R v Freestone
[2000] VSC 147
•11 May 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL JURISDICTION | Not Restricted |
No. 1411 of 1999
| THE QUEEN |
| v. |
| GLENN AINSLEY FREESTONE |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 11 MAY 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 147 | |
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CATCHWORDS: Sentence – Intentionally causing serious injury (two counts) – Aggravated burglary – Domestic dispute - Victims attacked with chainsaw – Alcohol-fuelled anger – Need for general deterrence - Sentence of 8 years with non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | J. Leckie | Office of Public Prosecutions |
| For the Accused | P. Chadwick | K. Clancy |
HIS HONOUR:
Glenn Ainsley Freestone you have been found guilty by a jury of intentionally causing serious injury to Rodney Laurence Ryan and Melanie May Johnston at Yarrawonga on 28 September 1998. You were also found guilty of aggravated burglary, recklessly engaging in conduct which may have placed another person in danger of serious injury and recklessly engaging in conduct which placed Dean Williams in danger of serious injury. These offences occurred at the same place and date. The jury acquitted you of several charges including the attempted murder of Rodney Ryan.
It is necessary to briefly outline the circumstances surrounding the commission of these offences since they are relevant to the sentences which I must impose upon you.
About three weeks before the incidents giving rise to these offences, your de facto wife of eight years, Melanie Johnston, left you and went to live in a caravan at the back of 52 Tom Street, Yarrawonga. That separation was the culmination of a turbulent relationship involving violence, alcohol and cannabis dependence. Following your separation, and pending Ms. Johnston finding suitable accommodation, you had the care of the children and you went with them to the Tasmanian home of their maternal grandmother, Ms. Wendy Abbott, arriving about 14 September 1998.
One resident at the Tom Street premises was Dean Williams, a man who had a criminal record for offences including drug dealing, assault and threatening to kill. A visitor to the premises was Rodney Ryan, who Melanie Johnston had met about the end of July 1998 and with whom she had formed a relationship. He, too, had prior convictions for violence and for trafficking in amphetamine. You told Ms. Johnston that you disapproved of her new found friends and you did not wish her to stay there. Indeed, you desired the family to be reunited. You phoned the Tom Street address nightly from Tasmania and, on occasions, told Ms. Johnston that you wanted to get back together. This was coupled with threats to kill her and the children and yourself. According to Ms. Johnston she did not believe those threats but nonetheless she contacted her mother to have you stop ringing and to keep an eye on the children. It also appears that, during this time, mutual threats of violence were exchanged between you and Rodney Ryan and Dean Williams.
On Friday 25 September 1998 you returned to Yarrawonga from Tasmania with the children and you met Ms. Johnston to discuss the future of the children. You drove your vehicle towards Cobram and you told your wife you had nothing to live for and repeated your threat to take her and the children's lives and your own. At one stage you produced a knife, said you wanted to fuck her and you once again threatened to kill them all.
According to the evidence of Ms. Johnston she convinced you to drive to your parents' caravan at Jelara Caravan Park. On Ms. Johnston's version of the evidence, your emotional state was such that your mother took the children to the security and safety of the caravan park office, you had an altercation with your own father, and the police were called and arrested you. In any event, later that day the welfare authorities again took custody of the children.
No doubt the loss of your wife and now the children, played on your mind. On the following Sunday afternoon you drove into Yarrawonga and encountered Ms. Johnston with Mr. Williams. After a discussion with Ms. Johnston about attending court on the Monday in relation to the children, you spoke with Dean Williams through the window of the car. On Ms. Johnston's account you held Mr. Williams' arm in the door and tried to take off but the car stalled. Additionally, on Mr. Williams' version you punched him in the nose.
Your own version of that event which is contained in a police interview is that Williams grabbed you and threatened to kill you so that you punched him twice in the mouth and drove off.
Later, at about 6.00 p.m. that evening, you were observed by a Mr. John Visentin braking your vehicle violently on the corner of Hovell and McNally Streets in Yarrawonga. He heard you yell out: "I'll get you later on tonight, you cunt" in an angry voice. The witness was somewhat perplexed and then turned and saw his brother in law, Rodney Ryan, standing in a driveway in McNally Street, which is a side entrance to 52 Tom Street.
Your attitude towards both Mr. Ryan and Mr. Williams is made clear in your record of interview. You told police you regarded them as unsavoury persons who were splitting you from your family. Moreover, they were persons who were treating you with contempt.
On your account, during that evening you consumed six or seven stubbies of beer and became intoxicated. This is consistent with your blood alcohol reading of .09% recorded at about 4.30 the following morning. At the same time as you were drinking, you were brooding on the loss of your wife and children. Ultimately, sometime after 11.00 p.m., armed with a chainsaw and a can of fuel, you drove to the Tom Street premises. You told police you went there with the intention of "sorting out" the people who had "stuffed up your life". Your counsel put it that you wanted to demonstrate that you were a man and not a loser and you wished to get these challengers and rivals out of your life.
The open can of fuel was later located adjacent to the caravan but you denied any intention to set fire to it. What in fact you did was to start the chainsaw and enter the caravan. You claimed to have seen Ms. Johnston and Mr. Ryan in bed together but the preponderance of evidence suggests that they were in separate beds. The mere fact, however, that the man you regarded as your tormentor and your wife were in the caravan together was sufficient, in my view, to cause you to explode into an alcohol fuelled anger. If you had initially gone to the caravan merely to frighten the occupants, (as you continually told the police during your record of interview), such intention was transformed into an intention to inflict serious injury upon both Ms. Johnston and Mr. Ryan. According to both of them, they had gone separately to bed after earlier watching television in the caravan. Once you had started the chainsaw Ms. Johnston ran and woke Mr. Ryan. By this stage you had entered the caravan and, seeing you wielding the chainsaw, both of them retreated to a bed at the end of the van farthest away from the doorway. According to Ms. Johnston you were swinging the chainsaw around and saying: "I'm going to kill you cunts". You advanced towards the bed upon which the couple were now standing. Indeed cupboards at the rear of the caravan were damaged by the flailing chainsaw blade. Ms. Johnston claimed to have fended off the chainsaw with the television set. Although no damage was observed to it, the set was found upended on the floor. In any event, Mr. Ryan managed to smash the side window of the caravan and Ms. Johnston, who was only wearing panties at the time, escaped through the window into the back yard.
The evidence of Mr. Ryan is that you were yelling and screaming and lunging at him with the chainsaw. As he turned back towards you after smashing the window, you struck him on the right shoulder with the saw. The result was a 16 centimetre laceration. In an attempt to avoid further injury Mr. Ryan picked up a purple cushion and then a pillow. Using these items he endeavoured to push the chainsaw blade away from him. On one occasion it was coming towards his head and face. In the course of this manoeuvre he received six parallel lacerations to his left wrist. This activity was part of a desperate effort by Mr. Ryan to reach the door of the caravan. He managed to push past you but not before receiving an injury to his right cheek which cut a groove in the bone as well as a four centimetre laceration to the apex of his right shoulder. Mr. Ryan said he received the cut to the top of his shoulder when he had his back to you and was on his way out the door. It felt like he was being jerked backwards.
Whilst a number of the injuries Mr. Ryan received were superficial, the 16 centimetre injury to the right shoulder had divided the large muscles at the top of the arm and chest as well as slicing through a significantly large vein. It was never disputed by you that this constituted a serious injury. Mr. Ryan fell as he exited the caravan door. He jumped up quickly and ran down McNally Street into Hovell Street where his sister lived. From there he was taken to the Yarrawonga Hospital.
In your record of interview you claimed to have no memory of what occurred inside the caravan, except that, when you saw the couple together, you "flipped". A jury may well have regarded this as selective amnesia but in any event no contrary version of events to that which I have detailed was advanced by you. In the circumstances it is not surprising that the jury were satisfied that you intentionally caused serious injury to Rodney Ryan. The experience of Mr. Ryan was no doubt a terrifying one and both he, and you, are fortunate that he is still alive.
The duration of this incident once Ms. Johnston had scrambled through the caravan window, must have been relatively short, because she only had time to move to the rear of the Tom Street premises before you were in pursuit of her with the chainsaw. She told the jury that the chainsaw was close to her backside when she was near the back door. She ran down the side of the property with you following and jumped the front fence. You left the chainsaw, which was still operating, on the front lawn and chased Ms. Johnston as she ran across Tom Street and down the sideway of some home units. You caught up with her in the back corner of the property. According to her evidence you kept repeating: "I'm going to fuck you and kill you". You punched her to the head knocking two of her front teeth out. You also tried to choke her. Throughout this episode Ms. Johnston was screaming out for help. One of the unit residents, Mr. Ian McBean described her voice as sounding panic stricken and observed her struggling to get away from you. Another resident, Ms. Anne Mellema, described (perhaps somewhat dramatically) a female fighting for her life.
Once the back light on the rear unit was turned on, you observed a spade leaning up against the garage wall. You retrieved it while still holding on to Ms. Johnston and then struck her on the back of the head with it. The culmination of your attack was to grab Ms. Johnston's nose with your teeth and, while holding her arms, you marched her down the driveway. At this point Dean Williams appeared and you released Ms. Johnston who described herself at that stage as numb and in shock. She ran to the Tom Street house and rang the police. Ms. Johnston was later observed by Senior Constable Richard Ellis, a local police officer, who described her injuries and her shocked state and took her to the Yarrawonga Hospital.
The medical evidence of multiple bruises to Ms. Johnston's face and scalp, lacerations and abrasions to both forearms, deviation of the septum, and the loss of two teeth from the left upper jaw, were all confirmatory of her evidence.
Apart from the physical effects of your assault on Ms. Johnston, a Victim Impact Statement prepared by her details the emotional trauma she continues to experience following the truly terrifying experiences of that evening and early morning.
Your version of this incident in the record of interview was of having wanted to talk to Ms. Johnston about the kids and of having grabbed her in a bear hug to calm her down. You denied assaulting her in any way. Nonetheless, at this trial, you pleaded guilty to the relatively minor offence of recklessly causing injury. However, the jury were satisfied that Ms. Johnston's injuries were serious and that you had intentionally caused them.
Your angry frame of mind that night may, in my view, be gauged by reference not only to the level of violence you perpetrated but by the bizarre and humiliating act of grabbing Ms. Johnston's nose in your teeth. In my view you were still seething with anger when you left the Tom Street units now armed with the spade with which you knocked the letter box at 52 Tom Street from its stand.
Next you embarked on a course of driving which resulted in your conviction by the jury firstly of conduct which may have placed another person in danger of serious injury and secondly of conduct which did in fact do so.
It is unnecessary to detail that driving. It is sufficient to note that you drove at speeds of at least 140 kilometres per hour on the Murray Valley highway and that you drove around the streets of Yarrawonga township for 10 to 15 minutes at speeds well in excess of the 60 kilometre per hour per limit. Initially you were pursued by Senior Constable Ellis but subsequently, at about 1.00 a.m., a vehicle from the Traffic Operations Unit took over. These police located your vehicle in the vicinity of the Jelara Caravan Park. After following you down the Murray Valley highway at 150 kilometres per hour – a speed you maintained until you again reached the Yarrawonga township – it was decided that the pursuit should be abandoned. The police vehicle then followed you around Yarrawonga for about 45 minutes. You cut corners at an excessive speed, failed to stop at stop signs and failed to give signals. On straight stretches of roadway you drove at up to 80 kilometres per hour.
It should also be noted that at this time of the morning vehicular and pedestrian traffic was practically non-existent. Ultimately, the police followed you back to the caravan park where you were intercepted. Prior to this occurring you spoke to a resident, Mr. Donald McLean making comments to the effect that you had lost your wife and kids and had nothing to live for. I am satisfied that such a statement exemplifies your state of mind, at least in the latter part of this evening.
During the course of your driving you passed the Tom Street premises six or eight times. On two of these occasions, when in McNally Street, you swerved on to the incorrect side of the road towards your antagonist Dean Williams who was standing in the gutter. Your vehicle missed Mr. Williams by two or three feet. These actions were the subject of the second conduct endangering conviction.
The evidence to which I have referred indicates that, throughout the evening of 27 and early morning of 28 September, your frustration and despair translated itself into angry and aggressive behaviour. Your actions involved a degree of pre-planning followed by a high level of violence, much of it occurring when you were out of control. From the Victim Impact Statement of Ms. Johnston, and what was said during your plea, it appears that even now the relationship between you and Ms. Johnston is one capable of degeneration into mutual antagonism.
The use of violence (and violence involving the use of weapons such as a chainsaw), as a technique to solve perceived problems, is quite unacceptable in this community. Nor can the courts tolerate violence administered in the context of domestic disputes. Those who perpetrate such violence, and those minded to do so, must be deterred.
The seriousness of the offence of intentionally inflicting serious injury is reflected in the maximum penalty provided by Parliament. The offence of aggravated burglary also attracts a high maximum penalty although, in this instance, it may best be treated as an aggravating feature of your attack upon the occupants of the caravan.
Your driving was undoubtedly dangerous although fortunately no person was, in fact, harmed by it. It was indicative of your angry and aggressive mental state and I propose to deal with it in that context.
In the course of the plea made by Mr. Chadwick on your behalf, he outlined a number of matters personal to you which are relevant to the sentences to be imposed. You are 29 years old. You have seven step brothers and sisters from your parents' previous marriages. You were educated in the Broadmeadows area completing your secondary schooling at Broadmeadows Technical School. You left that school part way through Year 9 when you were aged 15. You had poor literacy skills and also suffered from a substantial speech impediment. It was put that your functional educational level would not be higher than that of a primary school student.
On leaving school you became involved in motor-cross cycle racing and, in your mid-teenage years, you were within the top five motor-cross riders for your age group. This was a highly competitive area but, nonetheless, your prospects for a future career with motor cycles appeared good. However, the use of both drugs and alcohol was rampant on the bike racing circuit and you succumbed to them. Over time your cannabis use was largely replaced by alcohol. Having effectively destroyed this career you were left as a youth with few employment skills. You subsequently had labouring and driving jobs until, in June 1993, when you were 22 years of age you did an eight month training course as a professional fisherman. It was a practical course and you qualified as a fishing deck hand. Those qualifications enabled you to work on a fishing trawler anywhere in Australia. However, having commenced a family, you did not wish to spend long periods of time at sea and, consequently, you sought occupations on the land. This proved difficult because of your lack of qualifications. You found work as a driver at a time when you were living in Melbourne but you lost your licence for exceeding .05 in March 1996, and, with it, your job. Your youngest child had been born in September 1991 and a second child, who was diagnosed with meningitis when six months old, had been born in October 1994. You had returned to country areas such as Yarrawonga but unemployment was high in these areas and your own lack of qualifications made it virtually impossible to obtain a job. Your other children were born in January 1996 and January 1997. The birth of additional children merely added to the domestic pressures created by your poverty. One crutch that you employed was alcohol. Indeed, in the period shortly before your arrest you were consuming a slab of beer on almost a daily basis. Your increased alcohol consumption was accompanied by domestic violence and the disintegration of your relationship. In March 1997 the Department of Human Services took all four children from you and did not return them until November of that year. Your domestic problems, however, were far from solved and, as I have already indicated, the children were again removed by the Department after the incident on 25 September 1998. It appears that in February 2000 the two elder children were returned to Ms. Johnston by the Department and the younger two are being looked after by your parents under departmental supervision.
I accept that you love your children and the deprivation of their company constitutes a punishment in itself.
Your family remain supportive of you and, to that extent, you have a loving family to which you may ultimately return.
You have a number of prior convictions. Between April 1988 and August 1992 between the ages of 17 and 22, you were before magistrates' courts on three occasions, mainly for offences of dishonesty. After a gap of some five years you were convicted at Cobram Magistrates' Court in August 1997 of cultivating, possessing and using a drug of dependence being cannabis. Subsequently, in November 1997, apparently during your absence in Queensland working on a fishing trawler, you were convicted of a number of offences including two charges of assault by kicking and assaulting and resisting members of the police force in the execution of their duty. There are also charges of being drunk and disorderly, drunk in a public place and using threatening, indecent, and insulting language, and wilfully damaging property. Among the penalties imposed upon you was two months' imprisonment. According to your counsel these assaults related to a violent confrontation between you and members of the police force in the street outside a hotel when you were intoxicated. It was put by your counsel that the incident occurred during a period of difficulty between yourself and Ms. Johnston and at a time when you despaired of keeping the family together after you had lost your driving licence. It was following your subsequent return to Victoria that you served this sentence in June, July and portion of August 1998. That is, just prior to the commission of the present offences.
Apparently, it was during this period of imprisonment, that Ms. Johnston became acquainted with Mr. Ryan.
Most of your prior convictions have little significance for the purposes of sentencing but, as I indicated to your counsel in the course of the plea, your history indicates a tendency to alcohol induced violence.
Indeed your counsel frankly conceded that your future prospects are not good unless you learn to solve the frustrations in your life without resort to alcohol induced violence.
It was urged that I should take into account in your favour the fact that you pleaded guilty to aggravated burglary and to recklessly inflicting serious injury on Rodney Ryan and to causing injury to Melanie Johnston. It is certainly arguable that, although the jury did not accept your pleas to the latter two offences, the pleas themselves resolved some issues. In particular they constituted concessions that you were the person who perpetrated each of the assaults, that the assault on Rodney Ryan caused serious injury, and that your actions were conscious, voluntary ones. Accordingly, I am of the view that you are entitled to some credit for these guilty pleas.
It was also put that you felt remorse, not only for the injuries you inflicted on that evening, but for the deterioration of your own relationship to a level which occasioned your physical attack on Ms. Johnston. The fact that you feel remorse is supported by Ms. Megan Struik, a forensic psychologist, who prepared a psychological report on your behalf. I accept that your remorse is genuine.
Ms. Struik also speaks of your efforts to deal with your alcohol dependence and your anger while in custody. You have done all of the courses available to remand prisoners including the Moreland Hall courses relating to drug use and which also involve group therapy dealing with anger and violence. During your period of incarceration you have been alcohol and drug free. Further, you have demonstrated a capacity for hard work in the prison setting working a double shift in the spray painting workshop. One reason for this is to pass the time and deflect your thoughts from the children that you miss. As a result of your activities you now have the status of an enhanced prisoner. All this activity is to your credit. You have instructed your counsel and it is your intention, upon your release, to abstain from alcohol and to pursue your career as a professional fisherman if possible outside Victoria and certainly away from centres of potential conflict such as Yarrawonga.
In summary you are a person of extremely modest intellectual and educational attainments. This deficiency contributed to an inability to obtain stable gainful employment. That factor, has, in turn, led to domestic stress and a compensatory consumption of alcohol. Unfortunately your alcohol consumption has been associated with violence. In recent times you have demonstrated the capacity to work hard and the ability to abstain from alcohol albeit in an artificial setting. If you can sustain these advances in your lifestyle, you will have reasonable prospects of rehabilitation.
In determining the appropriate sentences I have taken into account the seriousness that the law attributes to these offences, the circumstances surrounding their commission as I have outlined them, and your personal history. In fixing the individual sentences I have also had regard to the overall effective sentence which I regard as being appropriate. Balancing as best I can the sentencing principles enunciated in the Sentencing Act, including punishment, specific and general deterrence, and rehabilitation, I have concluded that the appropriate sentences are as follows: On count 1, aggravated burglary, you are sentenced to be imprisoned for 1 year; on count 3, intentionally causing serious jury to Rodney Laurence Ryan, you are sentenced to be imprisoned for 6 years; on count 5, intentionally causing serious injury to Melanie May Johnston, you are sentenced to be imprisoned for 4 years; count 8, reckless conduct endangering a person, you are sentenced to 6 months' imprisonment; and on count 9, recklessly endangering Dean Wilson, you are sentenced to 9 months' imprisonment.
I further order that 2 years of count 5 be served cumulatively with count 3. This results in a total effective sentence of 8 years. I fix a non-parole period of 4 years. Further, I declare the period to be reckoned as already served under that sentences is 591 days, inclusive of today's date; and I direct that there be noted in the records of the Court the fact that this declaration is made and its details.
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