Director of Public Prosecutions v Freeman (a pseudonym)

[2021] VCC 1651

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

HANLEY FREEMAN (A PSEUDONYM) 

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 25 June, 20 October 2021
DATE OF SENTENCE:	26 October 2021
CASE MAY BE CITED AS:	DPP v Freeman (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1651

REASONS FOR SENTENCE
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Subject:             Criminal law - sentence
Catchwords:             pleaded guilty damaging property, contravening Family Violence Intervention Order, threat to kill, common law assault, theft, attempting to pervert course of justice, persistent contravention of Family Violence Intervention Order and 6 summary charges -  long term on and off relationship – offences committed in complainant’s home – family relocated for 2 weeks – limited criminal history – full time carer of father -  drug use – favourable CISP report reasonable prospects for rehabilitation
Sentence – 10 months imprisonment with  12 month CCO  200 hours unpaid work
:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	OPP
For the Accused	Mr A. Patton and Mr K. McLaughlin (instructor)	Vale Criminal Law

HER HONOUR: 

1Hanley Freeman[1], you have pleaded guilty to eight indictable charges and six summary charges.  The indictable charges and the applicable maximum penalties by way of imprisonment are as follows:

·        Charge 1 Damaging property, maximum 10 years.

·        Charge 2 Contravening a Family Violence Intervention Order, five years.

·        Charge 3 Threat to kill, 10 years.

·        Charge 4 Common law assault, five years.

·        Charge 5 Theft, 10 years.

·        Charge 6 Contravene family violence intervention order

·        Charge 7 Attempting to pervert the course of justice, 25 years.

·        Charge 8 Persistent contravention of a Family Violence Intervention Order, five years.

[1] A pseudonym.

2Each of the summary charges is a charge of committing an indictable offence contravening orders either under the Bail Act or under the Family Violence Intervention Order.  The maximum prison sentence for each is three months.

3The charges arose as a result of events which occurred in June 2020.  In each case the complainant was your former partner.  You had been in a relationship with her for 12 years on and off.  Together you have two children, who at the time of the offending, were aged seven and eight.  The complainant also had three young children from other relationships.

4On 27 March 2020 police applied for an Interim Family Violence Order which was granted. It prohibited you from committing family violence, from communicating with or approaching within 5 metres of the complainant and from going or remaining within 200 metres of her house.  The order was served on you on 9 April 2020.

5Although the timing is not clear, by June 2020 you were on bail for charges of unlawful assault, using a carriage service to harass and failing to answer bail.  The complainant was your former partner.

The offending

6On 4 June 2020 you went to her house to assist her in caring for the children as she was unwell.  Whilst there you began arguing with her.  You threw a pair of scissors at her television, damaging the screen.  You threw her Samsung tablet across the room, causing damage to its cover.  These two incidents give rise to the following charges :Charge 1 on the indictment, criminal damage, Charge 2 on the indictment, contravening an Intervention Order intending to cause harm or fear for safety, Summary Charge 5 contravening an Intervention Order while on bail and Summary Charge 6 contravening conduct prohibited by the Intervention Order.

7The complainant was not in the house when you damaged the TV but she saw you throw the tablet.  The children were in the house at both times but there was no evidence that they saw the incidents.

8You remained at the house on 5 June as it was your son's birthday and you were still there on 6 June.  On that day you and the complainant argued, which was a breach of the Intervention Order giving rise to Summary Charge 20, contravening conduct which was a condition of bail.  That night she lay down on a bed next to you.  You told her she had ruined your life by taking out the Intervention Order causing you to lose your job.  You told her you did not believe her about a man you accused her of seeing whilst you and she were separated.

9You pushed her off the mattress and up against the couch and put your hands on her face, covering her nose and mouth.  She struggled to breathe.  While doing this you repeatedly asked, 'How many times did you sleep with him?'  You let go of her face and said, 'Next time I'm going to hold it there for longer until you answer me properly.'  You then picked her up and threw her across the mattress.  You threw her to the far end of the mattress and pinned her head down between the couch and the mattress stating, 'I will kill you tonight as I don't care if I go away for it, I will kill you'.  That is Charge 3, making a threat to kill.

10You threw her back on the mattress and she curled up into a ball.  You threw a bracelet at her which hit her on the head and caused swelling.  She was in pain and grabbed at her head.  You said to her, 'Oh, that's nothing'.  Next, you pushed her towards the opposite side of the room and up against the wall.  You grabbed her around the neck and face and squeezed tightly, again causing her to struggle to breathe.  You eventually released your grip and she sat against the wall in a curled up position.  You yelled at her, 'You did this, you caused this.'  You then kicked her thigh, you continued to yell at her, threatening further repercussions if you found out she had spent the night with the person concerned.

11As a result of your violent actions at this time, the complainant suffered a cut to her lower lip, a slightly swollen eyelid and a cut to the top of her head.  You yelled at her and told her to lie down and face you.  You had a pair of scissors in your hand and you pressed your face against her face and said, 'I hope for your sake you're right.'  She was afraid you were going to harm her with the scissors.  You continued verbally abusing her saying she was a, 'Fucking lying slut'.  You continued acting violently towards her, throwing her off the mattress and throwing it on top of her.  This series of violent acts gives rise to Charge 4, common assault.

12You then walked to the front door and locked it.  The complainant asked to go to the toilet and you replied, 'I don't care what you do, you can go neck yourself for all I care.'

13The complainant escaped through a bathroom window and jumped a side fence into a neighbour's property.  She could hear you calling her to ‘get back here.'  The neighbour assisted her to call the police.

14Meanwhile you located the complainant's car keys and left the house in her car without her permission.  This is Charge 5 on the indictment, theft of a vehicle.  The theft, together with the communications with her and your assaults of her are all part of Charge 6, contravening the family violence order intending to cause fear or harm.

15Summary Charge 19 covers the fact all the indictable offences were committed whilst you were on bail.

16Between 7 and 13 July 2020 you sent a total of 2961 text messages to the complainant.  Each of them were in breach of the Family Violence Intervention Order.  The messages included attempts by you to prevail upon and direct her to withdraw and/or change her evidence relating to the incidents at her home between 4 and 6 June 2020.  One of these messages was a threat to contact the Department of Health & Human Services and advise them that she was a drug user, requesting that her children be removed from her car.  That is Charge 7 on the indictment, attempting to pervert the course of justice and Summary Charge 46, committing an indictable offence while on bail.

17Overall, your actions between 4 and 6 June constituted a persistent contravention of the Interim Intervention Order and give rise to Charge 8 on the indictment, persistent breach of a Family Violence Intervention Order and Summary Charge 45, committing an indictable offence while on bail.

18When arrested and interviewed by the police, you admitted having been served with the Intervention Order and knowing that your presence at the complainant's home was in breach of it.  You denied any violence or threats.  You admitted having sent her text messages but you said this was in the context of her sending, 'Bad' messages to you.

19The complainant provided a complainant impact statement which was read to the court in which she described the profound effects of your violence upon her.  She explained that the relationship she had with you had been good until you started using the drug ice.  She has not been able to think of any rationale for your  violence and harsh treatment of her and described how the injuries you inflicted have made it difficult physically and in other ways for her to care for herself and the children properly.  She has lost a lot of weight and cannot eat properly and suffers from panic attacks which make it difficult for her to wear a mask as required under COVID rules.

20She was diagnosed with depression in recent years which had not occurred before.  She now feels isolated from her friends and family and she cannot socialise as she did before.  She feels ashamed of what has happened.

21The period following the offending was very difficult for the complainant and the children as they were relocated and had to stay in a hotel for two weeks.  She needed financial help from her family and felt desperate in her efforts to keep herself and the children safe.  She had to stop studying her degree in early childhood education as she could not concentrate.  She has engaged in counselling to address her anxiety caused by harassment you inflicted upon her.

22Sadly, it is not unusual to hear reports like this from the complainants of serious family violence such as in this case.  The repercussions are not limited to the physical impact of the injuries from direct violence.  They also include fear and apprehension and other deleterious emotional effects which arise from the use of controlling and coercive behaviour.  Neither the fact that the department was already involved with the family, nor that the complainant knew you did not have the power to have the children removed from her care is relevant to my considerations.  These threats went to the heart of the fears of an overburdened mother struggling to cope alone with five children.  That is apparent by her request for help from you on about 4 June.

23Although there were some distinctions between the types of offending you committed and the seriousness, overall the offending was serious and warrants harsh punishment.  In part this is to deter others from similar behaviour which is unfortunately very prevalent in the community.  It must also reflect the condemnation by the community at large.  Further, it should deter you from repeating that offending in future.

Personal circumstances and background

24At the time of these events you were aged 33 and the complainant was 32.  You had an unremarkable childhood and adolescence.  After leaving school, you obtained certificates at post-secondary level in horticulture, business management and automotive sales.  It seems you have a good work history and working as a teaching assistant at a special school in the few years before these incidents.

25Despite the existence of the Family Violence Intervention Order you and the complainant had continued to see each other after the relationship broke down and you would sometimes stay at her home.  The arguments that arose between 4 and 6 June concerned relationships with other people and the context is strongly suggestive of highly controlling behaviour on your part.

26Your prior criminal history is fairly limited. It began in your early 20s and appears to have arisen in the context of failed relationships and related violent behaviour.  You both used drugs recreationally and you turned to the use of methylamphetamine in 2018 and 2019.  Your mother died in February this year and since then you have become your father's fulltime carer.  He is in very poor health with reduced mobility.

Mitigating factors and prospects for rehabilitation

27I turn now to some current issues as they relate to your prospects for rehabilitation and an appropriate sentence.  The concept of insight, whether it is present or lacking, is highly relevant in cases such as this.  It is one of the key elements for rehabilitation.

28The report from your CISP case manager suggests you have gained insight into your offending and you are willing to change.  You have been engaged since September 2020 in trying to meet that objective.  You had been remanded in custody initially after your arrest on 1 July 2020.  You were granted bail by the Supreme Court on 28 September.  You were managed by the CISP program for almost four months until you were committed for trial in January 2021.  This was at a time when CISP was not available in the County Court.

29The report from your case manager was favourable.  You became drug free as a result of your incarceration and you have been assessed as no longer needing drug treatment.  It seems that during your assessment you were sensitive to the possible need for mental health treatment and have pursued that with a clinical psychologist.

30In 2019 you had taken part in a men's behaviour change program without finishing it and you intend to re-engage with such a program when COVID restrictions ease.

31You have had no contact with your sons and before reconnecting you plan to wait until you have completed the term of imprisonment which will be part of your sentence.

32Imprisonment will be additionally burdensome for you because of your anxiety about your father's welfare.  Neither of your two sisters are available to live with and care for him.  It is intended that your partner will do so but you are apprehensive about the long-term viability of this plan.

33In determining the length of the custodial term I have taken this into account.

34Your prospects for rehabilitation seem to be reasonable.  While you have not overtly demonstrated remorse, you appear to have developed insight and willingness to reform and have taken steps towards those goals.  You have pleaded guilty and have thereby avoided a trial.  You have done so at a time when a very long backlog of trials already exists and continues to evolve.

35In avoiding a trial you have also spared the complainant from having to give evidence and be cross-examined.  These issues mean that you are entitled to a reasonable discount on your sentence.  As soon as you are imprisoned, you will have to undertake a 14 day period of isolation and thereafter the risk of becoming infected with COVID-19 will be a reality now that the disease has entered the prison system.  You will be subject to all the additional restrictions imposed on prisoners because of the pandemic with no visitors and cancelled or limited programs.  These are all matters to be taken into account as warranting a further considerable discount.

36Another factor is that your conditions of bail confined you to the Mt Waverley area and you have remained offence free and have been wholly compliant.

37You have been assessed as suitable for a Community Correction Order and I will impose that order, together with sentences of imprisonment as follows.

38Would you stand now please, Mr Freeman?

39For Charge 1 on the indictment I sentence you to three months' imprisonment.

40For Charge 3, six months.

41For Charge 4, six months.

42For Charge 5, two months.

43For Charge 7, six months.

44An aggregate sentence of one month is imposed on the Summary Charges 5, 6, 19, 20, 45 and 46. I have determined that an aggregate sentence for these charges is appropriate in the circumstances of this case. If individual sentences had been imposed I would have ordered that they be served concurrently having noted the requirements under s16(1A)(e) of the Sentencing Act 1991.

45For Charges 2, 6 and 8 I impose a Community Correction Order and I will come back to that shortly.

46The base sentence for purposes of cumulation is the six month sentence for Charge 7.  One month of each of the sentences for Charges 1 and 3 and two months of the sentence for Charge 4 are to be served in cumulation upon the base sentence.  This results in a total effective sentence of 10 months. 

47Returning now to the Community Correction Order, it will begin as soon as you are released from prison and will last for 12 months.  Convictions on all charges will be recorded.  You will be required to perform 200 hours of unpaid community work.  You will be under supervision and you must take part in programs for drug treatment and to reduce the risk of offending.  That might, for example, be a men's behaviour program or something similar.  You will also have to attend court for what we call judicial monitoring which gives me an opportunity to see how you are progressing.  The first date for that will be in August next year, about three months after your expected release date and I will give you that date before finishing today.

48I declare that the 91 days of pre-sentence detention are to be reckoned as already served and accordingly your release date should be approximately seven months from now.  I have moderated the sentences and the very modest cumulation to take account of the current pandemic situation in the prison system as already described. 

49Just let me have a look for a date in August next year.  The judicial monitoring will be on  4 August and that will be at 9.30, Mr Freeman.  Generally speaking it involves the person coming to court but there will be no lawyers here.  You can bring a friend or a relative if you wish.  I will have a report from your case manager as to your progress and I will be able to discuss that with you.

50If you had pleaded not guilty to these charges, I would have sentenced you to two years and six months' imprisonment with a non-parole period of 18 months. 

51OFFENDER:  Yes, Your Honour.

52

HER HONOUR:  So that's what that involves.  I just want to check with

Mr Cookson and Mr McLaughlin.  First of all, Mr Cookson, is there anything that I have omitted or neglected?

53MR COOKSON:  There is only one further matter, Your Honour.  I understand that a forfeiture order was filed after the conclusion of the plea proper on the last occasion.  It is a forfeiture order that the prosecution seeks solely in respect of an iPhone being the iPhone that was used to send the relevant messages in question.

54HER HONOUR:  Yes, I have been handed that application and I will just check with Mr McLaughlin as to whether that is opposed or not?

55MR McLAUGHLIN:  It is opposed, Your Honour.

56HER HONOUR:  It is opposed?

57MR McLAUGHLIN:  It is opposed.

58HER HONOUR:  I see, how do you want to deal with it then?

59MR McLAUGHLIN:  Your Honour, I'm content for the matter really to be dealt with today.  I have spoken to Mr Freeman in relation to the forfeiture.  Quite simply he does seek to oppose it and we can even adjourn it sine die or accordingly deal with it today if Your Honour is minded to.

60HER HONOUR:  I will make that note, just one moment.  Mr Cookson, do you have any objection to adjournment sine die?

61MR COOKSON:  No objection to an adjournment of the matter but the prosecution does, of course, persist but it's understood.

62HER HONOUR:  Thank you.  I will just make that note, that will be reflected on the court order today.  Thank you officers, you make take Mr Freeman now.  Sorry, you have got to sign something before you go.

63MR COOKSON:  As Your Honour pleases.

64HER HONOUR:  Sorry, Mr McLaughlin, would you like to accompany my associate to the dock in a moment?

65MR McLAUGHLIN:  Yes.

66HER HONOUR:  Adjourn the court please.

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