STATE OF TASMANIA v JOSEPH WILLIAM FREEMAN 22 FEBRUARY 2024
COMMENTS ON PASSING SENTENCE PEARCE J
Joseph Freeman, on 4 July 2023 you were found guilty by a jury of assault. You were sentenced by Geason J on 7 September 2023. His Honour made a home detention order for 16 months from that day. His Honour also made a community corrections order with conditions that you perform 100 hours of community service and be subject to supervision.
The State applies to cancel the home detention order. On 7 February 2024, in circumstances of personal and mental health crisis I will describe in a moment, you removed the electronic monitoring device you were required to wear as a condition of the order. You agree that the order was breached and do not oppose its cancellation. It is obvious that home detention is no longer appropriate and I will cancel the order. I will also cancel the community correction order made at the same time. Having done so I must resentence you for the assault in relation to which the orders were made. I may do so as if you had just been found guilty of that offence, but taking into account the extent to which you complied with the sentencing orders while they were in place.
The assault was committed on 27 February 2020. You were an inmate of Risdon Prison. In a prison yard you deliberately approached another inmate, David Randall, and punched him. Your claim of self-defence was rejected by the jury and the trial judge, who found that you were the aggressor. The punch was hard enough to cause bleeding to Mr Randall’s brain. The level of bleeding was described as mild and was managed conservatively without surgical intervention or specific treatment. However Mr Randall’s victim impact statement, although it is to be treated cautiously, indicated that the effects of the injury were such as to prevent him from taking up employment following his release a few months later and that he was still suffering headaches in mid-2023.
You are now aged 31. You were not entitled to the mitigation a plea of guilty would have attracted. Your personal circumstances and criminal record were important matters in sentencing. Your life has been dominated by abuse of illicit drugs and you have a bad record for offences of dishonesty, including one for armed robbery, characteristic of a person with that problem. You also have a very poor record for violence which includes five convictions for assault. You have served a number of terms of imprisonment. You have been made subject to two drug treatment orders neither of which succeeded in the longer term. Significantly, on 20 November 2019 you were sentenced by this Court to imprisonment for 18 months for a serious assault committed on 13 August 2017. In a public street you punched a person in the head so hard as to cause him to fall to the ground and strike his head, rendering him immediately unconscious. He suffered intra-cranial bleeding and pressure which was life threatening and which had a very serious impact on him. The assault for which you are now to be sentenced involved a blow of a frighteningly similar nature only three months after that sentence was imposed. Since your release after serving that sentence you were sentenced for some further offending.
The sentencing judge remanded you in custody following the verdict on 4 July 2023 and sought an assessment of your suitability for home detention. In deciding to make a home detention order the sentencing judge took into account that your compliance with conditions of parole were good following your release in 2021 and progress in your rehabilitation suggested that you were capable of being a useful member of the community. Somewhat surprisingly in that context, neither the assessment report nor his Honour in passing sentence made any reference to the fact that as recently as 24 May 2023 you had been sentenced by a magistrate for nine counts of burglary and six counts of stealing committed between 27 April and 7 May 2023, in which cash was stolen from a number of commercial premises in Launceston. You were sentenced to imprisonment for six months from 8 May 2023, three months of which was suspended. However his Honour must have been aware of it because you were in custody serving that sentence at the time of the trial and it was a matter which was referred to as a “relapse” by your counsel. Your release date for the sentence you were serving was 7 August 2023. The further month you spent in custody prior to sentence on 7 September may be taken into account in sentencing for this crime.
You are in a stable and supportive long term relationship from which there are now two children, one born since sentence was originally imposed. There are two children of previous relationships. Prior to the breach on 7 February your compliance with the conditions of both the home detention order and the community corrections order had been good. You had been subject to home detention for exactly five months. You completed about 70 hours of the 100 hours of community service and were actively engaging with Community Corrections and the services to which you had been referred. However the factors which led to the breach commenced in December 2023 when you left your employment as a removalist. Whilst I do not know the precise circumstances which led to that step it seems to me to have been particularly unwise when you had no alternative employment which was compatible with the conditions of the home detention order. It was already a condition of the home detention order that you not sleep in the home occupied by your partner. Combined with a fear that someone also living in the home detention premises was stealing from your bank account the pressure on your mental health became too much. In January you admitted to using methylamphetamine again and on 7 February your psychological condition had deteriorated to such an extent that you removed the electronic monitoring device. You were arrested on 10 February 2024 and you have been in custody since then.
Home detention orders are intended to be an alternative to actual imprisonment. The obligations imposed by home detention are onerous and involve a significant restriction on liberty. To some extent, it defeats the purpose of such an order if those obligations are avoided because they become too onerous for the person subject to them. I must impose a sentence which adequately addresses the need for punishment and individual and general deterrence for the assault you committed, take into account the time you have already spent in custody, your level of compliance while the order was in force and the continuing community interest in your rehabilitation if that can be achieved. Your counsel asked that I impose a term of imprisonment but wholly suspend it. I will suspend some of the sentence but not all of it. I will however relieve you from the obligation to perform any further community service and order a period of supervision.
Joseph Freeman, I cancel the home detention order and community corrections orders made by Geason J on 7 September 2023. A term of imprisonment is the only appropriate alternative sentence. Had I had been imposing sentence in September 2023, and assuming unsuitability for home detention, I would have sentenced you to imprisonment for 15 months from 7 August 2023 with eligibility for parole after eight months. Allowing for the degree of compliance with the home detention order and the other factors since your original sentence, you are sentenced to imprisonment for 12 months from 10 January 2024, seven months of which is suspended for two years from today. It is a condition of that order that while it is in force you do not commit any offence punishable by imprisonment. If you breach that condition then a court must order that you serve that term unless it is unjust. I impose a further condition that, during the period that the order is in force following your release you are to be subject to the supervision of a probation officer. The conditions which the law imposes on that order include that you must report to a probation officer at 111-113 Cameron Street, Launceston on or before two clear days of your release, you must, during the operational period of the order, report to a probation officer as required by the probation officer and comply with the reasonable and lawful directions of a probation officer or a supervisor, you must not, during the operational period of the order, leave, or remain outside, Tasmania without the permission of a probation officer and you must, during the operational period of the order, give notice to a probation officer of any change of address or employment before, or within two working days after, the change. It is suggested that you would complete the EQUIPS Addiction program. I impose special conditions that you must, during the operational period of the order, attend any educational and other programs, undergo assessment and treatment for alcohol or drug dependency, submit to testing for alcohol or drug use and submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer. If you breach any of those conditions you may be brought back to court and re-sentenced.