R v Frost HC Greymouth CRI-2010-018-000344
[2011] NZHC 1180
•3 October 2011
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CRI-2010-018-000344
QUEEN
v
JEFFREY DOUGLAS FROST
Hearing: 3 October 2011
Counsel: P A Currie for Crown
J R Rapley for Prisoner
Judgment: 3 October 2011
SENTENCING NOTES OF MILLER J
[1] Mr Frost, you appear for sentence for the murders, on Tuesday 6 April 2010, of Frank Joseph Schist and Andrew William John Hutchinson.
[2] You are aged 42, and a first offender. To me falls today the duty of imposing upon you not only the inevitable life sentence for each of the murders but also a minimum period of imprisonment which you must serve before you become eligible for parole. That minimum period the Crown says ought to be 19 to 20 years. Through your counsel you have urged me to fix a minimum of 17 years. I will tell you at the outset that your sentence is life imprisonment, with a minimum period of
17 years. You may be seated, if you wish, while I read the rest of my sentencing
notes.
R V JEFFREY DOUGLAS FROST HC GRY CRI-2010-018-000344 3 October 2011
The facts
[3] I must begin with the facts. You lived at Hokitika in a sleepout on a property which you owned. The house was occupied by your former partner, Kathy Paul, with whom you still got along well, and your eight year old son Tamati, to whom you are a devoted father. The arrangement worked for all of you, and it meant that you got to see a lot of your son.
[4] Mr Schist and his wife were your immediate neighbours. You were a good neighbour, on friendly terms with them. Mr Schist was in very poor health and you helped him out from time to time with chores around his house, such as cleaning the gutters, and you had taken him fish when you had been fishing. On one occasion you had called his daughter to express concern when you saw that the curtains in the house were closed.
[5] You had got yourself into financial difficulty in the period leading up to April
2010. Although you had a good job, you had a substantial mortgage to pay on the house and you had overextended yourself buying a motorcycle. By March 2010 you were being pursued by a number of firms for debts. You have attributed your financial difficulties to identity fraud which had been perpetrated upon you some time previously. Wherever the responsibility for these difficulties lies, there is no doubt that they weighed heavily upon you.
[6] Ms Paul did not know the full details of your finances, but she did know you were under pressure. Some time earlier she had borrowed money from her sister to help you out. She had also urged you to sell the house, but you maintained that you wanted to keep it for Tamati. You had come to see keeping the house as essential to maintaining a relationship with him. That belief was irrational, because Ms Paul was very supportive of your relationship with your son, but I accept that it was genuinely held.
[7] Ms Paul had decided to move out shortly after the Easter weekend, which began on Friday 2 April. She worked part-time, and it appears that because she was moving out she applied for and was granted a benefit. That meant you would be
required to pay child support. The Inland Revenue Department demanded that you do so. On 25 March they sent you a statement assessing you as liable to pay $593 per month.
[8] As I have said, you were separated from Ms Paul. You were in contact with a woman on a social networking site, and you often communicated about your respective children. On 2 April you told her that you had lost Tamati. To another contact you said at about the same time that you were feeling suicidal.
[9] Over the Easter weekend you were very withdrawn. You remained in your sleepout, and meals were brought out to you. You were uncharacteristically indifferent to your son.
[10] On the morning of 6 April you did not go to work. You did emerge from the sleepout and you went into the house. You spoke to Ms Paul. She thought you were beginning to come right. She was looking after a neighbour’s children at the time. They were picked up about 12.30 pm. At about 1 she went into town to pick up a job application, having decided to seek a full time job to relieve you of the worry of having to pay maintenance. You did not see her go, nor did she explain why she was going.
[11] While she was away you texted her at 1.42 pm asking where she was. She did not pick up that text. You re-sent the text at 1.46 pm. She saw it but did not reply, for she was heading home.
[12] In the minutes before she arrived home you fetched, undoubtedly from your sleepout, a single-shot 12-gauge shotgun and several cartridges. You went to the Schists’ property, probably through a gap in the fence, and entered the house through the back door. Mr Schist was seated in a chair in a small lounge. His wife was in hospital at the time. Mr Hutchinson was visiting to keep his grandfather company. Words may have been said. A neighbour thought she heard an argument.
[13] The forensic scientists and the pathologist between them have been able to reconstruct what you did in the house. You shot Mr Schist from about two metres as
he sat in the chair. The gunshot went through the right lens of his spectacles. You then broke the gun, manually unloaded the empty cartridge, chambered another one, cocked the gun, and shot Mr Hutchinson, who had been standing behind you, from a similarly close range. The shot struck him just above the mouth. Both men died instantly.
[14] You left the house, dropping the shotgun at the back door and a cartridge outside the garage, the side door to which was found propped shut with a chair.
[15] Shortly before she reached home Ms Paul got another text from you, at
1.57 pm. It said “tell Tamati I love him so much & I can’t go on without providing 4 him”.
[16] You made a 111 call at 1.58 pm, telling the police that you had killed two people and giving the address. You urged them to come.
[17] When Ms Paul arrived home she found you outside. You were in your motorcycle gear. You ranted at her, telling her “Its your fault. Its your fault I lost the plot. Its your fault. What have I done. I’ve called the cops, where are the cops, why are they not there.” When she said that she had been to get a job you responded that it was too late.
[18] You called the police again at 2.09 pm urgently demanding that they come. You refused to give your name. Ms Paul sent Tamati to fetch a neighbour, George Brown, who knows you well. He is Tamati’s godfather, and a psychiatric nurse by profession. He found you very distraught, with your head in your hands. You told him you had lost the plot, and you conveyed the impression that you wanted the police to come and take you away. That they soon did. You declined to make a statement, but continued to evidence considerable distress.
[19] I have set the narrative out very fully, Mr Frost, because it highlights the great difficulty of assessing your overall culpability. The killings were clinical, requiring some presence of mind and skill with the weapon. You are not a hunter, but you clearly knew how to handle it. Your actions were not spontaneous; you had
to fetch the weapon and the cartridges and take them to the house. Among murderers, these features of the crime would place you in the worst of company. But other factors mitigate your culpability. There was and is no rational motive whatsoever for you to harm the Schists. They were in the habit of keeping cash in the house, but in the end the Crown did not suggest to the jury that you went there for robbery. I do not think that was your motive either. Your financial desperation had led you to believe that you were about to lose your son. There is no rational explanation why that would lead you to do what you did, but I am satisfied that it was the precipitating event. Contrary to the Crown’s submissions, I do not characterise the killings as premeditated. I think that you snapped when you realised Ms Paul had gone.
Mental health
[20] Naturally your state of mind at the time has been the subject of close professional scrutiny. The psychiatrists agree that you were not insane. It was common ground at trial that you were not in a state of sane automatism either. It follows that you possessed the mental capacity to commit murder. The issue that was left to the jury was whether, given your mental state, you did act with murderous intent. They have found that you did.
[21] More importantly for present purposes, the experts who prepared reports for trial agree that you were not suffering from a serious mental illness, including major depressive disorder. Dr Evans described your condition at the time of the killings as a situational response to chronic and acute stress. Dr Austin seems to accept you were depressed, but her diagnosis is not major depressive disorder because of the relatively short duration of your condition.
[22] There were indications at trial, derived from medical records and the experts’
reports, that you suffered encephalitis as a child, and while living in Melbourne in
2003 you received a traumatic brain injury in an accident, leading to several months hospitalisation. You have explained that since at least 2005, when your brother died, you have experienced mood swings, including anger which has occasionally led you to lash out at people, and depression and panic attacks. The probation report records
that you are now prescribed medication for depression. You also report poor memory.
[23] This history and the absence of any rational explanation for your behaviour led me to worry whether any allowance could or should be made at sentencing for diminished responsibility arising from mental illness or disability. The reports I have mentioned thus far were prepared for trial. At my invitation counsel obtained a report from Professor Brinded, who had been briefed for the defence at trial but did not prepare a report, a formal report at that time or give evidence. He carefully reviewed your history, including your encephalitis and head injury, but found that you do not display any clear cognitive deficits other than some mild memory impairment. You have experienced depression, but not to the point where you have required psychiatric or psychological intervention. Professor Brinded notes your financial pressure, but records that at interview you did not feel that the letter from IRD and Ms Paul’s decision to move out had affected you greatly, which is consistent with Dr Evans’s report. Professor Brinded also notes that Ms Paul had thought that you were coming out of your low mood on the day of the killings. He observes that you presented with no symptoms of mental disorder at the time of the killings or on a subsequent interview when you were remanded in custody. He concludes that your low mood was exacerbated by the demand for child support payments and possibly by Ms Paul moving out, but while he has carefully traversed possible explanations he is unable to identify any contributing mental illness or disability.
[24] I have summarised this too in some detail because it leads, I think inexorably, to the important conclusion that while there is no aggravating motive that might increase the starting point, neither is there any foundation for a finding of mental illness or disability which would diminish your culpability.
The victims
[25] I now wish to say something about your victims. Mr Schist was a retired farmer and a returned serviceman. He was aged 86. Among his many serious ailments was a war wound to his spine which severely limited his mobility. He also
suffered grave heart problems and his hips were in poor shape. He was to all intents and purposes completely helpless. His widow, who is also unwell, survives him.
[26] Mr Hutchinson was 23. He suffered from an intellectual disability, but he had employment and he seems to have been a gentle person who was held in very close affection by those who knew him. He was close to his grandfather, who he visited regularly. It seems he had arrived only minutes before you did.
[27] Mary Giles has lost a son and a father. Her sense of loss is clearly beyond measure, and her ability to cope has been taxed to the limit. She and her husband have moved away from the area, leaving family and friends behind, and she has given up work. Other members of the family also experience a great sense of loss, and betrayal because they knew you well, and anger at your decision to lash out instead of seeking help. Unfortunately, delay in the sentencing, which I very much regret, has meant that a number of the victims have been unable to come here today.
[28] Ms Paul and Tamati are not victims in the narrow sense. But they have been through a hard time which is not of their making, and your absence from their lives will affect them both for the long term. Ms Paul impressed me in evidence as a fine person who notwithstanding your separation had worked hard to support you and your relationship with your son.
The pre-sentence report
[29] I turn to your own circumstances. The pre-sentence report records that you are a Coaster born and raised. You left for a ten-year period to live in Melbourne, but returned in 1994. You were employed at Westco Lagan, in responsible positions at times. Your parents survive and now live in Nelson. I have considered a number of references which speak highly of you as a friend, a worker, and a contributing member of the community.
[30] You have told the probation officer that you cannot comprehend that you have killed, or how you came to do so. You described Mr Schist as a friend. I
accept that you do feel remorse, but I also accept Mrs Currie’s astute submission that it does not come through strongly. I think still, you are inclined to excuse yourself.
Sentencing law
[31] Murder attracts a life sentence, as I have said. The Court may depart from that only in special circumstances which do not arise here.1
[32] The Court must also fix a minimum period of imprisonment, which must be the term that the Court thinks necessary to serve certain purposes. In your case the important purposes are accountability, denunciation, and general deterrence.
[33] This case falls into a class for which the minimum period may not be less than 17 years, unless the Court is satisfied that it would be manifestly unjust to impose that period. I say that it falls into that class principally because there were two victims and one of them, Mr Schist, was especially vulnerable by reason of health and age. It is debateable whether you also entered the house unlawfully,2 but you were armed and uninvited and the legislature clearly intended that the Court should recognise the home as a place of sanctuary. So there are three reasons why you fall into that class.
[34] That being so, I must approach sentencing in this way. First, I must consider your culpability relative to the standard range of murders, taking into account aggravating and mitigating factors as well as the qualities that bring the case into the category to which the 17-year period applies. If that analysis results in a minimum period that would be less than 17 years, I must consider, as a matter of overall impression, whether a 17-year period would be manifestly unjust. It will be so if such period is clearly too long when considered against normal sentencing
principles.3 Cases of that sort are exceptional, but not necessarily rare.
1 Sentencing Act 2002, s 102.
2 Although armed, you did not force entry.
3 R v Williams [2005] 2 NZLR 506 (CA) at [55]–[68].
Aggravating and mitigating factors
[35] I must now turn to deal with aggravating and mitigating factors; that is to catalogue the good and the bad about your case and circumstances. I have already identified most of these points, so I will just summarise them here.
[36] Aggravating factors are the double killing, the vulnerability of both victims but especially Mr Schist, and your armed entry into the house, and the grievous impact upon the living victims. As I have said, I do not think this is correctly characterised as a case of premeditation. I do not treat your failure to seek help as an aggravating factor; that is rather symptomatic of your mental health at the time.
[37] In mitigation are your remorse, and your previous good character and to the extent that I can take them into account, your previous health problems. As I have said, these are your first convictions.
[38] You changed counsel between trial and sentencing and the submissions filed on your behalf by new counsel, Mr Barker, and adopted today by Mr Rapley, indicated that your instructions were that you had not been told about the discount that is afforded for a guilty plea.4 The issue having been raised, I indicated that credit could not be given in the absence of a waiver of privilege and evidence from former counsel, Mr Taffs. It is a mitigating factor which you must prove on the balance of probabilities. I felt obliged to give you that opportunity. In due course affidavits were sworn by you and Mr Taffs, and also by your friend Karen-Marie
Lauder. I should mention that a further affidavit was sworn by another man who similarly claims that Mr Taffs did not tell him about pleading guilty, but I have put that to one side; it is a collateral issue of little probative value for my purposes.
[39] I begin by explaining that a discount of as much as 25 per cent may be given for an early guilty plea. A discount is given because it is tangible evidence of responsibility and saves the burden, for witnesses and victims and the state, of a trial. Of course you did not plead guilty so some of these reasons for giving a discount do
not apply, but I would make an allowance in the interests of justice if I were to find
4 Mr Barker was unable to appear at sentencing and new counsel had to be assigned.
on the balance of probabilities both that you were not told of the discount and that you would have pleaded guilty had you been told.
[40] As I have already noted, affidavits were filed and I have heard oral evidence from you and Mr Taffs this morning. You say that you were not told about the discount, indeed there was never any discussion of pleading guilty. In support of that you annex pages from your diary, which you habitually keep to aid your poor memory. They include notes of your meetings with Mr Taffs. Ms Lauder says that although she did not attend your consultations with Mr Taffs, she did speak very frequently to you and no mention was ever made of pleading guilty. You say that had you known the case against you was very strong, you would have pleaded. You also say that you did not know why the decision was eventually made not to plead guilty, or why the decision was made not to call Professor Brinded.
[41] Mr Taffs did not ever record his advice in writing. However, he states that he did tell you about the difference between intent and motive, meaning that he explained you were at risk of conviction despite the absence of motive. He says that you never showed any willingness to plead. You took a lively interest in the case, discussing concepts such as automatism. He says that he explained in his first substantive discussion with you that “guilty pleas would lessen” what he calls “lengthy non-parole periods”. He did not explain exactly what sort of discount was available, but neither did you inquire. He did not provide you with the depositions initially because, he says, you did not want to read them in case they contaminated your recollection when you spoke to the experts. And he says that you maintained throughout that you did not act intentionally.
[42] In the end I am not persuaded that Mr Taffs failed to tell you that you might plead guilty and would get a substantial discount if you did. I generally found his evidence more reliable than yours. I think it likely that he did tell you early on, but that you did not focus on it at that stage, because you were looking to a defence founded on mental health. As to that there was some reason for optimism initially. You might have focused on pleading guilty, had counsel strongly urged you to do so, but he very understandably did not do that at the time. You hoped that the expert reports would help you on the issue of murderous intent. Those from the Crown did
not, and the informal report of Professor Brinded, which was not provided until March 2011, was late. It was to the effect that no psychiatric defence was available. I accept that at that point Mr Taffs did not advise you to plead guilty, nor did he review exactly what sort of sentence you faced and what sort of discount was available to you. That is regrettable. Such advice should have been given and reduced to writing so you could reflect upon it. Had it been done I have no doubt we would have avoided this hearing today. The advice should have been repeated when the expert reports came in and if necessary, at the commencement of trial.
[43] However, I am not persuaded that it would have made any difference for my limited purposes. I am not conducting a general inquiry into the quality of your representation. You have steadfastly insisted throughout, and still do, that you did not intend to kill. And I am satisfied that you knew the case against you was very strong. I think you understood the jeopardy you were in. You are a straightforward person as it has been said, but you are not unintelligent. It follows from all of this that no additional discount can be given for what I have called today a notional guilty plea.
Comparable cases
[44] It is necessary to compare your case to others to arrive at the sentence. I appreciate that this discussion will not mean very much to you, Mr Frost, but it will be reduced to writing, and it will allow you and others to evaluate the sentence later.
[45] Double homicide cases are less uncommon than one might think. There are
13 of them that can be compared to yours.5 I will list them all in my sentencing notes. The sentences cluster within a range of 17-25 years as a minimum period. In
only four was a minimum period of less than 20 years imposed.6 None has resulted
5 The cases in which two or more murders happened as part of the same transaction are R v Bell
CA80/03, 7 August 2003; R v Cui CA333/05, 28 September 2006; R v Doyle HC Rotorua CRI-
2005-070-6451, 13 October 2006; R v Gardner [2009] NZCA 113; R v Howse [2003] 3 NZLR767 (CA); R v Konia HC Palmerston North CRI-2005-054-2095, 30 June 2006; R v Lundy (2002)
19 CRNZ 574 (CA); R v Ogle HC Wellington CRI-2009-091-2763, 16 October 2009; R v
Reihana HC Rotorua CRI-2005-070-7328, 29 June 2007; R v Samoa CA85/04; CA138/04 4
August 2004; R v Sila [2009] NZCA 233; R v Taylor HC Auckland CRI-2004-047-7, 15 February2005; R v Ying HC Hamilton T032171, 7 April 2004. I note that some pre-date s 104.
6 R v Cui, R v Gardner; R v Sila; R v Taylor.
in an end sentence of less than 17. Taken as a whole, they suggest an orthodox minimum period of 20-23 years, before any discount for a guilty plea.
[46] Some aggravating factors of the other cases are present in this one. In most cases there was at least one vulnerable victim. Some involved entry to a victim’s home.7 These are important features because each of them qualifies for the 17-year minimum. The impact on surviving victims was normally severe too, as it is here.
[47] However, it is not simply a matter of looking at the qualifying factors. Having established that the 17-year minimum applies, all the aggravating and mitigating factors of the case must be evaluated and compared to other cases.8 When I have done that, I find that the other cases were characterised by a combination of aggravating factors which are not present here. In some, the killings happened in the context of other serious offending.9 Most featured clear premeditation and/or extreme brutality or determined pursuit of a victim. In some the offender sought to escape detection; that sometimes explained the killing of the second victim.10 In several a third victim was also attacked.11 Some involved an offender who refused to accept a woman’s decision to end a relationship and who had a history of domestic violence.12
[48] Remorse, assessed at sentencing, was normal, and some offenders pleaded guilty, but mitigating factors were usually otherwise limited in number and importance.
[49] There are two relevant cases which involved an offender whose culpability was reduced by mental illness and confused motives resulting from it.13 In one of them the offender suffered from schizophrenia, which was treated as a mitigating
factor, but the discount of (I infer) about two years was offset by his calculated effort
7 R v Cui; R v Konica; R v Ogle; R v Reihana; R v Ying.
8 R v Williams at [52].
9 R v Gardner; R v Doyle; R v Sila.
10 R v Ogle, R v Cui, R v Konia (in the last of these the attempt to avoid detection did not explain the second killing).
11 R v Reihana; R v Gardner; R v Cui.
12 R v Ogle; R v Cui; R v Ying.
13 R v Konia; Smail v R [2011] NZCA 403 (the latter was not a double homicide). The behaviour of some offenders was explained in part by drugs or alcohol, but that is not a mitigating factor.
to evade detection and his motives, robbery and perhaps sex, and the brutality of the attack.14 Mental illness can be an important mitigating factor, but like other factors personal to the offender it only goes so far to mitigate. The discount may be as much as 30 per cent, although something materially less than that is usual.15
[50] There are two double homicide cases in which the offender had not previously appeared.16 In this case Mrs Currie accepted that your previous good character does merit a discount.
[51] I remind myself that Parliament’s policy was that a double homicide, in itself, may properly be met with a 17-year minimum, after taking into account aggravating and mitigating factors. I must not double-count aggravating factors that are already built into that minimum. At the same time, I must recognise that you qualify for three reasons, not one.
The minimum period
[52] I will now construct the sentence. I begin by noting that yours is not a marginal case. As I have said, you fall squarely into the class of cases to which the
17-year minimum applies; the double killings, the special vulnerability of Mr Schist, and the location, in his home, together point to a starting point of something more than 17 years.
[53] Against that, there are not the multiple and very serious aggravating factors that are usually found in the cases. Using the grim standard by which we measure these things, these killings were not distinguished by unusual brutality. There was no other criminal purpose or bad motive, no premeditation, no history of violence, no abuse of drink or drugs. You did not seek to avoid detection. Your case is less serious than two others in which 19-year minimums or less were imposed after
trial,17 although in one of those cases the sentence was probably lenient.18 Counsel
14 R v Konia.
15 E (CA689/2010) v R [2010] NZCA 13.
16 R v Cui; R v Ying.
17 R v Cui; R v Gardner. Both were convicted after trial. The closest comparator is probably
Gardner, but the offender there, although relatively young (24), had been involved in unprovoked
will appreciate that I’m here not mentioning the cases which I will list in my
footnotes.
[54] I will adopt a starting point of 19 years.
[55] In mitigation, I will allow a discount of 15 per cent for previous good character and remorse and your mental difficulties at the time. As I have already said, I cannot make any allowance for mental illness or disability. There is no evidence of diminished responsibility. I have factored the absence of motive into the starting point.
[56] So the overall discount available to you is 15 per cent. As a matter of mathematics that would lead to a term of 16 years and two months.
Whether 17-year minimum manifestly unjust
[57] However, that is not the end of the inquiry. I may impose a minimum period of less than 17 years only if the statutory minimum would be manifestly or clearly unjust. That minimum reflects the importance which the legislature attached to denunciation and accountability in this area.
[58] In the end it is a question of overall impression. The decision must reflect the number and gravity of the qualifying factors that attract the 17-year minimum in the first place. It is also a question of degree, which can be posed in this way; at what point does a difference between the 17 year-minimum and the sentence that I would otherwise impose become manifestly or clearly unjust? I think the difference should be material, when assessed in the context of what must inevitably be a very long sentence.
[59] My assessment is that the 17-year minimum is not manifestly unjust in your case.
violence that preceded the killings, and injured other victims, and fled the scene. His offending was not less premeditated, and he too used a weapon (a car).
18 R v Cui.
Decision
[60] So Mr Frost, your sentence on each of the two counts of murder is life imprisonment. On each count you must also serve a minimum period of imprisonment of 17 years.
[61] You may stand down.
Miller J
Solicitors:
Crown Solicitor’s Office, Christchurch for Crown
0
5
0