Director of Public Prosecutions v Freeman

[2016] VCC 1300

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 15-01661

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRENT FREEMAN

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	1 September 2016
CASE MAY BE CITED AS:	DPP v Freeman
MEDIUM NEUTRAL CITATION:	[2016] VCC 1300

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. J. Moore
For the Accused	Mr S. Tovey

HER HONOUR: 

1Trent De Carl Freeman, you have pleaded guilty to one charge of aggravated burglary, Charge 1, one charge of recklessly cause injury, Charge 2 and a related summary offence which was transferred, being Summary Charge 8, of committing an indictable offence while on bail. 

2The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty of recklessly cause injury is five years' imprisonment.  The maximum penalty for committing an indictable offence while on bail is 30 penalty units or three months' imprisonment. 

3The circumstances of the offending are set out in detail in the Prosecution Opening for Plea which was tendered as Exhibit A.  That exhibit contains the agreed basis on which I am sentencing you.   In brief the circumstances were as follows.  On Saturday 23 August 2014, you were contacted by a co-accused.  That co-accused and an unknown male came to where you were living.  They asked you to take them to your drug dealer's house.  You were given a balaclava.  The co-accused had previously assaulted you.  On this occasion he threatened you and he feared for your life if you did not go with him and the unknown male.

4You drove the three of you to the complainant's house.  You entered through the front door.  The co-accused was carrying a machete and the unknown male was carrying a wooden stick wrapped with electrical tape.  The complainant was attacked by the two other men.  The complainant was hit with a machete on his left side of his head, leading to considerable bleeding.  The handle broke off the machete.  The unknown male tried to hit the complainant with the stick then held the complainant.  The complainant grabbed a pot of simmering water off the stove and threw it towards the co-accused.

5The co-accused and the unknown male started hitting the complainant with a stick.  By this time, you were close to the complainant, he pulled off your balaclava and recognised you.  You and the two other men then left. 

6The complainant suffered a 6 to 8 cm wound to his head and considerable other bruising and abrasions.  You were arrested on 25 August 2014, you spoke to the police.  You told them some of the circumstances but did not identify the other two men.  Later that day you spoke to the police again and identified the co-accused. 

7On 25 August 2014, you were interviewed by police and gave a detailed account of the offending.  On 28 October 2014, you signed a statement to the police, giving similar detail to what you had told the police in the record of interview. 

8The prosecution accepts that you gave essentially truthful accounts in the record of interview and in your statement.  The prosecution proceeds against you on the basis that you had the lesser role of the three people and were previously a victim of violence by the co-accused.  The prosecution accepts that you were pressured to participate and that your role was to identify the target and provide passive support.  The prosecution says that it is relevant that you were not armed and did not physically assault the complainant.

9After your arrest, you spent 81 days on remand and were then bailed.  You entered your plea of guilty on 30 August 2016, just prior to the proposed commencement of the trial of you and the co-accused. 

10In his Victim Impact Statement, the complainant describes the ongoing effect on him of what he describes as the "crazy thing" done to him.  The complainant describes his increased state of fear and anxiety and the stress caused to him by being caught up in a criminal investigation.

11In sentencing you, I have taken into account your personal circumstances.  You are now 28 years old.  You grew up in country Victoria.  Your parents were in court to support you.  Your mother gave evidence on your behalf.  It is clear from her evidence that you come from a large stable and supportive family.  You had some difficulties at school due to your dyslexia, attention deficit hyperactivity disorder and some bullying but overall you enjoyed the social and sporting aspects of school.  You were prescribed Ritalin between the ages of six and 15 which provided some assistance to you.

12You left school during Year 10 and completed an apprenticeship as a butcher.  You were employed as a butcher after that but subsequently did part of an apprenticeship with your father as a chef.  You did not complete that apprenticeship but have had steady employment since as a cook or chef.

13Life was going well for you until you were about 24 years old and began using drugs, specifically cannabis and amphetamines.  There was then a steady deterioration in your personal circumstances.  You have admitted a prior criminal history which includes five court appearances.  Of significance is an appearance in March 2014 in relation to using a carriage service to menace and unlawful assault.  I note that the result of that appearance was no conviction, a $500 recognisance and a good behaviour bond.  That result suggests that those offences were relatively minor.

14You had also a prior appearance in court in 2013 in respect of wilful damage to property charge.  At the time of this offending for which I am dealing with you, you were on bail for charges resulting from damaging your father's car.

15In sentencing submissions, your counsel submitted that the appropriate sentence would be a sentence involving no further gaol time and a community correction order.  Your counsel particularly relied on the circumstances of the offending and your limited role.  Your counsel submitted that your plea of guilty was late but still had significant utilitarian value.  Your counsel said you had never denied your involvement in this offending and cooperated with the police.  The matter was listed for trial in relation to the issue of whether the defence of duress was open to you.

16Your counsel submitted that you were genuinely remorseful and had already provided assistance to the police.  He drew attention to the undertaking that you had given to give evidence and the increased risk to you if you were placed in custody.

17Your counsel submitted that the delay in this matter being finalised had led to the matter hanging over your head and that you had engaged in positive rehabilitation during the delay.  Your counsel submitted that you had very good prospects of rehabilitation, given that you had, since your release on bail, worked and commenced mending your relationships with your family. 

18In sentencing submissions, the prosecutor said that the value of the undertaking you had given was extremely high in this case.  The prosecutor submitted that taken together with the other circumstances of this case, I ought conclude that this aggravated burglary was out of the normal category.  The prosecutor submitted that a sentence not involving further imprisonment would not be inappropriate.

19Trent Freeman, you have committed serious offences.  Aggravated burglary is an especially serious offence.   The maximum penalty of 25 years' imprisonment indicates the seriousness with which Parliament on behalf of the community takes this type of offending.  In this case you entered the victim's home as a trespasser, with the intent either yourself or through others to assault a person, you knew that your co-offenders had weapons with them.  You knew that at least your co-accused was a violent person.  You were prepared to identify another person, drive to where he lived and go into his home with a balaclava on, in order to avoid violence on yourself.  This was cowardly and wrong. 

20This must have been an extremely frightening episode for the victim.  Physical harm was caused to him and he has ongoing psychological harm.  Your role might have been less than the other two, but you provided very significant assistance them, including your presence.  All this occurred while you were on bail.  Your moral culpability is high.

21There are a number of factors which operate in mitigation of sentence.  Your plea of guilty was made late but it has considerable utilitarian value.  I accept that you are genuinely remorseful.  You never denied your involvement in the offending and almost immediately provided assistance to the police.  You have limited prior offending.  You have no subsequent offending.

22You completed courses in custody, you completed a significant number of courses given the relatively short period of time you were in custody.   The references provided are very positive in respect of your current employment as a chef and the qualities you possess as both a chef and a workmate.  You are a young man with a strong work ethic and many good qualities.  Your prospects of rehabilitation in my view are very good.  That is evident in your progress during the period of delay, which I have taken into account. 

23You did manage to do a number of courses in gaol whilst on remand, but I accept that you found gaol difficult.  Your mother described your distress during that period.

24I consider that specific deterrence has to a very large extent already been achieved.  There is one further feature of this case which operates in mitigation of sentence, which is your undertaking of future assistance.  Persons who are prepared to provide such assistance, particularly where it is value, must be given significant recognition in sentencing, in order to encourage other people to do the same in future.  It is no easy thing to make such an undertaking, which may expose the person to some risk in the community.  The risk of retribution is significantly greater if the person is incarcerated after the undertaking has been given. 

25It would be inevitable in this case that any sentence of imprisonment that you might be required to serve would be served in protection.  Your ability to engage in productive activities in gaol would be severely limited.  Offending such as you have engaged in would ordinarily result in a significant term of imprisonment, even with a plea of guilty. 

26In the circumstances of this case and particularly the assistance you have provided and undertake to provide in future, I consider that the sentencing purposes of denunciation, just punishment and general deterrence can be appropriately met by a sentence involving a short period of imprisonment already served, and a reasonably lengthy community correction order with significantly onerous conditions.

27Can you please stand up, Mr Freeman?  Mr Freeman, Mr Tovey has explained to you the conditions that I propose to put on the community correction order.  It would go for four years.  There would be 350 hours of community work, supervision and treatment and rehabilitation conditions in respect of drugs and mental health.  Any hours that you successfully completed in the treatment and rehabilitation conditions would come off the community work conditions.

28There are a number of core conditions which have been explained to you.  It is particularly important that you understand that if you breach the order by not doing what you were directed to do or by reoffending, then you can be brought back before me for resentencing.  Clearly if any further offending involved anything of the seriousness of this type of offending, it would be difficult for you to avoid gaol.

29Do you understand the condition of a community corrections order?  Do you consent to such an order being made? 

30Trent De Carl Freeman, in respect of Charge 1 of aggravated burglary, Charge 2 of recklessly cause injury and transferred Summary Charge of committing an indictable offence whilst on bail, you are convicted and sentenced to an aggregate term of imprisonment of 81 days to be followed by a community correction order of four years, with the special conditions that I have outlined. 

31I declare that you have served 81 days of this sentence by way of presentence detention to be deducted administratively.

32I am required pursuant to s.6AAA of the Sentencing Act 1991, to declare a discount for a plea of guilty. In this case, if you had not pleaded guilty, that would imply that you would also not have assisted in the past or provided further future assistance. For that reason, I am making a declaration in respect of your plea of guilty which takes into account that you would not have provided assistance and would not be undertaking future assistance. On that basis, but for your plea of guilty, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.

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