Director of Public Prosecutions v Frayne

[2019] VCC 2221

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02353

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES FRAYNE

---

JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2019
CASE MAY BE CITED AS:	DPP v Frayne
MEDIUM NEUTRAL CITATION:	[2019] VCC 2221

REASONS FOR SENTENCE
---

Subject: Intentionally cause serious injury
Catchwords: Guily plea – vicious assault of friend – very short duration – no weapon – learning disorder – reduced moral culpability – good rehabilitation prospects
Legislation Cited:
Cases Cited:
Sentence: 4 years 6 months imprisonment, non-parole period of 2 years 10 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. Cordy	Office of Public Prosecutions
For the Accused	Mr. A. Hands

HIS HONOUR: 

1James Ronald Frayne, you have pleaded guilty to one count of intentionally causing serious injury.  The circumstances of your offending as set out in the prosecution opening, Exhibit A, they are agreed facts. 

2In summary, on 17 October 2017, you got into an argument with a friend, Nicholas Smith, at the Five Flags Hotel at Campbell's Creek, where you were drinking and having dinner together.  It was a trivial dispute.  He said you were gay for eating sausages.  You got angry and challenged him to go outside for a fight.  He followed you.  Outside he said he had a sore shoulder and he did not want to fight with you.  You pushed him, he grabbed you and the two of you grappled with each other.  You threw him to the ground and fell on top of him.  You straddled him and punched him three times while he was on his back.  When he tried to get up, you put him in a chokehold and he lost consciousness.  Whilst he was motionless on his back on the ground, you punched him four times to the jaw.  You then got off him and walked away momentarily.  You then walked back to him where you shook him and then moved him to a nearby wall where you propped him in a sitting position against it.  He slumped forward, the Bar manager came out to help him, you got out your phone and made a call to 000.  A hotel patron, who was a nurse, also came outside and cared for Mr Smith until an ambulance arrived.

3Your attack was captured on CCTV film.  It was callous and brutal, though of very short duration, 55 seconds from the first push until the final punch, and 28 seconds from the first punch to the final punch.

4When police arrived, you surrendered to them, saying words to the effect of, 'Lock me up, I know I'm going to gaol.'  You walked to the rear of the police divisional van and opened the door to get in, before police stopped you.  Eventually, they arrested you. Before you were taken into custody, they let you speak with ambulance officers when you expressed concern about Mr Smith's condition.

5You had caused him a closed head injury, an open wound over his right eyebrow and facial fractures which required surgical repair. 

6At operation, the surgeon removed four decaying teeth; later 12 more teeth were removed.  He has been left with scarring over his right eye and blurred vision, on-going facial numbness and jaw pain.  His teeth were replaced with dentures and he has received counselling for anxiety and depression.

7When police interviewed you, you said your friend attacked you and you punched him in self-defence.  That was not true.  You started the fight, he resisted, and you punched him while he was on the ground and then again after you had applied a chokehold.

8I have read Mr Smith's victim impact statement, dated 14 December 2017.  Then, he had difficulty with a number of daily activities because of jaw pain and soreness.  He said it hurt when he shaved and brushed his teeth.  He could not ride his motorbike because he was unable to put on a helmet.  He said he was tired of being in pain. 

9He also said he felt very embarrassed about what happened and tries to think about what he could have done differently.  Poignantly, he wrote,

'The worst thing is that I have lost my best friend and I don't understand why.  I knew this person very well, and we were very close.  I don't know why this happened to me.  I feel sad and depressed and I miss my friend very much.' 

10I take into account, the harm you caused Mr Smith and also his compassionate response in determining the sentence I will impose. 

11You have admitted a criminal history. 

12You have two prior court appearances for violent offending.  On 14 October 2008 at Broadmeadows Magistrates' Court, for unlawful assault and resist arrest, you were placed on an adjourned undertaking without conviction, and on 10 August 2015 at Bendigo Magistrates' Court for affray, you were released on a community correction order without conviction. 

13Your counsel, Mr Hands, told me that the 2008 convictions arose out of circumstances where you went to your mother's home and had an argument with your older brother.  He said the 2015 offence occurred at a petrol station where you threatened the then-partner of your former partner, with a wheel brace after he had struck your car, with your son and you inside, with a baseball bat.  Mr Hands said no-one was hurt. 

14While they are relevant to both specific deterrence and the prospects of your rehabilitation, I accept as the relatively modest penalties reflect, they were relatively low-level episodes of offending.

15I turn now to your personal circumstances. 

16You were 27 years old at the time of your offending and are now 29.  You were one of four children.  You grew up in the Broadmeadows area and attended local schools. 

17From an early age, you struggled at school and were diagnosed with a specific learning disability in reading and writing.  After you completed Trade school at The Island at Collingwood, in 2005, and obtained vocational certificates, you commenced a carpentry apprenticeship.

18Your parents had separated in 2012, after your older brother tragically committed suicide.  Your mother re-partnered and took your younger brother and sister with her to the United States.  You remained with your father.  Mr Hands told me you did two years of your apprenticeship and after you got in with the wrong crowd, your employer let you go.

19In 2006, you obtained a red card, which enabled you to work on building sites and, in 2011, you resumed and completed your carpentry apprenticeship.  You obtained other trade certificates to increase your skills and drove timber jinkers for several years. 

20You have always been hard-working.  I received a reference from Scott Thompson which indicated, in addition to your weekly full-time work, you drove trucks on weekends for him. 

21Around the age of 20, you met a girl who became pregnant with your son, who is now seven years old.  You described her as a drug-addict with constant dramas and yourself as an alcoholic.  You separated after three years. 

22You were working long hours to pay the rent for a home for your son and his mother and a second home for you.  You said things improved when you met your second girlfriend.  That relationship broke up as the result of conflict with your mother.  When you were 25, you met your third girlfriend and bought a house together. 

23In 2018, you obtained custody of your son and, at the time you offended, your son was living with you, together with your mother and younger brother and sister.  You were working at abattoirs at Kyneton where Mr Smith was your work-mate. 

24A trial of a charge of recklessly cause injury in circumstances of gross violence was listed on 21 July 2019 at Bendigo.  Before a jury was empanelled the prosecution accepted your offer to plead guilty to a charge of intentionally cause serious injury.

25Mr Cordy, who appeared for the prosecution, informed me you had made the same offer a number of times previously.  He submitted you are entitled to a significant benefit for your plea, for its utilitarian value and as an indication of remorse. 

26In mitigation of penalty, Mr Hands relied on your remorse, evidenced by your call to Emergency Services immediately after you had injured Mr Smith, your surrender to police when they arrived, and your guilty plea. 

27He relied on your good work history, and your good parenting record and your supportive family.  As well as having your mother’s ongoing support, your father and your partner have supported you throughout the court proceeding. 

28He also relied on the psychological stressors weighing on your mind when you offended, that is, your brother's suicide and your custody and financial battles with the mother of your son, and he relied on your good prospects of rehabilitation. 

29Mr Hands submitted the court would be assisted by a pre-sentence report and Mr Cordy, who appeared for the prosecution, agreed. 

30Accordingly, I requested a Forensicare report. 

31Dr Ming Tam, a psychologist, interviewed you for three hours on 24 July 2019.  Your personal history, which I have already referred to, is set out in Dr Tam's helpful report.

32To him, you admitted an alcohol problem.  You had been drinking when you committed these crimes.  You said Mr Smith contacted you when he was suicidal.  It triggered sad memories of your brother's suicide.  Added to that, you were feeling stressed by mounting legal fees relating to your son's custody, and wages owed by your boss. 

33Earlier, as you were driving home following a night-shift, a debt collector called you chasing money for an ex-girlfriend's car you had financed. 

34So your friend would not be alone, you brought some beers to his house and then went with him to the hotel to get food.

35At the hotel, you felt he was picking on you.  You told Dr Tam, you can usually avoid an argument,

'But if I am drunk, I can't walk away.' 

36In Dr Tam's opinion, you appear to have learned to resolve conflict through aggression, from social modelling of your parents and from school-yard fights in reaction to being bullied at school.

37To Dr Tam, you expressed strong motivation to reform.  You said the structure of the prison environment has helped you to reflect on the problems alcohol cause.  In gaol, you spend your time working out, running, thinking, attending programs, including A.A, and working in the welding factory and as a billet. 

38Your mother visits you weekly.  You plan to stay with her when you are released.  Given your good work record, you are confident you will also get employment. 

39In Dr Tam's opinion, the stressors of sleep deprivation and disputes with your son's mother, over custody and your boss, over wages, and a finance company over your ex-girlfriend's car, and the behavioural disinhibition from your intoxication were contributing factors to your grossly excessive reaction to the offence you took from your friend's comment.

40Based on his interview with you, Dr Tam's opinion is you likely meet the criteria for diagnoses of specific learning disorder and alcohol-related disorders. 

41Dr Tam assessed you as a moderate risk of violent reoffending.  In his view, you will benefit from treatment for your alcohol and anger management problems. 

42Mr Hands submitted both your learning disorder and alcohol disorder are factors which mitigate penalty in your favour. 

43Mr Cordy accepted you have a diagnosed learning disorder which moderates your moral culpability to a modest extent.  He disputed your alcohol disorder is a mitigating factor.  He submitted your prior knowledge of the adverse effects of intoxication on you, was an aggravating feature of your offending.

44Mr Cordy submitted your offending was serious.  Your assault on your friend was vicious and scarcely provoked.  He suffered serious injuries.

45He submitted while your attack was of short duration, your friend's vulnerability aggravated the seriousness of your offending.

46In the case of Nash, the President of the Court of Appeal set out a number of factors relevant to the assessment of the gravity of the offence of intentionally cause serious injury.  They are: the offender's intent, was it to cause serious injury or really serious injury or the maximum possible injury; the seriousness of the injury actually caused; how vulnerable the victim was; whether a weapon was used; how long the attack lasted and whether the offender acted alone or in company. 

47While your attack on your friend, who was vulnerable, was violent and scarcely provoked, you acted alone, you were not armed and your attack was very short-lived.  I find it falls in the low to mid-range of offending of the type. 

48I do not accept your alcohol disorder reduces your moral culpability.  When you committed this crime, you knew the adverse effect alcohol could have on you.  I also do not accept that your drinking is an aggravating factor.  You did not deliberately set out to get drunk.  You were drinking with your friend in the context of helping him when he was feeling low.

49I do accept your learning disorder which was diagnosed at an early age, reduces your moral culpability to a moderate degree.  In that regard, Mr Cordy, referred me to the cases of Colby Hards, Dieu Chol, Mitchell Mansfield and Gapo Brown. 

50In those cases, the sentence imposed for the offence of intentionally cause serious injury ranged from four years to six years.  The gravity of the offending of Hards and Mansfield was similar to yours, but both were young offenders.  The offending of Brown and, as Mr Cordy acknowledged, Chol was more serious. 

51I have also read the cases of Nash, Grech and Hudson, and with appropriate adaption, I have found them to be a helpful yardstick against which to examine the sentence I should impose in your case.  

52I have also had regard to the matters set out in sub-s.(2) of s.5 of the Sentencing Act including current sentencing practices. 

53The offence of intentionally cause serious injury is inherently serious, and in your case I am satisfied I must impose a significant term of imprisonment.

54However, I have moderated your sentence and the non-parole period, to take into account your immediate remorse, your plea of guilty, your learning disorder, your strong desire to reform and your positive response to your time in custody. I also take into account your prospects of rehabilitation which, considering your solid work history and family support, I find to be good, provided you abstain from alcohol excess and address your anger management issues. 

55Please stand Mr Frayne.

56By the sentence I impose, I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

57Taking into account, the circumstances of your offending and its effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of intentionally cause serious injury, you are convicted and sentenced to four years and six months' imprisonment. 

58To mitigate your punishment and to give you the opportunity to advance your rehabilitation under supervision in the community, I order that you be eligible for parole after you have served two years and ten months of your sentence. 

59I declare you have already served 150 days of your sentence by way of pre-sentence detention. 

60I declare that but for your plea of guilty, I would have sentenced you to five years and nine months' imprisonment and imposed a non-parole period of four years. 

61I make an order under s.464ZF of the Crimes Act that you provide a forensic sample, that is a sample of your saliva, for inclusion on the data base. I must tell you that if you do not cooperate with police in the taking of that sample, then police may use reasonable force to obtain a blood sample from you. 

62Please be seated Mr Frayne.  Mr Cordy, are there any other matters?

63MR CORDY:  No, Your Honour.  Thank you.

64HIS HONOUR:  Mr Timms?

65MR TIMMS:  No, Your Honour.  Thank you. 

66HIS HONOUR:  Remove Mr Frayne please, and adjourn the court please. 

‑ ‑ ‑