Director of Public Prosecutions v Frith

[2023] VCC 763

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01261

DIRECTOR OF PUBLIC PROSECUTIONS

v

TREVOR FRITH

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JUDGE:	Her Honour Judge Gaynor
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2023
DATE OF SENTENCE:	5 May 2023
CASE MAY BE CITED AS:	DPP v Frith
MEDIUM NEUTRAL CITATION:	[2023] VCC 763

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Aggravated burglary – Rape – Theft – Sexual assault of a child under 16 – Sexual penetration of a child under 16 – Commit an indictable offence on bail – Not fit to stand trial –– Custodial supervision order – Intellectual disability – Sexual offenders registry
Legislation Cited:	Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; Disability Act 2006.
Cases Cited:	-
Sentence:	Four- year Custodial Supervision Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Wallwork	The Office of the Public Prosecutions
For the Accused	Ms J. Clark	Greg Thomas Barrister & Solicitor

HER HONOUR:

1Trevor Frith, pursuant to the finding of a special hearing a jury has found that you committed the following offences.

2Two charges of aggravated burglary.

3One charge of rape.

4One charge of theft.

5One charge of sexually assaulting a child under 16.

6One charge of sexual penetration of a child under 16.

7Judge Morrish of this court found via a special hearing that you were not fit to stand trial and therefore the hearing was held pursuant to the provisions of the Crimes (Mental Impairment) Act.

8The facts underlying this offending are as follows.  It involved two victims who were sisters, Thea Cross[1] and Edie Cross[2].  Thea Cross was between 19 and 20 at the time of your offending against her and Edie Cross was aged 14.

[1] A pseudonym.

[2] A pseudonym.

9You and Thea Cross met in 2019.  The two of you became friends and you regularly contacted her on the phone.  She told you to stop contacting her but you kept ringing and she eventually blocked you.  You then called her on a private number.  You asked Thea Cross to become your partner, but she said no and you became angry and insisted on occasions that she break up with her boyfriend.  From about mid 2020 you started asking Thea Cross to stay at your house in Kilmore and abandoned houses in Melton and Werribee, which Thea Cross declined.

10On 8 September 2020, an Interim Personal Safety intervention order was taken out against you, the terms of which meant that you were not to have any contact with Thea Cross and her infant daughter.  That contact included a prohibition against you communicating with them by any means, going within their house or approaching within five, or remain with five metres of them.  You knew where Thea Cross lived and had attended her house at least twice.

11Between 29 December 2020 and 11 January 2021, you breached the personal safety intervention order by calling or texting Thea Cross’ number, contacting her about 99 times.  You also faced in the hearing 13 summary charges of contravening the Personal Safety Intervention Order.

12In the early hours of 12 January 2021, Thea Cross was asleep in her home at the front of the house, and her daughter was in a Thea Cross’ mother's bedroom in a cot.  At about 2 am, Thea Cross woke to the sound of knocking on her bedroom window and walked over to see if anyone was there.  She then awoke to find you lying on top of her while she was under the sheets.  Thea Cross asked who it was and you gave your name.  You told her you had a knife and a crowbar and had opened the window.  Your actions in entering the house in that fashion underlay Charge 1 on the indictment, aggravated burglary.

13You asked Thea Cross not to turn on the light then took the blanket off her and took off her pants and underwear.  You then took off your own clothes.  Thea Cross asked for her clothes back, but you said no.  You then sat on the bed next to her and pushed her shoulders back, causing her to fall on the bed.  She didn't say anything as she was afraid.  You then got on top of her saying, you have to listen to me and do what I say, or I'll hurt you with a knife.  At that time, you were holding a knife in your right hand which you pointed to Thea Cross’ face.

14You then put the knife on the floor, took your penis in your hand, then inserted your penis into Thea Cross’ vagina.  You were not wearing a condom.  Those actions underly Charge 2 on the indictment, rape.

15You refused to get off when she told you. She tried to push you off and keep her legs shut but you continued penetrating her and ejaculated after about 15 minutes.  You then told her to get her daughter and some items that she would need and to pack a bag for herself.  Thea Cross was afraid but did as you said.  She got her daughter and then you and she walked to an abandoned house.  You broke open the back door with a crowbar and the three of you went in.  These actions underly another associated summary charge, trespass.

16After about two hours you and Thea Cross walked to the nearby train station and caught a train to Southern Cross Station, arriving there at about 6.30.  The three of you then walked to a bus terminal and caught a bus to Kilmore.  Whilst in the Southern Cross terminal, you put your arm inside a vending machine and took a phone charger without paying for it.  Those actions underly Charge 3 on the indictment, theft.

17The three of you then caught a bus to Kilmore station and then a bus to your house.  On arrival there, the three of you went into your bedroom and watched movies for a while.  Your attendance at Thea Cross’ house was also a breach of the Personal Safety Intervention Order and underlies associated summary Charge 27, contravening such an order.  You were also within
five metres of Thea Cross, which was another contravention of the order and underlies a further summary charge of contravening the order.  Shortly after Thea Cross left, the fact that she was missing, was discovered, police were called and eventually police attended at the address in Kilmore where you were found, as was Thea Cross and her daughter.

18You told police that you met Thea Cross in the city randomly.  You said you knew there was an Personal Safety Intervention Order in place, and you were then arrested. 

19Examination of your phone revealed other contacts made between yourself via telephone and Thea Cross again in contravention of the Personal Safety Intervention Order and underly Charge 7.  Summary Charge 23 and Summary Charges 31 to 48.  I should add that the summary charges were not the subject of the trial, but are associated matters before the court for which I must deal with you.

20I now turn to the offending against Edie Cross.

21On the evening of 29 January 2021, the second victim, Edie Cross, was at home whilst Thea Cross was at a friend's house having a sleepover.  At about 8 pm you went to the house and spoke to Edie Cross at her bedroom window, saying you wanted Thea Cross to stay with you at a friend's house that night.  Edie Cross told you she was not home and you left.  Edie Cross had met you through her sister.

22A few hours later at about midnight, Edie Cross got up to go to the toilet and get a drink of water.  She went to the kitchen and saw you standing outside the closed kitchen window looking in.  She asked what you were doing and you said you just wanted to talk.  You told Edie Cross to go to her room because you wanted to have a chat with her.  When she returned to her room you were at the window which was open and you climbed in without asking if you could enter.  You just wanted to talk. 

23Your actions in entering the house underlay Charge 4 on the indictment, aggravated burglary.  You sat near Edie Cross on the bed, you put your hand on her vagina under her clothes.  And these actions underly Charge 5, sexual assault of a child under 16.

24You then pulled Edie Cross’s pants and underwear down and took your own pants off.  You then lay on top of Edie Cross on the bed and inserted your penis into her vagina, those actions underly Charge 6, sexual penetration of a child under 16.  You then got off Edie Cross, got dressed and said you were going to a friend's house.  She had not previously had sexual intercourse and suffered pain in her vagina when she then urinated after you left.  Your attendance at the house was again in breach of the Personal Safety Intervention Order conditions and underlies Summary Charge 6.

25At the time of offending against Edie Cross, you were also on bail and therefore there is an associated Summary Charge of committing an indictable offence on bail.  The complaint came about as a result of a conversation Edie Cross and Thea Cross were having on Snapchat on 30 January.  In that conversation Edie Cross told Thea Cross about what had occurred.  Ultimately, the mother of both Edie Cross and Thea Cross was informed and the matter was reported to police.

26When you were interviewed by police in relation to Edie Cross you told them that you had gone to the house, but denied going back there a second time and essentially denied the offending against her.

27I now turn to your personal circumstances.

28You are now 37 years old.  You were born in Hamilton, but ultimately adopted by a couple.  Your adopted father is a cousin of your real mother who was unable to take care of you.  You were adopted when you were 10 months old and you have lived with your adopted family ever since.

29You were diagnosed as having an Attention Deficit Hyperactivity Disorder (ADHD), and intellectual disability in your early primary school years.  You completed Year 10 with assistance but you had difficulty reading and writing.  At the age of 18 you were placed on a disability pension.

30You have had odd jobs here and there.  You have also had some experimentation with alcohol and drugs, although it does not appear from the reports that you have any particular difficulty with substance abuse.  Along the way you have been in trouble with police on a number of occasions.  Most significantly in 2002, you appeared before the Werribee Children's Court in relation to an indecent act with a child under 16 for which you were placed on probation.

31When I say that along the way you have been in trouble with police a number of times, you have been charged with a number of offences over the years, but ultimately all were withdrawn apart from the prior matter that I have now referred to.  You have been in custody since being arrested in relation to these matters.  The offending for which I must deal with you is serious offending.  I have sought appropriate reports as to the way in which I should deal with you.  I am satisfied that I should deal with you by way of a Custodial Supervision Order.

32In reaching that decision I had regard to a number of reports, as I have said. You have continued to deny the offending. Ordinarily where there is not a special hearing there is no question that an offender who were engaged in the offending you had would face a term of imprisonment.

33In relation to the custodial supervision order, pursuant to the provisions of s26(3) of the Crimes (Mental Impairment Act), I ordered a certificate under s47 the purpose of which was to determine whether facilities or services necessary for the order are not available.  In other words, s26(3)(a) provides that a court may not make a supervision order, committing a person to custody in an appropriate place, unless it has received a certificate stating that facilities or services necessary for the order are not available.  Appropriate place is defined to mean a residential treatment facility as defined in the Disability Act 2006 s3(1).

34I have received a certificate of available services pursuant to the terms of that certificate which was signed by the Director of Forensic Disability Services
Dr Matt Fryers, to the affect that there is no suitable accommodation for you in a community-based setting.  The service available to you on a custodial supervision order is a placement at the Intensive Residential Treatment Program.  I have referred to the report by Dr Fryers, a report by Psychologists, Jane Stafford and Stuart Hislop which was endorsed by Dr Fryers.

35In short compass an amount of testing was undertaken for your risk of reoffending in a similar way and that was found to be at a moderate level.  You were found to have certain psychopathic personality features as well as impulsive and anti-social behaviour,  some of which may be due to your intellectual disability.  You have continued to deny that you committed the crimes.

36The psychologist stated at paragraph 33 of the report,

'Mr Frith's sexual offences might be understood as an effort to achieve connection and sexual satisfaction'.

37They went on to say,

'Mr Frith is likely to experience retribution when he experiences or perceives rejection.  To this end, Mr Frith appears to offend using physical and sexual violence and subsequently both denies his guilt and accuses the victim of wrongdoing'.

38It is therefore the situation that you have no insight into your offending.  Overall, despite a neuropsychological report finding that you did not suffer from an intellectual disability it was the view of the psychologists that you do in fact suffer from a longstanding intellectual disability and should be found to meet the criteria for this.

39Again, as I have said testing revealed that you fell into the moderate category for the risk of reoffending, but by sexual violence and general violence offending.  Essentially it was felt by the psychologist that in terms of any future sexual offending by you this would most likely occur within an existing relationship, which you particularly where you felt that you had suffered rejection.

40You have a poor history of treatment engagement and overall, it was felt there was a need for sexual violence and general violence intervention treatment.  It was not felt that you could be left in the community.  The authors stated that the serious nature of your offences and the findings of the risk assessments demonstrate that you present a serious risk of violence to others and they stated,

'Hence it is considered that a non-custodial supervision order would not be sufficient to effectively manage Mr Frith to the community's safety'.

41There are currently vacancies within the Intensive Residential Treatment Program, which is a residential treatment facility under the Disability Act.  It provides intensive holistic treatment and requires participation in a structured day setting including attendance in cognitive behavioural base offence specific and offence related programs.  Admission to the IRTP cannot extend beyond
five years.  It was the view of the assessing psychologist that the IRTP would be considered suitable for your treatment and for the risk that you present to the community.

42I am satisfied having received the s 47 certificate, that the appropriate facilities required for your placement in the community are not available or sufficient to manage the risk that you present.  I am satisfied that you should be placed on a custodial supervision order.  In terms of the length of that order, I accept the prosecution's submission that it should be half the maximum penalty for rape, that is 25 years and you will be place on that order for a period of
12 and a half years.

43Therefore I order that you are committed to the custody of the Secretary of the Department of Families, Fairness and Housing to reside at the Intensive Residential Treatment Program with effect from 9 May 2022.

44I am going to order that you remain at the facility for a period of four years.  The suggestion was that you should be placed there for at least three years, not more than five and therefore I have decided on the period of four years as an appropriate balancing of that recommendation.

45I am placing you on the Sexual Offenders Register.  I order that you be placed on that register for a period of 15 years.  I note that I have a discretion to place you on that order for life.  My concern is that if I were to do so, given reports that it is unlikely that your intellectual capacities will improve or change, that this maybe too burdensome for you to achieve, as you get older and that a period of 15 years satisfies the protection I face in deciding on the appropriate disposition and orders to make in your case.

46Is there anything further that I need to deal with?

47MS CLARK:  Your Honour I noted perhaps in the material from the Department of Families, Fairness and Housing that there was mention of reviews.

48HER HONOUR:  Yes, there are - I beg your pardon, quite right.

49I will order a review in 12 months' time.  That is from the start of the order.  So, the orders to be done on 9 May 2023, I will order a review on 9 May 2024.

50MS CLARK:  Your Honour pleases.

51HER HONOUR:  Thank you.

52MS CLARK:  If Your Honour pleases.

53MR WALLWORK:  As Your Honour pleases.

54HER HONOUR:  That takes care of everything?

55MR WALLWORK:  Yes, it does Your Honour.

56HER HONOUR:  Thank you, I thank counsel very much for their assistance in this matter.

57MS CLARK:  If Your Honour pleases.

58HER HONOUR:  Thank you we will adjourn to 9.30 on Monday, thank you.

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