Director of Public Prosecutions v Frengos

[2015] VCC 1562

IN THE COUNTY COURT OF VICTORIA

Revised
(Not) Restricted

 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01157

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICK FRENGOS

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 November 2015
CASE MAY BE CITED AS:	DPP v Frengos
MEDIUM NEUTRAL CITATION:	[2015] VCC 1562

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Triandos
For the Accused	Mr S. Payne

HIS HONOUR: 

1Nick Frengos, you were found guilty by jury verdict of one charge of intentionally cause injury and one of reckless cause injury.  The background to these offences and their detail and context is summarised by a prosecution opening for trial, which will be retained on the court file.

2For the purposes of this sentence, it suffices to say that the offences were committed on 22 December 2013.  You and the others involved all resided in a block of units, in different apartments.  On that day, the victim and others were having drinks outside their flats and this activity began in the morning.  All of you were known to each other as acquaintances, however after a little while, there were some unpleasant words exchanged, after you had stopped to drink some alcohol with the others and had begun to behave aggressively.

3At some point, I am satisfied you have behaved aggressively towards an elderly woman who lived on the ground level.  This gave rise to some of the men berating you for your behaviour towards her, but you continued that conduct.  At some point, you threw at least one beer stubbie at one of the men and when he recriminated with you, you punched him to the side of the face, causing his nose and lip to bleed, soreness and swelling to his cheek.

4At trial, you denied having thrown any bottle at anyone and alleged you had been kicked in the testicles while being held by the victim's brother and that you hit Funes in self-defence. This  explanation was rejected by the jury who found you guilty of the relevant count.

5Sometime after this conduct, you returned and without apparent provocation, you struck Mayne to the head.  He lost consciousness due to the serious injuries you inflicted upon him.  I accept that the state of the evidence, at its highest, that being Mayne's own evidence which was heavily conditioned by his drunken state, is that you punched him with what he described as three king-hits to the head.  The other evidence was not persuasive (of at least one blow with a golf club to the head of Mayne) and although this version was the original prosecution case, and to some extent, supported by the presence of a  golf club and other witnesses' accounts, I accept that this evidence is not sufficient to prove that he was struck by a golf club by you beyond reasonable doubt, and I do sentence you therefore on the basis of three king-hit punches to the head.

6Although this means that I do not sentence you on the basis of intentionally causing injury with a metal weapon, which when wielded is very dangerous, I nevertheless consider that the evidence clearly shows the blows you deployed on Mayne were powerful and extremely violent causing injury inflicted purposefully with clear intent.

7Given what you claim is your apparent background as a proficient boxer, such punches would have been extremely heavy and caused significant injury.  Mayne suffered a chipped tooth, lost consciousness and loss of blood.  He had numbness to his face, lacerations above both eyes requiring stitching, and a comminuted fracture of the jaw which required four plates to be surgically inserted in his jaw.

8When interviewed by police, you said you had smashed some bottles on the ground, "To break the bad luck."  You told police that Mayne had thought you had hit Funes, then you left that conversation and as you did so, you heard Mayne fall over as he was drunk.  This was your case upon the trial.

9Intentionally cause injury carries a ten year maximum penalty of imprisonment.  Recklessly cause injury carries five years as a maximum.  The injuries in relation to the intentionally cause injury charge were conceded by your counsel to be a serious example of such injuries.

10The attack delivered to Funes was aggressive and in response to reasonable remonstration about your conduct.  I do not accept that you were provoked or that you acted out of frustration about any insult.  This was unprovoked essentially, and although probably a spontaneous reaction when it was delivered, it had been preceded by your aggressive and disruptive behaviour towards a group of men who were enjoying a quiet Christmas drink.  I find the attack on Mayne to be totally unprovoked and so must be viewed in the middle range of seriousness and blameworthiness of such conduct.

11A victim impact statement was tendered on behalf of Mr Mayne.  He is a man clearly beset with a history of consistent and heavy alcohol consumption.  He would not have been in a position to adequately protect himself from your onslaught.  In that sense, he was an easy and vulnerable target for your violence, which goes to emphasise the repulsive nature of your assault.  He reports he is now fearful and anxious about assaults, he is plagued by nightmares, had regular headaches and his physical injuries have required ongoing medical attention and visits to a counsellor.  He now reports resorting to even more alcohol despite also needing medication.

12He may require further significant treatment and has to take pain killers regularly.  His sense of safety and security has been broken and his hypervigilance may lead him to move away from his residence where he once felt safe.

13You were born in 1974, and you are now 41, the youngest of two brothers.  Your parents owned a car wash and did so for some 13 years.  Your parents separated when you were in your 20s.  Your father returned to his native Greece, but you have a very supportive mother.  As a child, you were exposed to violence perpetrated by your violent, alcoholic father on your mother and yourself.

14You left school at Year 10, having been suspended after having stabbed another student.  After school, you undertook a six month fitness instructor’s course.  You had started boxing at age eight or nine reportedly.  You worked as a fitness instructor, at a fast food outlet, as a cleaner, as a storeman at the airport, as well as in the family business.  However, you have relied on benefits for many years, probably due to the incapacity to work because of your drug habit, which has been significant.

15In 1996, you formed a relationship and have a son who is 15 or 16, but you have not seen him for a period of time.  As you reported to Dr Owen in his March 2014 report, that relationship deteriorated after you hit your partner just after having spent a period in gaol.

16OFFENDER:  Nah, she had an abortion.

17HIS HONOUR:  The break up occurred in 2005.  You were by then using heroin and you assaulted her, fracturing her skull.  You reported to Dr Owen that you are epileptic since a young age and fractured  your skull after being hit by a car.  You asserted to Owen that you were a middleweight boxing champion between 92 and 2002, a claim Dr Owen said, "Stretched credulity."

18OFFENDER:  That's right, undefeated.

19HIS HONOUR:  In 1996, you threatened to shoot up staff at an abortion clinic where your ex-wife was intending having an abortion.  In 2000, you assaulted five people ‑ ‑ ‑

20OFFENDER:  They're criminals anyway, mate.

21HIS HONOUR:  ‑ ‑ ‑ and were gaoled for four and a half years.

22OFFENDER:  Yeah, they don't want to see (indistinct words).

23HIS HONOUR:  Dr Owen had in fact assessed you in December 2013, only a couple of weeks before this offending and although at that time, you disclosed seeing a psychiatrist, you denied feeling depressed and reported sleeping well and had a good appetite.

24In February 2014, when Dr Owen then reviewed you, he could not identify any delusional ideas and you were dismissive of any psychiatric assistance.  You expressed no remorse for your involvement at any of the offences you described and gave exculpatory accounts of your involvement.

25On your account, you commenced using cannabis when you were aged 18 and when you were 24 ‑ ‑ ‑

26OFFENDER:  (indistinct) Steve, just put an appeal in straight away, right, give me a fuckin' sentence.  Ridiculous, all right.  Fuckin' and I'll put it to you that I fuckin' didn't do it, right?  That's right, fuckin' up the cunt, no one fuckin' asked me in those court notes, you fuckin' cunt.  (indistinct words) I don't care, I can't hear you, cunt.  Put in an appeal, Steve.

27VOICE (from the body of the court):  (indistinct).

28OFFENDER:  Against conviction, not sentence.  Conviction.

29HIS HONOUR:  Mr Payne ‑ ‑ ‑

30OFFENDER:  I want the same - I want the same prosecutor that come in and proved the fuckin' case again.

31HIS HONOUR:  ‑ ‑ ‑ would you just talk to your client.

32OFFENDER:  Oh please, get me out of here.  I cannot - I cannot bear hearing my past.  Okay.  I'm - I'm a convicted criminal.

33MR PAYNE:  May I approach, Your Honour?

34HIS HONOUR:  Mr Frengos, I am not going to be very much longer.  If you would courteously take a seat.

35OFFENDER:  Nah, I don't want to take a seat.

36HIS HONOUR:  And I will read your sentence out to you.

37OFFENDER:  I do not want to take a sentence - ah do not want to take a seat.

38HIS HONOUR:  Well then you can just stand there, if you wish.

39OFFENDER:  I'll just stand here.  I'll stand here.

40VOICE (from the body of the court):  (indistinct).

41OFFENDER:  I do what I like.

42VOICE (from the body of the court):  Please.

43HIS HONOUR:  When you were 24, you started using heroin intravenously until 2013.

44OFFENDER:  Don't want to let me go?  I don't (indistinct).

45HIS HONOUR:  In the past, you have used ecstasy and cocaine, prior to your incarceration in 2013 following this current offending, you had taken some alprazolam and diazepam.  Dr Owen reported that you suffer an opiate dependent syndrome and you had been on methadone.

46You have likely had some periods of dependence on benzodiazepine.  He suggested  the presence of an antisocial personality disorder, you have significant problems with anger management.  Dr Owen has highlighted that your bringing up was characterised by exposure to significant interpersonal violence between your parents as well as having subject to abuse by your father.  This aspect of your history is, says Dr Owen, highly conducive to developing an antisocial and borderline type personality disorder in adulthood.

47He says your risk of further offending is high based on the presence of various factors which he outlines at Paragraph 10 of his report, all which lead to a conclusion that your prospects of rehabilitation must be guarded.

48A neuropsychological report was also tendered, dated September 2014.  Dr Evans concluded that your profile is consistent with an acquired brain injury, that you have some grandiose and disorganised thinking with persecutory and delusional thought, poor impulse control and self-reported anxiety.  The report is highlighted by inconsistent and conflicting history provided by you.  Dr Evans also referred in the body of the report to two other previous assessments in 2007 and 2009.  Her neuropsychological assessment was very detailed and I note your attribution of blame to others for your behaviour and a limited ability to reflect on the impact or consequences of your behaviour.

49I noted the many tests performed and results obtained.  Noteworthy is your inadequate social reasoning and ability to respond in a socially appropriate manner and complex social situations and significantly, your lack of insight into your personal situation and the need to address aspects of your behaviour with attribution of blame to others.  She agreed with earlier reports linking your offending behaviour with some mental health issues.  I note the strategies and future referrals outlined by Dr Evans.  I take all of these matters into account and acknowledge, as is proper in sentencing that these matters pertaining to your background and mental health are not to seek to excuse what you've done or to lay blame for it somewhere else, but rather to make plain the basis upon which the court approaches its task in your case.

50Your background of disadvantage and current and recent mental health issues are relevant, so are your history and assessment of your capacity and prospects of rehabilitation.  Social disadvantage frequently precedes commission of crimes and this is so in your case.  Where violence and dysfunction is the environment in which an offender is raised, that should be taken into account to mitigate the effects of your moral culpability where your youth has been marred in this way.

51Background of this kind may compromise a person's capacity to mature and to learn.  This is also the case when taking into account the mental health issues highlighted in the reports referred to, which I take into account, also to mitigate the sentence.

52However, the existence of a relationship between an offender's mental capacity and the offence does not automatically work to reduce the sentence and your inability seemingly to control violent responses will , in fact, increase the importance of other sentencing principles such as community protection and specific deterrence, both of which I consider are still relevant, particularly in view of your criminal history.

53Deterrence of others may be reduced by your situation, but in my view, is still a principle to be applied and considered and denunciation remains a valid and relevant principle to be taken into account.

54All of these aspects must be properly synthesised in the sentence.  You do have significant prior offending dating back to 1991.  Excluding appeals, as your counsel pointed out, you appeared in court on 34 occasions facing a total of 146 charges.  The vast majority are driving matters and dishonesty matters.  However, you have eight appearances from 93 to 20014 for matters involving violence.  The earliest is for an assault by kicking.  Four of them include intentionally cause injury and two include recklessly cause injury or serious injury.

55In 2000, in offending which was appealed to the Court of Appeal, you attempted suicide by driving a vehicle into another in the context of violence in your home.  I have read the 2005 Court of Appeal decision.  That indictment was proceeded by another to which you pleaded guilty in which it was alleged that on Christmas morning 2001, you punched another man for which offence you got a bond.  The four year sentence was not regarded as manifestly excessive by the Court of Appeal.  Your history of offending as at that time was set to demonstrate that the offences were part of a regular recurring pattern of behaviour, which bore upon your prospects of rehabilitation and the need for personal deterrence.

56Since that decision, you have appeared for driving offences and in 2010, for recklessly cause injury, assault in 2012, assault police in 2012 as well as a number of serious dishonesty and driving offences. 

57I was also properly told the matters relating to offences committed before December in the indictment, in which you were dealt with in February 2014, involving dishonesty, the May 2013 breach of intervention order, criminal damage, making threats to kill, threatening to kill police in May 2013.  April 2013, an assault at a Coles supermarket where you punched a victim in a random attack.  January 2013, dishonesty offences, again at Coles.  There is a pending matter in the Magistrates' Court involving allegations of assault against prison staff, which I was told, will proceed as a plea to two charges of recklessly cause injury.

58This history highlighted, in my view, the need to take into account community protection, specific and general deterrence, moderated in the way I have explained and denunciation and punishment and my assessment that your prospects for rehabilitation must be guarded.

59On 25 February 2014, you were sentenced, I understand, to three months for the domestic violence matters which would also appear to have breached a suspended sentence.  You were remanded on the current matters before me on 23 December 2013.  Pre-sentence detention referable to these offences was agreed to be 611 days, which will be taken into account by the authorities and I will note in the records of the court as already been served.

60As a result of incidents involving other inmates in the offending against prison staff, you have been in solitary confinement for that entire period except for two months.  This meant  being locked in a cell for 23 hours with no TV and newspapers.  I was told that recently your yard time was increased to 90 minutes.  I consider these conditions of reclusions to be significantly more onerous than normal incarceration.  I am of the view that I should take them into account when reaching a conclusion as to the sentence in amelioration of it in view of this regime of confinement for that period.

61It was submitted that I should consider a community corrections order post release as part of the sentence.  I have considered this and, in my view, you are neither a suitable candidate for such an order, nor is it appropriate.  Although some therapeutic considerations may appear to be indicated by your history and background, ultimately, in my view, imprisonment is the only appropriate disposition as was conceded in your case.  I find that you have demonstrated a lack of insight and there is no evidence of remorse.

62It was also submitted that the time you have spent in custody is sufficient for purposes of punishment in this case.  I have considered this submission.  In my view, that is not a proposition with which I can agree for all the reasons which I have outlined above to properly deal with this matter.

63Taking each and all of these matters into account, I sentence you as follows.  On Charge 2, on recklessly cause injury, you are convicted and sentenced to 18 months' imprisonment.  On Charge 4, on intentionally cause injury, you are convicted sentenced to three years and six months' imprisonment.  I order that 12 months on Charge 2 be cumulative on the base sentence of Charge 4, making a total effective sentence of four years and six months.  I order a non-parole period of two years and eight months.  I note for the court record that you have already served 611 days by way of pre-sentence detention.

64Are there any other orders, Mr Triandos?

65MR TRIANDOS:  Yes, Your Honour.  There is a disposal order that was sought.

66HIS HONOUR:  Yes.

67MR TRIANDOS:  Your Honour, the prosecution is only seeking the disposal of one golf club.  The golf club was located at the scene, Your Honour.

68HIS HONOUR:  Yes.

69MR TRIANDOS:  The other golf clubs can be returned.  There was a shirt and a knife sheath, they can be returned to the prisoner, Your Honour.

70HIS HONOUR:  Yes, I have signed those orders.  I repeat that I note for the records of the court that Mr Frengos has served 611 days by way of pre-sentence detention, excluding today.  Yes, thank you.  You can remove Mr Frengos.

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