causing injury is five years' imprisonment.

77Both offences are serious.

78In the first instance, you exploited the vulnerability of a school girl who was a soft target.

79In the second, your actions were very dangerous.

80And in both, in company with your girlfriend, you attacked people in open public spaces where they were entitled to feel safe.

81Ms Jacques pleaded guilty to charges of robbery and unlawful assault in relation to HT and attempted robbery of YX and unlawful assault of her mother. She was 18 years old and had no criminal history. She also had a mental impairment which engaged Verdins principles. A magistrate released her on a 12 month community correction order in relation to those offences and additional unrelated dishonesty offences.

82While she was the major protagonist, she pleaded guilty to less serious charges than you. Nevertheless, taking into account the differences between her case and yours, I have had regard to the parity principle to ensure consistency in punishment.

83You are entitled to a sentencing benefit for your guilty plea.

84There are several other mitigating factors which moderate your sentence.

85Firstly, you are a young offender. Your rehabilitation is a primary sentencing consideration[39].

[39] R v Mills (1998) 4 VR 235.

86Secondly, I accept you are genuinely remorseful.

87Thirdly, you have a limited criminal history. This is your first violent offending.

88I accept your girlfriend was the leader. In my view, it is less likely you would have committed these offences but for her involvement.

89From my viewing of the interactions between the two of you:

(a)   at Federation Square, your girlfriend spoke to you before confronting the schoolchildren to rob them, and you followed; and

(b)   at Victoria Harbour, she confronted YX to rob her and you became involved only when DT confronted her, albeit to defend her daughter.

90Fourthly, you have a background of disadvantage. Childhood trauma and neglect have hampered your neurodevelopment. You are generally impassive but you can also be impulsive and prone to destructive behaviours. I accept your multiple diagnoses impact your ability to control your behaviour and regulate your emotions.

91Fifthly, you have an intellectual disability. I accept it limits your capacity to engage in consequential thinking and causes you problems with information processing and decision-making.

92Overall, I accept your psychological conditions and intellectual disability reduce your moral culpability and moderate the need for general and specific deterrence[40] to some extent.

[40] Muldrock v The Queen (2011) 44 CLR 120.

93It is concerning you have a history of failing to comply with court orders. However, I am satisfied, through your NDIS funding, you will have significant supports which will be protective factors when you are released from prison.

94Your second episode of offending, while less serious than the first, represents additional criminality for which additional punishment is required. I will make an order for concurrency/cumulation to ensure your total sentence is a just and appropriate measure of your total criminality.[41]

[41] See Postiglione v The Queen (1987) 145 ALR 408, 416-417, 442-43.

95I have used the appellate decisions,[42] to which Ms Deltondo referred me, to discern the relevant sentencing principles, and making appropriate adjustment for the differences between them and your case. I have used them, and the maximum penalties, as a yardstick to measure the sentences I should impose on you.

[42] R v Alashkar; R v Tayar [2007] VSCA 182, [36]; R v Baldwin (1988) 39 A Crim R 463, 467–468 (Crockett ACJ); Gerbing v Croughan [2015] VSCA 209; Pitone v The Queen [2017] VSCA 3.

96The Sentencing Act requires me to impose a sentence that is no more severe than that which is necessary to achieve the purposes of sentencing.[43]

[43] Sentencing Act 1991 (Vic) s 5(3).

97Mr Freeman, by the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

98Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   On the charge of armed robbery (Charge 1), you are sentenced to two years and nine months' imprisonment. This is your base sentence.

(b)   On the charge of recklessly causing injury (Charge 2), you are sentenced to nine months' imprisonment.

99I direct three months of your sentence on Charge 2 be served cumulatively with your head sentence.

100Your total effective sentence is three years' imprisonment.

101Particularly because of your relative youth and your intellectual disability, to mitigate punishment in favour of rehabilitation through conditional freedom, I direct you serve one year and six months of your sentence before you are eligible for parole.

102I declare you have served 544 days of your sentence by way of pre-sentence detention.

103While there is some artificiality to the process, I declare, but for your plea of guilty, I would have sentenced you to four years and six months' imprisonment and fixed a minimum non-parole period of three years.

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