Director of Public Prosecutions v Frost
[2023] VCC 2026
•01 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01017
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CODY FROST |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 06 September 2023 30 October 2023 |
DATE OF SENTENCE: | 01 November 2023 |
CASE MAY BE CITED AS: | DPP v Frost |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2026 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Reckless cause serious injury to a prison officer – new non parole period applied pursuant to s14 of the Sentencing Act
Legislation Cited: Sentencing Act 1991; s5(2G), s10A(2)(c)(ii), s10AA(1), s14
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v R (2013) 302 ALR 192
Sentence: Convicted and sentenced to four years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | The Office of the Director of Public Prosecutions |
For the Accused | Mr S. Lindner | Ann Valos Criminal Law |
HIS HONOUR:
1Cody Frost, on 6 September 2023 at the County Court of Victoria sitting at Melbourne you pleaded guilty to a single charge on Indictment No.P10773454:
Charge 1, recklessly cause serious injury to David Hicks. This charge has a maximum penalty of 15 years imprisonment.
2Mr Hicks was a corrections officer at the time of your offending and on duty. Your offence is a category 1 offence.
3You have admitted your prior criminal history at the time of entering your plea of guilty. You plea hearing was then adjourned to facilitate the evidence of Ms Gina Cidoni, forensic psychologist, to be called at your plea hearing, which resumed on 30 October 2023.
4As I have mentioned, you admitted your prior criminal history, which is extensive and relevant to this sentencing process. In 1999 and 2000, you had seven separate court appearances which resulted in your detention in a youth training centre. Your offending in respect to those matters included drug offences, violence and dishonesty charges. Relevantly, the violence offences included charges of assault by kicking on two occasions, unlawful assault, assault in company, recklessly cause injury and intentionally cause injury.
5By April 2001, you had graduated to a term of imprisonment in an adult prison at the age of 19 years. A firearms offence was one of those charges. In late 2001 you were again sentenced for recklessly cause injury. In the course of 2002 you were sentenced to 130 days prison for burglary, theft, possessing cannabis and other dishonesty charges. In 2004 you left Australia and went back to New Zealand.
6In November 2011, you were sentenced to six years with a four year non-parole period for intentionally causing serious injury. In 2012, you were sentenced to further imprisonment for recklessly cause injury, criminal damage and weapons offences.
7On 10 October 2019, you were sentenced to 10 years and six months with a non-parole period of seven years and nine months for manslaughter. In respect of that sentence I have been told by the prosecutor your earliest parole date in respect of that sentence is 1 March 2025. There is no pre-sentence detention in respect to this offence.
8Your counsel informed the court of the result of the incident on 4 June 2020 whilst you were in prison. At the Geelong Magistrates' Court on 5 May 2022, you were sentenced to six months imprisonment with five months of that sentence to be served concurrently with all other sentences. That offence involves an assault on a prison officer and is strictly not a prior conviction for this offence, although the incident itself occurred prior to this offence.
The circumstances of your offending
9The prosecutor tendered a Summary of Prosecution Opening for Plea dated 9 August 2023. It was Exhibit “A”. The summary was read into the record of the court. In summary, on 9 November 2021 you were a prisoner at Port Phillip Prison. Mr David Hicks, your victim, was working as a corrections officer at the prison on that day.
10At approximately 6.30 pm Mr Hicks attended the Borrowdale Unit and escorted you to St Thomas's Wing so that you could take your medications. You had been given your medication by a nurse and were to be escorted to Borrowdale Unit. Mr Hicks and yourself were waiting in the airlock part of St Thomas's Wing to be given the all clear for Mr Hicks to escort you back to Borrowdale Unit.
11You were standing approximately one to two metres away from Mr Hicks pacing back and forth with your hands in the pockets of your jumper. All of a sudden, unprovoked, you punched Mr Hicks to the right side of his face with a closed fist. The force of the punch caused Mr Hicks to fall backwards. As Mr Hicks was on the ground you then kicked him and continued punching before other correctional officers attended, intervened and restrained you.
12All correction officers activated their body worn camera devices at that time. You were then taken into your cell where you stated to the correction officers that you were provoked and that you were sick of being pushed around before asking to be transported to Barwon Prison. You were asked if you had anything to say in relation to assaulting Mr Hicks and you stated, 'It's all on camera, Miss.' The conversation was captured on body worn camera footage.
13Mr Hicks sustained a fractured eye socket from the assault which resulted in surgery on 18 November 2021 in order to stop his orbital floor from sinking which would have caused him permanent vision impairment.
Mr Hicks also suffered some ongoing issues as a result of the injury caused by you including inability to feel some of his teeth, his cheek on his left side of his face. Mr Hicks has been given the opportunity to make a victim impact statement but he has declined to do so.
Your personal circumstances
14At the time of your offending you were 39 year olds. You are now 41. You have been in custody since 6 August 2017 for manslaughter. You are currently held in a long term management unit at Barwon Prison. You have been there since 21 December 2021. You are in your cell for 22 hours a day. You have a two hour runout on your own each day. Your imprisonment conditions are harsh and isolated.
15You are a New Zealand national. You were conceived as a result of sexual assault on your mother. You have no contact with your biological father. You are the eldest child of your mother's four children. You were brought up by your mother and stepfather. Your parents were violent towards you in a home where alcohol and drugs prevailed. On occasion you spent time under child protection in both New Zealand and Australia.
16You attended numerous primary schools as your family moved premises together with time in foster care. You attended intermediate school for two years but you were ultimately expelled. In 1993 when you were 11 your family migrated to Australia. You attended Melton High School for approximately 18 months. You were expelled from that school due to your behaviour and low attendance. You were then subsequently expelled from St Albans Secondary College for similar reasons. You can read and write.
17You began drinking alcohol at 13 years of age. At 14 you were using cannabis and had commenced using heroin. When you were 15 years old you had your first psychotic episode. You had already received psychiatric services at the age of 14 due to complaints by you of hearing voices and having delusional thoughts.
18Over time you have been admitted to Early Psychosis Prevention and Intervention Centre (‘EPPIC’) within Orygen Youth Health and Inner West Area Mental Health in Melbourne. You have been in Thomas Embling for three months in 2011. Whilst in custody you have had two admissions to St Paul's Unit at Port Phillip Prison. Your mental health history is well documented and longstanding, as set out in the reports of:
· Dr Adam Deacon which was Exhibit 3.
· Dr Kirsten Clayer which was Exhibit 4.
· Dr Katinka Morton which are Exhibits 5 and 8.
· Dr Brown which is Exhibit 7.
19In 2004 you moved back to New Zealand. In 2009 you were shot in a head and in a coma for some three months whilst recovering. You have a diagnosed acquired brain injury as a result of that injury. A report by Associate Professor Warrick Brewer, which is Exhibit 6 documents that condition.
20You returned to Australia in 2011. Your drug use included heroin, cannabis, amphetamines, methylamphetamines, cocaine and MDMA. You have tried all types of drugs and have had two episodes of rehabilitation in respect to those drugs in 2009 and later in 2015 and 2016.
21In your plea hearing Ms Cidoni, forensic psychologist, gave evidence. Her report dated 18 August 2023 was tendered as Exhibit 1. In her opinion the cognitive deficits arising from your ABI could have led to impulsive and poorly considered decisions. I do not accept your cognitive deficits combined with your mental health diagnosis are causally related to the commission of the offence before this court.
22I am satisfied on the balance of probabilities, however that your impaired mental functioning as a result of your ABI and in combination with your mental health diagnosis would result in your being subject to substantially and materially greater than the ordinary burden or risk of imprisonment.
23Your counsel submitted that your upbringing and early life had all the hallmarks and experiences that are the principles extracted from Bugmy's case. I accept that submission as being correct. Your life is one of deprivation and sadness where violence has erupted and sent you to jail for most of your life since 2009.
Sentencing considerations
24The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
25I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of the community and seeking to ensure as far as possible that you as an offender are rehabilitated and re-integrated into society. In your case, most likely back in New Zealand.
26I am also required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. It is difficult in the setting that you have offended to find directly appropriate cases and I have not been able to. Nevertheless I have taken the statistics in respect of recklessly cause serious injury cases into account.
27Current sentencing practices is one of the considerations I am required to take into account when finalising your sentence. The offence before the court is a category 1 offence and a combination sentence is not relevant due to s5(2G). Further, s10AA(1) requires that a non-parole period of not less than two years be imposed for the offence of recklessly cause serious injury as your victim was a custodial officer on duty at the time.
28The exception to this requirement is if you establish on the balance of probabilities that a special reason exists pursuant to s10A of the Act. As I have noted earlier in these reasons, s10A(2)(c)(ii) is relevant to your sentencing. You have an impaired mental functioning due to your diagnosis of schizophrenia and your acquired brain injury. As you are undergoing sentence with a nominal first possible parole date of 1 March 2025, a new non parole period is to be fixed pursuant to s14 of the Act.
29You have pleaded guilty to this charge. Your plea of guilty was indicated at an earlier stage. Your plea does have utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
30Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to this charge indicates and demonstrates remorse on your part.
31You are also entitled to a perceptible amelioration of sentence as set out in Worboyes case due to your plea being given in times when the courts are labouring under delays for listing of trials due to the COVID-19 pandemic.
32The delay between the offending and when you were charged which was
10 April 2023 is also a relevant sentencing factor. You have had the potential for this prosecution hanging over your head for a period of two years now. The delay is not in any way attributable to you.33I take into account your criminal history. I will not repeat it here. I note that you have significant and repeated offending for violence offences. Ms Cidoni assesses you as a high risk of re-offending. This assessment impacts on your prospects of rehabilitation. I assess your prospects of rehabilitation as low to poor due to your mental health and ABI in combination with your demonstrated resort to violence in an impulsive manner.
34You are a New Zealand citizen. You have lived the majority of your adult life here in Australia. A significant part of your adult life in Australia has been spent in custody. You face deportation to New Zealand on release from custody.
35I take into account the dual considerations of anxiety of deportation to
New Zealand and the forfeiture of any chance of setting yourself up here in Australia when fixing your sentence. I also accept that your mental health difficulties will make your time in custody more burdensome for you than a prisoner of normal mental health.36Whilst it is a prison management decision made after your two separate attacks on prison officers by you, I note you have nearly spent the last two years in a management unit with 22 hours in your cell and two hours run out on your own each day. The only people you see are prison officers and on occasion I am informed an art teacher or art assistant.
37 Your offending is serious due to the following matters:
(a) The attack on Mr Hicks was spontaneous and unprovoked.
(b) You not only punched Mr Hicks but proceeded to kick him when he was down.
(c) You only stopped your attack when restrained by other prison officers.
(d) Although it is an element of the charge, the injury to the eye socket is serious and relevant.
(e) You have done this whilst in custody for violent offending.
(f) Mr Hicks was a correctional officer on duty.
(g) Your criminal history of repeat violent offending is a factor in assessing the seriousness of this offending.
38 The sentencing principles of totality are relevant in this sentencing process. So as not to impose a crushing sentence upon you I have fixed a new non parole period pursuant to s14 of the Act in order to achieve that result.
39 The sentencing principles of general and specific deterrence, just punishment and denunciation of your actions, rehabilitation and in reality to a lesser extent, the protection of the community in Australia. The only just sentence is a term of imprisonment with a non-parole period.
40 Would you stand, please.
41 On Charge 1, you are convicted and sentenced to four years imprisonment. As you are undergoing sentence on other matters, pursuant to s14 of the Sentencing Act, I fix a new non parole period of two years and four months from this day. There is no pre-sentence detention.
42 In effect, Mr Frost, what that order means is I have extended your non parole period for one year.
43 Is there anything further?
44 MR CAMERON: No, Your Honour, no other orders sought.
45 MR LINDNER: No, Your Honour.
46 HIS HONOUR: Yes, thank you. Thank you. You can remove the prisoner. Thanks gentlemen, for your assistance.
47 MR CAMERON: Your Honour, my instructor has just reminded me. Was Your Honour minded to give a s6AAA indication at all?
48 HIS HONOUR: Yes, sorry. I should have announced that.
49 MR CAMERON: It will be in the absence of Mr Frost now.
50 HIS HONOUR: Yes. Can we just get him back, sorry. Sorry about that. My apologies to everyone. I forgot to announce what is called the s6AAA which is but for your plea of guilty I would have given you a sentence of six years of four.
51 MR CAMERON: Thank you, Your Honour.
52 HIS HONOUR: That is all I have to announce, Mr Frost, I am sorry. Yes, thanks.
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