Director of Public Prosecutions v Frith (a pseudonym)

[2017] VCC 332

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAYDEN FRITH (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	30 March 2017
CASE MAY BE CITED AS:	DPP v Frith (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 332

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Mr J. Fitzgerald

HIS HONOUR:

1Brayden Frith[1], you have pleaded guilty to one charge of maintaining a sexual relationship with a child under 16.  Two charges of rape and one charge of contravention of a Family Violence Intervention Order.  Those crimes carry maximum penalties of 25 years, 25 years and five years respectively.

[1] A pseudonym.

2You are now 45 years of age.  You have pleaded guilty at the earliest opportunity and you must get the benefit of that plea.  I take into account your, now at least, remorse and you also must get a significant utilitarian benefit for that.  You do have prior convictions but none of any significance in this sentencing process. 

3Because of the sentences I will impose you are to be sentenced as a serious sex offender on Charges 2 and 3.  I am aware that community protection becomes the principal sentencing purpose.  The Crown do not seek a disproportionate sentence and I am aware that it is cumulative unless otherwise ordered and I will be ordering a degree of concurrency although I will express it in terms of cumulation.  Also because of the offending you will be placed on the sex offender's register and I advise you that the period of reporting will be for life.

4Pursuant to s.464 of the Crimes Act I make an order that you provide a saliva sample of DNA purposes.  That order being made I advise that should you refuse to provide such a sample police may use reasonable force to take it from you. 

5The offending is serious indeed.  The victim in this matter, was born in October 1992.  When she was about three years' old her mother began a relationship with you and you became her father figure.  Her name was changed to your name and she would call you dad.  You and the victim’s mother had a child in 1997 and the family, from that point on, lived together.

6The complainant says that you did things to her which she later learnt were wrong and were sexual assaults.  They started when she was approximately ten years old and continued until 2015.  It happened so often that she could not recall each time or give specific details about each occasion that things occurred.  She recalled that sexual assaults occurred every week from the age of ten onwards.  I am very aware that the charges in this matter are not representative charges and are not rolled up charges and accordingly I do not sentence on that basis.

7In July 2002 the family was in a town and you and the mother had a verbal argument.  Both had been drinking alcohol and were intoxicated.  It was soon fairly clear that a lot of this offending occurred in circumstance of intoxication.  At some stage your partner drove off in her car, was involved in a single vehicle collision and was placed into hospital. 

8That night after the mother had left the house, you called the victim into the kitchen and lifted her onto the bench. She was wearing a singlet and shorts as pyjamas. You began to run your hands up and down the bare skin of her upper thighs and slipped your hand up under her shorts and underwear and began to move your fingers in a circular motion on her clitoris.  She was scared and asked you what you were doing.  You kept telling her that everything was all right. 
She asked you to stop and you ignored her, telling her it was all right.  On her estimate it went on for about five minutes before you lifted her off the bench and told her to go to bed.  The next day you told her that she could never tell anyone and you told her that if she told her mother, that her mother would hate her and would leave her.  She did not tell anyone about it until she was 18 years' old.  This is the first occasion going to the maintain a sexual relationship charge.

9The next particular occasions she recalls happened when she was about
12 years old in 2004.  You and your partner apparently had been making moonshine in the shed and were both really drunk.  She thought that you had come into her bedroom that night because she says you did that every time you had been drinking.  She asked her brother if she could sleep in his room but you told her she could not.  Sometime after she got into bed you came into her room and she was still awake.  You told her to take off her pyjamas but she said no.  You told her again in a more aggressive voice so she did, which left her naked.  You then ran your hands up and down her chest, stomach and her thighs, telling her that you loved her, pushed her legs apart and put your penis inside her vagina.  It hurt a lot and she began to cry and asked you to stop.  You ignored her and continued to thrust into her.  She kept crying and said "I need to wee" at which stage you pulled your penis out and said to her "Go to the toilet, hurry up.  When you get back, I'm gonna fuck the shit out of you".  That is occasion two.

10Occasion three was when she came back from the toilet, you brought her back from the toilet.  She said that she started to cry and did not want to have a baby.  You said that you could make sure that did not happen and pushed your penis into her anus.  She screamed in pain and you pulled out and you then passed out.  That is occasion three.

11Occasion four was after an AFL night game at the MCG.  You had all gone to Melbourne.  She describes that you and your partner had been "plastered".  As the game was over the family stayed at a motel in Melbourne.  You all had gone to bed and at some stage during the night you came over to her bed and woke her up.  You told her to come with you and went back to the double bed where her mother was asleep.  She sat on the edge of the bed and then you put her hand up her nightie, pulling her underwear across and put one of your fingers inside her vagina.  She was facing away from you as you lay on the bed behind her and you had your arm around her.  At one point while you had your finger inside her vagina her brother woke up and said "What are you doing?"  She did not answer and you ignored him.  He apparently started to cry and kept asking "What are you doing?"  You told him to go back to sleep.

12They are the occasions that give rise to the charge of maintaining a sexual relationship and in my view these are very serious examples of it indeed.

13Charge 2 of rape.  In 2011 when she was 18 years of age there was a period when you and her mother were thinking about moving.  She did not want to move and on occasion ran away from home to stay at a friend's house.  You called her a lot and sent her a number of messages.  In one of the calls you were crying and telling her that she was tearing the family apart.  She felt so bad she went home the next day.  When she returned home you and her spoke about the sexual assaults.  You told her that you knew that you had done the wrong thing.  You said you could not help it.  You told her that you loved her and that the sexual assaults would stop. 

14In around Easter 2011 the victim's grandmother came to stay with the family.  While she was staying there she slept in the victim's room.  The victim slept in the lounge room on a mattress and you slept in there also on the couch.  One night you swapped places so that you were on the mattress.  After you had gone to bed you told the victim to come down on the mattress with you but she said "No, Nan's here".  You said that Nan was asleep and told the victim to get up and close the kitchen door, which would stop Nan, apparently from seeing into the lounge as she went to the bathroom. 

15You closed the door and then sat down on the couch.  You told her to come onto the mattress and she knelt next to you.  You pulled down your pants and told her to get on top.  She could see that your penis was erect.  She said no and you grabbed and said "Do what I fucking say".  You grabbed her arm and she took off her boxers and then you penetrated her vagina with your penis.  Just before you ejaculated you told her to get off you and get you a towel, which she did.  You then said "Goodnight" and went back to sleep.  The nan apparently did see you lying on the mattress next to the victim and made some sort of complaint about that.

16Charge 3 of rape is when in around May 2015 when you and your partner separated.  The victim continued to live with you and her brother until late August when she also moved out on her own.  The last occasion she can recall of a sexual act on your part occurred in September 2015.  She was living in her own place and you were still living with your son. 

17On or about 22 September 2015 you rang the victim and told her that you were depressed and you were going to kill yourself.  You also said that the victim had ruined your whole life.  It was her fault you could not work, it was her fault her mother had left and she was a horrible person for leaving home so soon after her mother had left.  You picked her up and took her back to the family home.  Her brother was there.  She stayed the night to look after you as she was worried you were going to hurt or kill yourself.  You told her that you just needed someone to care for you for one night.  She slept in bed with you for the night but there was no sexual contact.

18The next day she asked if you could drive her home so she could get ready for a planned trip to Melbourne.  You asked her to stay the night again and not go into the city.  You were screaming and crying, telling her that if she left you would kill yourself and it would be her fault.  Eventually she agreed to stay another night.  Then she again stayed in the bed with you.  After she had gone to sleep she was woken up by you and told her to roll over onto her back, which she did.  She noticed that you were now naked although you had been wearing clothes when she went to sleep.  You pulled down her pants and underwear and penetrated her vagina with your penis.  After sexual intercourse ended, you went back to sleep.  The next day you thanked her for staying the night and drove her home.  It was the last sexual act that took place and as I said that is Charge 3 of rape.

19Charge 4 the contravention of the Family Violence Order that involved you making phone calls, harassing and breaking the intervention order that had been made.  On 9 November 2015 she was at home and received a series of telephone calls from you.  I am not going to go through all the details of those but during one of those calls you said to her "Fuck you" and "You're going to die".  That again a, mind you, a very serious breach, a serious contravention of an intervention order.

20That is the Crown summary of the offending.  It beggars belief as to how you could do that for such a long period of time to a person who was under your care and control.  It is a gross breach of trust.  It has to be regarded as very serious.  A very significant gaol sentence is the only option open. 

21General deterrence must play a significant part in this.  Insofar as you are concerned I do not think specific deterrence plays much of a part at all, if any, because I doubt you will ever do this again.  Denunciation is obviously important as is appropriate punishment.  To bring home, as is so often the case in these matters, the effect of what this sort of offending does to children I simply quote two paragraphs of the victim impact statement.

"The crimes that have been committed against me have had an immense impact on my emotional wellbeing every day.  I have trouble dealing with my emotions and are unable to make decisions as I feel like I have never been allowed to do so before.  I often feel hopeless, overwhelmed and useless.  As a result of my childhood I have been made to feel that I have no worth and are merely an object owned by the perpetrator.  I have a severe feeling of guilt over things that are out of my control. 

My troubles with dealing with my emotions have led to self-harm and suicide attempts and I have panic attacks on a regular basis.  I have difficulty sleeping waking several times most nights due to nightmares.  This often leads to fear of going to sleep at all.  I am currently having long term counselling to help me deal with my emotions and being treated for depression, anxiety and post-traumatic stress disorder". 

22She said difficult her school life was.  She enclosed, also, a photograph of herself at the age of ten.  As it said:

"This photo was taken in the lounge room of the house that I was supposed to feel safe, loved and nurtured in.  Instead I was demeaned and abused by a man who promised to love me as his own daughter.  A man who I had known as 'dad' for the last seven years.  Brayden Frith took this happy, innocent young girl and transformed her into an unrecognisable person with irreversible mental and emotional damage.  The truth is that I'm unsure if I'll ever fully recover from what happened to me as a child and a young woman and that terrifies me".

23That is an almost textbook description of the post-traumatic stress that offending of this nature so frequently causes and the effects of it are frequently lifelong.  As I said a gaol sentence is inevitable.

24Very helpful submissions were put by Mr Fitzgerald on your part and those submissions have been tendered and I do not propose to go through them in great detail.  I also have the helpful, as usual, reports of Dr Danny Sullivan, psychiatrist, and I take those into account.

25In simple terms you are 45 years of age and I accept that you had a very difficult childhood.  You were sexually abused at a young age you say.  You were subjected to violence at the hands of a stepfather.  That included such incidents as one occasion having a shotgun put in your mouth.  He was a heavy drinker and it is clear that you have been a heavy drinker since a young age as well as a user of cannabis.

26You left school without having completed Year 11.  It seemed clear that the family shifted around as is often a problem in these circumstance. 
From then on in you have had work on occasion but it cannot be said that you have been in situations where you are refusing to work.  You are either working, and I accept that your counsel says, or seeking work.  You met the mother of the victim when you were 24 and you then shifted around a bit after that.

27You left your job at KFC in about 1998 and there was then, after the birth of your son, apparently your partner had a medical procedure which precluded her from having further children.  This was apparently done without discussing it with you and became an ongoing source of tension between you. 

28To your credit you did an apprenticeship as a chef in around 2009 and worked as a chef thereafter in various different positions.  As I said, the family lived in various addresses over that period of time.

29Dr Sullivan says you have a recurrent depressive disorder, mild to moderate severity in partial remission.  He said there is no cognitive impairment, there is no psychotic illness, there is no evidence of an overt personality disorder. 
He says that you appear to be developing the early stages of insight into your offending and I take that into account in terms of rehabilitation.  I have already made a comment about specific deterrence.  He says that you would find it harder in prison than a person without your condition and whilst I do not think the principles of Verdins really apply in this situation, I do take that into account as a factor in terms of the length of the sentence I impose.

30You are 45 years of age so, as quite often happens with this sort of offending, you are not in a situation of advanced years so as to become a difficulty. 

31I have already said that you pleaded guilty at and early reasonable opportunity.  It is also clear that you have now been in custody for some 507 days. 
During that period of time you have done what you can to avail yourself of the programs that are available in gaol.  You told Dr Sullivan that you have a willingness to engage in the sex offender's program and you will be made fully aware that if you do not, you will not get parole.  So that is really a matter for you.

32In the end I take into account the matters that were put on your behalf. 
You have no offending of this nature and I would be very surprised if you do it again.  However the fact of the matter is that it is a gross breach of trust.  It is a very serious example of it and it went on something in the order of a decade against a young child, teenager and then young woman.

33The prospects of your rehabilitation are up to you.  The risk of you re-offending in this way at least, I believe, to be relatively low but condign punishment it must be.

34Charge 1, six years.  Charge 2, four years.  Charge 3, four years.  Charge 4, 18 months.

35I direct that 15 months of the sentence on Charge 2, 15 months of the sentence on Charge 3 and six months of the sentence on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives a total effective sentence of nine years.  I direct that you serve a minimum term of six years before becoming eligible for parole.  Because of your conduct since the offending has ceased and the way you have pleaded guilty, in that situation I have given you an earlier opportunity for parole than I might otherwise have.

36Pursuant to s.6AAA of the Sentencing Act, so you understand the benefit that you have got from your subsequent conduct at least, but for your plea of guilty I would have sentenced to be imprisoned for a period of 12 years with a minimum of nine. 

37I direct that 507 days be reckoned as having been served under the sentence. 

38Any other orders, Mr Triandos?

39Mr TRIANDOS:  No.

40HIS HONOUR:  That's it?  Yes.  Yes thanks, Mr Fitzgerald.

41Mr FITZPATRICK:  Thanks Your Honour.

42HIS HONOUR:  Thanks, Mr Triandos.

43Mr TRIANDOS:  The court pleases.

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