Director of Public Prosecutions v Pritchard (Sentence)
[2024] VSC 660
•25 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0309
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| FRANK PRITCHARD | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 October 2024 |
DATE OF SENTENCE: | 25 October 2024 |
CASE MAY BE CITED AS: | DPP v Pritchard (Sentence) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 660 |
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CRIMINAL LAW – Sentence – Charges of intentionally cause serious injury and robbery – Related summary offence of drive at dangerous speed – Offending in a continuing episode while heavily intoxicated – Plea of guilty following sentence indication – Risk of deportation – Limited prior criminal history – Good prospects of rehabilitation – Sentencing Act 1991 ss 5, 6AAA, 11, 18(4) – Road Safety Act 1958 s 64 – Lukudu v The Queen [2019] VSCA 248.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill | Office of Public Prosecutions |
| For the Accused | Mr D Sala | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
Frank Pritchard, you have pleaded guilty to one charge of intentionally causing serious injury (‘ICSI’) and one charge of robbery. You have also pleaded guilty to one summary charge of drive at dangerous speed.[1]
[1]Pursuant to s 145 of the Criminal Procedure Act 2009, a charge for a related summary offence concerning Mr Pritchard was transferred to this Court and pursuant to s 242 of that Act, this Court may hear and determine that charge before sentencing or otherwise dealing with the accused.
The maximum penalty for ICSI is 20 years’ imprisonment.[2] The maximum penalty for robbery is 15 years’ imprisonment. The maximum penalty for driving at dangerous speed is 240 penalty units or 2 years’ imprisonment or both.
[2]ICSI is a Category 2 offence within the meaning of the Sentencing Act 1991. Pursuant to s 5(2H) of that Act, the Court must impose a sentence of imprisonment unless the offender establishes that they fall within one of several specified exemptions (which are not enlivened on the facts of Mr Pritchard’s case and were not agitated by counsel).
Documents received on the plea hearing
The following documents were tendered on behalf of the Crown at the plea hearing:
(a) Crown opening for sentence indication dated 15 August 2024, and prosecution opening for plea hearing dated 7 October 2024;[3]
(b) Crown submissions for sentence indication dated 21 August 2024 with attached Sentencing Advisory Council sentencing outcomes for robbery and dangerous driving and prosecution submissions for plea hearing dated 7 October 2024;[4] and
(c) Signed report prepared by Dr Schreiber containing photographs of injuries.[5]
[3]Exhibit P1.
[4]Exhibit P2.
[5]Exhibit P3.
And on your behalf:
(a) Defence submissions for sentence indication dated 30 August 2024 and defence submissions for plea dated 7 October 2024;[6] and
(b) Bundle of certificates of completion for the ATLAS Prison Education Suite.[7]
[6]Exhibit D1.
[7]Exhibit D2.
Factual background and circumstances of offending
The Prosecution Opening for Plea Hearing relevantly summarises the offending to which you have pleaded guilty as follows.[8]
[8]See generally Prosecution Opening for Plea Hearing, 2–6.
On Saturday 29 April 2023, you were at home with Gheorghe Dreghici (‘Gheorghe’) during the day. You had a couple of drinks together. Your brother, Alan, attended later that day.
Around 4.15pm you and Alan left home, on an ultimately fruitless trip to obtain some glue for a car you had been working on. Arriving at Dandenong Plaza, Alan gave you some money to go and purchase the glue. You appeared about 40 minutes later, carrying a bottle of whiskey with only a small amount left in the bottle. You were observed to be stumbling and could hardly stand on your feet.
You and Alan next drove to Bunnings in Eumemmering to try and purchase the glue. By this stage it was about 6.00pm. You exited Bunnings a short time later, still without glue. You and Alan then returned home to Dandenong North. Upon arrival, you were incoherent and unable to get out of the vehicle, eventually stumbling to the front of the property and collapsing. Alan left the address. Gheorghe initially left you outside the house, but returned and was able to assist you into your bedroom.
Gheorghe returned to his bed to watch TV. Soon after, he heard a noise and found you standing on top of the toilet peering out of the window. Gheorghe told you to go back to bed and you complied. About 10–15 minutes later, Gheorghe opened his eyes to see you standing at his bedroom door. Gheorghe asked you, ‘What can I do for you Frank’. You responded, ‘I’ve come to kill you’. Gheorghe replied, ‘What for?’.
You said nothing further, but jumped on Gheorghe’s bed on top of his legs and started repeatedly stabbing him with a knife.[9] Gheorghe was trapped under your weight and unable to defend himself. He tried to ward off your blows, sustaining defensive wounds. Gheorghe managed to push you off him and dragged himself out of the house to his neighbour’s house where he sought and obtained assistance. The neighbour let Gheorghe in and called 000.
[9]Charge 1: intentionally cause serious injury.
Meanwhile, you left the house and got into Gheorghe’s Holden Commodore and drove off. Around 9.39pm, you stopped at the intersection of Stud and Heatherton roads. Another driver, Mr Soysa, was stopped at the intersection. Whilst at the lights, you got out of your car, opened the passenger door of Mr Soysa’s car and sat in it yelling, ‘Give me all your money or I’m going to kill you’, and ‘Do you want to die’?
You patted down Mr Soysa in an effort to find money, and then punched him in the face. Mr Soysa got out of the car and tried to get help. You located some cash and then returned to Gheorghe’s car and drove away.[10]
[10]Charge 2: robbery.
Between 9.52pm and 9.56pm, you were captured on three traffic camera detection devices, travelling in excess of the signposted speed limits at speeds of 147, 144 and 146 kilometres per hour.[11]
[11]Summary charge: drive at speed dangerous – rolled up.
When you were arrested and interviewed by police about the offences before the Court, you appeared to have little memory of what you did and expressed surprise about aspects of your own actions although you admitted to having been ‘blind drunk’ at the time.[12]
[12]Depositions p 619 ROI Q & A 333,334.
Procedural history
You were charged on 29 April 2023 and committed to stand trial in this Court on 11 December 2023. In May 2024, you engaged new lawyers and applied for a sentence indication that was heard before me on 6 September 2024. On that date I indicated that, should you plead guilty to the offences charged, I would impose a total effective sentence of no more than eight years and one months’ imprisonment, with a non-parole period of no more than five years’ imprisonment.
By email, your counsel confirmed that you accepted my sentence indication on 9 September 2024. You were then arraigned and formally entered guilty pleas to all charges before this Court on 11 September 2024.
Victim impact
Both victims of your offending declined to provide formal victim impact statements.[13] However, the following detail was provided on the plea hearing and I have taken it into account in sentencing you:[14]
Gheorghe Dreghici suffered serious and life-threatening injuries. He has been fortunate to experience a full recovery from the injuries he sustained in the attack committed upon him. He reports being scared at the time of the incident.
Wijaylamuni Soysa reports that he cannot drive at night at all and sometimes even in the day as he is very scared. He stated he was an Uber driver at night for income as he was studying but after the incident, he has not been able to go back to work…After the incident he stopped driving completely for 3 months as he was petrified it would happen again.
[13]At the plea hearing Ms Churchill indicated that both victims were approached for the making of formal victim impact statements but declined, indicating that the views they provided for sentence indication purposes were sufficient from their perspective: Transcript (8 October 2024) 8.
[14]Prosecution Submissions for Plea Hearing, 4–5 [21]–[23].
Gheorghe also provided a statement to police. He relevantly said the following about you:[15]
He was so scary that night. For him to be like that, act like that for absolutely no reason, is crazy.
He must have been on drugs, he was definitely drunk, but there was no argument. No fight. Nothing. I didn’t do anything to be treated like that or to be stabbed.
[15]Refer Depositions 45 [40]–[41].
I consider that your conduct that night was an appalling example of the dangers of excessive consumption of alcohol, especially when combined with other drugs. It is clear that your conduct had serious repercussions for Gheorghe and for Mr Soysa and it is to be roundly condemned; I observe that it is only a matter of good fortune that swift medical intervention saved Gheorghe’s life.
Objective gravity of the offending and moral culpability
With respect to the charge of ICSI, I consider that the matters increasing the objective gravity of your offending include that:
(a) You attacked Gheorghe in his own home, where he was entitled to feel safe in circumstances where he was assisting you by allowing you to stay there;
(b) The attack was unexpected and involved the use of a knife in circumstances where Gheorghe was older than you and was vulnerable because he was lying in bed and taken by surprise;
(c) You made threats to kill Gheorghe and by your actions in stabbing him intended to cause really serious injury;[16]
(d) You caused six stab wounds to the chest and abdomen causing life-threatening, injuries that required surgical intervention.
[16]The Prosecution Submissions for Plea Hearing referred at 3 [14(viii)] in this regard to DPP v Terrick (2009) 24 VR 457, 466–7, cited in Nash v The Queen [2013] VSCA 172, [10].
With respect to the charge of robbery, the matters increasing the objective gravity include:
(a) The random nature of what you did and the use of actual physical violence towards the victim who was alone in his car;
(b) The fact that you made a threat to kill the victim to gain compliance.
The Crown submitted that your moral culpability for the overall offending should be assessed as high and that, even if you were intoxicated and distressed by personal matters, these matters do not reduce your moral culpability.
Mr Sala argued on your behalf that your offending was spontaneous, and although the consequences were serious, there was no pre-planning or history of violent animosity between yourself and Gheorghe.[17] Mr Sala accepted that alcohol and drugs formed a significant aspect of the offending and had impacted on your memory such that you could not provide much by way of detailed instruction about the events before the Court.
[17]The Defence Plea Submissions (at 3 [9]) adverted to some level of animosity felt by Mr Pritchard towards Gheorghe Dreghici. Asked to clarify at the plea hearing, Mr Sala submitted that Gheorghe did not think highly of Mr Pritchard and that this was made clear by Gheorghe to Mr Pritchard: Transcript (8 October 2024) 9–10.
I consider that your behaviour on the night was a moderately serious example of the charged offences. Your behaviour was grossly abnormal and can only be explained by reference to your acute personal distress and your extreme intoxication at the time. However, voluntary substance abuse provides no excuse for the offending; it can only go towards explaining otherwise inexplicable behaviour.
Mr Sala submitted, and I accept, that the following factors were pressing upon you at the time of the offending on 29 April 2023:[18]
[18]Plea Submissions, 3 [17].
(a) Your father’s relatively recent and apparently protracted passing from bowel cancer, and your inability to properly deal with this, causing a continuing sense of depression which led to your abuse of alcohol and drugs;
(b) Due to a marital breakdown you had not seen your children for quite some time;
(c) You were unemployed;
(d) You were effectively homeless.
Your personal circumstances were somewhat chaotic at the time of the offending, having been left at Gheorghe’s house by your brother because you had nowhere else to live, following family breakdown and loss of employment.
Prior criminal history
Whilst you have convictions for two driving offences, you otherwise had only faced court once in 2021 for an offence against a person, being a threat to cause serious injury and you were placed on a bond without conviction at that time, which suggests it was not a very serious example of that offence.
Mr Sala observed that there is no evidence of entrenched anti-social behaviour or troubling conduct in your past and that, regarding the offences before the Court, excessive alcohol use and depression were the main triggers for the offending.[19]
[19]Plea Submissions, 5 [38]–[41].
Factors in mitigation
In summary, Mr Sala relied on the following matters in mitigation, which I accept are relevant considerations:
(a) The lack of premeditation involved in your offending;
(b) Your limited relevant prior criminal history;
(c) The utilitarian value of your guilty plea;
(d) The risk that after serving your sentence you could be deported to New Zealand while your children live here in Australia. (A large number of family members also now reside in Australia.)[20];
(e) Your prospects of rehabilitation having regard to your past record of employment, your abstinence from substance abuse on remand and the completion of rehabilitative courses whilst on remand; and
(f) The potential for family support from your brother who is able to see your children at times and ultimately, you hope, from your mother, if she is willing to see you in the future. You are yet to re-engage with your two children following marital separation, but you hope this could change in the future if you can remain free of drugs and alcohol.
[20]Mr Pritchard’s mother, all but one of his siblings, his two children, his ex-partner and his father’s grave are all located in Australia.
Mr Sala submitted that it was important to reflect matters in mitigation by increasing the gap between the head sentence and the non-parole period.[21] I will say more about this later.
[21]Transcript (8 October 2024) 13.
Personal history and circumstances
You are currently 43 years old and a permanent resident of Australia.
One of nine siblings, you were born in Samoa but moved to New Zealand when you were around 7 years old. You left school around the age of 15 and entered the workforce. You began to abuse alcohol in your early 20s. Your history of drug use was less clear, but it seems that you had used methamphetamine in the lead up to the offences before the Court.[22]
[22]Mr Sala submitted that Mr Pritchard could not really remember all aspects in this regard, but instructed that he was associating with some people who used drugs at the time relevant time and made some disclosures around it: Transcript (8 October 2024) 8–9.
You met your partner in New Zealand and followed her to Australia when she moved here. The marital relationship collapsed around 2021, coinciding with your loss of work and spiralling drug use. Mr Sala submitted that your descent into drug use and loss of employment was consequent upon the terminal illness and death of your father which greatly affected you.
You have two children,[23] but you have had no contact with them since December 2022.
[23]Who are not New Zealand citizens.
Since entering custody you have been working in various roles and are currently a billet in the St John’s Unit of Port Philip Prison. Mr Sala submitted you earned this important role by demonstrating to custodial staff that you are trustworthy, hardworking and take the role seriously. You are abstinent from substance abuse and have engaged in a number of reformative programs on remand.
Mr Sala submitted that you are principally focused on how to best re-engage with your family when you are released and recognise that finding employment would serve to keep you on the ‘straight and narrow path’ and away from alcohol and drugs.[24]
[24]Transcript (8 October 2024) 14.
Risk of deportation
You are not an Australian citizen,[25] and although your family are based in Australia, you face the risk of deportation at the end of your sentence due to the nature of the offending and likely sentence. The Court was told that you have limited support in New Zealand.[26] I accept that the risk of deportation and separation from your family will weigh heavily on you and increase the hardship of your time in custody, and I take this into account in sentencing you.[27]
[25]Mr Pritchard is a permanent resident.
[26]Refer Plea Submissions, 4 [26], [27].
[27]And see, eg, Guden v The Queen (2010) 28 VR 288, [27] (Maxwell P, Bongiorno JA and Beach AJA).
Guilty plea and remorse
Your plea of guilty, while not occurring at the earliest possible juncture, avoided the ordeal of a trial for witnesses and others involved and saved precious court resources. You are entitled to a utilitarian discount for your guilty plea. Mr Sala submitted that your plea is also indicative of remorse. It is difficult to know to what extent you are remorseful, although you did seem to accept in conversation with police that you should be locked up.[28] You also described your own behaviour towards Mr Soysa, who was unknown to you, as out of character.[29]
[28]Depositions p 627,628 Q&A 405-408.
[29]Depositions p 628 Q&A 412-415.
Prospects of rehabilitation
The Crown submitted that your rehabilitative prospects will be inextricably linked to your ability to limit or control your substance use.
Mr Sala pointed out in your favour, the programmes undertaken on remand and your work as billet, in a sought after role, in the prison medical unit.
I consider that you have good prospects of rehabilitation as long as you abstain from alcohol and drugs in the future. It seems you had managed to remain employed and out of trouble until your recent marriage breakdown at which stage your life became unsettled with homelessness and substance abuse. It is very much in your favour that you have completed the ATLAS courses in custody on topics such as Healthy Living and Healthy Relationships and Jobs and Careers.[30] Your work as a billet signifies that you are able to comply with prison rules and are well regarded by prison management. I accept that future employment would help you remain usefully occupied, but you will need to remain mindful of the importance of avoiding future substance abuse. I consider that your good prospects for rehabilitation should be reflected in the gap to be fixed between the head sentence and the non-parole period.
[30]The following ATLAS certificates were provided to the Court: “Jobs and Careers” (24 June 2024); “Learning for Life” (3 July 2024); “House and Homes” (5 July 2024); “Family, Friends and Community” (8 July 2024); “Healthy Relationships” (10 July 2024); “Take Stock A” (11 July 2024); “Healthy Living” (12 July 2024); “Take Stock B” (24 July 2024); “Adapt” (26 July 2024); and “Recalibrate” (29 July 2024).
Purposes of sentencing
The Crown submitted[31] that general deterrence, just punishment and denunciation are all relevant sentencing considerations for the offences of ICSI and robbery. Community protection was emphasised in light of the fact that your offending occurred in the context of severe substance abuse. Specific deterrence was pressed by reference to your prior convictions for driving offences.[32] Mr Sala also acknowledged the relevance of these sentencing purposes to your case,[33] noting the influence of substance abuse in your offending. I accept that all the abovementioned purposes are relevant and that rehabilitation is also an important purpose of sentencing in your case.
[31]Pursuant to s 5 of the Sentencing Act 1991, the only purposes for which sentences may be imposed are just punishment; specific or general deterrence; denunciation; community protection; facilitation of rehabilitation; or a combination of two or more of those purposes.
[32]Prosecution Submissions for Plea Hearing, 2–3.
[33]Plea Submissions, 4 [31]–[32].
Current sentencing practices
In Lukudu v The Queen,[34] the Court of Appeal considered an ICSI sentencing appeal concerning a public stabbing outside a late night venue. The victim was only peripherally associated with Lukudu and was pursued and stabbed multiple times. The Court canvassed a number of recent ICSI cases; and consideration of those cases led the Court to observe that ICSI covers a wide range of circumstances, and that sentences for ICSI have, in recent times, increased.[35] I have considered comparable sentences[36] imposed for cases of ICSI.[37] Of course, each case turns on its own facts, although comparative sentences can provide some limited guidance. I have also had regard to the most recent Sentencing Advisory Council data for this offence.[38] However, your bizarre behaviour of the night in question, and the absence of any real trigger, apart from your heavy state of intoxication, distinguish your case from many other cases.
[34][2019] VSCA 248.
[35]Lukudu v The Queen [2019] VSCA 248, [46] (Niall and Ashley JJA). See also O’Toole v The Queen [2019] VSCA 185, [46] (Priest JA and Kidd AJA) and some of the factors mentioned there which have led to higher sentences.
[36]Including those referred to by the parties in oral and written argument. I will not refer to all of these in this sentence.
[37]Including Lukudu v The Queen [2019] VSCA 248; Carbis v The King [2023] VSCA 285; Packard v The Queen [2021] VSC 56; O’Toole v The Queen [2019] VSCA 185; Dhal v The King [2023] VSCA 289; and Jawahiri v The Queen [2021] VSCA 287.
[38]Sentencing Advisory Council, Intentionally causing serious injury: Sentencing trends in the higher courts of Victoria 2018–19 to 2022–23 (Sentencing Snapshot No. 288, October 2024).
Neither the Crown,[39] nor the Defence[40] cited any directly comparable cases for the offending comprised in the robbery of Mr Soysa. Once again, the factual background to that offence renders it a little unusual.
[39]Sentencing statistics for the offences of robbery and dangerous driving were attached to the Prosecution Submissions for Sentencing Indication Hearing as Appendices A–E.
[40]Sentence Indication Submissions, 7 [55].
Totality
Although your offences were committed as part of one continuous episode on the evening of 29 April 2023, there were, of course, two separate victims. This is relevant to the level of cumulation and the total effective sentence, which I will shortly announce.
Parsimony and proportionality
I have applied the principles of parsimony and proportionality to your sentence.
Sentence
By the process of instinctive synthesis of every aspect relevant to your sentence, I have arrived at the following sentence in keeping with the indication already given.
Frank Pritchard, please stand.
On charge one, the charge of ICSI which is the base sentence, you are convicted and sentenced to a term of 7 years and six months’ imprisonment.
On charge two, robbery, you are convicted and sentenced to a term of 18 months imprisonment, with 6 months imprisonment being cumulative upon the sentence on charge one.
On the related summary charge of dangerous driving (speed dangerous), you are convicted and sentenced to 3 months’ imprisonment with one months imprisonment being cumulative upon the sentence on charge one. I cancel your driver’s licence and disqualify you from obtaining a licence for two years.[41]
[41]Pursuant to s 64(2) of the Road Safety Act 1958 a mandatory minimum disqualification period of 12 months applies to the charge of dangerous driving, because Mr Pritchard was driving at 45 kilometres per hour or more in excess of the signposted speed on the three (rolled-up) occasions.
I fix a non-parole period of 5 years imprisonment.
I declare that you have already served 423 days by way of pre-sentence detention, not including today’s date, and I direct that this be reckoned as time already served under the current sentence.
Pursuant to s 6AAA I declare that had you not pleaded guilty to the above charges I would have imposed a sentence of 10 years imprisonment with a non-parole period of 8 years.
Ancillary orders
I will make the disposal order sought by the Crown.
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