R v Frost
[2011] VSC 573
•11 November 2011
| g | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0055 of 2010
| THE QUEEN |
| v |
| CODY FROST |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2011 | |
DATE OF SENTENCE: | 11 November 2011 | |
CASE MAY BE CITED AS: | R v Frost | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 573 | |
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CRIMINAL LAW – Intentionally cause serious injury – Plea of guilty – Prior offending regarded in the context of past drug addiction and mental illness – Balance between mental illness and protection of the community - R v Imadonmwonyi [2008] VSCA 135
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kissane | Office of Public Prosecutions |
| For the Accused | Mr M. Thomas | Ann Valos Criminal Law |
HIS HONOUR:
Cody Frost, on 27 June 2011, you pleaded guilty before me to one count of intentionally causing serious injury to David Tihema on 28 February 2009.
Prior to the offending, you had known Mr Tihema for a month or two and would visit him every now and then at his apartment in South Yarra. In the early hours on 28 February 2009, you went over to Mr Tihema’s apartment and knocked on the door. He was watching a movie at the time but despite the hour, still invited you in. You both proceeded to then smoke some marijuana and you consumed some alcohol. Eventually Mr Tihema went to bed but left you with some food and the radio on.
After a time, you went to Mr Tihema’s room and told him that you needed to talk to him. He was reading at this stage. Over the next half hour or so you discussed your problems with drugs and alcohol but also about the horticulturalist course that Mr Tihema had recently commenced. Eventually Mr Tihema went back to bed and continued to read and you left the room.
Later you returned to Mr Tihema’s room. You threw him his cigarettes saying something along the lines of, “You’ve only got a couple of ciggies left. I don’t want to smoke them when you are asleep” to which Mr Tihema made a short reply.
For reasons which are not altogether clear, you then suddenly jumped on him and attacked him. Mr Tihema initially thought that you were punching him but quickly realised that you were in fact stabbing him repeatedly with a knife. He was able to kick you off him and said, “You’ll kill me if you keep stabbing me.” You then attacked him again with the knife aimed towards him. Mr Tihema tried to ward off the attacks with his hands and arms and sustained knife injuries to them as a result of this.
You ran off leaving part of the knife which had broken off and became embedded in Mr Tihema’s right elbow. He tried to pursue you but realised his injuries were serious and managed to call 000. Despite his severe injuries, Mr Tihema managed to crawl to the back door and lock it. He also then managed to crawl to the front door, made sure the security door was open and lay there waiting for the ambulance to arrive.
Mr Tihema was transported to the Alfred Hospital and suffered significant injuries. These included pulmonary contusions of both lungs, a small right pneumothorax and displaced fracture of the left fourth rib, laceration to the right leg and left heel, laceration to tendons of the right-hand, five lacerations to the back, left tension pneumothorax, penetrating injury to the right elbow joint, five lacerations to the right arm and two lacerations to the left arm. Left unattended, the injuries would more than likely have been fatal. They indicate the nature of your attack.
At about 5.30am on the morning of 28 February, you walked into the St Kilda Road Police Station and told Constable Watt that you had just stabbed someone. You were transferred to the Melbourne West Police Station and deemed unfit for interview due to a lack of sleep over the preceding 24 hours but were otherwise mentally stable. You had an injury on your left palm . Later you gave a “no comment” record of interview.
You are now 29 years old. You were born in New Zealand and are the eldest of four brothers. Throughout your childhood you suffered from physical abuse from your father and at times were even hospitalised as a result of that abuse. You were moved around the family and did not have much stability in your youth. Your family moved to Melbourne when you were 11 years old. You ran away from home for a short period and lived on the streets. During that time you got involved in stealing and using drugs and alcohol before being placed in foster care when you were 13 by the Department of Human Services.
You recommenced your schooling but were expelled after only a few months when you took to the streets again. After being returned into foster care, you were exposed to heroin and were admitted to the Early Psychosis Prevention and Intervention Centre (EPPIC) in 1997 for about a week having been diagnosed with Schizophrenia and continued to be under their supervision for the next 18 months.
You returned to New Zealand with your mother and brothers for a few months but you returned to Melbourne to live with your father. When you were 18 years you appeared to have overcome your heroin addiction.
Between the ages of 18 to 21, you were not compliant in taking your psychiatric medication were involved in further offending. You were admitted to the Royal Melbourne Hospital for a period of three weeks between December 2002 to January 2003.
You were almost 21 after your discharge. You returned to New Zealand. You appear to have been relevantly stable over the next two years and lived with your family, took your medication and did not use drugs. You did some course relating to getting employment and you did get work as a factory hand and eventually had full time work for eight months doing industrial painting.
You then either at the age of 22 or 23 had a reoccurrence of your mental illness. You were the victim of an assault and you were put into an induced coma. You found yourself in the mental health system in New Zealand.
In November 2007 when you were 25 you returned to Australia.
You were admitted as a psychiatric patient from 23 March 2008 to 4 April 2008 and then released on a Community Treatment Order. You were subsequently readmitted between 29 December 2008 to 9 January 2009 when you were released on a further Community Treatment Order. You had been admitted with “persecutory ideas and grandiose delusions”.
During this period you stayed at Ozanam House or similar facilities but you were largely homeless. It was in that context that you came to be visiting the victim of your attack.
Your attack upon Mr Tihema was due to your delusional belief that he had attacked you and was in some way a threat to you. I accept that he did not attack you and represented no threat to you.
He was generous to you as the facts indicate. He has suffered very substantially as a result of this attack. I received a supplementary Victim Impact Statement from him dated 19 July 2011 (Exhibit 5). His injuries have meant that he is no longer able to work as a bricklayer’s labourer because of the permanent damage to his left arm. He has residual injuries to his right leg and his breathing is affected by the injuries to his lungs. He suffers from post traumatic stress disorder which gives rise to anxiety and insomnia and problems with trusting others. He has a drinking problem as a result of the attack and difficulty sharing accommodation and being in crowds. He is seeing a counsellor fortnightly.
You have a significant history of prior offending between 1999 and 2002 when you were quite young. It was accepted that it is likely that you were before the Children’s Court prior to that. Your history involves offences of armed robbery, burglary, theft, causing injury recklessly, assault in company, intentionally cause injury, unlawful assault, assault by kicking and other dishonesty offences. You were sentenced to a number of Youth Training Centre sentences and to imprisonment.
It was after that period of offending that you returned to New Zealand and appear to have done reasonably well. Nothing is alleged against you since 2002 which is quite important. Your prior offending is consistent with your drug addiction and your mental illness. Because of those considerations and the lapse of time since your last offending, they are not of the significance which they might otherwise be.
When your offending is looked at entirely objectively it is a very serious example of a serious offence which carries a maximum of 20 years imprisonment. It involved the infliction of 15 separate stab wounds and then some of the injuries inflicted appear to be permanent and the effects on your victim have been profound. The history of the disposal of this case has been complicated largely as a result of your mental illness. Questions of your fitness to be tried and the defence of mental impairment had to be considered. I received a report from Dr Toal from Forensicare about these issues. I heard from Dr Lester Walton, your psychiatrist, on the plea. While on remand you have been held both in prison and at the Thomas Embling Hospital.
Dr Toal in her report dated 5 May 2010 said:
Mr Frost has been previously diagnosed with a major mental illness (Schizophrenia) and continues to experience some subjective residual symptoms (delusional memories). At my interview, approximately one year after his alleged offence, he presented as mentally stable with no objective signs of acute schizophrenia, he is currently functioning well and describes significant insight into his previous symptoms including the effect of illicit drug use on his mental state. Therefore it appears paradoxically that he has responded particularly well to his depot medication and avoidance of drug use as a result of his detention in prison.
Based on my interview and reviewing previous psychiatric records provided to me Mr Frost fulfils the criteria for Paranoid Schizophrenia. He was first diagnosed aged 16 and when unwell he has been described as experiencing auditory hallucinations, appearing paranoid and aggressive, making bizarre statements and expressing persecutory delusions.
A significant complicating factor in his presentation has been the impact of illicit substances on his mental state. Whilst he has had numerous previous admissions they have all been relatively short and largely precipitated by illicit drug use in the context of non compliance with treatment. He is described as aggressive and paranoid on admission, frequently requiring seclusion and treatment with high potency medication. However his symptoms appear to settle relatively quickly and result in discharge after several weeks. One such admission occurred one month prior to the offence. Subsequently at the time of the offence he was on a Community Treatment Order to ensure compliance with treatment. Therefore it appears that substance misuse has a significant destabilising effect on his illness ad his subsequent behaviour.
In conjunction with Mr Frost’s diagnosis of Schizophrenia his history also indicates that he has several features of Antisocial Personality Disorder including early evidence of offending, difficulties with authority and aggressive behaviour. These behaviours appear to have developed in the context of exposure to significant adversity from a young age including experiencing physical abuse by his father and subsequent fostering. He appears to have developed an opportunistic personality style in order to negotiate frequent periods of homelessness and unemployment and his history indicates that in the past he has used violence and threats to his own gain when apparently not psychotic. In addition Mr Frost has been repeatedly described by psychiatric staff as inconsistent in his presentations and description of symptoms and there has been doubt raised during previous presentations whether he has been feigning delusions for secondary gain including shortly before the offence.
Dr Walton in his evidence told me that you had bee diagnosed as suffering from chronic paranoid schizophrenia.
He found that your condition fluctuates quite markedly and that you have had problems with compliance with your medication regime. He also said that you had relapsed even when on your medication.
He told me that you have a history of delusional beliefs about people attacking you (paranoid delusions) and that a part of your condition was behind your offending on this occasion. Dr Walton said that you were close to having a defence of mental impairment open to you. He said that there was a clear connection between your offending and your mental illness.
Dr Walton said in answer to questions about the course of your illness,
Well, during the period that I have known him, his mental state has fluctuated quite markedly. He has tended to oscillate between the prison system and Thomas Embling Hospital, depending on the state of his mental health. At times there have been problems with compliance, but even in the face of taking his medication faithfully, he's also relapsed, and I guess his illness is properly described as difficult to control.[1]
[1] T11
You pleaded guilty to this serious charge and you must be given the benefit for having done so. I accept that you do regret what you did to your victim.
Sentencing you is difficult.
The law says that those who suffer from mental illness are to be dealt with somewhat difference from those who do not.
I am obliged to have regard to mental illness in a number of ways.[2]
[2] R v Verdins (2007) 16 VR 269 at 276.
In your case your mental illness does reduce your moral culpability and does reduce the need for both general and specific deterrence.
Were it not for your mental illness I would have imposed a sentence significantly greater than that which I am about to impose.
The prosecution accepted that your mental illness would play a part in me deciding the appropriate sentence to be imposed on you. It was also submitted that in light of the evidence of Dr Walton in particular, the protection of the community would be an important consideration in sentence.
There is some tension between the two features here but irrespective of the importance of your mental illness I must have regard to the protection of the community.[3]
[3] R v Imadonmwonyi [2008] VSCA 135
I have sought to seek a balance between those competing considerations in your case. I have also taken into account the time which has passed between your offending and your sentence.
On the count of causing serious injury intentionally I sentence you to be imprisoned for six years. I fix a period of four years before you will be eligible for parole. I state that were it not for your plea of guilty I would have sentenced you to be imprisoned for seven and a half years with a non-parole period of five and a half years.
I declare that you have already served 986 days of pre-sentence detention.
I direct that the above statement and declaration and their details be entered in the records of this court.
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