Director of Public Prosecutions v Freeth

[2014] VCC 1376

IN THE COUNTY COURT OF VICTORIA

Revised

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-14-00013

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEC FREETH

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May, 30 July and 22 August 2014
DATE OF SENTENCE:	22 August 2014
CASE MAY BE CITED AS:	DPP v Freeth
MEDIUM NEUTRAL CITATION:	[2014] VCC 1376

REASONS FOR SENTENCE

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Subject:             Criminal law - sentencing

Catchwords:      Armed robbery - criminal damage - spontaneous robbery with baseball bat - offender in mildly retarded range - no intellectual disability

Sentence:          2 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Ballek	OPP
For the Offender	Ms C Woodward	VLA

HIS HONOUR: 

1Alec Freeth, you have pleaded guilty to one count of armed robbery, one count of criminal damage, and one count of possession of cannabis.  The maximum penalties are set out in the Crown opening, which I will annex as Annexure A to the sentencing reasons, and which was read out in open Court on an earlier occasion.  The maximum penalty for armed robbery is 25 years' imprisonment, damaging property is ten years, and five penalty units for possession of cannabis.

2The circumstances of the offences were that you committed these offences in company with Ms Natasha Moyle, with whom you are in a long term relationship.  The two of you have a child.  It occurred down in the suburb you were living in, Hampton East, when Ms Moyle saw an urban planner, the complainant, taking photographs of a vacant block next door.  There was then some discussion and you came out to assist or intervene with Ms Moyle and at that point you proceeded to demand a camera from the urban planner, wielding the baseball bat, and that is the offence that constitutes the armed robbery.  The camera was subsequently recovered by the police, so you are not charged with the theft of the camera, but the point was you had no right to take the camera, you had no right to even intervene in her activities, which you did, and then as she was driving away you swung the bat at the car and damaged the panels, $600 damage to the car.  That is the criminal damage.  I have made a compensation order for that amount.  Then when the police came to your premises they found cannabis, and that is the third count.  All that is set out in the Crown opening and that is the basis upon which you are being sentenced.  The circumstances of the offences were set out in the Crown opening.

Seriousness of the offences 

3These were serious offences against a woman going about her duties.  She has not filed a victim impact statement but it must have been significantly traumatic for her to get someone to forcibly demand her camera from her, belt her car with a baseball bat, when she is just going about her duties.  So it was serious offending.

4Your counsel put that these were unique circumstances in that there was no planning; it was a spontaneous, in a sense, act on your part, in a sense to protect your partner, who was engaged in this action or discussion with the complainant, and you reacted to her call for help.  So there was no planning.  A spontaneous, misguided, act. 

5The explanation for your conduct is well captured in Mr Ball's report, a forensic psychologist, who noted that your social reasoning reflects a persistent personality disorder and dull intellect.  Your social reasoning is unsophisticated and you tend to reduce complex problems to simplistic, concrete terms.  So you will only consider a small number of options, without giving significant time for contemplation.  So you act impulsively, he said.  You feel vulnerable and threatened most of the time and respond with maladaptive behaviour such as aggressive and impulsive acting out.  That is exactly what happened here.

6Of course the fact that it is aggressive, impulsive, behaviour does not excuse the behaviour, but it does go some way to explain the behaviour on this occasion, which is absolutely to be condemned.

7Now, I turn to your prior convictions.  You were born on 8 June 1980 and you have admitted a number of prior convictions and a criminal record.  Your most recent appearance was on 15 February 2011, before the Melbourne Magistrates' Court, where you were convicted and fined an aggregate sum of $1500 on counts of possession of cannabis (x2), possessing amphetamine, using cannabis (x2) and using amphetamine.  You were also convicted of, breach of a good behaviour bond, failure to answer bail and possessing a controlled weapon.

8Before that, in 2008 you had been before the Moorabbin Magistrates' Court and you were put on an adjourned bond for possessing cannabis.  Before that on 31 January 2008, in the Melbourne Magistrates' Court, for possessing amphetamine and cannabis, using cannabis , and failure to answer bail (x2), you were fined $150, aggregate fine.

9Before that on 2 August 2000 you were charged with theft (x9), obtaining property by deception, five counts, attempted theft, two counts, and burglary.  You were placed on a community based order for 12 months and then that was breached and you were sentenced to six months' imprisonment on 30 April 2001, wholly suspended. 

10You were before the Magistrates' Court, in July 2000 for failing to answer bail, then on 15 February 1999 for, theft of a motor car, theft, theft of a bicycle and obtaining property by deception.  You were given seven days suspended sentence on the last two charges and 14 days on the other charges - suspended for six months.

11Then before that, at Ballarat Magistrates' Court on 6 October 1998 for escape from a youth training centre, 14 days.  That is in 1998.  Again before the Ballarat Magistrates' Court, on a number of dishonesty offences and you were sentenced to 7 days detention.  There was also a breach of a Community-based Order.

12So you have been before the courts for a long time, on a number of occasions.  You are now aged 34, you were born in 1980, so a lot of the offences were when you were 18 in Ballarat Magistrates' Court.  You were 17 for your first offending in 1997, then there was a break in the offending.  You were 19 at the time of the theft cases in 2000.  Then there was a big break in your offending between 2001 and 2008 and the more recent drug type offending. 

13So you do not come before the Court without prior convictions, however you do come before the Court without an armed robbery conviction, but you do have a number of drug convictions.  You have had previous Community-based Orders but they are a significant time ago.  So it is not a stellar record but it does show drug related offending.  You said at the time of this offending that you may have been using ice and you certainly had been using cannabis.

14

Turning to your personal circumstances. You are aged 34, you are in a relationship, you do have a 12 year old child.  The details are all set out in

Mr Ball's report and I incorporate that personal information by reference.  The child has special needs.  Mr Ball indicates you had a very tough upbringing, a dysfunctional upbringing.  You only got to Year 8, you were in Malmsbury in your teenage years.  You have a diagnosis, he says, of an anti-social personality disorder.  You have been on a disability support pension.  I asked the Department whether or not you in fact were entitled to be dealt with under a justice plan.  That report (Ex AA) came back indicating that you are functioning,

"Within the Borderline range of intellectual ability, which is above the range associated with an intellectual disability."

15You do not have an intellectual disability as defined in the Disabilities Act, but it is clear that you do have significant intellectual impairments that must be taken in to account.

16I turn to the basic purposes of sentencing.  The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

17Here, as set out under s.26 of the Sentencing Act, the interests of community are in addressing your behaviours.  Mr Ball indicates that you do have an anti-social personality disorder.  He also indicates that you will require:

"Intensive and structured cognitive behavioural treatment to address the anti-social aspects within your personality.  You may derive some benefit from adult literacy and numeracy courses, although this appears unlikely."

18He is very troubled about your position:

"Importantly, individuals who suffer anti-social personality disorder in to their 40s [six years away], be it through lack of professional resources or their failure to address their attitudes and behaviour, most often develop severe and debilitating depressive symptoms in later life.  These depressive symptoms arise when individuals look back across their life at time spent in prison, poor health, lost relationships, and squandered life chances."

19What he is saying, and what governs the sentencing disposition here, is that you need to be in a controlled, supervised environment, that can allow you to address your use of cannabis, your use of other drugs and address the need for psychological counselling in order to ensure that you do not lapse further into depression and relapse further as a result of drug offending.

20You have taken some steps on that by the report of Dr Nguyen, dated 22 August (Ex 1A), who indicates that he is about to complete a Mental Health Care Plan for you, and he is sending you to Taskforce. 

21I had you assessed by the Office of Corrections (Ex AAA) as to whether you are suitable for a Community Corrections Order.  They indicate with reservations that you are, and primarily those reservations relate to your motivation.  They indicate that you are not a great risk of re-offending, but you are a risk, and that you do need to have your drug use addressed and you have never really had significant drug treatment in recent times.

22So in sentencing you I have taken in to account those reports and also the references that have been tendered on your behalf by your counsel; from Natasha Moyle, about the problems that Bryanna, your daughter, has.  How she is going to a special school and the two of you are her carers.  I have taken that in to account, but of course it cannot be decisive.  Also your grandmother, Francine Sheehan, has put in a reference saying that at times there is a difficult problem with Bryanna.

23I do see you as at a fork in the road.  You can either address your drug problems and address your anti-social behaviour, or you will go down the route of more serious offending and end up in gaol.  So I am giving this one opportunity.

24In sentencing you I have taken into account your plea of guilty.  You pleaded guilty early, it shows some insight in to your offending but little overt remorse.  It has spared the complainant the need to give evidence in the trial and that is an important factor.  You have been on remand for 40 days and not having served a significant sentence of imprisonment before, that would have been very difficult.  I have taken that into account and I will declare 40 days PSD.

25I am going to accede to your counsel's submission to impose a Community Corrections Order on you that will involve supervision, that will involve 200 hours of community work, that will involve, as directed by the manager, assessment and treatment, including testing for drug use and dependency.  It may also include the requirement to provide samples.  You also must undergo any mental health assessment that is being directed by the regional manager and other courses, including anger management courses, that may be directed by the regional manager.  Of course, for a period of two years you are not to commit a criminal offence.  So that is a good behaviour bond for that two year period as well.  You have got to do the community work that they set up for you.

26In sentencing you I have taken in to account what I see as your prospects of rehabilitation, not re-offending.  You have had some work record, but you have a very low educational attainment, which makes it very hard to keep jobs, but you have been able to get jobs in the past.  Your problem is you need a structured life and hopefully the community work will give you some sort of structure that at least for that period when you are doing the work, you know you have got to get up and go somewhere on a particular day and that will be good training for you.

27I give you credit for the fact that you have gone to see Dr Nguyen and he has referred you for a treatment plan.  I give credit for the fact that in the last ten months since this offending you have not re-offended.   So you are at a fork in the road and I will give you this one opportunity, but I must indicate that had you not pleaded guilty I would have imposed a 12 month gaol sentence on you with a minimum term of six months, as an aggregate sentence for the two charges. 

28So I have got to explain the sentence to you.  You are on a Community-based Order for both offences for a period of two years from today.  So it ends on 21 August 2016.  Your barrister has already explained this, but I have got to do it.  You must attend at the Moorabbin Community Corrections Centre by Tuesday the 26th, at four o'clock, to be inducted in.  You have got to do 200 hours community work, as I have indicated, over the next two year period.  You have got to be under supervision of a Community Corrections officer for two years.  You are not to commit an offence for the next two years.  You have got to undergo the treatment and assessment that they direct for drug use and dependency.  Similarly, if they direct mental health assessment then you have got to undertake that, or any other programs they direct, including anger management.  That is the aggregate sentence on Counts 1 and 2.

29On the third count, of possession of cannabis, I am fining you $250 and I am giving you two months to pay that fine.

30I have taken in to account all the submissions made on your behalf by your counsel, and I thank counsel for those submissions, and I leave them on the file, and I also thank Mr Ballek for his assistance in this plea.  Anything I have not addressed, Mr Ballek?

31MR BALLEK:  There was a compensation order, Your Honour, I am not sure if Your Honour made that.

32HIS HONOUR:  All right, I have made an order.  I have also made an order, Mr Freeth, that you pay $600 to the owner of the car.  That is a civil claim.  That is all, Mr Freeth, but as I said you have now got significant convictions; armed robbery and criminal damage.  So if you breach the Community Corrections Order you may be re-sentenced for that offending and if you commit any further new offending then when you come before a court they will look at your record and see that you have been before a court previously for serious offending.  So you have got to really address this drug problem and you have got to get some structure in your life and hopefully maybe get a bit of work, get off the disability support pension, if you can.  I will sign the Community Corrections Order and I note that you have explained it to him, Ms Woodward.

33MS WOODWARD:  Thank you.

34HIS HONOUR:  Yes, I thank counsel for their assistance on this plea and adjourn sine die.

(See Annexure A attached.)

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