DPP v Gray [2018] VCC 1273

27 years of age and the final co-offender, a Mr Warby, was 21 years of age.

7. At the time of this the victim's name was Booby. He had known you for about six months and McCallum for about two months. He initially said he knew neither McAlister or Warby but it seems clear to me he had met McAlister before. Everybody was a drug user and everybody seemed to have been involved in trafficking but there are no charges for that.
8. The complainant would go to your house in Golden Square and purchase methamphetamine from you. On 18 October 2016 police executed a search warrant at the home of the girlfriend of the complainant. Police seized material and it was later used to charge him and involved you and others. After a series of communications between the complainant and McAllen, about 4.30 on the afternoon of 30 October 2016 he drove his car to Mistletoe Street. It was under an understanding that he was going to get drugs, and I am very mindful of the cross-examination of Mr Lavery insofar as the lead-up to that was concerned.
9. When he went into the house he was struck to the head from behind with the blunt end of a tomahawk by Mr McAlister. When he turned around he was struck again to the head and fell to the ground, losing consciousness. There are some variances as to what happens after that but I have to sentence you on the basis that this had taken place not in your presence and you arrived later. There is also supposedly an unknown other man present during the course of all this.
10. The complainant regained consciousness and then, depending on which version you accept, was restrained and dragged into the lounge area, placed against the back of a couch. McAlister struck him a number of times and he was terrified. McAlister was insisting that he tell him what he had told police in a recent police interview in terms of putting other people in.
11. McCallum came out and took keys from the victim's pocket and went outside to his car. He then took out a black bag and some police charge sheets. He claims he took the black bag in with him, but that is not the basis of the plea. He was assaulted with a baseball bat that was in his own car. A firearm was produced, apparently by the purportedly unknown man. He was menaced with that. The cash in his bag, which was mainly for the purchase of drugs and other items, were stolen from him. That was taken by McCallum and you pleaded on the basis that those items were stolen and you, in effect, engaged in a fresh appropriation of them by allowing them to be kept, or suffering them to be kept in your possession.
12. He, that is the complainant, was released and he was given a towel to clean himself up. McAlister told him, "I'm going to get those pump actions". The situation is that it seems pretty clear that Booby at some stage has asserted that he had firearms at home and McAlister was going to go and get them. He was taken in a car with Warby and supposedly the unknown male and on the way out he saw property of his, for which there is at this point no charge. He was then driven to his own home and it basically fizzled out and he was left there and McAlister and Warby went away.
13. You are to be sentenced on the basis that you aided and abetted the assault on Booby and that, as I have indicated, you took possession of the stolen property. His injuries were not severe and tend not to support his allegation of an assault
14. On 27 July 2016 a woman handed into police a Ruger brand .22 calibre firearm with a scope and a silencer. She stated that you had had that in your possession on 21 and 22 July and she had been required by you to store it for her. I point out that is not the firearm that is alleged to have been used during the course of the assault. That firearm had been reported stolen previously. Obviously, the firearm and the silencer are together but there are clearly two quite distinct charges.
15. Insofar as the summary matters are concerned I do not think I need to go into that. There is obviously offending whilst you were on bail, and also when police raided your premises they found various weapons but, as I understand it, in this situation it is swords or batons, the subject of the charge. I have indicated the maximum penalties for all this. It then becomes a question of what the appropriate disposition is. In your situation with your history it would be impossible to argue that a non-custodial sentence was appropriate. However, in a situation as this, whilst the offending is serious and calls for general and in your case specific deterrence as well as denunciation and punishment. You have already done 200 days in a custodial environment for it.
16. You have also in more recent times, and I have sworn evidence to this effect which I will go through in a moment, been in residential detox and treatment for a period of around about seven months. There is recent Court of Appeal authority that says that that could be taken into account or should be taken into account. I have sworn evidence before me that it would be very similar situation at your end to what one would encompass in Odyssey House, and that can only be described as confinement. There is no other word for it. It then becomes a question as to whether there is sufficient gaol done for all this and whether a community corrections order to follow on from that would suffice. I have had you assessed for a community corrections order and you have been found suitable to undergo one.
17. Tendered on your behalf were a report of Psychologist Dr Cidoni, the sworn evidence of Amanda Brown, a drug worker and also a Nicole Catwin and also a report from Mr Laidlaw. The report from Ms Cidoni basically sets out your background. You are 47 years of age so there is no real claim in childhood difficulties at this stage. However, your mother was bipolar, your father was alcoholic, you were the victim of considerable neglect. You lived in boys' homes and foster homes from the age of 11 to 15.
18. Your mother died about ten years ago and your father still lives in Adelaide. You were then somewhat transient. You worked in Western Australia in the mines. You have been in a couple of relationships. You have children, some of whom you do not see, one of whom you now have the care of, which I will come to in a moment. You have at times worked as a tattooist. You left school in Year 9 but you have been able to complete a fine arts degree which shows that you are clearly a man of intelligence.
19. You were living in rental accommodation at the time all this occurred and it is quite clear, and I do not look to sentence people for the overall milieu of it but this was a situation where it was all part and parcel of what was going on. What is very important is though, as I said, you, having used drugs, cannabis, from around about the age of 11 and methamphetamines from around about five or six years ago, had a serious drug problem.
20. What you have done is very much to your credit and it is contained within the reports. The first one was that you went to the residential program of Arrow Health at Woodend. That is normally, as I understand it, a three month program but you remained for seven. You did very well there and transitioned back into community life. I have already indicated the consequences of that for you. Since you left there you have been an Oxford House resident with Sharc and, as I understand it, you did very well there as well. They regard you as having a diagnosis of anxiety and acquired brain injury and a significant history of trauma. It is clear from their report that you are beginning to understand that your drug use is tied up with all that.
21. I accept that during the time in their care after you have been at the Woodend premises, that you remained free from alcohol and drugs and have been receptive and respectful to staff as it is described there. You are attending Narcotics Anonymous meetings. You have served positions in volunteers on the narcotics help line as well as involved in other programs. Your immediate goal is, they tell me, are to continue work on your recovery and to rebuild relationships. Again, I understand it, you have now been awarded sole custody of your six year old son and are deeply invested in looking after him, securing housing for yourself and for him.
22. Realistically that is the scenario. No need, I think, at your age to be going through where you went to school or what happened, all those sorts of things. They are of little significance. The fact of the matter is, and I think the same sort of situation was referred to in The Queen v Toumngeun, where the judge took a favourable view of prospects of rehabilitation.
23. The Court of Appeal said in the DPP v Leach:

"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That after all may be the decision which rebounds very much to the benefit of the community, and as the President of the Court of Appeal said in the DPP v Dacarta, the sentence judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence. In the long time the community's interests will be best served by that course. This court should seek to promote public understanding of the fact that apart from interest to the individual whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime".

1. That is my view of the scenario that we deal with here. Had you not had pre-sentence detention and had you not spent that seven months in effectively a detained circumstance of rehabilitation, I would have sentenced you to be imprisoned from today. However, in effect you have done something in the order of a year and I think that the prospects of your rehabilitation are what you have shown over the last ten months or so is that you are making a genuine attempt, whilst you will always be at risk with the drug problems that you have had, it is far more in the community's interests that you be able to care for your child and be a useful member of the community. You do have employment, you have stable accommodation and in all those circumstances I think that the time that you have served plus the other time, assessments are enough insofar as that is concerned.
2. If you agree you will be placed on a three year community corrections order. There will be no work component involved in that because you do work., you have the child and you have already been effectively punished in one sense. I will be imposing conditions. That is supervision, rehab for drug, rehab for mental health and programs to reduce reoffending as recommended. So with those conditions it will be for three years. It will be with conviction and you will understand that if you breach that community corrections order by offending of this sort, well, you know what Mr McAlister got and you will be getting something similar. I cannot put it any more simpler than that.
3. Insofar as parity is concerned I tried to have a look at that. I just cannot. They have sentenced on such different factual bases I cannot see any point in even discussing it to be quite frank. Mr Gray has done time and that is going to have to be the end of it.
4. Insofar as the summary offences are concerned, on the two summary offences in relation to Indictment number - and I think I have got this right. Point 4 -

5. MR HAMMILL: Point 5.
6. HIS HONOUR: Yes, Point 5 has got the two.
7. MR HAMMILL: Yes.
8. HIS HONOUR: All right. That will be an aggregate fine of $500 and on the one in regard to Point 4, an aggregate fine of - sorry, an aggregate, that will just be a fine of $250, and they can be turned into work hours if he wants to.
9. MR LAVERY: yes, Your Honour.
10. HIS HONOUR: That is just to get them on. All right, so I produce that community corrections order. Do you want to go - yes, just go (indistinct words).
11. MR LAVERY: Thank you, Your Honour.
12. HIS HONOUR: As soon as I have signed this (indistinct). I have not passed sentence yet. No, oh, no. No, no, no, I have not finished yet, do not worry. I am just not going to do it until the CCO is signed, that is all.
13. MR LAVERY: Absolutely.
14. HIS HONOUR: Yes. All right, on the Indictment Point 5 aggregate sentence of 200 days, direct that 200 days be reckoned as having been served under that sentence. On the charges of assault - sorry, intentionally cause injury and theft, 200 days, direct that 200 days be reckoned as having been served under that sentence. Further on those two charges a community corrections order that I have just indicated, which has now been signed. I direct that the sentence imposed on Indictment Point 4 be served concurrently with the sentence imposed on Point 5. All right.
15. So that is what I have done, Mr Gray. You know, I mean I understand you have had a pretty rugged background all your life but if you breach this by this sort of offending you know what McAlister got. The matter with the firearm and the silencer, that is gone, but the assault is still there and with two previous priors where you have got a couple of years for it, you know what is going to happen if you breach it. Fair enough? All right. No other orders I have to make?
16. MR HAMMILL: The 6AAA declaration is a little problematic because Your Honour will have to declare something.
17. HIS HONOUR: That is what - yes, no, it seemed to me I could not do it. I will if it - if it suits I will do it, all right.
18. MR HAMMILL: Thank you, Your Honour.
19. HIS HONOUR: All right. On Indictment Point 5, 6AAA of 12 months. This is probably the best way of doing it. On the other indictment, yes, 12 months with a CCO. I mean I put it on record I think that is meaningless in this scenario but there you go.
20. MR HAMMILL: I got it.
21. HIS HONOUR: Yes, thanks for that. Yes, thanks, Mr Lavery.
22. MR LAVERY: If Your Honour pleases.
23. HIS HONOUR: Yes, you are excused, yes. Yes, go out there now.
24. MR LAVERY: Thank you, Your Honour.