R v Broad
[2013] VSC 454
•17 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No’s. 0022, 0023, 0024 of 2013
| THE QUEEN |
| v |
| MELANIE RAE BROAD PATRICK HENRY READ BENJAMIN RICHARD FREEMAN |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Broad: 22 August 2013, Freeman: 12 September 2013 | |
DATE OF SENTENCE: | 17 October 2013 | |
CASE MAY BE CITED AS: | R v Broad & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 454 | |
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Intentionally cause serious injury - False imprisonment - Armed robbery - Threat to kill. Use of ‘Ice’ - Worst type of offending for offences of this nature.- prolonged abuse, inhuman and degrading.
Broad – Early plea, Assist police, Testify, Remorse – Large discount for assistance
Sentence: 5 years 9 months - minimum of 3 years 6 months.
Freeman – Plea - After statement of Broad
Sentence: 11 years – minimum of 8 years and 6 months.
Read – Plea to lesser charges - Intentionally cause injury - False imprisonment and theft. Sentence: 2 years - minimum of 1 year.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M WilliaMs SC Mr M Rochford for sentence | Office of Public Prosecutions |
| For the Accused Broad For the Accused Read For the Accused Freeman | Mr P Tiwana Mr P D’arcy Mr P Higham | Dribben & Brown Solicitors Pica Criminal lawyers Robert Stary & Associates |
HER HONOUR:
Melanie Rae Broad, Patrick Henry Read and Benjamin Richard Freeman, you have each pleaded guilty on three separate indictments to a number of offences arising out of the same set of circumstances. There are some significant discrepancies between the statements of the victim, Paul Van der Hoek, the sworn statement made by you, Melanie Broad, and the statement made by Kathryn O’Neill to the police shortly after the offending occurred. The consequence of such discrepancies is that to a degree the offences, particularly in respect of Mr Read, do not appear to be consistent with the offending that occurred on the day. The Crown have accepted pleas from the three of you on particular bases and I am bound to act upon those bases that the Crown have put forward.
Melanie Rae Broad, you have pleaded guilty to one count of intentionally causing serious injury, the maximum penalty for which is 20 years' imprisonment, one count of false imprisonment, the maximum penalty is 10 years' imprisonment and one count of armed robbery, the maximum penalty for which is 25 years, with all of the offences occurring on 14 February 2012, and the victim being Paul Van der Hoek. You are 37 years of age, having been born on 16 March 1976. You are the mother of two children who are currently residing with their father.
You, Benjamin Richard Freeman, have pleaded guilty to one count of intentionally causing serious injury to Paul Van der Hoek between the 14th and 15th day of February 2012, one charge of unlawfully imprisoning Paul Van der Hoek on the same date, one count of armed robbery of Paul Van der Hoek on the same date, for which the maximum penalties are the same as those in respect of Ms Broad, and finally a threat to kill Paul Van der Hoek on 15 February 2012. The weapon involved in the armed robbery, relating to both you and Melanie Broad, was your possession of an offensive weapon, namely a box cutter. You are 33 years of age having been born on 15 May 1980.
You, Patrick Henry Read, have pleaded guilty to one count of intentionally causing injury to Paul Van der Hoek on the 14th day of February 2012, one charge of false imprisonment of Paul Van der Hoek between 14th and 15th February 2012 and one charge of theft of the motor vehicle of Paul Van der Hoek between the 14th and 15th day of February. All of those charges carry a maximum penalty of 10 years' imprisonment. You are now aged 50, having been born on the 1 January 1963.
The Crown have in this case accepted different pleas from you, Patrick Read, than they have accepted from Melanie Broad and Benjamin Freeman. Whilst it is to a degree understandable that they have accepted different pleas to different charges, it is at times difficult to reconcile precisely how the matter has been determined. Despite that, I acknowledge that I am bound to act upon the case as put by the Crown in respect of you and to punish you only for the offending which the Crown have accepted you are responsible.
The circumstances of the offending are that you, Ms Broad, knew the victim, Mr Van der Hoek, having met him through your ex-partner sometime previously. You came across him again in December of 2011 or January of 2012 and had discussions on that occasion about the buying or selling of an iPhone, and you swapped telephone numbers. At that time you saw Mr Van der Hoek, you noticed that he was driving a vehicle, which was a 1999 XR6 Falcon, which ultimately is the subject of the armed robbery charge for you, Broad, and for you, Freeman, and the charge of theft for you, Read. On 14 February 2012, Mr Van der Hoek sent a text message to you asking whether you wished to purchase his iPhone. There were messages between the two of you as to price, which ultimately was agreed, and Mr Van der Hoek sent a text message containing his address. There were some references in those texts to his motor vehicle, which you said you wished to see as you had recently bought a similar vehicle, Ms Broad. It was arranged that you would go to his premises that night to purchase the iPhone. He also asked if you could obtain for him some methylamphetamine or Ice as it is commonly known.
You were in the company that day of the witness Kathryn O’Neill, and your two co‑offenders, Benjamin Richard Freeman, who was your then boyfriend, and Patrick Henry Read, who was the then boyfriend of Kathryn O’Neill. You had been at the premises of O’Neill and Read during the day. All of you had consumed Ice. O’Neill was unknown to you, Broad, but known to both you, Read, as she was then your partner and also you, Freeman, as you were a good friend of Read. You three knew each other through Freeman’s friendship with Read. The four of you travelled to Mr Van der Hoek’s premises in Melanie Broad’s mother’s car. Those premises were in Bayswater North where he lived in a unit by himself. There was discussion in the vehicle on the way there and reference was made to Van der Hoek being a paedophile or a sex offender of some kind. This was entirely untrue. There is a dispute as to who made the comment, whether it was Ms Broad or Mr Freeman, and I am not in a position to determine or decide who made the comment. It is not a matter I need to determine as a comment of that nature of a belief that Van der Hoek was a sex offender of any kind does not mitigate the offending. Vigilantism is neither encouraged nor considered a mitigating reason for torturing a person.
Mr Van der Hoek said that there was a knock at the door, he said come in, and that you, Broad, entered followed by you, Freeman, and you, Read, together with O’Neill. He was not expecting anyone but Broad. Ms Broad, you commenced to argue with Mr Van der Hoek and you and he became involved in a physical altercation. It appeared to involve slapping and punching. It moved from there quite quickly with the participation of you, Freeman, who had in your possession a box cutter, and you, Mr Read, who it was said had a machete. It was submitted by the Crown that Mr Read’s possession of the machete at that time was not accepted by the Crown for the purpose of sentencing you, Read, but was accepted for the purpose of sentencing Freeman and Broad. I cannot and will not act upon the basis of accepting that you, Read, had possession of the machete to sentence your two
co-offenders, but not for the purpose of sentencing Read. Accordingly I will discount the use of the machete at that time for the purposes of sentencing any of you for your offending. It does, in my view, make little difference.
According to Mr Van der Hoek in terms of being punched and kicked, it was predominantly Ms Broad and Mr Freeman who were involved in that behaviour. He was told to strip naked and was punched further, as well as being kicked. He was slashed to the face, arms and legs with the box cutter. It was Freeman who was using the box cutter, and allegations and statements were being put to Mr Van der Hoek, at his flat, over a period of some hours. Each time he denied the allegations he was punished again either by kicking, punching or, as he said, slashing. You, Melanie Broad, told Van der Hoek that you wanted his car and demanded that he sign it over to you. He told you that the papers were kept at his parents' place, and again, he was not believed and he was repeatedly punched . Ultimately, both you, Freeman and Broad said you were going to take him to his parents' place to get the papers for the motor vehicle. He was taken out by Freeman and yourself, Ms Broad, and it also was alleged by Mr Read, but I, once again, cannot act upon that in light of the way the Crown put the case later, and he was put into the car that you, Melanie Broad, was driving, that is, your mother's car. You, Freeman and Read, together with O’Neill followed, driving Mr Van der Hoek’s vehicle. Ms Broad pulled over at one time to speak to Freeman and to Read, at which point Mr Van der Hoek tried to run away. He was ultimately put into the back seat of his own vehicle. The slashing occurred at least once in the car. He was then taken out of that car and placed in the back seat of his own car, with Freeman one side and Read the other. The Crown accepts, for the purposes of sentencing all of you, that it is at this point that Read produced his machete, showing it to everyone, and that that was his only involvement in the false imprisonment.
Ms O’Neill left with you, Read, at that point as she was upset. She said she was upset because, she described Mr Van der Hoek as having his throat and face cut and being slashed everywhere at this time. The Crown accept that the slashing occurred after you, Read, had left with Ms O’Neill, which is entirely inconsistent with her statement of what she observed, but as I have indicated, I am bound to act upon what the Crown has put forward as to your individual involvement.
Ms O’Neill was driven home by you, Read, to your unit, but you returned some time later to the unit of Mr Van de Hoek in Bayswater North. The Crown originally submitted that you, Read, upon your return, stole various items by aiding and abetting Broad and Freeman to commit the armed robbery of those items including an iPhone, mobile phone, DVD and computer items. Ultimately the charge was withdrawn, after your plea of guilty, as it was realised this was an unsustainable charge in light of the way the Crown put the charge against you. I will deal with the armed robbery charge relating to those goods shortly.
However, prior to that robbery occurring, Ms Broad and Mr Freeman had at some point stopped. Mr Van der Hoek was placed in the boot of the car, hit on the head with pliers and you, Ms Broad, also used the pliers on his foot, trying, as he described it, to break his toe. He was later again placed naked in the back seat of his Falcon XR6. Ms Broad, you were driving, and together with you, Freeman, you were both still trying to make Van Der Hoek confess to various things, as well as get him to give you his car. You, Freeman, slashed him numerous times with the box cutter whilst he was in the car. You were both involved in various threats to him, including saying that you would cut his dick off and cut his eyes out.
Ultimately he was returned to his unit. He was covered in blood and had many gaping and appalling wounds to his head and body, and you, Freeman, poured a chemical substance over those wounds, undoubtedly causing indescribable agony, and it was after that you told him to have a shower to get rid of the blood. Before his shower he was made to write out a letter transferring ownership of his vehicle to you, Broad. You, Freeman, dictated the contents of that letter.
You then proceeded to destroy the contents of his unit and to take certain items from there, including, as I mentioned, CDs, wallet, suitcases, Nike runners, electronic items, as outlined earlier. You also tore his earrings from his ear and the necklace from around his neck.
When you left the premises, you, Freeman, threatened that if Mr Van der Hoek went to the police or contacted his family or the ambulance, he and his family would be killed. He clearly believed you and begged his family, when he finally contacted them, not to take him to hospital or tell the police, despite the severe nature of his wounds.
The victim in this case, Paul Van der Hoek, has put before the Court a victim impact statement which, in light of the trauma he went through, could best be described as moderate. The Crown have tendered a set of photos of Mr Van der Hoek, which shows the extent of the physical injuries that you inflicted upon him and they could best be described as chilling. There are multiple deep slash wounds to his face, to his legs, his arms, his hand, his chest, many of which required stitching. He had in excess of 120 stitches in relation to those slashing wounds. He had enormous bruising particularly around the face and body area. He had a stab-type wound to the neck that missed his carotid artery by millimetres. That wound required surgery, and he is most fortunate to be alive. His nose was broken and he was traumatised over many, many hours by all of you, but particularly by you, Ms Broad and
Mr Freeman; with you, Mr Read, playing a lesser role according to the Crown submissions.
You took his car, his iPhone, his TV, stereo, CDs, his new sneakers, all of which has caused him what he describes as problems and trouble. He has had to replace all of these items. What he cannot replace is his self-confidence, his ability to sleep at night, his fear. He did not know any of you well. Melanie Broad, you he knew slightly. Read and Freeman, he had never met either of you before. He was punched, kicked, head-butted, slashed, stabbed, you made him strip naked, you made him vulnerable, and you made him believe he was going to die. He was too frightened to call the police, because you had told him, that if he did you would come after him and his family.
There are many consequences you have left Mr Van der Hoek feeling – an inability to live in the unit alone, a fear of going out, a fear of making friends and a terror that when you are released you will come to harm him and his family. Only time can erase that. He was too frightened to come to this court. The sadism involved in your attack upon this man frightens me, as it seems to be a demonstration of what the drug ‘ice’ can do to ordinary people. None of you have a history of any sort of significant violence and yet you became like wild, untamed, uncivilised beasts on this night. With the increasing use of ice in our community, I am truly worried about how society is going to cope with people like you, who consume ice, disregarding the potential danger that you will become to other members of our community. It is clear that over the years, all of you have had some form of substance dependency – be it alcohol, heroin or some other form of legal or illegal substance, but with the use of ice you have moved to another level, as it so obviously takes away your ability to reason and also removes any shreds of humanity that remain.
These offences are appalling and the community expects, and rightly so, that the courts will not sit idly by and allow people to be bashed, tortured and traumatised without there being appropriate or, as it is referred to, condign punishment.
In terms of prior criminal history, dealing firstly with you, Mr Freeman, whilst I accept that a criminal record is set out in a format which makes them significantly longer than they were previously, yours is singularly impressive in that it is 25 pages long. The copy of your criminal history that I have commences at page 3, the earlier pages referring to matters that are not prior convictions, for the purposes of my sentencing, but are matters that your counsel has disclosed. The earliest convictions disclosed by your criminal history report are from May of 1998 and the latest of them, July of 2011. The true description that can be given to your offending over the time is that you are, in all reality, a thief. Your offending has been of a level that has been predominantly dealt with in the Magistrates' Court, although you have had prior appearances in the County Court.
In examining your criminal history, Benjamin Freeman, it appears in relation to prior criminal history that you have been before either the Magistrates' Court or the County Court on 33 separate occasions, relating to in excess of a hundred and eighty separate offences. At the age of 33 that is a breathtaking criminal history. As I have indicated, the majority of the offences appear to relate to dishonesty matters, predominantly theft from motor vehicles, going equipped to steal or cheat, numerous charges of criminal damage with an intent to damage or destroy and many other offences that relate to traffic infringements, some of which are very minor, such as using an unregistered vehicle, fraudulently using registration plates, careless driving, unlicensed driving. Equally you have a consistent pattern of driving whilst disqualified or whilst suspended, in complete defiance of whatever court orders have been made in respect of your licence, demonstrating a contempt for the justice system.
Further, on 27 October 2000, you were sentenced by the County Court at Melbourne, in relation to one count of armed robbery, together with obtaining property by deception and criminal damage and sentenced to a 12 months’ intensive correction order. You breached that order and appeared before the Melbourne County Court on 11 November 2002 and were sentenced to serve an aggregate of 219 days, by way again, of intensive correction order. You again breached that order and were dealt with by the same court on 24 March 2003, for breach of your intensive correction order, it was cancelled and you were ordered to serve the unexpired portion of 150 days in prison. It should be noted that that has been a fairly consistent pattern in relation to your offending. The courts have often released you on non-custodial orders, with various conditions, to seek assistance or treatment. They are almost invariably breached. You have equally appealed numerous sentences, which increases your number of appearances, but not the number of offences for which you have been dealt. It is, as I said, an appalling record to have at your age.
Melanie Broad, your record is far less, but still of real significance, in that it equally portrays your life in the last 13 years as that of a thief, which is entirely consistent with the material that has been put before me. Your history with the courts commences in November 2001 with five different counts of theft, one of burglary, two of obtaining property by deception, failing to answer bail and driving at a speed dangerous. You were placed on a community-based order for 24 months, with particular emphasis placed by the court on rehabilitation. You were directed to attend a number of programs, including the CORE Women’s Program and drug and alcohol psychiatric assessments and treatment. You were breached in respect of that order in April 2002 and the original order was confirmed with the same conditions. From that time until February of 2009, you had a further 10 court appearances, including for breaches relating to 29 different offences. The majority of those were dishonesty offences, such as theft from a shop, handling or receiving stolen goods, obtaining property by deception, with one exception being possession of a controlled weapon without excuse. The courts again extended leniency, as much as was possible, imposing conditions to try and assist you to reduce your chances of reoffending and becoming a more productive member of the community, predominantly by helping you to deal with your addiction problems. You did manage to comply with some of those orders but a large number were breached.
Patrick Henry Read, your prior criminal history as listed before me, commences in 1980 when you would have been approximately 18 years of age, and the initial offence is one of habitual consorting at the Dandenong Magistrates' Court in August of 1980 for which you were first sentenced to youth training, but ultimately placed on probation. You continued throughout 1981 to be dealt with at the Magistrates' Court but with youth training centre dispositions. Your criminal history demonstrates a proclivity for dishonesty, drunkenness and a degree of violence. You have approximately 86 separate charges from 29 court appearances including breaches and appeals. That you have an alcohol problem is apparent from the numerous charges of drunk in a public place and exceeding .05, together with breaching of your alcohol interlock conditions. Included amongst your offending history are a number of traffic offences, thefts, handlings and burglaries. As is the case for all of you, the traffic offences are not relevant, except to show a fairly blatant disregard for the orders of different courts over the years. You have at least two prior convictions for assault police and possessing a regulated weapon. You also, in August of 2011, were convicted of contravening a family violence safety notice, making a threat to kill and unlawful assault, for which you received a sentence of six months aggregate of which three months was suspended for two years, the result of which is, that at the time of the commission of this offence you were on a suspended sentence for offences of violence.
In relation to each of you, your prior criminal history makes this offending seem to a larger or slightly lesser degree out of character, despite each of you being persons who had consistently breached the law in our community, the level of violence in which you participated this time was quite extraordinary.
The law requires that I take into account in respect of each of you, your individual circumstances. So commencing with you Melanie Broad. Your behaviour on this night was appalling. You stated to your co-offenders that Paul Van der Hoek was a paedophile and had assaulted your daughter. None of which was true. There is no reason put before this court as to why you would do or make such a statement. It was you who commenced assaulting him, with punches and kicks, when you were first in his unit. You went with three others, initially it would appear to obtain an iPhone in exchange for some ice and possibly some money, but on the way to the premises, you stated this fabrication about what Mr Van der Hoek had done to you or to your child. You personally inflicted the stab wound to his neck, which almost cost him his life. You encouraged and assisted, in relation to the slashing of Mr Van der Hoek, over that lengthy period of time that you all held him prisoner. Your behaviour was appalling.
That, at least, is something that you have recognised yourself. Prior to this trial commencing, you indicated to the police and the prosecution that you were willing to make a statement about what had occurred. That statement was made and provided to me as well as to your co-offenders. At the conclusion of your statement, you say the following: ‘My actions were disgusting. They were unwarranted and shouldn’t have happened. Paul did not deserve any of this. I have to live with myself for the rest of my life. Ben was trying to be a standover and a bully. It was like he was on a high from doing it. I need to apologise to Paul and his family. There was no reason for it.’ Equally, in your statement you do not resile from having an active role in this dreadful assault upon Mr Van der Hoek. You admitted to using the pliers to, first of all hit him over the head and then to, use them to twist his toe, you helped tie him up, you were present when Mr Freeman tipped a bottle of chemicals over Mr Van der Hoek, such chemicals seeping into the wounds already inflicted upon him, you were involved in getting him to write a note to the effect of him having sold the car to you – all of this you admitted.
You indicated to the police and to the prosecution, that not only would you make a statement to that effect, but you were prepared to give evidence. On your plea before me, you gave evidence in the witness box that you would undertake to give evidence in accord with that statement. As a result you are entitled to, and you will receive, a very significant discount on the sentence that otherwise would have been imposed, due to your willingness to cooperate with the authorities and your preparedness to give evidence against your co-offenders. Both of your co-offenders subsequently indicated, after they had been served with your statement, that they intended to plead guilty, which would appear to be attributable, at least to some degree, to the statement provided by you to the prosecution.
Accordingly, as I stated, you will receive a reduction in the penalty that I would otherwise have imposed; firstly, for your plea of guilty; and, secondly, an even more significant reduction for your co-operation with the prosecuting authorities and your willingness to give evidence in this court.
You are now 37 years old, having been born on 16 March 1976. You are one of two children born to your parents, with your younger sister Kirsty being 18 months younger. Kirsty has Fragile X syndrome and you never became closely bonded with her. You attended Gladesville and Kilsyth Primary Schools, moving on to Pembroke High School. You performed reasonably well at school, an average student without any social or learning problems. You left school half-way through Year 12 and did a six month course at a business college in the city. Your father was a truck driver and your mother was a cleaner. Your father is now aged 67 and your mother 60. Your parents separated when you were 11 years of age. Initially, you lived with your father but maintained a close relationship with your mother, and ultimately went to reside with your mother and stepfather – your mother having re-partnered. Your mother had another child named Asher, a sister, who is now aged 25, and you have a close relationship with her, much closer than with Kirsty. Your mother and stepfather have remained supportive of you through all of your problems. Your father has also re-partnered and you have other half-siblings, being a sister aged 12 and a brother aged 4. You have only a minimal amount of contact with your father but that is not as a result of your drug addiction problems.
After you left business college you went to work at the Australian Diamond Company and worked there for two years. When you commenced work you were doing well. You had bought a car and you had booked your first overseas holiday. Your life was going well, a productive member of the community. You then met your first partner, Mathew Ottison, who was unfortunately a heroin user. You met Mathew through a friend of yours who was dating his brother. Approximately two months after you met Mathew, you were sacked from your employment as a result of your heroin addiction and your inability to be regular in your attendance and timing. That really was the only job you have ever held with any consistency. You went through all of your savings and that relationship continued on from 1995 through to 2006, at which time you finally left Mathew Ottison. At around the time that you met Mathew, your grandparents, who had been the people responsible for your primary care as you were growing up, had determined to retire and move to Port Macquarie, which they did. You had found that unsettling.
Your relationship with Mathew was one that saw you subject to regular abuse. He was described as paranoid and abusive both at a verbal and physical level. He has stabbed you, attempted to drown you, kicked you and prevented you from seeing your family, during the time that you were with him. With Mathew you had a son and then a daughter Sophie. Sophie was born on 4 January 2003, and it was a difficult pregnancy, where you were suffering from depression and panic attacks and at six months into the pregnancy you were prescribed antidepressants, being Aropax, which substance you still use. Sophie was born and suffers from cerebral palsy. She has spasms, tremors in her legs, and her feet are bent. She is also intellectually disabled and attends a special school, Vermont South Special School. She has already had surgery on two occasions relating to the realignment of her feet and there will be further surgery later this year in respect of straightening the bones in her legs. She is now aged 10.
Your eldest child Kayne is aged 16 years and attending High School. You left Mathew Ottison originally in 1999 when Kayne was aged two years of age, but you ended up back with him, and it was not until 2006 when Sophie was three years old and you had received a particularly violent beating, that you ran away to neighbours who contacted the police and you were able to end up in a woman’s refuge. Once there, you were able to re-establish contact with your parents, which until then had been prevented by Mathew during your relationship. You were assessed by CentreLink around that time, and diagnosed with post-traumatic stress disorder and also, it would appear, an acquired brain injury. Your subsequent intelligence testing actually places you in the average range of intellectual ability and it would appear that any acquired brain injury, that you may have is best described as very mild, and it is not relied upon as a factor for me to consider in sentencing. But as a consequence you were placed on a disability pension and have been on it since that time. You have had the care of the children, and have now reached the stage of having a reasonable relationship with your ex-partner, such that prior to your being incarcerated, when you had full custody of the children, they would spend one night a week with him and every second weekend also.
In terms of your drug use, you commenced on heroin when you were 19 and you have at different stages been able to be drug free, but they have been periods that have not been of long duration. About five years ago, you became involved in the use of ice. You have apparently not exposed your children to your drug addiction, although I struggle to understand how you have been able to care for them without that becoming apparent, but you are considered a good mother and particularly responsible in terms of taking your daughter to all appointments and agitating and ensuring she receives all the care she needs. Your children are currently being cared for by your ex-partner, Mather Ottison, with assistance from your mother and stepfather who have continued to support you.
Mathew Ottison had been your only long term partner previously and it was not until the end of January 2012 that you met your co-offender Mr Freeman, and you both became quickly involved in a relationship. Both of you were ice users. You met Ms O’Neill and your other co-offender Patrick Read through Freeman, as Patrick Read and he had been friends for some time. Whilst you do not accept that it was you who talked about Mr Van der Hoek being a paedophile in the motor vehicle, you do accept that the discussion took place, just that you say it was Mr Freeman who instigated it. But what you have accepted is, that you were involved with a number of very positive acts which involved great trauma and stress to Mr Van Der Hoek.
I have received a report from a Victorian Forensic and Clinical Consultant prepared by Pamela Matthews, Forensic Psychologist, which is dated 18 August 2013. In that you reported to Ms Matthews at page 4 of the report in terms of your drug addiction,
She was introduced to ice in 2007 and typically has used for three/four days in a row when she has not had the care of her children. She also began to binge drink alcohol around this time, at its worst a litre-and-a-half of spirits a day. ‘I’ve not done this for a number of years’. She was however able to control her heroin use for months on end, not using but would then lapse and use for weeks in a row, leading to further offending after which she would cease substance use. ‘When I fuck up I fuck up bad. It’s silly I won’t ask for help, everything has to be perfect, too perfect, I had to keep up. Drugs are something I get relief from.’ She’s been on an 8 milligram doze of Suboxone for a long time but her general practitioner left the country last June and she had to go back on heroin and ICE. She maintained that it helped when she came into custody last September.
Ms Mathews opined that there was a significant contributory factor to your offending, in that you have a learned response to violent behaviour which involves features of appeasement, submission and engagement, which in her view resulted in your offending in a manner which is not typical of your past offence history, but as a result of the fear you had and thus aligning yourself with Freeman. The dynamic behind that response, she says, being past victimisation, with components of compulsion to repeat past trauma and attachment in the face of danger. I accept that may have some part to play in your offending, however, it does not substantially ameliorate your offending or the consequences that flow from it. Ms Mathews indicates that you require engagement in therapeutic intervention for your drug use, your post traumatic stress disorder, your violent relationships and management of your anxiety.
I also received a letter from your mother and stepfather indicating that despite the problems you have had over the years, you have been a loving and devoted parent to your children, dealing with their considerable problems as they arise. They say that, in fact, you have been proactive in seeking all available help, particularly for Sophie, and I accept that to be true.
Benjamin Freeman, in relation to your personal circumstances, you are aged 33. There is a report from Dr Anthony Cidoni which indicates that you were born in April of 1977. That is in fact incorrect. You were born on 15 May 1980, which, as I said, currently makes you 33. As well as the report from Dr Cidoni, a consultant psychiatrist, dated 6 September 2013, I have also received two reports to which Dr Cidoni has referred in his report. The first being from Jeffrey Cummins, a forensic psychologist dated 7 December 2009, and a report from Dr Alan Jaeger dated 23 March 2011.
You are the youngest of three children, your father is 63 and a project engineer, your mother is 62 and a full-time homemaker. You have an older brother Tait and an older sister Tammy. Your sister Tammy is married, lives locally and has never been in any trouble with the law. Your parents are together and have never separated. You have what is described as a difficult relationship with your father in that he is disapproving of your drug usage and your criminal behaviour, which to a large degree is unsurprising. Your older brother is a factory hand, or was prior to his incarceration for a drugs offence in 2008. You are still in contact with your mother and there has, of recent times, been the start of a reconciliation between yourself and your father. Your home life was described by your counsel as being safe, nurturing and loving. You grew up in Wantirna, attending Marlborough Primary School, followed by Heathmont Secondary College; leaving midway through Year 11 in 1997. Your behaviour at school was not considered problematic, you had some fighting in your early primary years but that did not continue. Your first full-time job was working at the local Kentucky Fried Chicken when your sister was the manager of that store. She lost her job there and you followed shortly thereafter. You continued working in different factory jobs on and off until your arrest in relation to the armed robbery matter in 2000. Since that time you have been predominantly unemployed, apart from a four month period in 2009 where you worked at the Autobarn in Ferntree Gully after you had completed a TAFE course in audio installation. Undoubtedly your drug usage was a problem for those would be employers.
In terms of your relationships, you were in a relationship with a woman named Kylie from approximately 1998 until you were incarcerated in 2003. During your three month term of imprisonment, your brother formed a relationship with Kylie and you have been unable to have an ongoing relationship with your brother as a result. There is a child from your relationship who is named Chloe. She is now aged 10 approximately and lives with her mother in Boronia. Until you were incarcerated you had access to Chloe every second weekend and for half of the school holidays.
Your next relationship was of some six months duration when you dated an older woman. That relationship ended when you were incarcerated in 2005. Subsequent to that, you had a short-term relationship of some three months and then finally a relationship with a woman by the name of Rebecca. She had never been in trouble and was helpful to you to stay off using different types of drugs.
Your drug history is very extensive. You say you started using cannabis at 13, was a daily smoker by the time of 15, through until you were 17, but you ceased use as you were becoming paranoid. You started using both amphetamines and heroin intravenously when you were aged 16, which continued on and off over the years. When you were in custody in 2007, you started on Buprenorphine and then swapped to methadone, but once again that did not last. You have fairly heavy usage of Xanax as well as illegal drugs, and in 2011, Dr Jaeger diagnosed you as having an antisocial personality disorder as well as a polysubstance abuse, including a significant involvement with Alprazolam. Your use of methylamphetamine or ice has varied over the years, but it appears to be an ongoing addiction with which you have had significant problems.
You had been out of custody only three months when this offending occurred. You had met Ms Broad a matter of some five or six weeks prior to the commission of the offence and commenced to have a relationship. In terms of your health, you suffered an overdose of methadone, as a result of a misprescription by the chemist, and that caused a significant injury to you, in terms that you needed to spend some five weeks in hospital. At the time of this offending you were still on methadone. You are also hepatitis C positive.
Dr Cidoni, for some reason, found that you had antisocial personality traits in terms of impulsivity and mood instability, but did not find clear evidence of conduct disorder, and said he could not diagnose a personality disorder as such. That diagnosis means he is in disagreement with Dr Jaeger who found that you did fulfil the diagnostic criteria for antisocial personality disorder, which is of course not amenable to treatment, and refers to the disturbed conduct since childhood; breaching of societal norms and criminal offending from the age of 16.
In relation to the offending before this court, you have admitted the charges. It was you who used the box cutter to inflict the majority of the wounds – that is, all of them with the exception of the stab-type wound to the neck – all of which occurred over a matter of several hours. You have said, that this was as a result initially of
Ms Broad telling you, that the victim had been involved in an incident where she had been raped and stabbed, and then an altercation had then ensued between Ms Broad and the victim. When you arrived at the premises, Ms Broad and the victim became involved in an altercation, as I indicated, and you said the victim had in fact assaulted Ms Broad and you came to her aid. That is not consistent with any of the versions that have been put before this court, but really it is irrelevant as to who made the statements about the victim being a paedophile or the victim being involved in sexual offending. It is equally irrelevant if he responded to Ms Broad after she had assaulted him. None of it justifies any of the actions that you took in respect of significantly harming Mr Van der Hoek.
I note that you were on parole at the time of this offending and, as I said, had been out of prison only a short time. Equally, it should be acknowledged that you had spoken to your parole officer and tried to explain that you were not coping out of custody, and unfortunately the response you received was that you were given a list of phone numbers to call for support which, in all of the circumstances, was not helpful.
There is no doubt your intoxication in relation to the use of methamphetamine or ice, together with Alprazolam have significantly contributed to this offending. Ice appears to be a drug that causes people to become irrational, violent, aggressive and have totally impaired judgment. But your behaviour was intolerable and the community, as I have said, will not allow that type of behaviour to go unpunished.
In relation to your circumstances, Patrick Read, you were charged in relation to these offences and remanded in custody on 30 July 2012. You then served a sentence from 18 September 2012 until 19 December 2012. You served a further 43 days on remand in relation to this matter. You then served another sentence, but from 31 March you have been in custody for this offending. One of the sentences that you served related to the suspended sentence you were on at the time that you committed this offending, being an offence of contravening a family violence order, making a threat to kill and unlawful assault, for which you received six months’ imprisonment, of which three months had been suspended. The other matter you served a sentence for was for driving whilst your licence had been suspended for which you received two months’ imprisonment.
Your plea of guilty was at the latest possible stage prior to trial, and after successful negotiations that have resulted in, what I can describe as, a significant reduction in the severity of the charges that you were facing. Despite that, you are entitled to and will receive a reduction in your penalty for your plea of guilty. The Crown have accepted that you had a much more limited role than the others, in terms that you were present, and aiding and abetting by encouragement the kicking and punching of Mr Van der Hoek and that, that was your only involvement in respect of injury to Mr Van der Hoek, the results of which were bruising and pain. Your involvement in the theft of the car, the Crown accept, was that the vehicle of Mr Van der Hoek was in fact dropped outside your unit and you undertook actions consistent with the actions of an owner.
I find it exceedingly difficult to reconcile the charges to which you have pleaded guilty with the actual offence, including the statements of the victim, Mr Van de Hoek, the statement of Ms Kathryn O’Neill and the co offender, Melanie Broad, what the Crown have put forward, as the basis for accepting the plea, and the offending that actually occurred on that night. None of it gels. I am, however, constrained to accept what has been put forward by the Crown as the facts that constitute your offending, and must act upon that irrespective of my own view of the facts. And I shall do so.
On the material submitted to me by the Crown your involvement is entirely minimal, you have not inflicted any injury at all yourself, you have not been present and had no involvement, whatsoever, in the infliction of any of the cutting injuries be they at the flat or in the motor vehicle when you were sitting beside the victim, the blow to the head with the pliers, attempts to break the toe with the pliers or the stabbing wound to the carotid artery. Equally, in relation to the false imprisonment, your role was so minimal on the Crown version as to barely constitute the offence. They have accepted your plea of guilty to that offence as being constituted by your producing the machete after the victim has already been falsely imprisoned, driven around and tried to escape from the car in which he had been driven around. It is put that your production of the machete, assisted the others to maintain the false imprisonment of Mr Van der Hoek. You are accordingly in an entirely different category to that of the co-offenders and whilst parity must be considered, simply because the offending occurred jointly, there can be no sense of injustice if your sentence is significantly lower than your co-offenders.
You are now aged 50. You and your family migrated to Australia when you were aged about 9 and you commenced living in Australia on a farm at Heathcote. You had three elder brothers and a younger brother. Your parents separated shortly after you arrived in Australia and it would appear that you stayed with your mother after the separation. She initially lived in a number of half-way houses and you and your siblings moved with her. You attended nine different schools before you left school in Year 9. You were aged approximately 15. You had been in and out of trouble in your youth, which involved you spending time in youth training centres at Turana and other youth training places. When you left school at 15, you went to work in a factory, then later a bottle shop, as well as being in and out of the different youth training centres. Your mother did re-partner and went on to have two other children. Your father also formed another relationship and had a family of an additional four children; three boys and one girl. Your mother died approximately 17 years ago and your father is now aged approximately 80, lives in West Australia and is not a person with whom you have anything other than occasional contact.
In about 1987, you formed a relationship with a woman by the name of Linda and you married - together, you had four children: Melissa aged 30, a housewife, who has four children; Kelly aged 27, who has two children and she works in a supermarket; Danielle, who is single, 23, and has a rare eye condition, no children; and your youngest, Adam, who is 22 and works as a plasterer. The two younger children are particularly close to their mother, who has a serious long-term issue with heroin abuse. She has overdosed on a number of occasions, which has resulted in serious acquired brain injury, such that she simply does not function as she used to. She does not recognise you as her previous husband at all, although you were only divorced in 2011. Your ex-wife is living at your youngest daughter’s home.
Apart from your occasional periods of incarceration, you worked predominantly in the construction industry as a plasterer for almost 30 years, until an accident that occurred in 2006, which resulted in you cutting the tendons and artery on four fingers of your right hand. You had five different operations in a three year period between 2006 and 2009, which has resulted in restricted movement in your right hand. It is predominantly repaired but your fingers cannot move in the normal way from the top joint in respect of two fingers on that hand. You stated that you had involvement with drugs over a very lengthy period of time, starting with marijuana use when you were young, but in a limited way. You had been a user of heroin, and very obviously also a significant consumer of alcohol. You turned to the use of amphetamines after the injury to your hand, and ultimately moved onto the consumption of ice. You are in Port Phillip prison and have spent some time on remand but also have been serving some sentences. You have been working in the kitchen whilst you have been there. You have found the time slow to pass, and you try to keep yourself occupied with exercise and work. You have finally managed to quit smoking and currently you are on an anti anxiety medication Seroquel. You had been in a relationship with Kathryn O’Neill for approximately three years at the time of this offending and she was placed into witness protection as a result of her making a statement and being prepared to give evidence against you and your
co-offenders. Despite that she has been your most regular visitor at prison and it would appear that your relationship is still on foot. It has been a problematic relationship, as you have both been significant users of illicit drugs and partly for that reason she has been the victim of domestic abuse at your hands. You breached the orders placed upon you for the assaults of her and you wisely sought to have the matters brought on and dealt with whilst you were in prison and have accordingly served your time for that offending, as I outlined earlier. Your counsel put to me that you are really now too old to keep going to prison and you have realised that.
When I examine the totality of the offending in this case it literally takes my breath away. In respect of you, Broad and Freeman, it is offending of the worst type for offences of this nature. Whilst there is a partial explanation in that you, Melanie Broad, have been the victim of prolonged abuse yourself and are used to responding to male domination by doing what is required of you, it is hard to reconcile that totally with your participation in the events of this night.
The behaviour demonstrated by you both in your intentional causing of serious injury to Mr Van Der Hoek was despicable, inhuman, degrading and sadistic. How you could both descend to such low levels of humanity and decency is only explicable by your consumption of the drug ice. It is truly a scourge on our society, it has caused people like yourselves, who, whilst you may not ordinarily be described as entirely honest, upstanding members of our society, you would not normally behave like sub human predatory animals. I am unable to comprehend what pleasure a drug such as this can provide, but I can certainly see its addictive qualities.
It is the recent experience of this court that methylamphetamine or ‘ice’ has played, and is playing, an increasingly significant role in the commission of offences of this nature, involving the use of gratuitous violence, in which it appears the perpetrators have been robbed of their ordinary humanity, decency and moral compass. The offences of homicide and infliction of serious injuries now often involve frenzied attacks of 30 to 40 stab wounds or multiple punches and countless kicks to vulnerable parts of people's bodies over prolonged periods of time, most of these usually occurring as a result of explosive rage and often after the consumption of ice together with other substances and usually without any provocation, real or imagined, and unbelievably, not even a clear memory or any memory the next day of what the person has done.
Our community needs to be very concerned about the ease of manufacture of this drug, which results in the relatively easy availability of it within the community. The prevalence of its use and the horrific consequences that sometimes flow from its consumption is something that needs to be addressed by our community in an holistic approach, to deal with it as the significant problem that it has become, rather than just leaving the courts to deal with the end consequences of its use.
I have taken into account all of the matters to which I have referred in relation to the individual cases of each of you. I have also in respect of each of you considered the issues of totality, general and specific deterrence, just punishment and denunciation, and your prospects of rehabilitation.
Dealing firstly with you, Benjamin Freeman, I find that your behaviour in respect of this offending was at the highest level in relation to all of the offences. I find that your prospects of rehabilitation are slim but not without total hope, and you have a very limited amount of remorse. I take into account that you were on parole at the time of the offending and you have been diagnosed with an antisocial personality disorder, and also that the doctor opined that your drug taking and intoxication may have contributed to your disinhibition, aggression and impaired judgment. There is no issue of Verdins raised in your case, and your counsel expressly disavowed any reliance upon that case in mitigation. I will take your plea of guilty into account together with your limited remorse.
Melanie Broad, I find that your behaviour was also at the highest level in relation to your participation in the offence of intentionally causing serious injury. Whilst I accept that you may have learned responses as a result of the violence inflicted upon you by your former partner, it cannot in any substantial way reduce your offending. You were an instigator with Freeman in the original offending and at no stage did you come to your senses and desist. Although it was Freeman who inflicted the series of slashes and wounds upon Mr Van der Hoek, you inflicted a very grave wound right towards the end of the attack. I do accept, however, that you are truly remorseful and that your statement is a clear indication of that remorse and that you were willing to plead guilty and give evidence against your co offenders, which gives me some hope for your future prospects. In this case your plea and statement was a very significant factor and was, in my opinion, largely the cause of the plea of guilty being entered by your two co-offenders. I will give you a very significant reduction in the sentence that would otherwise have been imposed for that
co-operation, in addition to the reduction for your plea of guilty, remorse and other factors to which I have referred.
Patrick Read, you are at the lower end of the range of offending for the same incident and that is reflected in the charges to which you have pleaded guilty. I will take into account your plea of guilty, albeit a late plea, and your prospects of rehabilitation, which I find slim, although slightly improved on those of Mr Freeman.
Accordingly, the sentences of this Court are:
Benjamin Freeman, you are sentenced to be imprisoned in respect of Charge 1, intentionally causing serious injury, to 9 years' imprisonment; Charge 2, false imprisonment, 4 years' imprisonment; Charge 3, armed robbery, 4 years' imprisonment, threat to kill, 2 years' imprisonment. Bearing in mind the principles of totality and parsimony, I direct that Charge 1 will be the base sentence and that one year of the false imprisonment charge, six months of the armed robbery charge and six months of the threat to kill charge will be served cumulatively upon each other and upon the sentence imposed upon Charge 1, making a total of 11 years' imprisonment. I direct that you are to serve a minimum period of 8 years and six months before becoming eligible for parole.
Melanie Broad, you are sentenced to be imprisoned in respect of Charge 1, intentionally causing serious injury, to 5 years' imprisonment; Charge 2, false imprisonment, 2 years' imprisonment; Charge 3, armed robbery, 2 years' imprisonment. Bearing again in mind the principles of totality and parsimony, I direct that Charge 1 will be the base sentence and that six months of the false imprisonment charge, three months of the armed robbery charge be served cumulatively upon each other and upon the sentence imposed upon Charge 1, making a total of 5 years and 9 months' imprisonment. I direct that you are to serve a minimum period of 3 years and six months before becoming eligible for parole.
Patrick Henry Read, you are sentenced to be imprisoned in respect of Charge 1, intentionally causing injury, to 18 months' imprisonment; Charge 2, false imprisonment, six months' imprisonment; Charge 3, theft of a motor vehicle, 18 months' imprisonment. Bearing in mind the principles of totality and parsimony, I direct that Charge 1 will be the base sentence, that 2 months of the false imprisonment charge and 4 months of the theft charge will be served cumulatively upon each other and upon the sentence imposed upon Charge 1, making a total of 24 months' imprisonment. I direct that you are to serve a minimum period of 12 months' imprisonment before becoming eligible for parole.
Pursuant to Section 6AAA of the Sentencing Act I declare that but for your plea of guilty the sentences I would have passed would have been in respect of you, Mr Freeman, 12 years and six months with a minimum of nine years.
For you, Ms Broad, 7 years and six months with a minimum of five years. That does not take into account the very significant reduction in sentence given for your co-operation with the prosecution.
For you, Mr Read, the penalty would have been a total of 2 years 9 months with a minimum of 2 years.
I make the disposal order as sought in relation to Mr Freeman, and a retention order pursuant to s 464ZFB(1) for Ms Broad.
I declare pre-sentence detention in relation to this matter is as follows: Ms Broad, 404 days; Mr Read, 294 days; And Mr Freeman, 238 days; and that such declaration should be noted in the records of the court.
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