Director of Public Prosecutions v Deen and Frost

[2018] VCC 1558

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01081

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAFRIN DEEN

and

ALIX FROST

---

JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	Pre-Trial: 1-9 May 2018, Trial: 9 May to 28 May 2018, Plea: 28 May 2018 and Further Plea: 3 August 2018.
DATE OF SENTENCE:	21 September 2018
CASE MAY BE CITED AS:	DPP v Deen and Frost
MEDIUM NEUTRAL CITATION:	[2018] VCC 1558

REASONS FOR SENTENCE
---

Subject:	CRIMINAL LAW
Catchwords:	Aggravated burglary (1 charge) – theft (3 charges) – recklessly cause injury (1 charge) – offensive weapon
Legislation Cited:
Cases Cited:	R v Myers [2014] 44 VR 486; R v Martens [2018] VSCA 90; Perry v R [2016] VSCA 89; Maslen [2018] VSCA 90; Hogarth v The Queen (2012) 37 VR 658; Dalgliesh (2017) AJR 91, 1063 and 1072
Sentence:	Frost & Deen: Convicted and sentenced to a term of 8 years’ imprisonment with a minimum term to be served before being eligible for parole of 6 years’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y.K. Hardjadibrata	Office of Public Prosecutions
For Accused Deen	Ms M. O’Brien	Stary Norton Halphen
For Accused Frost	Mr D. Sala	Valos Black

HIS HONOUR:

1Frost and Deen were the accused parties in Indictment No.H10250070.  Mr Deen is aged 34.  He was between the ages of 31 to 32 when these events took place, born on 27 February 1984, and was represented by Ms O'Brien at the Trial.  Ms Frost was 29 at the time of these offences, she is now 30, having been born on 20 August in 1987, and in the trial was represented by Mr Sala.

2That trial lasted from 9 May through to 28 May when verdicts were delivered by the jury.  As to Charge 1, the charge of aggravated burglary, the seriousness of which is demonstrated by the fact that Parliament has prescribed a maximum penalty of 25 years imprisonment. Both pleaded not guilty to the aggravated burglary, which was committed at Seddon on 26 January 2007.  The jury verdict found them both guilty.

3As to Charge 2, Mr Deen pleaded not guilty and on 9 May 2018 Ms Frost had pleaded guilty. That charge being a theft charge for which, pursuant to s.74(1) of the Crimes Act the maximum penalty prescribed is one of ten years imprisonment. That related to a Mazda owned by Mr Salim Jihar. The jury found Mr Deen guilty of such charge.

4As to Charge 3, that is a charge of cause injury intentionally to Mr Salim Jihar, such being an offence under s.18 of the Crimes Act, the maximum penalty prescribed is one of ten years imprisonment. Mr Deen and Ms Frost pleaded not guilty to such charge, and the jury found both of them not guilty.

5As to Charge 4, again Mr Deen and Ms Frost pleaded not guilty. The charge was recklessly cause injury to Salim Jihar, an offence under s.17 of the Crimes Act, for which the maximum penalty prescribed is one of five years.  The jury found both parties guilty of that charge.

6In regard to Charge 5 Ms Frost had pleaded guilty, that being a charge of theft of property of Mr Jihar, involving two mobile phones, keys and a wallet, and again that is an offence under s.74(1) and has the penalty prescribed for which I have already referred.

7The final charge to which Ms Frost pleaded guilty was a charge of theft of two registration plates and again that is an offence against the particular section that I have detailed with the same maximum penalty.

8There are also two summary offences to which Ms Frost pleaded guilty, that is commit an indictable offence while on bail, which is an offence under s.20(b) of the Bail Act where the maximum penalty prescribed is one of 30 penalty units and/or three months' gaol. The second offence was to possess a prohibited weapon pursuant to s.5AA of the Control of Weapons Act for which the maximum penalty prescribed is one of 240 penalty units or two years' gaol. Those summary charges came before me under s.145 of the Criminal Procedure Act and I will deal with those as well.

9Given the findings of the jury, the prosecutor relied essentially on the amended trial opening dated 8 May 2018 in regard to the plea hearing.  If I may say so, such was totally appropriate.  Charge 1 was clearly the major charge; it is a serious aggravated burglary in the terms as defined in R v Myers [2014] 44 VR 486, 485, [36] and [48], and in Martens [2018] VSCA 90.

10The following aggravating factors need to be taken into account in regard to this aggravated burglary to determine its relative seriousness:

i.Firstly, the presence of the weapon used in the matter by Ms Frost, that was a taser.  I accept that I cannot be satisfied beyond reasonable doubt that a gun was used. 

ii.The second matter is at the time of the entry into Mr Jihar's room the prisoners knew that he was there, and in his room. 

iii.Thirdly, that it was the intent of the prisoners, as discussed by them prior to these offences, to (a) stand over Mr Jihar to get Mr Deen's property back which he alleged was stolen by Mr Jihar, and (b) to taser him if necessary and/or to smash him if necessary. 

iv.Four, that in return for Frost carrying out such request of Mr Deen, it was arranged between them that Frost could take the car of Mr Jihar's, that being essentially a reward for her role in the aggravated burglary. 

v.Fifthly, that Frost with Mr Deen's knowledge, entered into the room of Mr Jihar in company.  That entry was, as I have said, effected at approximately 7 pm at night when the victim was alone in his own bedroom. 

11The rest of the charges, 2, 4, and in addition, 5 and 6, insofar as Ms Frost is concerned, essentially emanated out of Charge 1.

12As to background Mr Deen has no priors.  Ms Frost had no priors until about 2009.  Her first drug prior is use cocaine, and that offence was recorded in July 2014.  She had a weapons offence and a burglary offence in March 2016.  In April 2010 she had a drive while disqualified, recklessly cause injury, for which she got three months.  As I say, her offending began at the age of 19 and was associated with her participating in cocaine from that time, she has had numerous drug milieu type offences.  She is currently serving a sentence of some 11 months imposed on 13 March 2018 for four burglaries and is due to be released on 13 February next year.

13The learned prosecutor submitted that immediate gaol was appropriate for both prisoners, given the seriousness of these crimes.  As to their roles he submitted that Mr Deen was clearly the instigator, which I accept, however, as demonstrated by the evidence, Mr Frost applied herself with some relish to participating in such crimes.

14The learned prosecutor tendered as Exhibit A, the snapshot in regard to these type of sentences and as Exhibit B, the Judicial College website, and also referred me to Perry v R [2016] VSCA 89. The circumstances in that matter are particularly different from this case, there were significant parity issues and one of the co-accused in the matter had been dealt with totally inappropriately in the Magistrates' Court, and that had an effect on the issue of parity. The discussion with the prosecutor as to what was shown in the snapshots and the website will be demonstrated on the transcript. I take all those matters into account. However, the prosecutor submitted that this was an aggravated burglary, which should be seen as at the higher end. He further submitted that there is no remorse which can be demonstrated. I make it clear to the prisoners that by standing trial, while you do not, and are not therefore, able to utilise remorse in your favour in a plea, there is no negative about that. That is you do not suffer because you put the State to its proof.

15I note, however, generally in regard to these offences the comments in Maslen [2018] VSCA 90, in particular, the reference to Hogarth[1] and the comment finally made at [40] where, as a result of the analysis of the cases that I have referred to of Hogarth and Myers, the Court of Appeal said:

"…to the contrary, and bearing in mind the maximum penalty is 25 years' imprisonment, Hogarth and Myers make it plain that a sentence of six years' imprisonment on a plea of guilty may well be apposite for a serious case of aggravated burglary".

[1]Hogarth v The Queen (2012) 37 VR 658

16Clearly, in our circumstances we are not dealing here with a plea of guilty.  In the end of course, irrespective of the snapshot and website cases referred to, as has been detailed by the High Court recently in Dalgliesh (2017) AJR 91, 1063 and 1072, at [49], the administration of the criminal law involves individualised justice.  That means the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice to that case, and that is the manner in which hopefully this Court has always conducted its sentencing.  In regard to comparable cases they may of course be used as yardsticks, as may current sentencing practice.  However, in the end all of those matters are taken into account by this Court to assist the Court in its ultimate synthesis as to the appropriate sentences in this case.

17Insofar as the plea conducted by Ms O'Brien, tendered was her written submissions which, as I indicated, were Exhibit D1, and today has been tendered the additional material from the psychologist and the material in regard to the status of Mr Deen from an immigration point of view, and I take all those matters into account.  In particular, insofar as his immigration status, given the role of the current Government's political determinations, it is clear that given the conviction that will be recorded, the deportation of Mr Deen seems assured, unless he has some success in the Refugee Tribunal.

18Insofar as the plea was concerned from Ms O'Brien, she noted his children who are in Sri Lanka, of Mr Deen.  Yes, I am sorry, Mr Prosecutor, it was confirmed by Ms O'Brien in her submission that he entered the country on a false passport.

19MR HARDJADIBRATA:  Yes.

20HIS HONOUR:  So he never had any status in this country.

21MR HARDJADIBRATA:  It appears to be the case, yes.

22HIS HONOUR:  Yes, and it is clear then, as was put, that albeit that he has been here for some period, he has never had any status and that he would likely be, given the current Government's determination, once he serves his penalty, deported from this country.

23Mr Deen has had particular health issues and they will require particular attention while in gaol, and I accept that.  He has issues as to seizures brought about by that condition and they will also have to be monitored.  It is clear that he is a person who is prepared to work hard.  He has had difficulties, it apparently appears while he has been in detention. 

24It was put that his role should be seen as in some way different.  I would not take that view.  It seems to me that both parties are guilty of the same level of objective criminality.  Clearly, the organiser of the aggravated burglary, was Mr Deen, however, Ms Frost, as I say, willingly participated in it and it seems to me that the appropriate way to see this crime of aggravated burglary, is as being a complicit crime.

25Insofar as appropriate sentencing was concerned Ms O'Brien sought an assessment in regard to a determination by way of a period of imprisonment and a CCO. As I indicated to her, given the seriousness of the crimes, and the current limitations as to a CCO and sentencing, that I was not prepared to entertain such a sentence.

26Insofar as Mr Sala's submission, he again discussed Hogarth, which I have already referred to, and I accept that proposition and as the Court of Appeal have said, Hogarth does not set a new sentencing range, it was simply the range appropriate in that case.  The circumstances that I have detailed which make up the seriousness of this crime of course will dictate the sentence, among other relevant factors.

27The case of R v Vella and Ray [2014] VSCA 140 was put to me by Mr Sala. I accept that it is appropriate to be careful to avoid double punishment in cases such as this and again, while that case is of assistance, it was really criminality at the lower end, involving youthful persons with very good prospects of rehabilitation and with significant remorse demonstrated.

28Mr Sala did not in his plea, quibble with the range exposed by the prosecutor by way of the tendering of the snapshot from the JC website.  I am not really aware of how that comes about, but clearly, in my view, the range as put by the prosecutor is not appropriate here, given the seriousness of this case.

29The background of course to Ms Frost is one of difficulty.  She is a person who until she became addicted, was living a crime free life.  This Court does not need any more demonstrations of course as to what the impact of drug offending has upon a person, the criminality and convictions since that time demonstrate that in Ms Frost's lifestyle (see Exhibit F1, Psychological Report of Carla Ferrari and Exhibits F2 and F5).  The one positive put has been that during her time in gaol she has had a significant number of negative urine samples (Exhibit F6).  It would appear that she has successfully been able to stay off drugs while in gaol.  That probably does not sound that remarkable to people who do not understand the fact that it seems to be quite easy, if you want it, to get drugs in gaol.  So I do take that, as was put by Mr Sala, as a positive in regard to her future.

30Insofar as her role, it was submitted by Mr Sala that I should accept that she was, insofar as the aggravated burglary, at a lower level of culpability.  I do not accept that, as I have already indicated.  It was accepted given the seriousness of the matter, that denunciation, general deterrence and specific deterrence are factors that will be necessary to be taken into account.  However, that does not mean that the Court does not look at the relatively young age of Ms Frost, and consider the factor of her rehabilitation.  Mr Sala finally submitted that the sentence should not be crushing. 

31I take those submissions into account in regard to both prisoners and I intend to sentence as follows.

32If you both stand up, please.  In regard to the aggravated burglary offence, that is Charge 1, you will both be sentenced to imprisonment of eight years.  In regard to Charge 2, the theft, imprisonment of one year.  In regard to the recklessly cause injury, Mr Deen, you will be sentenced to imprisonment of one year, Ms Frost to one and a half years, and then in regard to the remaining theft matters, Ms Frost, Charge 5, a period of six months; Charge 6, in regard to the registration plates, a further period of six months.

33In the circumstances of this case, taking into account the issue of totality, I do not intend to cumulate any of the sentences involved.  Insofar as Mr Deen is concerned in regards to charges 2 and 4, and in regard to Ms Frost in regard to charges 2, 4, 5 and 6, the end result of that will be that the maximum penalty imposed will be a period of eight years.  Insofar as the summary offences for Ms Frost, on the first one of the Bail Act matter I impose a further period of imprisonment of one month and in regard to the weapons matter a period of imprisonment of one month. Equally, I do not intend to cumulate those.

34Insofar as the non-parole period, the period that I set for Mr Deen is a period of six years.  Insofar as Ms Frost is concerned I am required under s.14(2) to set a single non-parole period for her current sentence, of which she is serving, and the new sentence to be imposed.  I intend to set that non-parole period at the same period as being a total non-parole period for Ms Frost of a period of six years from today.

35I have signed the certifications as to forensic sample and I need to take into account, Mr Prosecutor, the time served.

36MR HARDJADIBRATA:  In respect of Mr Deen, Your Honour, the pre-sentence detention has been agreed as 49 days, and with Ms Frost, after reviewing the relevant prison history with my learned friend, Mr Sala, we have agreed that it is 42 days' pre-sentence detention.

37HIS HONOUR:  Yes, in regard to Mr Deen's sentence I declare that 49 days served on remand to be service of this sentence and such declaration to be recorded in this Court.  In regard to Ms Frost the 42 days served equally will be declared as service of this sentence with the declaration to be recorded in the records of this Court.  Yes.

38MR SALA:  No further matters, Your Honour.

39HIS HONOUR:  No issues?

40COUNSEL:  No, Your Honour.

41HIS HONOUR:  Yes, the prisoners can be taken away.

- - -