R v Frost [2008] NSWSC 220

New South Wales Supreme Court

CITATION : R v Frost [2008] NSWSC 220

HEARING DATE(S) : 13/03/08

JUDGMENT DATE : 17 March 2008

JUDGMENT OF : Barr J at 1

DECISION : Sentenced to a non-parole period of three and one half years, which will be taken to have commenced on 18 September 2006 and which will expire on 17 March 2010, and a balance of term of two and one half years which will expire on 17 September 2012. The earliest day eligible for release to parole will be 17 March 2010.

CATCHWORDS : CRIMINAL LAW - guilty plea to manslaughter.

CATEGORY : Sentence

PARTIES : Regina Peter Frost

FILE NUMBER(S) : SC 2007/5775

COUNSEL : C McPherson (Crown) C Bruce (Defence)

SOLICITORS : Office of Director of Prosecutions (Crown) Legal Aid Commission (Defence)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J MONDAY 17 MARCH

2007 / 5775 REGINA V PETER FROST

REMARKS ON SENTENCE 1 HIS HONOUR : The offender, Peter Frost has pleaded guilty of the manslaughter of the deceased, Virginia Abad Frost. The offender and the deceased met in the Philippines, where the deceased was then resident, in 1985. He sponsored her immigration to Australia in 1986 and they married in that year. There were three children of the marriage. The deceased began using crystal methamphetamine, or ice, which she smoked. Early in 2003 the marriage broke down and the deceased returned to the Philippines and spent some time there in a drug rehabilitation centre. The offender sold the property where they had been residing and gave her a share of the proceeds, amounting to about $60,000. He understood that she was to use part of that sum in the purchase of property in the Philippines. With his share he purchased a property at Kungala. The offender began a relationship with another woman. He listed the Kungala property for sale. On 15 February 2004 the deceased returned to Australia and went to the property at Kungala to visit the offender and their family. He was expecting her. She told the children she was intending to return to the Philippines and asked the offender to let her take back with her the youngest of the children, a girl then three months short of her tenth birthday. She told the offender that in the Philippines she could get one thousand pesos for a virgin. He refused. The deceased asked the child herself if she would return with her to the Philippines and the child refused. The deceased again asked the offender to let her take the child and again he refused. The deceased became agitated and the argument became violent. The offender took the deceased by the throat and, in an account he later gave to the police, "half choked" her before pushing her onto a chair. The deceased was alive, but wheezing and gasping. The offender told her to get her things together, intending to drive her away to begin her journey home. He went to attend to the car. When he returned to where the deceased was he found her lying dead on the floor. There was vomit by the body. He panicked, wrapped her body in a sheet and carried her outside. He put her into a hole that had been dug for the disposal of rubbish on the expectation of the sale of the property. Everybody but the offender believed that the deceased had returned to the Philippines. Within the next month the offender made a number of withdrawals from an account the deceased had held at the Commonwealth Bank. In about March or April 2004 he sold the property and moved to live elsewhere with his partner and his three children. In about August 2004 he filed an appl ication for divorce in the Family Court and in the course of doing so forged the deceased's signature on a form of Acknowledgment of Service. He swore a false affidavit of proof of her signature. The offender carried on correspondence with relatives of the deceased in which he raised the question of realising her assets in the Philippines and having the proceeds returned to Australia. 2 In August 2005 a sister of the deceased reported her missing and an investigating officer spoke to the offender. He told them that he did not know where she was and that she had left him in order to return to Sydney on the way to the Philippines. He said that he left her at the railway station. In December 2005 the police oversaw excavations on the property in which the deceased had been buried, but nothing of any significance was found. In June 2006 they interviewed the offender and he maintained the version of events he had previously given. In August 2006 the contractor who had dug the hole for the deposit of rubbish gave some information to the police and took them to the place where he had dug it. In September 2006 further excavations were carried out and the body of the deceased was recovered. Because of the time which had elapsed since death and the conditions in which the body had lain, those who examined the body were unable to establish the cause of death. Having established by DNA test comparisons that the body was that of the deceased, police got in touch with the offender and told him that her body had been found. On 15 September 2006 he took part in an interview at a police station and admitted causing the death of the deceased. He gave an account substantially in accordance with that set out above. 3 The offender was arrested on 18 September 2006 and charged with the murder of the deceased. He was committed to this Court for trial on 13 November 2007. He came before me on 1 February 2008 charged with the murder of the deceased and alternatively with her manslaughter. He pleaded guilty to the manslaughter and the Crown accepted that plea in discharge of the indictment. 4 Letters were put before the Court, written by the parents of the deceased, from which it appears that they bear the offender no ill will and accept that the death of the deceased was not intended. Evidence was given by Ms Leman, the offender's partner. She said, and I accept, that the offender has been a good father to his children and that he and they still love one another. For a period of time until she became too ill to continue, she looked after the two younger children of the marriage. They are now fostered, under the supervi Letters were put before the Court, written by the parents of the deceased, from which it appears that they bear the offender no ill will and accept that the death of the deceased was not intended. Evidence was given by Ms Leman, the offender's partner. She said, and I accept, that the offender has been a good father to his children and that he and they still love one another. For a period of time until she became too ill to continue, she looked after the two younger children of the marriage. They are now fostered, under the supervision of the Department of Community Services, with the parents of the girlfriend of the eldest child. They live in a town in Queensland. They and the offender very much want to be together again as soon as he is released to parole. 5 The evidence also satisfies me that the withdrawal of funds from the deceased's account and the offender's attempt to realise other assets of hers were done for the benefit of the children. 6 I accept that the offence was committed in a sudden and unexpected burst of anger, precipitated by the deceased's abhorrent proposal to take the youngest child into a dangerous and degrading milieu of drugs and prostitution. I accept that he panicked when he realised that the deceased was dead and that it was in that frame of mind that he buried the body. Having done so, he was bound to the story that the deceased had returned to Sydney, and presumably to the Philippines. His deceit of the Family Court and his lies to his family are to be seen against that background. 7 The offender is a man of prior good character. He has conducted himself appropriately while in custody. I do not think he will offend again. 8 The offender pleaded guilty as soon as the Crown was prepared to accept a verdict of guilty of manslaughter rather than of murder. He is entitled to a substantial allowance for the utilitarian value of his plea. 9 The offender did not give evidence and I am left unsure about his present attitude to the offence. His plea of guilty was arrived at by agreement after a long period of negotiation in the Local Court. He was then facing a charge of murder and the Crown had a respectable circumstantial case. In the circumstances the plea of guilty is some, though not strong, evidence of remorse, 10 It was submitted on behalf of the offender that the need for him to re-establish himself with the children, though not constituting the kind of exceptional circumstances that would justify a lower sentence, did justify the imposition of a somewhat longer period of time on parole. In the special circumstances of this case I am prepared to accept that that is so. 11 Peter Frost, I sentence you to imprisonment for the manslaughter of Virginia Abad Frost. I set a non-parole period of three and one half years, which will be taken to have commenced on 18 September 2006 and which will expire on 17 March 2010, and a balance of term of two and one half years which will expire on 17 September 2012. The earliest day upon which you will be become eligible for release to parole will be 17 March 2010.