R v Freeman
[2010] VSC 346
•22 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT GEELONG
CRIMINAL DIVISION
No. 1449 of 2009
| THE QUEEN |
| V |
| ANDREW JOHN FREEMAN |
---
JUDGE: | KING J | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25 February; | |
DATE OF SENTENCE: | 22 December 2010 | |
CASE MAY BE CITED AS: | R v Freeman | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 346 | |
---
“ One Punch” Manslaughter – Trial - No Remorse – Psychiatric History.
Sentence: 8 years 6 months Imprisonment, Minimum term 6 years.
---
APPEARANCES: | Counsel | Solicitors | ||
| For the Crown |
| Office of Public Prosecution Geelong | ||
| For the Accused | Mr Anthony Lewis | Ann Valos Criminal Law | ||
HER HONOUR:
Andrew John Freeman you were originally presented on one count of murder. The count of murder was removed from the jury’s considerations at the end of the Crown case, and the trial proceeded on the basis of the alternative count of manslaughter. On 25 February of this year the jury returned a verdict of guilty to the charge of manslaughter, however your counsel was not in a position to place the plea materials before the court until 7 April 2010, at which stage the plea was able to proceed. As a result of information that was produced during that plea, I sought a pre sentence psychiatric report, which, I add, should have been obtained together with your medical files by those appearing for you prior to the undertaking of the plea. That had not been done. I received a forensicare report after returning from leave and that material was passed to your solicitors on 1 July 2010 to enable further submissions to be made if required.
The day this matter was listed for the passing of sentence, being the 6th of September, counsel for the defence sought an adjournment to enable Mr Cummins to comment on the report, that was reluctantly granted and the matter adjourned for further plea till the 1st of October 2010. The day prior to the further hearing of the plea, application was made by the defence for a subpoena, with short service and returnable on the 6th of October, they were not what was required and advice was received on that date of the need to contact Corrections Victoria to obtain other information. That was finally done, but it was not until the 15th of October this year that counsel was in a position to resume the plea. I find the delay and the circumstances under which this plea was made to be reprehensible for all the parties including the family of Lorenzo Marchetta, you and your family. Everyone is entitled to finality and closure, and this matter has, as a result of the behaviour of those instructed by you, been much delayed.
You are 30 years of age. You were 28 years of age at the time of this offending, which occurred on 17 September 2008.
The deceased man Lorenzo Antonio Marchetta was 33 years of age and a person who had a slight intellectual disability. He resided at Unit 1, No 19 Toyne Avenue, Hamlyn Heights in the Geelong area, as a boarder with a man by the name of David Meredith and David Meredith’s stepson, Jason Lowe. He had moved to that address approximately three weeks prior to his death. The disability that Mr Marchetta suffered was an intellectual disability which first manifested itself when he was about 11 years of age. As indicated, the disability was not an obvious disability but related to his ability to read, write or complete particular tasks which required him to analyse and use analytical types of skills. He was a client of the Disability Services of the Department of Human Services and he had been found guilty of minor offences including some traffic offences over a period of time, and was a regular, consistent user of cannabis. Mr Marchetta had, at a previous stage, been involved in a relationship with a woman by the name of Tammy Kenyon.
In relation to the circumstances surrounding the offending, it would appear that you and Tammy Kenyon had commenced a relationship in about August of 2007 and it was through her that you met Mr Marchetta as she had known him for some eight years or so at that time and continued, even after their brief relationship, to maintain her friendship.
The deceased man was a large man but was considered to be friendly, gentle and non-violent by all who knew him. There was some history of antagonism shown by you towards Mr Marchetta, in that you appeared to be hostile if he looked at Tammy Kenyon in a particular way. There was some evidence about the purchasing of cannabis by the deceased man and you then using that cannabis, in a manner that indicated a degree of bullying in the relationship. On the basis of the background material that was given during the trial, I accept that there appeared to be feelings of animosity on your part towards the deceased man prior to this incident.
On the day that this offending occurred, being Wednesday 17 December, the deceased rang Tammy Kenyon and asked her to obtain a gram of cannabis for him. Kenyon said that she would ask you to obtain the cannabis. That first call was around 3.25pm. There were a further four telephone calls made to Kenyon – at 4.02pm, 4.22pm, 4.34 and 5.04pm. It would appear that the deceased, not being satisfied as to the production of cannabis, had gone elsewhere and obtained cannabis for his own use.
There is some dispute as to whether or not cannabis was used at the premises upon his return. The evidence appears to go both ways and it is not necessary for me to make a determination. There was a great deal of evidence about what occurred, who was where upon your arrival, who was outside the premises, who was inside the premises, a lot of it was varying in nature, but none of it makes any significant difference for the purposes of my sentencing.
What is clear is that you and Tammy Kenyon arrived at the premises at some time after the last telephone call. You had with you in the car a friend, Jason Auger, and your brother, Daniel Freeman. Lorenzo Marchetta was at home, with, at the very least, Justin Lowe. Justin’s stepfather, David Meredith, was present in the house, as was Samantha Hunter and her three year old daughter Madison, at some point. Jason Dehon had also arrived at the premises at some stage, either shortly before, or during these events.
A discussion ensued in which you were informed about the purchase of cannabis by Mr Marchetta from another source. That, together with a combination of Mr Marchetta, you believed, looking at Tammy Kenyon, caused you to become angry and abusive towards him. You struck him at least once at that time in the house causing him to stumble backwards. At no point did Lorenzo Marchetta attempt to retaliate or threaten to harm you in any way.
Lorenzo Marchetta left the unit through the front door and it would appear was talking to Jason Auger. Further periods of harassment by you towards the deceased occurred. Clearly they occurred over a much longer time than was originally assessed by the witnesses to the various incident and I accept that there must have been periods in which you were not physically or verbally being abusive towards Lorenzo Marchetta. There was a time when the electric mobility scooter which belonged to Jason Lowe’s mother was used and ridden around the streets nearby.
At one point the incident between you and the deceased man moved down outside the residence at Unit 3 with you pushing at the deceased man and calling him various names. He was heard to say that he “didn’t want to fight Andrew”, being you.
There were different witnesses to all of this taking place and each observed quite different things in terms of the space of time over which this elapsed, what they saw in terms of the number of pushes, the punches, the comments, but there was a consistent theme in the evidence, sufficient for me to be satisfied that you had in fact pursued Andrew Marchetta down the driveway to just outside Unit 3. Further, there was sufficient evidence, on which I am prepared to act, that you were the aggressor and that you pursued and chased the deceased man prior to his death.
It would appear after the incident in the driveway near Unit 3, that you both went back to the front yard area of Unit 1, and you continued at different stages to verbally abuse Lorenzo Marchetta and at some point began to chase him yet again. Lorenzo Marchetta ran across the road, and you ultimately chased him into the driveway of 22 Toyne Avenue in Hamlyn Heights.
No one, apart from you, was in a position to see exactly what happened in the driveway at 22 Toyne Avenue. What is known is that Lorenzo Marchetta ended in a position where the back of his head hit the concrete driveway with a degree of force. That force resulted in a subdural haemorrhage which ultimately, despite the best efforts of doctors, led to his subsequent death.
You were the other person in the driveway. The Crown initially put the case on the basis that you punched Lorenzo Marchetta with such a degree of force that you ‘poleaxed’ him and he was rendered unconscious prior to even hitting the ground, thus, preventing him from putting his arms or hands out to break his fall. It is apparent that he did nothing to break his fall to the ground. The evidence of the pathologist did not support what the Crown had initially put forward and they were not in a position, I ruled, to establish that you had an intent to kill or an intent to cause really serious injury.
In your record of interview with the police, you told a substantial number of lies, including the fact that this was just skylarking, that you were basically playing chasey with the deceased man and that it was all in good fun and it was just “two mates mucking around”. One of the ways that it is possible to try and clarify what went on, and give you the benefit of the doubt is to extract what it was you told the police, as you were the only one present when Lorenzo fell in the driveway.
Continuing with your record of interview you also stated[1] that as he went down the driveway:
[1]Q 203.
Q.Ok, so you don't know how it is that you became on the ground with him across the road?
A.No we were just wrestling and that and we tripped over and that, like, you know, against the fence that that, both fell on the ground and then after that when we both stopped arguing I said “Look I’ve had enough of this bullshit” I said I’m going home” and we all left.
Question 207:
Q. Was he trying to get away from you?
A.No he didn’t try no we were both just like walking and like wrestling at the same time and that and we ended up talkin and that. We ended up getting across the road. We were on the, like, footpath and that and we ended up, you know still wrestling along the fence line and that.
In your subsequent record of interview on 24 September 2008, at question 394 you answered:
A.I must admit, like, I got a little bit pissed off and I might have, you know, gave him a little jab to the mouth and that, but I haven’t intentionally hurt him or threatened him or anything like that. Yeah, I might have been pissed off and that and had a bit of an argument with him, but nothing intentional to hurt him, like that’s really bad. Like I might have you know gave him a quick jab or whatever and a slap and that. I’ll admit that, but there was no other intentional thing that I went to hurt him or, you know, this and that.
When pressed on this issue at question 424:
Q.Well, I put it to you that you were angry about being messed about over the dope.
A.I probably was. Like, yeah I probably was pissed off, but I mean none – none of it was intentionally to actually serious cause injury. Do you know what I mean.
And then question 426:
Q.I understand that, but I further put it to you that as a result of being angry in the circumstances that you have struck him a number of times and that you have chased him across the street where he was further struck, causing him to fall down and strike his head.
A.Well, yes, I must admit I might have, you know, but I actually didn’t hit him a full contact or nothing like in the head or nothing. The only time he actually hit himself properly or on the ground was when I was straight behind him more or less nearly grabbed him and he lost his balance and hit the ground and that’s when he was actually knocked down. Before that he was talking and he was fine.
And at question 680 this question was asked:
Q.That tells us that the time that he or just prior to him falling he was facing you. Do you have any comment to make about that?
A.Well… like, no, I don't actually… It could have been the way it happened. I just can't remember. Like I remember chasing him and that he turned to me and I could have swung at him, hit him and he’s fell. I just wish I could remember properly like exactly what happened and I do recall hitting him now but just not intentionally to hurt him in that way or to make him fall.
And at question 684:
Q.Ok well just can you tell me – now that you can recall it, just tell me what actually happened. So you’ve chased him.
A.Chased him and I’ve swung a punch and hit him and he’s fell to the ground and hit his head as well on the ground or whatever. He was knocked out and I can't remember from – I just got up and helped him. Tried to anyway. He was knocked out already and I tried helping him there and rolled him over and the lady called the ambulance and after that I – I was – I took off. Like I was gone.
Then at question 707:
Q.So what happened had it slowed down?
A.I don't know if I’ve grabbed him or, like … run or, like I’ve stepped on the back of his heel and he’s come up, you know, but just before that I do remember now, like, you know, just hitting him just before, but that’s when he, you know, hit the ground after that and that’s what did mainly the damage. Like I know it was like it was stupidity like me hitting him.
Q.How did you come to fall over then?
A.I fell over him. That’s what I mean I’ve tripped on the back of his heel or something and that’s when I’ve come straight up because he’s fell down and I’ve fell more or less on top of him like on towards the side.
Then at question 718:
Q.And had he turned to face you?
A.Yeah. That’s more or less what he was doing at the time that I just gave him that little jab and he was probably, you know, turning around to say, you know, stop or whatever and ---
Then at question 719:
Q.And were you still running at him when he stopped?
A.Yeah, I was at a – more of a pace than what he was. When he went to slow down, that’s probably where I’ve, you know, stepped on his foot, tripped up and, like, not intentionally to boot his foot underneath him or anything, but I’ve hit him and he’s fell and its gone from there.
As I indicated there were many lies told in your record of interview but it was not possible for the Crown to establish that the final version you gave of crashing into Lorenzo Marchetta, after you had punched him and that contact causing you both to go to the ground, was a lie or not. The evidence of the pathologist did not support that you had hit Mr Marchetta very hard to the face, thus not supporting the Crown theory of this being a blow of such severity that he was ‘poleaxed’. Those two factors, in combination, are briefly the basis of the matter not being left to the jury.
Those in the house at 22 Toyne Avenue heard a loud thud and came out. They went to the assistance of Mr Marchetta and arranged for an ambulance. That call was made at 6.47pm and at 6.56pm the ambulance service requested police to attend also. You have at one point attended over at the Unit, No 1, 19 Toyne Avenue, and have made statements that could be construed as threatening to the occupants of the unit in relation to not discussing or telling the police about this. You, together with your other friends and Tammy Kenyon returned to the vehicle in which you had arrived, and as you were about to depart from the scene one of the female neighbours attempted to take down your registration details. You asked why she was doing that in rude and aggressive terms and then threatened her that you would be back if she reported you. As you left the scene, you informed persons in the vehicle that you had hit Lorenzo Marchetta when you were in the driveway. You did not admit that to the police until a much later stage and maintained a denial for quite some time.
In your second interview, you blamed the consumption of alcohol and cannabis for your behaviour and equally for the behaviour of Mr Marchetta on that day, although I am satisfied that Mr Marchetta did nothing that could be considered in any way aggressive or threatening to you, and I find that what you told the police in respect of that was untrue.
They are briefly the circumstances relating to this offence. I received in this case three victim impact statements. A great deal of material was sought to be tendered in addition, which material I accepted. The additional material related to funeral notices, death notices, eulogies at the funeral and material of a similar nature. I have received this material but I will not be acting upon what is contained in there. I will act upon the three victim impact statements that I have received, being a statement from his mother, his father and his sister. Grazia Marchetta, Lorenzo Marchetta and Rosa Rosaristuccia. Rosa talks equally on behalf of her two children, the niece and nephew of Lorenzo.
Each of those persons has lost someone they loved very much. They were present in court each day of the trial. Their love and affection for their son and their brother was obvious to anyone who looked. Lorenzo Marchetta is not going to be returning to his loved ones and that is a pain that will never be erased. The horrible circumstances under which he lost his life, equally is something that will remain with them. That is understood. What can be said is that Lorenzo Marchetta was a lucky young man to be as loved and cared about as he was by this family of his. Nothing this court does will ever relieve the pain that they endure at his loss. The sentence of the court in no way reflects their love for Lorenzo or the loss they have suffered. Most importantly, and I want this to be very clear as this appears to be a much misunderstood matter, it does not reflect Lorenzo’s worth as a person, it reflects only the punishment that the court says is appropriate for the circumstances of his death.
I equally have to take into account as a matter of law your personal circumstances and your history. One of the matters relating to your history are your prior convictions which, while not numerous, have at least one or two matters of some relevance.
Your first appearance was at the Geelong Magistrates’ Court in March of 2002. You were charged with one count of burglary, six counts of theft, five counts of criminal damage, three counts of attempting to commit an indictable offence, going equipped to steal and using a drug of dependence. You were given six months’ imprisonment, four months of that six months being suspended for 12 months. You appealed the sentence and were placed on an intensive correction order on appeal in respect of a period of six months’ imprisonment. You breached that in September of 2002 and you were sentenced to serve 171 days remaining. You were convicted previously at the Magistrates’ Court at Geelong on 27 February 2004 of causing injury recklessly and sentenced to a term of imprisonment of two months to be served concurrently with such sentence suspended for 12 months. On 29 November 2004 you were breached in respect of that suspended sentence and the sentence was restored. You appealed that matter and in January 2005 the appeal was allowed, the sentence was varied and the suspended sentence was further suspended until 26 May 2005. Also on 29 November 2004 at the Magistrates’ Court at Geelong you were charged with one count of burglary, one of theft and one of failing to answer bail. You received a three month term of imprisonment on each count to be served concurrently, suspended for 12 months. You were breached in respect of that sentence on 13 April 2005, the breach was proven and no further order was made in respect of the sentence. On 13 May 2008 on a breach of the suspended sentence the sentence was restored. On 13 April 2005 you were charged with unlicensed driving, using an unregistered motor vehicle and fraudulently using a number plate in the Magistrates’ Court at Geelong. One month’s imprisonment for the unlicensed driving and $500 aggregate on Counts 2 and 3. The sentence was suspended for 12 months and on 13 May 2008 the sentence was restored as a result of a breach of that sentence. On 13 May you were charged with handling stolen goods, failing to answer bail, driving at a speed in excess of the speed limit and exceeding .05. You were given a term of imprisonment of two days on the handling stolen goods, seven days on the failing to answer bail to be served concurrently with the sentence you were then undergoing, fined $100 in respect of driving at an excess speed, $200 on exceeding .05. Apart from the circumstances indicating, via those various prior convictions, that you have an inability to comply with any court order, the charge in respect of causing injury recklessly has some real relevance to the offence of which you have been convicted.
As I indicated earlier you are 30 years of age, having been born on 31 January 1980. You are one of four children. Your parents are still married. Your father is 54 years of age and works as a driver in a local courier business, and your mother who is aged 50 works as a cleaner for K-Mart. Neither of your parents have any issues as to alcohol or drugs or the law. You have an older brother aged 32 who works as a plasterer, a 29 year old sister who is a mother of two children whom she is raising on her own and a younger brother, Daniel, 21 who was present when Lorenzo Marchetta was killed. He suffers from schizophrenia, anxiety and depression and has been hospitalised on numerous occasions. He was not called as a witness due to his disability, and his statement was read to the court.
You went to Rosewood Primary School until grade 5 and then North Shore Primary School for grade 6. From there you went to North Geelong High School for Year 7 which you passed. You stated to Mr Jeffrey Cummins, psychologist, that “they” (whoever they may be) wanted to send you to Nelson Park Special School. You didn’t wish to attend that school and so you left.
You had a number of different jobs. Firstly, working for Plasta Masta for approximately nine months; then Colonial Pine and Stress Works; and then Marshall Pallets, commencing with that employment when you were aged approximately 17. From that time on until present it would appear that you have done little in the way of work, somewhere between two to three years in total between that time.
You are semi-illiterate in that you have trouble reading and writing to any reasonable standard and the description given of your reading level is that you are at the stage of being able to read children’s Golden Books. Your mother believed that you repeated preps and Year 7. It would appear, according to the information provided by your mother, that you didn’t speak until you were aged approximately five. You were assessed by Mr Cummins as functioning in the below average range of normal, potentially heading towards the borderline range.
Mr Cummins indicated that you informed him that at the time you were first incarcerated in relation to your previous offending and placed in Fulham Correctional Facility, you were sexually abused by two males and that subsequently you attempted suicide by ingesting a large number of anti-depressants and an attempt at slashing your wrist. You were released from prison and subsequently committed further offences that caused you to be incarcerated yet again.
In relation to this matter Mr Cummins, in his assessment of you in his report, stated:[2]
At interview he stated he hoped the prison authorities would keep him in a hospital setting and ideally within a psychiatric unit for the balance of his sentence. He said he hoped he would be housed in this manner, partly so the risk of being physically assaulted or again sexually assaulted was reduced, but also because he was benefiting from engaging in therapeutic conversations with a psychiatrist and presumably also with psychiatric nurses.
At interview he presented as being at least moderately depressed. He also presented as being mildly anxious. I did not assess him as being psychotic or schizophrenic. He did not appear to engage in delusional thinking. He did display a mildly elevated level of paranoia. I did not assess him as displaying an anti-social personality disorder. He did display some of the characteristics of a dependent personality disorder and a borderline personality disorder. In my opinion his comments at interview indicated it was unlikely he had ever been formally diagnosed with schizophrenia, although I accept he may have been diagnosed with elements of a schizoid personality disorder or with elements of a schizotypal personality disorder. In my opinion if he were reported as having schizophrenic-type symptoms, these could also have been reflective of his poly drug use and his associated abuse of alcohol. Nonetheless I accept his mood status now being significantly stabilised through him taking the anti-psychotic medication Seroquel in conjunction with Avanza.
Significantly at interview he stated he had intermittently felt depressed from his late childhood years, when the significance of his sister being sexually abused when he was aged around six began to have more of a psychological impact on him. Further, he stated he then became significantly depressed as a result of being anally raped whilst in the Fulham Correctional Centre around 2003/2004. Based upon his comments at interview he has been suffering from a dysthymic disorder, being a mood disorder, a depressive disorder, one level of severity below that of a major depressive disorder, from when he was anally raped.
In my opinion and speaking strictly from a clinical perspective, it would be appropriate for the court to consider imposing an unusually lengthy period of parole given this man’s mental health history and the fact that he was anally raped whilst in custody and will inevitably, therefore, find serving a sentence more arduous. In my opinion the principles of Verdins et al are relevant in terms of sentencing Mr Freeman.
[2]Page 5.
Upon your arrest this time you have been remanded in custody and kept initially for two months at the Melbourne Assessment Prison and then the balance of your time has been at the Melbourne Remand Centre. You have been a mainstream prisoner not a protected prisoner, and you are currently in the Chilwell Unit within the MRC. You informed Mr Cummins that you were in that unit because of “bad depression, anxiety and suicidal thinking” and that you are currently taking Seroquel and Avanza.
As a result of the comments in Mr Cummins’ report, together with the fact that you were stated to be detained in the Chilwell Psychiatric Unit and I had no report available to me from those who have been caring for you in Chilwell, I sought that there be a Forensicare report provided to the court in respect of your mental health. In a report I received from Dr Hania Butts dated 17 May 2010 the doctor stated that she had had a conversation with Dr Ong, who is a psychiatrist at the Metropolitan Remand Centre who deals with persons in the Chilwell Unit, where you were housed. Dr Ong indicated that Chilwell is not a psychiatric unit but a unit for the more vulnerable prisoners within the MRC. He said that you had been diagnosed with drug induced psychosis and you had been treated with Seroquel, an anti-psychotic medication prior to any review by him. Dr Ong had found no clear evidence of psychotic symptoms and has been gradually weaning you off the medication. Whilst you were initially reluctant to do so, you have agreed to slowly reduce usage of the medication as a result of developing ECG abnormalities from use of the drug. Further, Dr Ong found that you had not been clinically depressed but had an aberrant coping style with the main difficulties being identified as your impulsivity and low frustration tolerance.
Dr Butts appeared to agree with the assessment of Dr Kevin Ong as to the issue of depression when Dr Butts stated:
Although Mr Freeman complained about being unhappy about being incarcerated, the history of pervasive depressive mood suggestive of a depressive disorder could not be elicited.[3]
[3]Page 3 of Report.
Dr Butts referred to your statement that you had been prescribed Seroquel for depression, anxiety and schizophrenic bipolar disorder. You told him that you had initially been on 600mg a day but had been reduced down to 300mg a day in the process of being further tapered off the medication. You told him that the Seroquel was helping to relieve your anxiety and panic attacks but Dr Butts stated:
He was unable to describe any physical or psychological symptoms of anxiety. Mr Freeman did not describe any symptoms suggestive of a psychotic illness currently or in the past. There was no history suggestive of bipolar affective disorder.
What you did describe to Dr Butts was a use of cannabis at the age of 16 increasing as you became older and consuming up to 7 grams of cannabis daily prior to your arrest; drinking from the age of 16, daily use from the age of 18, reporting that you would drink more than a dozen pre-mixed alcohol drinks per day prior to your arrest. You also used speed intravenously from the age of 17. You stopped that for some period of time but at the time of your arrest you were using speed on two or three occasions each month, as well as occasional ecstasy use. You claimed to have started using heroin seven years ago but as was noted by Dr Butts you were vague about time periods and quantity of use.
In Dr Butts’ summary and opinion she wrote:
1.Mr Freeman is a 30 year old single unemployed man with a poly substance abuse disorder as well as alcohol dependence disorder.
2.There is no evidence of any major form of mental illness currently. There is no clear evidence that psychiatric illness had influence on Mr Freeman’s offending behaviour.
3.Mr Freeman’s difficulties appear to have been precipitated by his significant consumption of alcohol and illicit substances from an early age.
In addition to these problems Mr Freeman has had an upbringing disadvantaged by poor academic ability. He has embraced alcohol and drugs as his foremost method of coping with life, as modelled by a deviant peer group. He has failed to acquire adaptive problem solving skills and his offending is likely to aggravate his situation further. He has developed a tendency to view the world as a hostile place and has tended to retaliate impulsively in the face of difficulties.
Your counsel has submitted that you are remorseful over the death of Lorenzo Marchetta describing it as “that my client feels very very keenly that he has caused the death of his friend and he is a person who doesn’t have all that many friends”. Your counsel apologised to Mr Marchetta’s family during the plea for your actions that resulted in the death of their son and brother. An apology, he said, he was instructed to give by you. I note in relation to that aspect that when you were giving an account of your offending behaviour to Dr Butts it was described in this way by you:
Mr Freeman stated that he had had a falling out with the victim on the day of the alleged offence. He stated that the victim fell when he stopped running and Mr Freeman ran into him because he, Mr Freeman, had been pissed. He reported that he had not intended to harm the victim and had not inflicted any injuries on the victim by blows or punches. Mr Freeman stated that the injury that the victim had suffered was an unfortunate accident because of which Mr Freeman had lost his “best friend”. He stated that he regretted what had happened but that he was not a “bad person”.
That statement is consistent with what you said to Mr Cummins as he recorded it:
I had had some alcohol at home before I went over there – probably about three long necks of beer and about six Jim Beam cans and I had some more cans at my mate’s place – he was a mate. I had known him for a bit over two years. Before I went to his place I probably would have had about 1.5 grams of cannabis and at his place I would have had a couple of pipes. I don’t understand how the cops say he hadn’t been smoking chuff, because I’d been smoking chuff with him. This wasn’t meant to happen. This was an accident. I’m suffering over this daily. I’m having nightmares and I get some threats from people in the gaol. I’ve heard from people in gaol that someone wants to get me and Tammy has said to someone that people are after me. I’ve got a lot of things on my mind. I feel I need proper medication on the outside. One of my best mates has died – as an accident – I feel remorseful.
Those comments to me do not indicate remorse. They indicate regret. Regret at the situation in which you find yourself rather than true remorse of the death of Lorenzo Marchetta. It is a denial of the decision of the jury that this was not an accident. It is consistent with the attitude you demonstrated to the police of lying to avoid consequences. I accept you are regretful about your situation but I don’t accept that you are truly remorseful.
You had been released from prison some five weeks prior to this incident occurring. You were, on your own statements to the police and the psychiatrists, immediately thereafter consuming large quantities of alcohol and drugs as well as using your legal medication.
You were 28. You were not a young offender. You were not naïve. The death of Lorenzo Marchetta is a tragedy, a true tragedy for all concerned. For the Marchetta family it is an irreparable tragedy. They have lost a son and a brother that they all adored. The kind, gentle Lorenzo.
For your family equally, they will lose you for many years. Your parents, who are decent, hard working people who love you because they are your parents, will have to watch you waste what should have been some of the most productive and enjoyable years of your life in a prison setting. No one wins in a case of this nature.
You are a father to two children, a son Jayden born in 1999 and now approximately 11 years of age, and a daughter Miranda born in July 2009. You have never seen your daughter Miranda, the product of your relationship with Tammy Kenyon. You will not know those children; they will not know you. That’s one of the prices that you will pay for your callous actions on this night.
I act upon the basis that prison may be more difficult for you than the average prisoner, on the basis of your prior problem in prison, and your anxiety and depression, and will reflect that in the sentence imposed. I do not accept that you had at the time of the offending any major mental illness that contributed in any meaningful way to the offending for which you are to be sentenced. The Verdins principle has no application other than the difficulties you may face in serving your sentence.
I have re examined the report of Dr Butt in light of what was said by Mr Cummins in his evidence on the 15th of October 2010, but find ultimately Mr Cummins, when taken to the conclusions of Dr Butt, was unable to dispute those conclusions, as can be seen at pages 64-67 and during the cross examination by Mr Kissane.
Balancing all of the matters to which I have referred, including your personal circumstances, general and specific deterrence, both of which have a real significance in this case, and the need to impose a just and appropriate sentence, I sentence you to be imprisoned for eight years and six months and direct that you are to serve six years before being eligible for parole. I do not believe that it is appropriate to impose a longer than normal parole period, as you were only five weeks out of prison when this offending occurred, and you had appeared to have gained little insight into your alcohol or drug problems at that stage.
Declare that there has been 819 (eight hundred and nineteen) days served in pre sentence detention in relation to this matter and direct such declaration be noted in the records of the court.
Retention order granted for forensic sample 464ZFB(1)
---
0
0
0