STATE OF TASMANIA v JOSEPH WILLIAM FREEMAN 20 NOVEMBER 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Joseph Freeman pleads guilty to one count of assault. In the early hours of Sunday 13 August 2017 the defendant and his brother were amongst a large group of people walking along George Street to the taxi rank. The complainant, Sean Taggart-Barwick, was also in the group. They had all just left a nearby hotel. In the course of the evening the defendant formed a mistaken view, fuelled by rumour, that the complainant intended to harm him. As they were walking along, the complainant was confronted by the defendant’s brother. The complainant told him he had no intention of harming the defendant. Despite this, a few minutes later, the defendant approached the complainant and, without warning, punched him once to the head. The punch was delivered without allowing Mr Taggart-Barwick any opportunity to defend or protect himself. The blow was of such force as to cause the complainant to fall backwards without being able to breaking his fall, and his head struck the footpath. He was unconscious. He regained consciousness but had a seizure and emergency services were called. He was first taken to the Launceston General Hospital where he was intubated and sedated, and then airlifted to the Royal Hobart Hospital. He was found to have intra-cranial bleeding and surgery was required to insert a sensor to monitor the pressure inside his skull. He was kept in an induced coma for a number of days. Eventually the bleeding and pressure stabilised and he was discharged after having been in hospital for about two weeks.
Because the defendant is not charged with causing grievous bodily harm he is not to be sentenced on the basis that he intended or foresaw his punch would cause such a serious injury. However the foreseeable consequences of the punch are an important factor in sentencing. The terrible potential consequences, including death and permanent injury, of blows such as the one the defendant inflicted are well known.
The defendant was aged 25 when this crime was committed. He is now aged 27. He is in a long term relationship and has had care of his own and his partner’s children. He exhibited difficult behaviours as a child and has used drugs since his mid-teens. He has a very bad record for offences of dishonesty and some violence, characteristic of those whose life is dominated by abuse of illicit drugs. The list of his prior convictions runs to 38 pages. In February 2012 he was made subject to a drug treatment order the custodial part of which was imprisonment for 15 months. The order was made on his conviction for numerous counts including aggravated burglary, stealing and obtaining goods by false pretences. The drug treatment order failed. On 7 July 2012 he was sentenced to 7 months imprisonment for assault and ordered to serve the 15 month custodial part of the earlier sentence. On 23 October 2012 he received an extra six weeks for attempting to escape. He continued to offend following his release. On 27 February 2014 he was sentenced to imprisonment for two years for his role as the lookout for an armed robbery committed on 21 November 2013, not long after his release from prison. A month later he was sentenced by a magistrate to more imprisonment for numerous offences of dishonesty. Again he re-offended by committing many offences of dishonesty after having been released on parole and another drug treatment order was made. Again it failed and he spent more time in prison. One of the sentences imposed at about that time was a three month term imposed on 3 November 2016 which was wholly suspended for 18 months. The crime for which he is now to be sentenced constitutes a breach of that suspended sentence, and there is no proper basis on which I could conclude that it should not be activated in full. He is currently serving a term of imprisonment for 15 months imposed by a magistrate on 9 July 2019 for offences including 21 counts of burglary or attempted burglary, 15 counts of stealing, 7 counts of computer-related fraud and drug and bail offences. They are not prior convictions for sentencing purposes but are relevant to totality and to my assessment of the defendant’s prospects of rehabilitation. As to totality, this crime involves quite separate offending involving considerable additional criminality. Any periods of custody attributable to the charge of assault have already been taken into account in the magistrates’ sentence. He will become eligible for parole for the current sentences on 21 November 2019, and his final release date is 21 April 2020.
While in prison the defendant has taken steps to address his addiction. On his application he was granted transfer from the medium security unit into the prison unit focused on drug treatment, even though it is within maximum security. A report indicates that he has insight into what is necessary to address his problems and is motivated to succeed. Some mitigation arises from his plea of guilty. It indicates a willingness to facilitate justice, but it is not an early plea. The complainant and witnesses were required to give evidence at preliminary proceedings. He says that the alcohol he had consumed affected his memory of his assault, and his change of plea came after having been satisfied of the case against him. It indicates some acceptance of responsibility. After striking Mr Taggart-Barwick the defendant said “what have I done” and briefly attended to him. He left the scene but only, he says, because others told him to. The mitigatory effect of that immediate expression of remorse is undermined somewhat by statements he subsequently made to others and the long delay before his guilty plea. Not all of the delay is attributable to him, but some is.
The impact of the crime is a very important factor in sentencing. Mr Taggart-Barwick’s victim impact statement describes serious and continuing effects. He was off work for seven months, most of which was without income other than social security. He describes having to relearn motor skills and a reduction in memory, as well as an inability to resume sporting and recreational activities he enjoyed. He describes numbness and pain in his left foot from nerve damage. There are also the type of psychological consequences which frequently result from violence of this nature – social withdrawal and anxiety and sleep disturbance. He has been trying to cope with these psychological symptoms without treatment but has not managed and has sought assistance from a counsellor. It is obvious from the type of injuries observed when the complainant was taken to the hospital that brain injury resulting in cognitive impairment was a possible result. However the State has no evidence of a continuing brain injury.
This crime deserves a significant sentence of imprisonment. Alcohol fuelled street violence in or around licensed establishments is a matter of considerable concern for the courts and the community. In light of the defendant’s record protection of the public is also an important factor in sentencing. I will permit the earliest possible eligibility for parole.
Joseph Freeman, the three month suspended sentence imposed on 3 November 2016 is activated. I order that you serve all of that sentence cumulative to the sentence you are currently serving and order that you are not eligible for parole until you have served half of the sentence. On the indictment, you are convicted. You are sentenced to imprisonment for 18 months, cumulative to the sentence you are presently serving and cumulative to the suspended sentence just activated. I order that you not be eligible for parole until you have served half that sentence.
In accordance with the Sentencing Act, s 92A, I specify that the total term of imprisonment that you are liable to serve for all the sentences of imprisonment that are being imposed, or activated today is 21 months cumulative to the sentence you are presently serving and that you are not eligible for parole until having served half of that term.