Director of Public Prosecutions v Freeman

[2016] VCC 1505

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL JOHN FREEMAN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2016
DATE OF SENTENCE:	10 October 2016
CASE MAY BE CITED AS:	DPP v Freeman
MEDIUM NEUTRAL CITATION:	[2016] VCC 1505

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Goding	Office of Public Prosecutions
For the Offender	Ms K. Ballard

HER HONOUR:

1Daniel John Freeman, you have pleaded guilty to four charges.  Charges 1 and 2, failing to comply with reporting obligations under the Sex Offender's Registration Act 2004, ("the Act") and Charges 3 and 4, indecent act with or in the presence of a child under 16 years.  Each of these later charges were representative charges.  The maximum penalty for these offences is, for indecent act with a child under 16, ten years and failing to comply with reporting obligations, five years.

2The circumstances of your offending are fully detailed the summary of prosecution opening dated 6 July 2016.  Your offending can be outlined as follows. 

3On 14 April 2005 you were before this court for various sexual offences that you committed against children and as a consequence of those convictions you were placed on the Sex Offender's Register under the Act with reporting obligations for life.  This status meant that you were required to do various matters including to report annually to police and to notify police of any unsupervised access with children. 

4As to Charge 1, your obligations under the Act included that you notify police of the creation by you of any Facebook account, email address or mobile phone numbers which were registered by you.  On 4 March 2010 you registered a Facebook account in the name of Dan Freeman with an email address.  As part of your obligations you attended your annual interviews with police on
22 November 2012, 25 November 2013 and 27 November 2014.  However on none of those occasions did you disclose, as you were required to do, the Facebook account.  Further you did not disclose the emails address as you were required to do within 14 days of its creation, nor when you attended your annual interviews with police on 20 November 2011 and those other dates listed above, did you tell them about the email address.

5On 19 January 2009 you registered a Facebook account in the name of Dan Free.  You were still operating this account when you saw police on 4 November 2010.  When asked about your use of social media, you failed to disclose this Facebook account.  Further you did not disclose that Facebook account on the dates listed above when you saw police again in 2011, 2012, 2013 and 2014. 

6As part of your work obligations you were provided with a mobile phone. 
You were operating this phone number on 12 November 2014 and did not report the phone to the police again as part of your reporting obligations.

7As to Charges 3 and 4 I note that each of these charges is representative and reliance is placed by the prosecution in Exhibit A, on the first occasion as the factual basis for which each of the occasions that the charge represents. 
The significance of the charges being representative is twofold.  First, it should be understood that the occasion referred to is not an isolated event and secondly it provides a wider context for the extent of your offending. 
The prosecution did not identify the sample occasions so I have therefore proceeded on the basis that the first occasion identified in respect of each charge. 

8Between 21 December 2013 and 20 December 2014 you held a licence to broadcast on a radio frequency in Korumburra. You ran a radio station called "Radio 80's" which operated from Korumburra railway station, a tourist railway run by volunteers.  When working there you would stay at the station in a shed converted to house beds for use by you and the other volunteers. 

9In about January 2014 you had befriended Dominic Lewis[1], through him also being a volunteer.  He was aged 15.  You would take him on trips to Melbourne and visit places such as Luna Park and the Aquatic Centre.  Additionally you offered his mother to stay at their house while she was at work, as she was reluctant to leave Dominic at home alone as he had been suspended from school.  You also assisted her with the payment of a phone bill.  You provided Dominic with gifts including a TV, mobile phone and iPad.  On one occasion you took the iPad back upset that Dominic wanted to spend time with his friends and not you.  You told his mother that you took it back as Dominic was "ungrateful".

[1] A pseudonym

10As to Charge 3, sometime after January or February 2014 you were both at Korumburra station and Dominic was lying on the bed.  You pulled down his pants telling him that it made it easier for you to massage him.  You put your hand inside his underwear and touched his penis.  At a later time Dominic told his mother that you gave him weird messages and she told Dominic to tell you not to do it.  This occasion is representative of the five occasions or six acts, the details of which are included in the opening, occurring at Korumburra or Nyora railway stations.

11As to Charge 4, most weekends you visited Dominic's house.  On one occasion his mother was going out and although Dominic asked her to stay, she did not. 
When she was out you arrived, and at first Dominic pretended to be asleep. 
You sent Dominic's mother a text message then went into his room and sat on the bed.  You started massaging his feet then worked your way up to the groin area, putting your hands inside his clothes and touching his genitals. 
This occasion is representative of two occasions, both occurring at Dominic's home.

12In January 2015, Dominic told his mother that you had touched his penis when you had massaged him.  He said that it had happened a few times and that he could not tell her when it happened as it had felt "horrible". 

13As to Charge 2, you had unsupervised contacts with Dominic Lewis on the occasions outlined in the opening and on other occasions, in breach of your obligations to report such contact to police.  Additionally you had been contacted by a teacher at Community College Gippsland who was arranging work placements for some of the students.  Christopher Schwartz[2], Lucinda Brown[3] and Janice Barrow[4] were all student who worked with you at the radio station without an adult present.  Christopher and Yasmine were aged 17. 

[2] A pseudonym

[3] A pseudonym

[4] A pseudonym

14You contacted Christopher Schwartz on a number of occasions on the mobile phone number referred to in relation to Charge 1.  You took him to local shops and other outings to places such as Cape Paterson, Inverloch and Luna Park and they were not supervised.  You also failed to tell police about this unsupervised contact with children on 27 November 2014. 

15You were arrested and interviewed on 17 March 2015.  You maintained that you told the school and the parents of the students that there must always be an adult present when the students were at the radio station.  You accepted it was totally wrong for you to be alone with Christopher Schwartz and maintained that when you took him out on outings, the other students were with you. 
You denied that you had the relevant Facebook account and indicated that in completing the annual interviews with police under your reporting obligations, that the process was just police noting the same answers each year to quicken up the process.

16You admitted your involvement at Korumburra railway station as a volunteer and also admitted that you provided financial assistance to Michelle Lewis[5], Dominic's mother.  You, however, made no comment in respect of the allegations of sexual conduct relating to her son, Dominic Lewis.

[5] A pseudonym

17I received victim impact statements from Dominic Lewis and his mother. 
You conduct has impacted on Dominic's schooling and his capacity to trust others.  He is angry and preoccupied with what has happened to him and feels his life has not returned to normal.  He does not want to be a victim anymore and wants to move on with his life.  His mother, understandably, feels shocked and betrayed.  She feels guilty that she has failed her son.  She feels that she was taken advantage of by you.  She has concerns for her son's future.  Cleary your offending has had an impact on their once normal lives.

18As previously noted you were before this court on 14 April 2005 on four charges involving sexual offending against children.  You were sentenced to a total effective sentence of 15 months with a non-parole period of six months.  On 22 February 2010 you were convicted of the offence of being a convicted sex offender loitering near a school and were sentenced to six months' imprisonment wholly suspended for 24 months.  On 18 July 2013 you were convicted of failing to comply with reporting obligations under the Act.  You were sentenced to eight months' imprisonment, wholly suspended for 24 months.  This offending, including the indecent acts relating to Dominic Lewis, occurred whilst you were on a suspended sentence. 

19You are currently aged 40 and grew up in Lilydale.  You have one sister and two brothers and a stepbrother.  You still have a close relationship with your mother.  She has recently been diagnosed with breast cancer.  You have had no contact with your biological father though you have had two stepfathers with your mother re-marrying.  The first of your stepfathers was abusive to both you and your mother and you never developed a close relationship with your second stepfather.

20When you were a young boy you were sexually abused by a family friend. 
You have since discovered your brother was also abused though neither of you ever reported it.  This experience has affected your adult behaviour and sexuality.  You completed Year 10 at school and soon thereafter was employed loading trucks.  Since then you have always been employed and have worked as a truck driver with Blue Mountain Transport since 2006.  You did not inform your employer of these matters and once incarcerated you are likely to lose this job.

21You have never had any issues with substance abuse or alcohol.  You have, however, had mental health issues connected with your previous convictions where you attempted suicide.  These issues were directly related to your predicament at that time.

22I was provided with a report from Patrick Newton, clinical and forensic psychologist, dated 19 September 2016.  He conducted an evaluation of your current mental status, personal history and an assessment using relevant psychological tools of testing.  In making his assessment, Newton also had available to him a Forensicare report dated 4 April 2005.  I take the material in both reports into account.

23Newton is of the view that you do not suffer from any mental disorder or condition such as to engage the principles of Verdins in consideration of the sentence that I will impose.  Newton concludes:

"Mr Freeman is socially awkward and introverted.  His early experiences of abuse have left him cynical and wary about interpersonal matters.  He craves closeness but conceives of the world in competitive terms and feels that he lacks the personal qualities to meet the challenges of life.  Making matters worse his social skills are poorly established so that he lacks the skill to establish and maintain close connections with others.

Mr Freeman's sexual adjustment reflects his disordered personality.  He conceives of sex in terms of power and control rather than intimacy and has had limited ability in maintaining long term intimacy with sexual partners.  Mr Freeman is ambivalent and conflicted about his sexual identity.  He experiences clear hebephilic attraction to underage boys and has acted on these feeling both in the past and in regard to his current offending". 

24As to your risk of recidivism Newton is of the opinion that you, upon consideration of historical dynamic and protective factors, are a significant risk of recidivism.  Newton expressed particular concern about you re-offending after you have served a sentence and with your repeated noncompliance with the sex offender registration requirements. 

25I note additionally that this offences occurred whilst you were on a suspended sentence.  Newton is of the view that this suggests that the deterrence of sentencing and the protective containment of supervision have been relatively limited given your continued offending.  Your rehabilitation also need to be considered in the context of the support that you have from your mother and your reasonably good employment prospects.

26Newton is of the view, which I accept, that your most pressing rehabilitative need is for you to participate in specialist sex offender treatment.  Depending on your successful engagement with such a program your rehabilitation prospects are fair.

27I take into account your plea of guilty.  You pleaded guilty at the first opportunity.  The utilitarian value of the plea is significant.  You have saved the community the cost of a trial and avoided the need for witnesses, particularly
Dominic Lewis and his mother to give evidence at trial. 

28The issue of remorse is more difficult.  Newton reported that your remorse for this offending was expressed in similar terms to that which you expressed in relation to your previous offending.  You reported to him that you hated yourself for your actions and that you felt ashamed and regretful.  However you consistently attributed responsibility for your offending to the complainant, the police and school authorities and you consistently downplayed your own culpability.  These sentiments are consistent with your limited insight into your offending and the effects of it.  This matter will need to be addressed in the course of any sex offender treatment.

29As to aggravating features, you were on a suspended sentence when this offending occurred.  Your offending in respect of Charges 3 and 4 was a gross breach of trust of Dominic and his mother.  You befriended both of them and provided them with financial assistance and Dominic gifts in order to ingratiate yourself with both of them.  The effect on Dominic has been significant.  You are to be sentenced as a serious sexual offender in relation to those charges.

30As to Charges 1 and 2 you flagrantly breached your obligations under the Act, legislation which is designed to prevent sex offenders working in child related employment and to keep police informed of various details, in your case in relation to your use of social media, for the protection of children.

31Your counsel conceded that a term of imprisonment was the only appropriate disposition but submitted that given the opinion of Newton that consideration be given to you being required to have a long period of supervision in the community so that your participation and treatment can be mandated and your progress supervised.  Additionally such would enable any treatment to address your personality issues to be properly monitored in the community. 

32Your conduct warrants just punishment and denunciation.  Both general and specific deterrence plays a significant part in sentencing you.  These matters, along with the objective gravity of your offending must be balanced against matters personal to you and in mitigation, including your plea.

33Because of your prior matters, your convictions in respect of Charge 3 and 4 qualify you as a serious sexual offender under s.6 of the Sentencing Act.  Pursuant to those provisions the Crown does not seek to impose a disproportionate sentence however the protection of the community is the principal sentencing consideration.  Sentences are to be served cumulatively unless otherwise ordered.  Your status as a serious sexual offender is to be noted on the court records.  Could you please stand, Mr Freeman.

34In respect of Charge 1, you are convicted and sentenced to a period of imprisonment of one month.

35In respect of Charge 2, you are convicted and sentenced to a period of imprisonment of three months.

36In respect of Charge 3, you convicted and sentenced to a period of imprisonment of 24 months.

37In respect of Charge 4, you are convicted and sentenced to a period of 18 months' imprisonment.

38Two months of the sentence imposed on Charge 2 and six months on the sentence imposed on Charge 4 is to be cumulative on the sentence imposed on Charge 3, which gives a total effective sentence of 32 months and I set a non-parole period of 22 months. 

39What is the pre-sentence detention please?

40MS BALLARD:  Fourteen days not including today, Your Honour.

41HER HONOUR:  Thank you.  I declare pre-sentence detention of 14 days.  There is no other orders that need to made, is there?

42MS GODING:  No there aren't Your Honour.

43HER HONOUR:  All right, thank you.  You can remove the prisoner.

44MS GODING:  As Your Honour pleases.

45HER HONOUR:  Thank you.

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