Director of Public Prosecutions v Frost

[2017] VCC 879

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00537

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARL FROST

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 – 27 June 2017
DATE OF SENTENCE:	28 June 2017
CASE MAY BE CITED AS:	DPP v Frost
MEDIUM NEUTRAL CITATION:	[2017] VCC 879

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goliszek
For the Accused	Mr B. Lindner

HIS HONOUR:

1You have pleaded guilty to one charge of damaging property.  The maximum penalty for this offence is ten years' imprisonment.

2Further, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is 25 years' imprisonment.

3You have also pleaded guilty to one charge of attempted burglary, for which the maximum penalty is five years' imprisonment.

4These three offences all occurred in the early hours of the morning of 8 June 2016.  They all occurred in the same residential street.  They all involved homes that were occupied.

5The first two offences were at a house at 46 Molesworth Street, North Melbourne.  The third occurred a little later that morning, just a few doors down at 40 Molesworth Street.

6The circumstances of your offending are set out in Exhibit A, the Summary of Prosecution Opening.  It is self-explanatory, only a brief reference to the facts is required.

7In Charge 1, you removed a window grill, ripped off a fly screen and smashed the glass of a bedroom at 46 Molesworth Street at about 1 am.  Mr Hamilton, one of the people leaving at the house heard this and came down stairs to check the damage.  You must have fled by then.

8A couple of hours later at about 3.40 am you returned to the same house.  You got in through the bedroom window you had broken earlier.  Mr Hamilton, again, heard noise and this time armed himself with a hockey stick and confronted you.  You then left without further incident; Charge 2.

9The Charge 3 offence took place when you went to another house only a few doors away at 40 Molesworth Street.  There you tried to force entry using a chisel on a sliding door.  You were apparently unsuccessful, hence the attempt charge.

10On 13 June 2016 you were arrested, after CCTV footage assisted in identifying you.  You have been in custody ever since.

11These offences are all serious.  I accept that they are toward the lower end but their seriousness is apparent.  Some factors which indicate that are that they occurred very late at night, these homes were in an obvious residential area, people could be expected to be at home and probably in bed at the hour involved.  You were a stranger to these occupants.

12You broke into the first house and then undeterred returned later when you got in through the bedroom window you had broken.  Persisting further you proceeded a few doors down the street and picked your next target.

13No victim impact statement have been provided but I do not need evidence to convince me that breaking into homes very late at night, constitutes offending that on any view, could be extremely frightening.

14You have admitted the contents of a criminal record.  It involves a very large number of prior offences over 12 years.  These include numerous burglaries, aggravated burglaries and thefts.

15While it was for different offending, it is noteworthy that you had been given a 24 months' Community Correction Order, as recently as 19 August 2015, with a number of treatment and other special conditions.  The charges before me, of course, constitute a breach of that CCO.

16Over the years you have had lenient dispositions, by way of a good deal of concurrent sentences, suspended sentences, as well as community based orders with treatment conditions imposed for serious offending.  You have breached CBO's and bail conditions in the course of your past offending.

17Turning to personnel matters.  You turned 31 on the first day of the plea hearing.  You have had mental health issues, accompanied by a long history of substance abuse over many years.

18On your behalf, Exhibit 1 was tendered which was a Defence Outline of Submissions.

19A report from consultant psychologist, Carla Lechner, dated 21 June 2017, was Exhibit 2.

20The considerable difficulties you have encountered in your background, your drug abuse, some health issues and general problems coping with daily life in society are clearly spelled out in these documents.  They need no further elaboration.

21Your counsel submitted Verdins principles, one, three and four were enlivened by the report from the psychologist.

22The prosecution accepted the diagnosis of your mental health conditions.  But due to the role played by your substance abuse, initially did not concede any causative connection to your offending.

23This case points to the difficulty you faced constantly in dealing with a single report and not hearing from the health professional who authored it.  There is a clear diagnosis of paranoid schizophrenia suffered by you since teenage years.  You have had a number of inpatient psychiatric admissions in the past.

24Ms Lechner says and I accept that you were mentally unwell when you left the John Cade Unit, just prior to this offending, which undermined your judgement and decision making.  The complication is that substance abuse clearly aggravated you mental health issues at the time.

25In the end, I am satisfied there was a probable impairment of your mental functioning from your diagnosed mental condition added to by your substance abuse.  In other words, doing the best I can on the limited material, I am satisfied your paranoid schizophrenia caused mental function to be impaired.  It affected your ability to appreciate wrongfulness, impaired your ability to make calm and rational choices and to think clearly.

26Of course, the substance abuse added to or worsened this impairment.  But that is not to say the underlying mental impairment was not also a cause.  I find it was.  It had a causal link to your offending.  As did your going off your prescribed medication and substance abusing.

27On the second plea day, the prosecution properly conceded there was the relevant causative link requiring some reduced weight.

28Accordingly, I am satisfied your moral culpability is lessened and the weight of general specific deterrence is also moderated to some extent.

29On all the evidence, I consider your prospects of rehabilitation are quite limited.

30Your counsel submitted that immediate imprisonment, together with a CCO was the appropriate disposition.  I disagree.  You were not even half way through a current CCO when these offences occurred.

31On the first day of plea, I pointed out that Ms Lechner had a CCO breach report sent to her that had not been provided to me.

32On the second hearing day, a CCO breach report, dated 29 November 2016 was tendered; Exhibit 3.  It speaks for itself in recommending cancellation of the CCO.  This was due to your unsatisfactory compliance, following a number of unacceptable absences.  It also referred to further offending on two separate occasions.  Only one of those occasions is the offending before me.

33I have undertaken the exercise required by s.4C of the Act and I am satisfied that the purposes for which sentence is imposed cannot be achieved by a CCO with conditions and even combined with some imprisonment.

34Your counsel submitted a number of matters in mitigation that need to be taken into account.  I have done so.  These matters include your early guilty plea, which both indicates remorse and has a utilitarian benefit of saving the community time and expense and sparing witnesses from giving evidence.  Totality, parsimony and proportionality were all submitted as apposite to your case.

35It was submitted that your offending was at the lower end.

36I will not mention all the circumstances pointed to but some obvious ones are the lack of any sophistication and planning.  You got away with nothing and when discovered, you simply left so no violence to persons occurred.

37Your counsel submitted that Charge 2 should comprise the base sentence.  I agree.

38It was also submitted that there should be total concurrency with Charge 1.  I do not agree.

39You came back to that first house some hours later and this time you achieved entry through the window you had broken hour before.

40Defence also ultimately submitted there should be some cumulation with respect to Charge 3.

41The prosecution submitted your offending was in the low to mid-range and agreed the base should be Charge 2.  Several factors making the offences serious were pointed to and I have already commented on serious features of the circumstances.

42Your persistence on the night in returning to the houses in the street, was also relied on by the Crown in that regard.  While I accept that submission, equally that event makes obvious how your judgement and your decision making must have been impaired.

43As well as those matters already referred to, including the factors personal to you, I must also take into account other relevant sentencing considerations.  General and specific deterrence must still be given weight, although I have already commented on some appropriate reduction in that regard, in view of your mental health.  Similarly, your moral culpability must also be moderated for that reason.

44It needs to be said that the community cannot and will not tolerate offending which so seriously compromises its citizens right to feel safe in their homes at night.  It is offending that can have serious consequences for occupants.  The message must be clear and consistent that appropriate punishment will result in these circumstances.  Your sentence must manifest the community’s denunciation of your conduct and impose just punishment. I must protect the community from any repetition of this type of offending.  As stated, I must seek to deter you from further offending, as well as others.

45In the circumstances you are convicted on Charge 1 to 12 months' imprisonment, with two months to be served cumulatively with the base sentence on Charge 2.

46On Charge 2, you are sentenced to two years' and six months' imprisonment and this is the base sentence.

47On Charge 3, you are convicted and sentenced to eight months' imprisonment, with four months to be served cumulatively with the sentences on charges one and two.

48The total effective sentence is three years' imprisonment.  I direct that you serve two years before becoming eligible for parole.

49I declare 380 days presentence detention, pursuant to s.18 of the Act.

50Pursuant to s.6AAA of the Act, I declare that but for your pleas of guilty, I would have imposed a total effective sentence of four years and six months, with a three year non-parole period.

51Is there anything else required gentlemen?

52MR GOLISZEK:  No, Your Honour.

53MR LINDNER:  No, Your Honour.

54HIS HONOUR:  Take the gentlemen, thank you.  Thanks for your assistance, Mr Lindner.

55MR LINDNER:  As Your Honour please.

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