Director of Public Prosecutions v Froud
[2021] VCC 1717
•29 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 21-01113
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN FROUD |
---
JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2021, 29 October 2021 | |
DATE OF SENTENCE: | 29 October 2021 | |
CASE MAY BE CITED AS: | DPP v Froud | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1717 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Intentionally cause injury – Common law assault – Disputed facts – Mental health – Verdins – Good prosect of rehabilitation – COVID-19 pandemic.
Legislation Cited: Sentencing Act 1991 ss 5, 6AAA, 18.
Cases Cited:Boulton v The Queen [2014] VSCA 342, Bradshaw v The Queen [2017] VSCA 273, Bugmy v The Queen [2013] HCA 37; Formasa v The Queen [2012] VSCA 298, R v Storey 89 A Crim R 519, Rivera v The Queen [2020] VSCA 5, Worboyes v The Queen [2021] VSCA 169.
Sentence: Total effective sentence of 379 days imprisonment. Upon release, a Community Correction Order for a period of 15 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Khan | Office of Public Prosecutions |
| For the Accused | Mr J. Mortley | Emma Turnbull Lawyers |
HER HONOUR:
1Nathan FROUD you have pleaded guilty to one charge of intentionally cause injury, which carries a maximum penalty of 10 years' imprisonment, and common law assault, which carries a maximum penalty of 5 years' imprisonment.
Circumstances of the offending
2The full circumstances of your offending are set out in the Summary of Prosecution Opening dated 28 September 2021, marked as Exhibit A on the plea. While this was an agreed summary between the parties, there were important factual issues in dispute, which I will come to shortly.
3In brief, you were in a previous relationship with Amelia Rich[1], who is the victim of Charge 2. You share a son, Alfie[2], born in January 2018. He was two years of age at the time of the offending. You were not living with Ms Rich at this time and there was some dispute as to when the relationship between the two of you actually ended.
[1] A pseudonym.
[2] A pseudonym.
4The victim of Charge 1, Ben Boland, had known Ms Rich for a couple of months and they ‘were kind of at the start of a relationship’. On the day leading up to the offending Mr Boland was at Ms Rich’s house, with his friend, and her two housemates.
5At approximately 2 am you were driven to Ms Rich’s house by a friend. You told your friend that you needed to ‘sort stuff out’. You also said that you wanted to kill yourself due to the stress in your life with Ms Rich, that you had had a massive argument that day and that a guy Ms Rich was sleeping with was giving her ice.
6You arrived at the address half an hour later and were let in by one of the housemates. After you entered the home, an argument arose between you and Ms Rich. There was some dispute as to precisely what was said. According to the summary, you told her that you were going to kill yourself and that she had been cheating on you. Ms Rich told you that you were no longer in a relationship.
7On hearing this argument Mr Boland became concerned and retreated into the bathroom. You blamed him for supplying drugs to Ms Rich and said, ‘Fuck this, where is this cunt?’ and you began searching for him through the house.
8There is a dispute as to whether you entered the bathroom already equipped with a knife that you had earlier picked up from the kitchen. Putting that dispute aside for a moment, it is agreed that you did enter and when you were in the bathroom you punched Mr Boland several times while holding a sharp knife. At one point, Mr Boland felt a blade enter the left side of his face, behind his eyeball and near his temple in a quick motion. He felt the blade leave his head and saw blood squirt over the bathroom wall.
9During this assault, and in an attempt to stop you, Ms Boland punched you and used a mop to hit you on your head and body. You punched Mr Boland a few more times and then allegedly said, although this was also disputed, ‘Now run, cunt’.
10You then turned to Ms Rich, grabbed her left bicep and pushed her away. That is the basis for the common law assault (Charge 2). Mr Boland managed to escape and received some assistance from a neighbouring house. You left the house. Police attended at 4.16 am and observed Mr Boland’s injuries. The ambulance arrived shortly after and he was transferred to the Bairnsdale Regional Hospital for treatment.
11Mr Boland sustained the following injuries, outlined in full at paragraphs [28]-[30] of the prosecution opening:
(a) Left orbital floor fracture;
(b) Extensive purple bruising and swelling around the left eye;
(c) A sutured linear injury to the right forehead, approximately 10 cm in length;
(d) Superficial linear incisions from the back of the right ear to the back of the right shoulder and the right shoulder;
(e) Superficial linear injuries to the front of the neck;
(f) Abrasions to the left collarbone, right mid-back, right shoulder and knee; and
(g) Bruising to the left leg and skin.
12As a result of the injuries, Mr Boland required sutures to the face, which will leave a permanent scar. The fracture of his eye socket also resulted in herniation of the muscles moving the eye.
Disputed facts & nature and gravity of the offending
13There are some factual disputes that require resolution, the most significant being, whether you armed yourself with the knife before entering the bathroom or after you entered. There is also a related issue concerning your intention at the relevant time. The prosecution submit that the intention to cause injury, the subject of Charge 1, was formed prior to you entering the bathroom and was constituted by both the punching and the use of the knife. On your behalf, it was submitted that the relevant intention was formed in the bathroom and constituted by the punching. While it was not in dispute that you did grab the knife which did result in at least one injury to Mr Boland, your intention was not to cause injury with the knife, or to stab him.
14The parties agree that it is for the prosecution to prove any aggravating facts relevant to the offending. A sentencing judge must not take facts into account in a way that is adverse to the interests of the accused, unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of an accused person, it is enough if those circumstances are proved on the balance of probabilities.[3]
[3] R v Storey 89 A Crim R 519; Formasa v The Queen [2012] VSCA 298.
15The prosecution chose not to call any evidence but instead tendered and relied upon the following material: police statement of Mr Boland of 14 October 2020 (Exhibit D), police statement of Ms Boland dated 14 October 2020 (Exhibit E) and crime scene photos, located at pp 166 to 220 of the depositions (Exhibit F). Photographs of Mr Boland’s injuries were also tendered on the plea (Exhibit B). You gave sworn evidence and were cross examined.
16In his statement Mr Boland states that he heard someone say to you, ‘Nah put it down’, and knew they were talking about a knife. He did not see this and Ms Rich makes no reference to such a comment in her statement. Mr Boland says that he then went into the bathroom, sat on the floor and put his back against the wall with his legs against it to stop you from coming in. You pushed the top of the door over and that is when he first saw a blade in your hand. In her statement, Ms Rich says that she saw you open the bathroom door and, ‘It’s like a switch was flipped and [you] just went off’. She followed you in, and that is when she first saw a knife in your hand, as you were punching Mr Boland.
17Mr Boland states that he tried to kick the door to stop you from getting in and that is when you were able to gain access. He does not know what happened next, but he felt the blade exit his skin and he was punched by you several times. During the assault he refers to Ms Rich trying to stop you numerous times from attacking him. Ms Rich states that at one stage she tried pulling you off Mr Boland and she also grabbed a mop and tried to stop you by hitting you over the head with it.
18In summary, you gave evidence that you had attended at Ms Rich’s home as she had recently reached out to you to address her drug problems and to reconcile. Text messages tendered on the plea are consistent with this overall account (Exhibit 11). You attended the house because you were stressed out about her ongoing drug use and behaviours. On entering the home you saw her with an ice pipe and became frustrated. You started arguing. You asked her what Mr Boland was doing at the house as you had seen his car. You had met up with him a few weeks earlier and asked him to stop associating with Ms Rich. Ms Rich told you that the two of you were no longer in a relationship and to ‘fuck off’. You then started looking in all the rooms for Mr Boland as you wanted to tell him to leave the house. You described yourself as frustrated, not angry. You walked into the bathroom door which was about an inch open. You went to enter and the door was kicked in on you, causing it to partly shut on you and pin you in it. From this point, you were hit by Ms Rich with a bottle over your head; the bottle ending up in the corner of the bathtub. At that moment you ‘cracked it’. You saw a knife on the bathroom sink, near the mirror. You had seen it in the bathroom the weekend earlier and had seen a roommate sharpening it. You grabbed the knife because ‘people usually back off’ if they see a knife. From where you were against the door you could easily reach for the knife as the bathroom was only very small, which is consistent with the photographs. You thrust the knife towards Mr Boland’s legs, which were against the door. At that stage you perceived that Mr Boland was about to grab you and so you punched him, while holding the knife, which is when you cut him on the side of the face. You punched him two or three times and you admit to doing so intentionally. At some stage, Ms Rich hit you with a mop. You then wrestled in the hallway for a period, where you punched him again which is when you believe you broke his eye socket. At that point Mr Boland got up and ran away. You deny saying to him, ’Now run cunt’. The incident happened very quickly.
19In resolving the factual disputes, my task is not simply to compare your evidence with the evidence of Mr Boland and Ms Rich and to consider which versions I prefer. On the evidence before me, including your sworn evidence, I am not satisfied beyond reasonable doubt that you grabbed the knife from the kitchen or before you entered the bathroom. I am also not satisfied beyond reasonable doubt that you intended to stab Mr Boland as I consider other reasonable inferences to be open. Also, I am not satisfied that after the assault you said to Mr Boland, ‘Now run cunt’.
20I have listened carefully to your evidence and I cannot exclude the reasonable possibility that the events generally took place as you have described. You attended the house and soon became frustrated and went looking for Mr Boland. Although you were not quite prepared to concede it, I consider it a reasonable inference that you were angry at the time and you wanted to confront him. Upon locating him in the bathroom, the door was suddenly shut on you and, on all accounts, things very quickly escalated from there. I do not accept that Mr Boland provoked you or that you had to defend yourself. I do accept that you reacted impulsively and excessively and you admit to ‘cracking’ it. I accept that you were hit from behind by Ms Rich with a bottle. While there is no reference to a bottle in the evidence, this does not mean one was not used and there is no photo in the depositions showing the area of the bathtub where you say the bottle ended up. On the balance of probabilities, I accept that in these circumstances you grabbed for the knife. You then started to punch Mr Boland and repeatedly did so. While you intentionally punched him, I accept that your intention was not to stab him. However clearly in these circumstances holding what, on your own admission, was a very sharp knife, was highly reckless.
21In light of these factual findings and after assessing all the relevant circumstance of your offending, I regard your offending to fall within the mid-range of seriousness for offending of this type. The prosecution provided one case to the Court and that was the case of Rivera v The Queen [2020] VSCA 5. It was accepted that there were a range of distinguishing factors in the case but it was said to be instructive of what is within range for the higher end of such offending. The offending in that case involved the appellant attacking the complainant while he was ‘in a most vulnerable state’, namely asleep. He used two knives to intentionally attack him, causing extensive injuries, and the attack was described as ‘prolonged and vicious’ in nature. His moral culpability was assessed as high. At the time of the offending the appellant was on bail and had an extensive history for violent offending. Also, the complainant in that case was cross-examined at a committal hearing. I do not regard the objective seriousness of the offending in your case to reach the same heights as that in Rivera. This is not to suggest, Mr Froud, that your offending was not serious; I accept that it was for the reasons advanced by the prosecutor including that: the assault occurred within Ms Rich’s home; there were several acts of violence on your part; the injury was constituted by a number of injuries, at the ‘higher end’ of injury, including a significant eye fracture and wound that required stitching; there was a relevant context of family violence between you and Ms Rich, referred to in very broad terms in the DHHS material; and the assault on Mr Boland involved the use of a knife.
22However, in light of my findings, I do not regard your offending as involving planning or foresight. The conduct constituting the intentionally cause injury was more opportunistic and reactive to the dynamic situation unravelling at the time. Your offending can be viewed as occurring over one quick episode and was not protracted in nature. Importantly, although a knife was used I have found that you did not intend to cause injury to Mr Boland by using that knife or by stabbing him. I take into account the fact that a knife was used during the incident. To do otherwise would be artificial given this is all part of the one episode. Also, your possession of a knife heightened the dangerousness of the situation, no doubt heightened the fear experienced, was reckless and was the cause of at least one injury.
23As for the assault on Ms Rich, this took place while she continued to physically confront you to stop you from assaulting Mr Boland. It is constituted by you grabbing her left bicep and pushing her away. I take into account that this happened in her own home and it involved the direct application of force while she was trying to stop you from assaulting Boland. I regard this as a low to
mid- level example of the offence of common law assault.24You provided a letter to the Court in which you indicate that at around the time of the offending you had a number of stressors and pressures. While you were doing well, having regained custody of your young child and full-time work, you were struggling with the enormous responsibilities on your shoulders. This provides some insight into your circumstances at the time but does not excuse your actions on this occasion in any way.
25As for your moral culpability, I do consider that it is reduced as a result of your complex psychological profile, which is canvassed in the report of Sandra Cokorilo and discussed in greater detail shortly.
Arrest and procedural history
26On 14 October 2020 you were located and arrested at your place of work, the Swifts Creek Timber Mill. You were then conveyed to the Bairnsdale Police Station for the purposes of a recorded interview (‘ROI’).
27You provided a partial no comment interview. You made some comments including that you had tried to re-engage with Ms Rich but that she associates with men who sell drugs and use her for sex; she was manipulative; you were at home during the incident and that you did not know the victim.
28After the interview you were charged and remanded in custody.
Victim Impact
29I have not received a victim impact statement from either Mr Boland or Ms Rich. In his statement to the police Mr Boland refers to his fears at the time of the assault and to the panic and physical difficulties he experienced immediately after the incident. In her police statement, Ms Rich describes being scared of you at the time. Given the circumstances of your offending and the police statements I have referred to, I accept that this incident and your aggressive and violent behaviour that night would have been confronting and terrifying for Mr Boland and Ms Rich and I take this into account in sentencing you.
Plea of guilty and remorse
30You entered a plea of guilty on 28 May 2021, prior to the commencement of a committal hearing. The witnesses, and in particular Mr Boland and Ms Rich, have been spared the distress and ordeal of further delays in this matter and of being cross-examined or of having to give evidence in front of a jury. This is significant and it counts in your favour.
31Your plea is particularly valuable in circumstances where there is a large backlog of cases in the Court. I recognise the utilitarian benefit of the plea. I accept your Counsel’s submission that a significant discount is warranted for the utility in facilitating the course of justice during the COVID-19 pandemic.[4]
[4] Worboyes v The Queen [2021] VSCA 169.
32Your Counsel submitted that you are remorseful for your offending. He submitted that while you experience a range of conflicting emotions, including anger at Mr Boland for supplying Ms Rich with drugs, you are very sorry and remorseful for the outcome of your actions. The prosecutor disputed this and submitted that you lacked remorse and insight into the impact of your offending. In particular, the prosecutor referred to the letter that you provided to the Court, which is focused, she submitted, more on attacking Ms Rich’s character then on any remorse.
33In all the circumstances, I accept that you have shown some remorse for your offending. I consider a number of factors support this finding: your early plea of guilty; your statement in your letter that you are ‘deeply sorry and remorseful’ for your actions that night; your continued efforts at rehabilitation; and the opinion of psychologist, Ms Cokorilo, that you appeared genuine in your expressions of remorse to her, admitting that you intended to punch Mr Boland but you did not mean to slash him with a knife.
34I agree that your letter to the Court does focus on your sense of grievance towards Ms Rich. Your offending was clearly unacceptable, Mr Froud, and serious and no blame for what you did should be deflected onto Ms Rich. However, in the circumstances of this case, I do not regard your letter and the history and context you provide of the relationship and the leadup to the offending as operating to diminish or negate your remorse for your offending.
35Overall, taking each of the matters into account I accept that you are entitled to a substantial sentencing discount by reason of your plea of guilty, your acceptance of responsibility for the offending and your remorse.
Personal circumstances
36Your Counsel did not seek to rely on the principles in Bugmy’s case.[5] He did not contend that you came from profound deprivation but he did relevantly go on to describe a relevant fractured and traumatic childhood.
[5] Bugmy v The Queen [2013] HCA 37.
37You are now 30 years of age and you were born in Bairnsdale. Your parents separated when you were only an infant and you remained in your mother's care. Your mother re-partnered when you were about two years of age. Your stepfather was a violent alcoholic and you were exposed to considerable domestic violence.
38You have an older brother, two maternal half-sisters and three siblings on your biological father’s side. You have a good relationship with your brother and your two sisters.
39Given your dysfunctional childhood your relationship with your mother was strained for many years. Over recent times however you have established a close relationship, particularly after becoming a father yourself.
40You met your biological father at the age of 15 and forged a close bond with him, notwithstanding his description as a ‘very violent career criminal’. You were traumatised by his unexpected death during your first period in custody in 2017.
41You left the family home at the age of 15 because of the violence and conflict in the home. Thereafter you lived with a friend for a period and later your biological father. You then moved around again before you started to live with the mother of your child, Ms Rich. In the last 18 months, prior to your remand, you had been living in between your mother's address and Ms Rich’s address.
42You experienced learning difficulties in primary school and you were targeted and stigmatised for this by other students and your brother and stepfather. You suffered from disruptive behaviours and poor relationships with teachers as you were unable to meet the educational standards. You were diagnosed with Attention-Deficit Hyperactivity Disorder (ADHD) at the age of 10 but ceased pharmacological treatment after 18 months because of its side effects.
43You were expelled from school in Year 8 following an altercation with a teacher. You commenced a Certificate II in Cabinet Making at TAFE but stopped after 18 months as you were living independently with no social or financial supports. You estimate that you have been employed for around thirty percent of your adult life, mainly in short-term manual labour.
44You were exposed to a family history of amphetamine, methamphetamine and cannabis use with your father and brother.
45You began drinking from age 11 and this became a daily habit by age 15 until you were 16. You only now drink occasionally. You began smoking cannabis from age 14 and reported daily use until you were 29. You stopped using cannabis when you were granted custody of your son.
46You used methamphetamine daily from the age of 20 until your six-month incarceration in October 2018. You then relapsed in the community and consequently lost your employment but you have abstained since February 2020 when you were re-hired. You have previously attended a four-day detox program in 2018 and you have engaged in approximately 20 drug and alcohol interventions over the years.
47
Your one significant relationship was with Ms Rich and you commenced this relationship at age 25. As stated, you have a young son, Alfie, who was born during your six-month period of prison in 2018. Your relationship began to deteriorate and you consider the relationship ended in
mid-2020.
48Prior to your remand you had made some real improvements and efforts. You had custody of your son, who is now living with your mother, Lesley Froud. He was in your full-time care prior to and at the time of the current offending. Aside from facilitating child contact you had no other contact with your ex-partner for most of that period. You were working at the local sawmill, which represents your most stable employment. You worked afternoon shifts at 2.30 pm to 11.30 pm five days a week and occasionally on Saturday. Your mother describes your life at the time as ‘great’; ‘He had care of his son, a job and somewhere to live.’ In your letter you say that during this time, you were ‘doing the best I had ever done in life’ – holding a job, saving money, working with DHHS, keeping yourself clean and securing the care of your son.
49A DHHS summary and information form dated 16 October 2020 was tendered and it confirms that you were engaging well with the Department and providing clean urines. The record confirms that Alfie had been living with you since 9 July 2020. At the time you commenced caring for him, he had a staph infection, rotten teeth and was overdue for his Maternal nurse check. You arranged for his two-year-old check which identified that he had some delays of significance that required therapeutic support. Alfie is now regularly working with a speech therapist and regularly attends childcare.
50A conciliation conference report of 26 February 2021 confirms that Alfie remains in the care of your mother and further that Child Protection have been unable to establish contact with Ms Rich.
Prior criminal history
51Your prior history dates back to 2010. It then recommences in 2015 and this is mostly attributable to your escalating drug use. Your prior history largely comprises dishonesty and drug-related matters. You have served two previous terms of imprisonment, five months in 2017 and six months in 2018. You were last released from custody in April 2019 and were back in the community until your remand on this matter on 15 October 2020.
52On 4 March 2018 you entered a plea of guilty to one charge of reckless cause injury and received a $2,000 fine. The summary of that offending was tendered in Court and confirms that the offence occurred in March 2017 and involved you attending the victims home and assaulting him. While this is of concern, I note that this is your only prior criminal matter for violent offending.
Mental health
53As previously noted, a report of Ms Cokorilo was tendered on your behalf. You were first diagnosed with depression and anxiety at the age of 19 and you have received some psychological treatment in the past. After your father died you were also treated with Avanza until recently. Prior to your remand you were prescribed melatonin to help you sleep.
54You report three suicide attempts, at ages 15 and 22. You also have a history of self-harming behaviours.
55Ms Cokorilo conducted a range of psychological tests and concluded that, in addition to your pre-existing diagnosis of ADHD, you presented with major depressive disorder and generalised anxiety disorder and meet the criteria for post-traumatic stress disorder. She also considers that you present with borderline personality disorder, which is a condition characterised by marked impulsivity and instability of self-image, affects and interpersonal relationships. In particular, impulsivity and emotional dyscontrol were considered relevant in your case .
56She concluded that your ‘complex psychiatric profile with impulsive and emotional dyscontrol and heightened reactivity is thought to have played the key role in [your] offending’. She states that ‘[your] deficits in emotional regulation and impulse control undermine [your] ability to cope with stressors, think clearly and respond calmly’. Further, ‘it seems that at the time of offending [you] were not able to think clearly, make calm and rational choices and appreciate the wrongfulness and consequences of [your] conduct’. You would have exerted more control over your behaviour had your abandonment schema, a core feature in BPD, not been activated.
57She makes a number of recommendations which include that you be referred to a psychiatrist and that you would benefit from access to Dialectical Behaviour Therapy to address your BPD and PTSD. She also considers that you would benefit from trauma-informed cognitive behavioural therapy to promote insight and address chronically ill mental health. She also recommends anger management and drug and alcohol counselling.
58The prosecution accept that based on the evidence before the court, some of the Verdins principles are enlivened. They accept that your moral culpability should be moderated to some extent. However, they submit that this heightens the need for community protection. It was also conceded that your mental health conditions and borderline personality disorder warrant some reduction of specific and general deterrence. I agree with these submissions and take these factors into account in sentencing you.
Time in custody
59It is now well-established that prisoners are subjected to greater restrictions and deprivations than in normal times because of the impact of the COVID-19 pandemic. I accept that the pandemic causes additional stress and concern to prisoners and that this in turn has made your time in custody more onerous. In your letter to the Court you describe this as your longest sentence and also the hardest one given the restrictions of COVID. You have been subject to extensive lockdowns on remand. You have not been able to do courses or have visits. Given Alfie’s learning difficulties you have been unable to have any video conferences with him. The Fulham Local Plan File notes (Exhibit 6) that I received confirm that you have shown a constant concern and interest in your son and in having contact with him. It is noted that you cannot have video visits with him as this is too challenging for him given his special needs but that you maintain good contact via letters and calls.
60I also accept that prison has been more burdensome for you as you have the additional stress and worry for your son and mother. Alfie does have special needs and developmental delays and requires a number of additional supports. Your mother is caring for him and doing her best though it has been a real struggle. She suffers from her own chronic health problems, has very little additional support and has the responsibility of a farm, which is very difficult to run while looking after Alfie (see Exhibit 3). I also note that you have recently been notified that ‘abnormalities have been detected’ in your stool and that you require testing. This has caused you concern as your father passed away from bowel cancer.
Prospects of rehabilitation
61I regard your prospects of rehabilitation to be presently good, provided you continue to address your complex mental health issues and maintain abstinence from drugs. Of course, there is a need for caution. You have a history of breaching court orders. Also, the Corrections assessment report I ordered and received referred to an alleged violent incident in custody. I was told that on 12 April 2021 at Fulham prison you pleaded guilty at a governors hearing to an assault and were reprimanded in a management unit. I have little information about this incident to enable me to draw any definite conclusions about it or your role or involvement, but it does reinforce the need for some caution. Also, I was provided with a previous Corrections breach report dated 22 October 2018 in respect of a prior matter which indicated non-compliance and behavioural concerns when you were on that order.
62My assessment of your current prospects of rehabilitation however is based on the following:
(a)You have not used methamphetamine since February 2020. According to Ms Cokorilo, you have good insight, are motivated to reform and show a strong propensity for rehabilitation if given appropriate support.
(b)You have the support of your mother, who can also offer you accommodation and continued support with Alfie. She has also made attempts to line up employment for you on your release. Upon your release you intend to first reside with an aunt in Warragul for four to six weeks and then to move back with your mother and son, under the supervision and direction of the Department. You are committed to being a provider and a good father for Alfie. I consider it significant that you have demonstrated some changes to your life, in the lead up to, and since gaining the full-time custody of Alfie on 9 July 2020. Prior to gaining custody you were engaged with DHHS and you continued to provide clean urine drug screens upon request. You have also had two recent Zoom conferences with them to discuss Alfie's future care and arrangements. I accept your Counsel’s submission that your ‘prospects of rehabilitation have markedly improved due to cessation of drugs and an overwhelming desire to parent Alfie’.
(c)You have a very limited history for violent offending. The risk factors you present with are considered to be ‘low’ and amenable to treatment through a combination of psychological interventions and psychotropic medications if necessary.
(d)Prior to your remand you were also working and, I was told, engaging regularly with psychologist Ron Marshall, making attempts to address your ongoing challenges.
(e)On the evidence before me you have also made some efforts in custody, notwithstanding the current limitations. I received confirmation of courses you have undertaken, a number of clean urines screens, and Local Plan File notes that confirm you have actively, for a period at least, engaged in case management in the prison, generally worked quite ‘well with staff and other prisoners’ and have undertaken some additional programs, including a parenting program and a horticultural course. You also have found a hobby, and talent, in painting. You have painted pictures for your son and for other inmates to send to their own children.
Sentencing principles
63The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I note here that there are current intervention orders in place protecting both Mr Boland and Ms Rich.
64In sentencing you, Mr Froud, I am required to have regard to a range of matters such as the seriousness of your offending, your culpability and your personal circumstances. As indicated previously I also have regard to the relevant Verdins principles that have application in your case and will moderate the weight to be given to the relevant sentencing principles. In your case, I regard the protection of the community as best achieved by your rehabilitation. I note Ms Cokorilo’s opinion that in custody you do not have access to treatment specific to your Borderline Personality Disorder, Major Depressive Disorder and PTSD, which limits your prospects of rehabilitation whilst in custody.
65I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty to and in particular, for intentionally cause injury.
66There was no dispute between the parties that a term of imprisonment is warranted in your case. The dispute centred around the length of such a sentence. The prosecution submit that a further term of imprisonment, beyond what you have already served on remand, is required to reflect the objective seriousness of your offending. Your Counsel submits that a combination sentence is appropriate.
67I had you assessed for a community corrections order. As the Court of Appeal stated in Boulton, an order provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address the particular circumstances of the offender and causes of the offending and to minimise the risk of re-offending by promoting the offender’s rehabilitation.[6]
[6] Boulton v The Queen [2014] VSCA 342; Bradshaw v The Queen [2017] VSCA 273 at [49].
68I have received an assessment outcome report of 22 October 2021 and I also received a further Forensicare report from Barrie Janson of 26 October 2021. The outcome report assesses you as unsuitable for a community corrections order. Concern was expressed about your ability to comply with such an order in the future. Mr Froud, although I have some concerns as to your compliance with any future order given the matters that are raised in that report, I have considered, after much reflection, that in all the circumstances of your case and at this stage in your life, you should be afforded a chance to continue your rehabilitation in the community. I consider your best chance of rehabilitation is to have an appropriately structured community corrections order to deal with your issues.
Sentence
69Therefore, having considered all of the matters now before the court I am of the view that in your case a combination sentence is appropriate and is capable of addressing and reflecting all of the relevant sentencing considerations.
70Mr Froud, with conviction, I sentence you as follows: Charge 1, intentionally cause injury, I sentence you to one year, that is 365 days' imprisonment; Charge 2, common law assault, I sentence you to a term of 3 months' imprisonment. Charge 1 is the base sentence and I order 14 days of Charge 2 to be served cumulatively on Charge 1. On both charges, I also sentence you to a community corrections order of 15 months.
71Pursuant to s18 of the Sentencing Act I declare 379 days as presentence detention, which commences from the 15 October 2020.
72Pursuant to s6AAA, I indicate that had you not entered a plea of guilty I would have imposed a sentence of 2 years' imprisonment with a non-parole period of 14 months.
73Now, Mr Froud, in a moment I am going to go through various conditions that I am proposing on this order and consequences of breaching the order, all right? The mandatory conditions of the order: you will need to report to Warragul Justice Service Centre within two working days. As I understand it, and Mr Mortley will no doubt speak to you about this further, because of the restrictions introduced in response to COVID, that will be by telephone, but it is incumbent upon you to make contact.
74The conditions of the order include mandatory conditions as follows: you must not commit any offences during the period of the community corrections order, that is, 15 months from today, for which you could be imprisoned; you must notify a Corrections officer of any change of address or employment within two clear working days after the change; you must not leave Victoria without first getting permission to do so from a Corrections officer, and you must obey all lawful directions of a Corrections officer.
75You must also be under the supervision of a community corrections officer for the period of the order. You must undergo assessment and treatment for your mental health as directed. You must engage in programs to reduce your risk of re-offending, as directed. And you must undergo assessment and treatment for drug and alcohol.
76Additionally, you must perform 100 hours of unpaid community work and I will offset 50 hours of community work against treatment.
77I also impose a condition of judicial monitoring and the first of these will take place on 17 December 2021 at 9.30 am.
78Mr Froud, do you understand the conditions of the order?
79ACCUSED: Yes, I do, Your Honour.
80HER HONOUR: You must make sure that you comply with the order. I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on the order by Corrections, and the matter will be brought back before me. You will then be dealt with for breaching the order, and you will be exposed to the possibility that you will be resentenced for the original offences and may face a term of imprisonment. Do you understand the consequences of breaching the order?
81ACCUSED: Yes, Your Honour.
82HER HONOUR: So, Mr Froud, that includes clearly, if I may use an example, breaching any intervention order that Ms Rich or Mr Bowden hold and you know and are aware and if you do not have copies of them, then they ought to be provided to you, there are intervention orders in place against you protecting both of them. If you were to breach such an order, that would constitute a breach of this community corrections order and further criminal charges. Do you understand?
83ACCUSED: Yes, Your Honour.
84HER HONOUR: All right.
85So, now that you understand the conditions and the potential consequences of breaching the order, do you consent to the making of the order?
86ACCUSED: Yes, Your Honour.
87HER HONOUR: All right.
88I also propose to make the forfeiture/disposal order in the terms sought.
89Is there anything further from either party?
90MS KHAN: Your Honour, if I could just confirm the date of when Your Honour intends for that sentence to have begun. Is it from the time in custody, being 15 October 2020?
91HER HONOUR: Yes. So I have calculated 379 days as presentence detention, is that correct?
92MS KHAN: Yes, Your Honour. That is correct.
93HER HONOUR: And that was as of 15 October. So I have preferred your interpretation and I have calculated it from that date. Is that clear?
94MS KHAN: That is clear. Thank you, Your Honour.
95HER HONOUR: Mr Mortley?
96MR MORTLEY: Crystal clear, Your Honour. Nothing further from defence.
97HER HONOUR: All right.
98Mr Froud, before we complete the hearing today, you have heard my reasons for sentence and that I consider that for a fairly good period of time, you have made changes in your life motivated largely to care and to provide a protective environment for your young son. So you will be released from custody today and you must continue in those efforts. The community corrections order assessment report, as you know, expressed concern about your suitability.
99ACCUSED: Yeah.
100HER HONOUR: So you must regard this as a real opportunity to demonstrate your commitment to change and to build upon your progress and the efforts to date. There will be challenges that lie ahead of you no doubt and you have to deal with them. So I cannot stress enough the need to take the order seriously, to comply with it and to regard it as obviously a form of real punishment and also an opportunity extended to you.
101I will see you again on 17 December for judicial monitoring and I expect to be told by you on that occasion about the progress that you have been making in the community on that order and in relation to your son. Do you understand?
102ACCUSED: Yep. Yes, Your Honour.
103HER HONOUR: All right. I would like to thank both of you, Ms Khan and Mr Mortley, for your assistance in this matter.
104COUNSEL: Thank you, Your Honour.
105HER HONOUR: Adjourn the court please.
- - -
0
5
0