Director of Public Prosecutions v Frank
[2021] VCC 1675
•26 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00994
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARROD FRANK |
---
JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 July 2021; 31 August 2021; 14 October 2021 |
DATE OF SENTENCE: | 26 October 2021 |
CASE MAY BE CITED AS: | DPP v Frank |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1675 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hayward | Office of Public Prosecutions |
For the Accused | Mr G. Cooper | Mr W. Collins-Putland |
HIS HONOUR:
1Jarrod Frank, although there are some unique and compelling aspects of your plea, I will defer consideration of those matters and commence with what you did that brings you before the court to be sentenced.
2In short, your offending on 30 January 2020 involved an aggravated burglary, an assault and an attempted theft as well as a breach of the bail you were on at the time. It was serious offending. Ordinarily, significant imprisonment would follow.
3To elaborate on the facts and circumstances, it was on the morning of 30 January 2020 that you went to the house of an old associate. Your intent was to, in effect, bail him up and steal in particular any drugs that may have been there. When you got to his house, you commenced to kick in the front door. Another occupant called the police.
4You got in and then confronted your old associate, the victim, demanding drugs and his wallet. You punched the victim and a struggle ensued. You both ended up on the floor and at some point, you produced a knife and demanded money. You and he went to his car outside to look unsuccessfully for his wallet before returning to the house and sitting at a kitchen table. This was a scene that the police encountered when they arrived shortly after and arrested you.
5Any aggravated burglary is serious. The victim was entitled to feel safe in his house. You violently broke into his house, confronted and then assaulted him. You had a deadly weapon with you that you brandished. That last fact, being armed with a knife, was particularly concerning given the broader context of the circumstances of you being on bail at the time of this offending.
6At the time of this offending, you were on bail, as I have said, charged with murder, having been involved in the alleged stabbing of a man on or about 4 January 2018. The course of that murder proceedings is of considerable importance in my assessment of the mitigatory factors relevant to sentence for these crimes. Thus I need to outline some of the chronology of that murder prosecution.
7Following your arrest for murder on 4 January 2018, you were remanded in custody where you remained until 19 December 2018. At this point, you were granted bail by the committing magistrate, a decision that the Director of Public Prosecutions appealed but unsuccessfully. To that point, you had served 349 days in custody.
8At the point of your release, you resumed living in a bungalow on your mother's property in Eppalock. Your criminal trial for murder commenced in late 2019 twice; first on 4 November 2019 and again on 13 November 2019 after the prosecution had reformulated its case. The presiding Supreme Court judge stayed the prosecution against you for murder. However, the prosecution appealed against the permanent stay and this was allowed and thus the prosecution continued. The Court of Appeal decision was delivered on 17 December 2019. A new trial date for mid-2020 was then fixed. It was of course unable to proceed in 2020 due to the suspension of jury trials because of the COVID pandemic.
9In this context of this highly stressful period, you relapsed back into drug use and embarked on this ill-considered escapade to get drugs and money from an old associate.
10Following your arrest at the kitchen table, you were remanded into custody. In the meantime, the COVID pandemic caused very significant interruption to the criminal justice system. As I have indicated, the murder trial which was set had to be re-set commencing on 12 January 2021.
11From 18 January 2021, a different Supreme Court judge ruled that you had no case to answer and thus this episode in your life of facing an alleged offence of murder came to an end. As noted, you had done 349 days on remand that could not be directly attributed to any sentence to be imposed by a court. The colloquial term of 349 being dead time is apt in your case.
12Following the end of your murder trial, you were granted bail for this aggravated burglary offending. This period on remand has been calculated as 382 days and used directly attributable to the sentence that I am about to impose for these crimes.
13Once on bail, you speedily resolved these current charges and pleaded guilty on arraignment on 23 February 2021. Your plea was listed for 6 July 2021 before another County Court judge, Judge Hampel. You were bailed and the material to that point indicated that you had made significant progress in rehabilitating. Much of that rehabilitation was due to the stability and assistance provided to you by your mother. You lived on her property but separately in a bungalow. Your mother was a yoga teacher and well-respected in the community.
14Your family life had not always been easy with the tragic health complications and sad death of your brother in 2015. This has left you with unresolved grief.
15As I said, a few years later in 2018, you were charged with murder. The circumstances leading to you being charged were highly distressing and causative of post-traumatic stress disorder. On 4 January 2018, you were set upon and stabbed by the deceased and then assaulted with a metal bar and finally dragged from your car as you tried to escape before the final fight ensued and the fatal wound inflicted.
16Upon your arrest, you pleaded that you had acted in self-defence, an outcome that was finally vindicated three years later by the Supreme Court judge's ruling of no case to answer and you had by that point spent the best part of the year in custody.
17Throughout this time and beyond, your mother was your key supporter attending many legal hearings. So it was that on 6 July 2021, she came with you from Bendigo to the County Court in Melbourne for your plea. I will dwell on the tragedy that unfolded save to say shortly after she commenced to give evidence on your behalf, she collapsed and could not be revived despite all efforts.
18I can appreciate just from the transcript as of course I was not present or the presiding judge that as the tragedy unfolded, you were extremely distressed letting out harrowing cries of grief. No one is ever quite the same after the sudden death of a loved one, let alone before one's eyes, let alone in the midst of such a stressful circumstance of a plea in a courtroom. Anyone who pauses to consider these circumstances would be moved to sympathy for what befell you on that day.
19As I have remarked in terms of mitigation, there were already good signs of rehabilitation, though strong mitigatory factors are taken to another level by the circumstances of your mother's death such that, in my view, it is now the time to show mercy.
20I will touch briefly on why mercy remains an important factor in sentencing but let me be clear that your offending was serious deserving of imprisonment. That is said notwithstanding that this was aggravated burglary in the middle of the day, not at the dead of night. It was in circumstances where your identity was known and arrest was inevitable as it turned out as you were sitting with the victim at the kitchen table.
21In other words, it was not the worst example of aggravated burglary and nor the assault or the other offences reached that level.
22You have a prior criminal history but it is not a history that has seen you regularly before the courts serving ever increasing jail terms. Rather, there are long periods without any offending and no prior convictions for inflicting violence and only very short periods in prison were imposed twice back 15 years ago.
23Also of importance is you have had long periods of employment as a shearer and working on farms. Presently you are more reclusive remaining on the property doing maintenance type work.
24You have had problems with drug use and as noted were in a period of relapse in the circumstances of the on-and-off-again murder trial when this offending arose. Importantly, since your time out of remand for these matters that occurred in February 2021. Since that time you have engaged in regular drug counselling. The relationship with you have established with your alcohol and drug counsellor, Mr Cameron Cahill, is solid and important.
25Mr Cahill wrote first in May 2021 before the first part of the plea that you had seen him initially very shortly after you were released from prison and had monthly follow-up or attendance both in person or by phone. You were on opiate replacement therapy and you were gaining insight about future reduction plans. He said your treatment planning is centred around continued promotion of stability rather than any major change at that point. You had attended regularly and not missed appointments. 'He presented appropriately', he said, 'and remained engaged'.
26Subsequent to the first part of the plea on 6 July, he wrote again on 3 October 2021 in the following terms; that you had attended for six further appointments which you noted in a mixture of phone and in person consultations. You had been able to reduce your methadone dosage and you remain motivated to reduce it further. You had developed good insight into long-term completion of the treatment with opiate replacement and he noted you understood that that required stable psychosocial lifestyle factors. He noted that you presented without any sign of using drugs and engaged appropriately. He went on; all the while grieving the death of your mother.
27He said it is a credit to you that you continue treatment and engaging in discussions on treatment plans and remaining accountable with drug use 'throughout navigating the emotions of the recent bereavement of his major support person'.
28So even prior to the sad death of your mother, you had had problems with your mental health. Her death and the circumstances have exacerbated your problems. The psychologist, Ms Mynard, who examined you both before the first plea and after your mother's death wrote firstly of your disruptive early childhood with an alcoholic father who died early at age 48 from the effects of alcoholism. She wrote of the ill health of your brother who had serious heart illness requiring a transplant but he died, as they said, in 2015 causing grief to you.
29Ms Mynard considered that at the point she saw you prior to the first part of the plea that you had post-traumatic stress disorder arising from a number of violent attacks but mostly due to the circumstances of the alleged murder. She also found that you had serious anxiety including agoraphobia.
30In her subsequent report, Ms Mynard emphasised your feelings of extreme guilt about your mother's death. She wrote that you said to her:
She shouldn't have died in court. At least it should have been at home or in her garden. Mr Frank explained that he feels that the guilt about his mother's death is unbearable for him at times.
31She wrote:
He struggles to cope with not having her around him.
32She further said that since your mother's death, your range of depressive and anxiety symptoms have been exacerbated even further. As I said, leading up to the plea on 6 July 2021, your counsel submitted that you should not be returned to prison but placed on a community corrections order combined with the 382 days that you had done as pre-sentence detention.
33In summary, the points made in support of this submission were;
i.The facts and circumstances of 389 days dead time on remand facing the murder charge;
ii.The 382 days served on remand for these offences was itself a significant punishment;
iii.Your stresses with regard to court ordeals surrounding the murder trial led to the relapse and drug use and that did much to explain this offending;
iv.For your solid rehabilitation to that point tackling more drug problems and your mental health was very much to your credit and should be further facilitated;
v.The fact that you pleaded guilty at a time when the criminal justice system was in crisis, due to the pandemic, and further, that your time in prison on remand was much more onerous – the restrictions in prison brought about to meet the risks of the virus breaking out in prisons meant that the time on remand was onerous; and
vi.Finally, the onerousness of prison was for you greater because of your post-traumatic stress disorder anxiety and mental health generally.
34This, as I said, led to a submission that all sentencing purposes could be met by the imposition of imprisonment that you have done thus far and an onerous and targeted community corrections order.
35The prosecution at that point disagreed and submitted that there was a need for denunciation and deterrence in particular such that the only just an appropriate sentence was for a further term of imprisonment with a non-parole period set.
36As I have indicated, the difficult sentencing equation faced by Judge Hampel changed significantly due to the events at the plea and their subsequent impact. Importantly and with commendable fairness, the prosecution no longer submit further jail is required. The prosecution agreed that a community corrections order is sufficient.
37As noted by Ms Mynard and Mr Cahill, understandably things have been very hard for you since the death of your mother. You blame yourself for her death given the circumstances. You will, Mr Frank, need help to manage these psychological burdens and, to your credit, you have continued with your rehabilitation with Mr Cahill.
38As has been said in many courts including the High Court, sentencing always involves a human dimension. It is not just or solely about punishment or sentencing purposes such as denunciation, deterrence or community protection or even just about rehabilitation. It is often about the court justifiably and accurately reading what the community reactions would be given the unique circumstances of a case.
39The reaction or sentiment of fair-minded members of our community in many cases encompasses such things as giving the young misguided first offender a second chance or giving the gravely ill, whether it be physical illness or mental illness, a compassionate and lighter sentence. It also occasionally involves a fair analysis of what has happened to an offender that leads the community to say, in effect, 'He has suffered enough, no more punishment is needed'. That is the case here.
40The Court of Appeal in DPP vMilson,[1] expressed these principles of mercy in sentencing more eloquently than I am. It did so in these words:
Mercy may justify the imposition of a sentence which may bear less heavily upon an offender than if he or she were to receive his or her just deserts. Mercy thus permits considerations as extreme disadvantage and hardship to be recognised as a factor mitigating sentence. Mercy may also come into play where a judge forms the view that leniency at that particular stage in an offender's life might lead to reform. Mercy must, however, be exercised upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to a well-balanced judgment.[2]
[1]DPP v Milson [2019] VSCA 55.
[2] Ibid [51].
41The court went on in Milson to cite the well-known cautions of older judgments from New Zealand in Radich,[3] and South Australia in Osenkowski,[4] before returning to the also well-known Victorian decision of Miceli,[5] in which the breadth of the circumstances enlivening the exercise of mercy remained clear. Charles JA said in effect that a sentencing judge ought consider ‘on the evidence before him’ whether:
…a reasonable basis existed in a well-balanced judgment for adopting a course which might bear less heavily on the applicant than if he were to receive his just deserts. It would be quite wrong for anyone to have thought that our system of justice did not entitle the prisoner standing for sentence to receive proper consideration of any claim he may legitimately have had to the exercise of clemency.[6]
[3]R v Radich [1954] NZLR 86.
[4]R v Osenkowski (1982) 30 SASR 212.
[5]R v Miceli [1998] 4 VR 588.
[6] Ibid 594.
42The claim here is the gut-wrenching dreadful experience that you, Mr Frank, saw and endured and have lived with since the court hearing on 6 July 2021. No one would think our system of justice would be indifferent to the impact of those events. As I said, in my view, the community's straightforward response would be to give weight to the concept that you have suffered enough and a merciful and just and appropriate sentence for you now in all the circumstances is one not involving a return to jail.
43In my view, all the other mitigatory factors raised up to and since 6 July 2021 taken now with the need for mercy because of the events of 6 July 2021 mean a sentence involving no more jail is the right one. In my view, that form of sentence would aid your rehabilitation and ensure that it is ongoing.
44You were assessed for a community corrections order and in the end were found suitable. A mental health assessment considered that there was a need for psychological treatment and I agree with that. I do not intend to impose conditions regarding supervision or programs directed at reoffending although they were recommended.
45Taking into account the individual circumstances of your presently living remotely on the farm at Eppalock, being also agoraphobic and also the need for you to continue with drug counselling and treatment together with mental health treatment. Success in these areas would, in my view, ensure there is little risk or less risk of reoffending.
46So for committing the crimes of aggravated burglary, common assault and attempted theft as an aggregate, I sentence you to 382 days of imprisonment together with a nine-month community corrections order that I impose with conviction.
47With respect to the summary offence of committing an indictable offence while on bail, in all the unusual circumstances of what you were on bail for and the ultimate outcome, I find that matter proven and make no further order.
48The conditions that I impose with respect to the community corrections order will be that you undergo assessment and treatment for drug problems and that you undergo assessment and treatment for mental health problems.
49I should at this point make clear that the sentence that I have imposed of 382 days is affected by the fact that I declare that you have served 382 days on remand for these crimes; thus you have served each and every day already of the sentence of imprisonment that I have just imposed.
50Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years with a minimum of two.
51What is required Mr Frank is that I outline the conditions that I apply to a community corrections order. Ordinarily in court, you would be handed documents, you would read them and then be provided with some assistance by a lawyer and sign them, signing them saying that you consent to the order being made.
52That is not possible in the same way here but I can, if you give oral consent, ensure that the document notes that fact.
53So what is involved in a community corrections order are the following and the first of these apply to all community corrections orders. Perhaps the most important of those is the first one and that is that you are not to commit any offence that is punishable by imprisonment during the period of the time of the corrections order, during the nine months. So you must stay out of all trouble. Every offence you can think of is punishable by imprisonment even if a magistrate might not impose such a penalty for the crime. It will breach this order and you will come back to me and thereafter there would be difficulties in allowing for the same mercy that I have allowed for here. So do not commit any further offences.
54You must report to the Office of Corrections at Bendigo. That will be done via telephone in the initial stages and they will assist you with that and the treatment programs thereafter.
55You must comply with their lawful orders and directions. That could include that they need to identify you at some point by taking photographs and the like for their files. You just have to cooperate with that.
56You have got to tell them if you change your address. You have got to tell them if you change your job. These matters are about cooperation.
57You cannot leave the State of Victoria without getting permission to do so. So follow all those matters. Just cooperate with them.
58The program conditions that I have outlined that apply to you specifically are those that you undergo assessment and treatment for drug abuse; that you undergo assessment and treatment for your mental health problems. The latter will be - you will be assisted by the Office of Corrections. More than likely, it will involve a general practitioner's mental health plan. No doubt Mr Cahill will be able to guide you through some of that.
59Now, having heard all that, do you consent to doing the community corrections order, Mr Frank?
60ACCUSED: Yes, I do.
61HIS HONOUR: All right. Thank you. Well, I have noted that and I will ensure that that is placed on the community corrections order that I sent to the Community Corrections people and also to your lawyers and the prosecution.
62Are there any other orders required, Mr Hayward? I did not look to see if there was forfeitures or what.
63MR HAYWARD: There is a disposal order sought for knives.
64HIS HONOUR: All right. So I will sign an order for the disposal of the items that are set out on that disposal request.
65Nothing further?
66MR HAYWARD: No, thank you.
67HIS HONOUR: Thank you very much. I thank counsel for their very considerable assistance and speaking for Judge Hampel, I thank counsel on her behalf for all that they have done with this very difficult case. Thank you.
68MR HAYWARD: If it please the court.
69MR COOPER: As Your Honour pleases.
70HIS HONOUR: I am just going to leave here. You can discuss other matters. My staff will assist you. Thank you.
‑ ‑ ‑
0
2
0