R v Frengos
[2005] VSCA 17
•8 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 310 of 2002
| THE QUEEN |
| v. |
| NIKOLAS FRENGOS |
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JUDGES: | WINNEKE, P., CHARLES and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 February 2005 | |
DATE OF JUDGMENT: | 8 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 17 | |
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Criminal law - Sentence - Several counts of causing injury and damage to property intentionally, causing injury recklessly, theft of a motor car and summary charges in connection therewith - Prior criminal history involving violence - Offences constituting a breach of an ICO - Sentence of four years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr L.C. Carter | Fitzroy Legal Service |
WINNEKE, P.:
I will invite Buchanan, J.A. to give the first judgment in this application.
BUCHANAN, J.A.:
At the conclusion of a trial a jury found the applicant guilty on a charge of intentionally causing injury. The sentencing judge found that the applicant and one Desimone fought on Christmas morning 2001. Desimone won the fight, inflicting minor facial lacerations on the applicant. Later that day the applicant encountered Desimone pushing his infant daughter in a pram. The applicant chased and caught Desimone and punched his head and body, causing bruising and abrasions. The sentencing judge described that attack as "of a relatively minor nature". It was committed, however, while the applicant was on a good behaviour bond.
In the next month the applicant pleaded guilty before the same judge to another presentment containing one count of theft (count 1), one count of causing injury recklessly (count 2), two counts of intentionally damaging property (counts 3 and 4) and one count of causing injury intentionally (count 5). The applicant also pleaded guilty to summary charges of driving while disqualified, refusing a breath test and carrying a dangerous article.
All the offences on the second presentment were committed on 24 October 2000. The applicant consumed prescription drugs including Catapres, Temazepam, Suzin and Valium. The applicant told a psychiatrist later that he consumed the drugs because of the situation at home, where his parents were on the point of separating because of his father's alcoholism, paranoia and violence. The applicant stole a motor car and drove it head-on into another car driven by one Hanley. The force of the collision wrecked both motor cars, and caused the air bag in the car driven by Hanley to inflate. The inflation and the force of the collision fractured Hanley's sternum. The applicant told the police and his psychiatrist that he was attempting to commit suicide.
Members of the police force attended the accident. The applicant appeared to be extremely agitated and punched one of the policemen violently in the face. The applicant was subdued. A knife was found in a pocket of his clothes. The applicant refused to take a breath test. The offences constituted breaches of an intensive correction order which the applicant was undergoing.
After a plea the applicant was sentenced to be imprisoned for a term of one month on the charge of intentionally causing injury to Desimone, to a term of 12 months' imprisonment on count 1 in the second presentment, to a term of four years' imprisonment on count 2, to a term of 12 months' imprisonment on count 3, to a term of 18 months' imprisonment on count 4, to a term of two months' imprisonment on count 5, to a term of six months' imprisonment on the charge of driving whilst disqualified and to a term of 14 days' imprisonment on the charge of carrying a dangerous article. The applicant was fined $500 on the charge of refusing a breath test.
The applicant is now aged 28 years. He grew up in Coburg of parents who had migrated from Greece. The applicant left school at the age of 16 years. He worked briefly at McDonald's but since then has usually been unemployed. In 1996 he formed a relationship with a woman by whom he had a child, now aged five years. The applicant began using marijuana at the age of 17 years, and has used amphetamine, ecstasy and cocaine. He began using heroin at the age of 26 years and developed an addiction to it. The applicant was apparently much affected by the difficult relationship between his parents. His father was a violent alcoholic who frequently attacked the applicant's mother. The applicant's parents separated. His mother now lives in Glenroy with the applicant, his de facto wife and their son, while his father returned to Greece.
The applicant has an extensive list of prior convictions, including a number of convictions for crimes of violence, offences of dishonesty and driving offences.
The applicant unsuccessfully sought leave to appeal against his sentence to a single judge pursuant to the provisions of s.582 of the Crimes Act 1958. The applicant now seeks leave to appeal to this Court. The grounds of the application are:
"1. In all the circumstances the sentence is manifestly excessive.
2.The sentencing judge failed to give any or any sufficient weight to:
(a) the applicant's early plea of guilty;
(b)the applicant's state of mind at the time of the commission of the offences;
(c)the fact that offences were the result of the applicant's attempt to commit suicide;
(d)the applicant's state of mind during the record of interview and the fact that he was declared unfit to be interviewed;
(e)the applicant's personal circumstances at the time of the commission of the offences;
(f)the applicant's character disorder; and
(g)the applicant's prospect of rehabilitation particularly in light of the evidence of Margaret Ingallina.
3.The sentencing judge erred:
(a)by taking into account certain answers given in the record of interview shortly following the interview the applicant was declared unfit to be interviewed and was admitted into a psychiatric hospital; and
(b)by finding that the injury was a particularly significant example of recklessly causing serious injury.
The matters referred to in ground 2 can be viewed as particulars of ground 1. The sentence on count 2 was used as the base for orders for cumulation. As counsel for the applicant points out, the context of the offences was a suicide bid by a man in a profoundly disturbed state of mind. Nevertheless, it represented in my view a serious example of the crime, contrary to the argument mounted by Mr Carter pursuant to ground 3(b). Intent upon his own problems the applicant cared nothing for the safety of other road users. He recklessly placed Hanley at grave risk of death or serious injury. I think that in view of the potential consequences to Hanley, the sentencing judge was entitled to describe the offence as "a particularly serious instance of the crime of recklessly causing serious injury". The sentences imposed in respect of the other offences appear to me to be well within the range of sentences that could reasonably be fixed. The applicant's history of offending demonstrates that the crimes were part of a regular, recurring pattern of behaviour, which bore upon the applicant's prospects of rehabilitation and the need for personal deterrence.
The particular matters to which it is said the sentencing judge gave insufficient weight were canvassed by the sentencing judge. Counsel observed that the sentencing judge did not expressly find that the applicant was attempting to commit suicide when he drove at Hanley's car, but the point appears to have been part of the conventional basis upon which both parties conducted the plea. His Honour referred to the Crown's agreement that the applicant was attempting suicide. In my view it was not necessary for the sentencing judge to make a separate finding as to this matter. I am of the opinion that the sentences imposed upon the applicant do adequately reflect the culpability of the applicant when regard is had to the circumstances of the offences and the applicant's history.
Among the particular complaints of counsel for the applicant was his Honour's discounting of the beneficial impact upon the applicant of buprenorphine treatment on the basis that the offences were committed after the applicant began the treatment, whereas in fact the treatment succeeded the crimes. It was submitted that the error caused the sentencing judge to fail to accurately appraise the applicant's prospects of rehabilitation. In my view the error was not material. His Honour based his assessment as to the applicant's prospects of rehabilitation on his history and the opinion of a psychiatrist who examined the applicant and who described the applicant in these terms:
"He left school at the age of 16. Records state that he was expelled from school after stabbing a child. The desperate mother had sought professional help from about that age for his uncontrollable anger and violence ... His antisocial behaviour is characterized by unprovoked or easily provoked violence, theft, driving without a licence, theft of motor vehicles, use and possession of illegal drugs and assaulting police."
The psychiatrist thought that, "The most remarkable behaviour is the aggression, without empathy for the victim, and rationalisation by blaming others." In the last part of his report the psychiatrist recommended that the applicant receive structured rehabilitation, thus implicitly recognizing that there were prospects for the rehabilitation of the applicant. In my view the sentencing judge was not obliged to accept that recommendation in the light of the psychiatrist's description of the applicant's character and history.
As to ground 3(a), the judge recounted the fact that significant admissions were made by the applicant during the course of his interview by the police, but that was done in the context of an express recognition that after the answers were given the police thought the applicant was in an unfit state for questioning. I do not think that his Honour improperly relied upon the statements, which appeared lucid and rational in the light of the known facts.
For the foregoing reasons I would refuse the application for leave to appeal.
WINNEKE, P.:
For the reasons given by Buchanan, J.A., I agree that the application should be refused.
I simply add that his Honour neglected, in the course of his sentencing reasons, to disqualify the applicant from driving his motor car in accordance with s.89(4) of the Sentencing Act, and this Court will have to rectify that deficiency.
CHARLES, J.A.:
I agree.
WINNEKE, P.:
The Court makes the following orders:
1.Pursuant to s.89(4) of the Sentencing Act the applicant is disqualified from obtaining a licence to drive a motor car for a period of two years and nine months from 25 October 2002, that being the date of sentence in the County Court.
2. The application for leave to appeal is refused.
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