Director of Public Prosecutions v Degney

[2018] VCC 2245

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01591

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRANT DEGNEY

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2018
DATE OF SENTENCE:	8 November 2018
CASE MAY BE CITED AS:	DPP v Degney
MEDIUM NEUTRAL CITATION:	[2018] VCC 2245

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp	Office of Public Prosecutions
For the Accused	Ms A. Reader	Stary Norton Halphen

1HER HONOUR:  Grant Degney, you have pleaded guilty to an indictment containing one count of attempted aggravated burglary, which carries a maximum penalty of 20 years' imprisonment, and one count of use unregistered general category handgun, which for a first offence carries a maximum penalty of seven years' imprisonment. Two related summary matters were uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to both.  These were one count of - now, Ms Thorp, it was "possess controlled weapon", was it not?  There is reference in the original charge sheet to "possess controlled weapon", but in the summary of prosecution opening, it was "use controlled weapon".

2MS THORP:  I believe it is "use controlled weapon", but I will just double check, Your Honour, to make sure that is accurate.

3HER HONOUR:  In that case, if you do not mind, we will pause until that enquiry is complete.

4MS THORP:  I will just check the actual charge sheet.

5HER HONOUR:  In the meantime, Ms Reader, my memory is that your client was prepared to consent to a forfeiture order in relation to the firearm and also to consent to a 464ZF(2) application.  Are they your instructions?

6MS READER:  Yes, Your Honour, he consents.

7HER HONOUR:  Thank you very much.

8MS THORP:  Yes, I am glad we checked that, Your Honour.  It is "possess controlled weapon", is the actual charge.

9HER HONOUR:  Yes, thank you very much.  I had proceeded on that basis.

10MS THORP:  Thank you, Your Honour.

11HER HONOUR:  The two summary matters to which you pleaded guilty were one count of possess controlled weapon without lawful excuse, which carries a maximum penalty of one year imprisonment, and one count of possess cartridge ammunition without permit, which carries a maximum penalty of 40 penalty units. 

12The circumstances in which you came to commit those offences are set out in the summary of prosecution opening, dated 24 October 2018, which was read into evidence at your hearing.  I have had regard to that opening when determining the appropriate sentence in your case.

13The prosecution also tendered an outline of prosecution plea submissions, dated 24 October 2018, for your hearing.  In addition to making oral submissions, your counsel relied on a written outline of submissions for plea hearing, dated 25 October 2018, a report of Mr Jeffrey Cummins, Consulting Clinical and Forensic Psychologist, dated 25 September 2018, a reference from John Cunningham, and correspondence between your general practitioner and psychiatrists.  I have also had regard to each of those submissions and documents in formulating my reasons for sentence.

Circumstances of the offending 

14As at the date of offending, you had been in an on-off relationship with Kelly Tanner for six years.  Shortly prior to this incident, she had been evicted from her premises, and at the time of the incident, she would sleep at your home at 6 Aspen Court, Frankston North, from time to time. 

15On Saturday 24 February 2018, Ms Tanner left that house and returned at approximately 6.30 pm in possession of some money.  You accused her of working as a prostitute throughout the day. You both argued for approximately two hours before Ms Tanner left the house to buy some groceries for dinner.  While she was out shopping, you sent abusive text messages to her, telling her, amongst other things, to "Fuck off then cunt don't bother coming back  I've been doing shit for you all fucking day you piece of shit and this is how you repay me get your small skirt on and go out and get your fucking money."

16Upon her return, you displayed anger towards her.  One of your two dogs bit you on the leg, which sent you into further rage. 

17You went into your bedroom and returned with a Ramset nail gun that had been modified to a handgun to discharge .22 calibre ammunition.  You took the two dogs out to the backyard and then discharged one round towards the dogs to scare them (Charge 2 on the indictment).

18A short time later, your family friend, Christopher Archer, attended the premises to visit you.  Mr Archer was described by your counsel as an older gentleman who had provided guidance and counsel to you over the years, and effectively a surrogate father.  And that is, of course, not to diminish the role of your father.  He heard you and your partner arguing, and upon entering the property, took you into your bedroom and attempted to calm you down. Whilst he did this, Ms Tanner packed her belongings and left the premises.  You heard her leaving and came out of your bedroom.  Mr Archer told Ms Tanner to get out of the house, and the two of them left and returned to Mr Archer's house at 46 Tamarisk Drive, Frankston North. 

19Approximately one hour later, you telephoned Mr Archer to speak to Ms Tanner.  She spoke to you, eventually hanging up on you when you started abusing her.  You then phoned three or four times.  Your calls were ignored.

20On Sunday 25 February 2018, at about 12.30 am, you attended at Mr Archer's house in possession of a large machete knife (summary offence of possess controlled weapon).  Your attendance at that house was captured on CCTV, which I have viewed. 

21You entered the driveway of Mr Archer's premises to the rear.  Mr Archer and Ms Tanner were sitting in the room at the rear of the premises, which has a sliding door to exit to the yard and also contains the monitor of the CCTV. Mr Archer saw you on the monitor walking directly to the sliding door at the rear of the property.  He was sufficiently concerned by your behaviour to instruct Ms Tanner to go to the front of his house where Mr Archer's elderly mother and sister were.  Mr Archer then called 000. 

22You took the machete out of the rear of your pants and raised it at the door whilst yelling at Mr Archer to let you in.  You were abusive and threatening whilst attempting to enter the property.

23You used the butt of the machete to bang on the door before attempting to jemmy open the sliding door with the machete (Charge 1).  You made several attempts to jemmy the door open whilst also hitting the door with your fists and feet.  You also yelled threats that you would smash your way into the house.  Ms Tanner was in fear of her life during the incident, believing you would carry out the threats if you got into the premises.

24After just short of two minutes of this behaviour, you left via the driveway, and as you passed the front porch, you used the machete to strike the wooden handrail, leaving a large cut in the wood.  The incident was recorded by way of CCTV, and as I have mentioned, I have watched that CCTV footage carefully.

Investigation, arrest, and interview 

25About an hour and 15 minutes later, at 1.45 am on 25 February 2018, police attended Mr Archer's address and spoke to Ms Tanner and Mr Archer, who detailed the series of events of the evening.  However, both were unwilling to provide a statement.  Whilst police were present at the address, you returned to that address and were arrested and taken to Frankston police station at about 2 am that morning.

26On Sunday 25 February 2018 at approximately 4.46 am, police attended your home at 6 Aspen Court, Frankston North, and conducted a search under the Family Violence Protection Act 2017 in relation to the use of weapons and a handgun.  You directed police to your bedroom. 

27During the search, police located:

·A modified Ramset nail gun under the television cabinet, matching the description of the firearm that was used in the incident the subject of Charge 2.

·A black Nike bum bag hanging in your wardrobe containing Ziploc sandwich bags. One of the bags contained a variety of live cartridge ammunition, including twenty .22 calibre cartridges for use in the nail gun, and  four 308 and .508 calibre cartridges, which are for use in assault rifles (Summary Charge - possess cartridge ammunition).  The items located by police were seized under the Family Violence Protection Act.

28On 26 February 2018, Ms Tanner contacted police and advised that she wished to make a statement in relation to the events that had occurred.  By this stage, you had been remanded into custody. 

29The firearm was assessed by the Forensic Services Ballistic Department, and investigators located a live .22 calibre round in the firearm. 

30During your Record of Interview, you made full admissions to attending the address at 48 Tamarisk Drive while being in the possession of a machete.  You also admitted to using the machete in an attempt to jemmy open the door. You admitted that you were aware people were present at the property and that Ms Tanner would have been terrified of you at the time of the incident. 

31You made full admissions to being in possession of a modified Ramset nail gun that can fire .22 calibre rounds and that you regularly fire it in the backyard of the property at a target.  You admitted to shooting it to scare the dogs after one of the dogs bit you on the leg. 

32You also made an admission to damaging the handrail on the porch with the machete.  That is the weapon the subject of the first uplifted summary charge.  The damage does not fall within any of the charged conduct.

Effect on the victim 

33Though I have not been provided with any victim impact statements, I accept, as you conceded in your record of interview, that Ms Tanner would have been terrified of you at the time of your commission of the offending the subject of count 1.  As I have mentioned, your family friend, Mr Archer, was sufficiently alarmed by your behaviour to direct Ms Tanner to the front of his house, away from you.

Plea of guilty

34You were charged on 25 February 2018 and were remanded into custody on that day.  The matter eventually resolved on 8 May 2018 at a contested committal hearing, but prior to any witnesses being cross-examined. 

35I accept and take into account that you pleaded guilty at an early stage and, as submitted by your counsel, that this plea is indicative of remorse as well as having utilitarian value.  You also made admissions to the offending in your interview and have expressed remorse in other ways both to Mr Cummins and to other persons who have been present in court or provided statements.

Personal circumstances

36You are, and were at the time of offending, 25 years of age. 

37You attended Belvedere Park Primary School in Seaford until Grade 4, and then Ballam Park Primary School from Years 4 to 6, then Monterey High School to Year 9, before commencing Year 10 at the Kyneton Community Centre and leaving part way through.  I have been told by your counsel that you had difficulties in learning.

38Your parents separated when you were younger, and your mother moved to Kyneton.  Both parents were in court to support you during your plea in mitigation of penalty.  Your beloved sister passed away in a car accident when she was 22 and you were 18, and this has caused you considerable grief and trauma.  And I understand that.

39Prior to the relationship with Ms Tanner, you had a four-and-a-half year relationship with Ms Brittany Hodgkinson, who was the mother of your six-year-old son, Tyler, and eight-year-old stepson, Brody, a child whom you consider as your own. 

40I was told that you have had a relatively good history of employment; most significantly, working between 2011 to 2016 as a roof restoration operative with Aqua Shield Roofing, and then you continued to do similar work until you were remanded into custody.

41I have read and considered very carefully a report of Jeffrey Cummins, consultant clinical and forensic psychologist, dated 25 September 2018, and counsel addressed the contents of the report in the course of the plea. 

42Mr Cummins notes that prior to leaving school, you started smoking cannabis at around age 12 to 13, and reports that since leaving school you have typically been a daily smoker of cannabis and you often averaged smoking up to 7 grams daily. You have rarely used any other drug, however you acknowledge combining Valium with alcohol at the time of committing the offences to which you now plead guilty. 

43In Mr Cummins' view, you are still having difficulty coming to terms with your actual offending, including the seriousness of your offending.  He reported that you are of the opinion that you offended under circumstances where, for reasons you could not explain, your perception and judgment were distorted and you were feeling paranoid, aggressive, and argumentative.

44Mr Cummins opines that you attract the diagnosis of a Cannabis Use Disorder which is severe in type, which raises the very real possibility that at the time of offending you were suffering from cannabis-induced intoxication and paranoia. 

45Mr Cummins reports that at interview you acknowledged that you have repeatedly refused treatment of relevance to your dependency on cannabis.  He states that even now you are reluctant to accept that cannabis could have had such a significant impact on you that you could have committed the offending to which you are now pleading guilty. However, he reports that at interview you acknowledged that you are now prepared to receive mental health treatment with a focus on your history of dependency on cannabis and also with a focus on assisting you to adequately grieve in relation to your sister, who, of course, was killed in a motor car accident approximately eight years ago.

46Mr Cummins reports that you are of the opinion that you suffer from adult ADHD, and it is his opinion that the primary method by which this diagnosis could now be confirmed would be through you being trialled on a stimulant medication whilst free of illicit drugs.  You have acknowledged the need to participate in a comprehensive anger management program, and in Mr Cummins' opinion, it is imperative that you participate in such a program.

47Mr Cummins notes that at interview you stated you would now consider having a period of sobriety in terms of cannabis whilst back in the community.  Mr Cummins expresses the opinion that you are having difficulty having adequate insight into your current mental health problems, and in relation to accurately appraising the likely consequences of long-term and heavy cannabis usage.  In this regard, I note Mr Cummins refers to the fact that you underwent surgery in September 2013, and that time you admitted a history of marijuana use, and at that time you admitted to being a daily smoker of cannabis and smoking up to 24 grams of cannabis weekly. It was also noted at the time of that operation, as per Peninsula Health records obtained by freedom of information and provided to Mr Cummins, that your demeanour could change quickly depending on the topic of conversation and that you had a tendency to be aggressive. 

48You also consulted Dr Peter Heffernan, psychologist and psychotherapist, on two occasions in 2014, and Dr Heffernan then diagnosed you with chronic cannabis dependency, serious psychosocial impairment, a tendency to display a short temper/violent outbursts, and untreated ADHD. However, in spite of Dr Heffernan's opinion that you required admission for residential drug rehabilitation, prior to implementing treatment with dexamphetamine, you had rejected any ongoing involvement with the recommended referral to PenDAP Youth, and refused to be admitted to a residential drug rehabilitation program at that time.

49I understand that you also sought treatment in July 2017 and January 2018, Exhibits 4 and 5, and in July 2017, Dr Heffernan declined to treat you, but in the context of your GP's assessment for your ongoing mental health problems - described as anger, frustration, not eating or sleeping, angry outbursts - which Dr Heffernan considered fell outside his area of expertise.  But, as recently as in July 2017, the letters of referral describe occasional marijuana use, which is an apparent minimisation by you of your usage of that drug.

50You have admitted a number of prior court appearances, including an appearance at the Frankston Magistrates' Court in February 2012 for unlawful assault, at which time, without conviction, a community corrections order was imposed.  That community corrections order was breached, and you were fined without conviction on the original offences, including unlawful assault, as I have mentioned.

51Since you were remanded into custody, you have worked as an activities billet and have completed courses in OH&S, first aid, a barista course, and a course in drink driving. You have attended Narcotics Anonymous for four months, and I commend you for taking that step.  You have been waitlisted for an anger management course. 

52You have also completed four drug screens.  The initial test came up positive for cannabis, which I understand related to your usage prior to your remand.  The subsequent three drug screens were clean, and I also commend you for that.

Objective gravity of the offence. 

53The prosecution has submitted that in relation to Charge 1, attempted aggravated burglary, general deterrence is a paramount consideration.  It was submitted that specific deterrence is also relevant based upon your criminal history, particularly given that you have prior convictions for possession of a controlled weapon, though that was a Children's Court appearance, and unlawful assault, which I have noted was a Magistrates' Court appearance.

54There is no doubt that I must view an attempted aggravated burglary, involving an intention to cause fear to a domestic partner, against whom you held a misguided grievance, as a very serious offence.  As I understand the submissions made on your behalf, it was contended that your perception and judgment were distorted and that you held an irrational belief that your partner had obtained money through prostitution.  It was submitted that there was evidence of minimal planning and that there was no use of a disguise. In your police interview, you said that you armed yourself in relation to the attempted aggravated burglary because you did not know how many people would be at the address and what they would have on them.  You said you took the weapon to use defensively if necessary. However I find you were quick to use the butt of the machete to bang on the door and to use it to attempt to jemmy the sliding door open.

55It was submitted, in relation to count 2 that the handgun was a modified nail gun.  It was not an item that was readily useable or concealable.  It could only carry a single bullet and could not easily be reloaded.  It was not taken into a public place or used in connection with your later acts of violence, though it was conceded that your partner would have overheard your usage of that weapon.  You fired the gun outside to scare your dog, and you have no prior offences involving firearms.

56My attention was drawn to the case of DPP v Andrew Myers [2014] VSCA 314, in which case the Court of Appeal indicated that the following considerations would ordinarily be relevant to the assessment of the relative seriousness of a particular offence of aggravated burglary and, by extension, attempted aggravated burglary:

·    The offender's intent at the point of entry,

·    The mode of entry,

·    Whether the offender was carrying a weapon,

·    Whether the offender was alone or in company,

·    The time of day at which the burglary took place,

·    What the offender knew or believed about who would be inside and/or about where the person or persons would be, and

·    Whether the offender was someone of whom the victim was particularly frightened (at [48] of that decision).

57You denied any intention to inflict physical harm upon any occupant of the house.  Your counsel claimed that you wanted to speak to the occupants, particularly to Ms Tanner.  You accept that your presentation - that is, your aggressive state and the fact that you were armed - would inevitably lead to her being placed in fear of a physical assault, and for the purposes of the charge to which you have pleaded guilty, you have accepted an intention to commit an offence involving an assault, including causing fear. It was accepted that your offending in relation to count 1 might be characterised as towards the middle of the range in terms of seriousness for offending of this type. 

58I find the offending in count 1 took place over a 2-minute period and was not momentary.  The victims included your domestic partner. 

59In my view, this was a serious example of the offence of attempted aggravated burglary. The offence was committed late at night at the residential home of a family friend who was trying to assist your domestic partner by removing her to his house from your acts of rage and control, to which you had exposed her on and off for the six preceding hours.  You were not prepared to accept that she did not wish to tolerate your rage and abuse either by text message, or by telephone call, or in person. You acted in a controlling, violent, and abusive way.  It was your conscious decision to arm yourself with a weapon of significant size and then over a period of nearly two minutes try violently, and ultimately unsuccessfully, to break into the home of a family friend in order to act upon your sense of entitlement to continue frightening your domestic partner.

60Your behaviour caused your adult male friend, a surrogate father to you, who it entitled to feel safe in his own home, to counsel your partner to seek refuge in the front of the house with his elderly mother and sister, both of whom were also inside while you raged outside, unable to gain entry.  Even after you had desisted of your attempt and left the scene and disposed of your weapon, (which was not recovered), you still returned to Mr Archer's home at about 2 am, where you were arrested.

Relevant sentencing principles and current sentencing practices

61I take into account the purposes for which sentence must be imposed and the need for deterrence, both general and specific.  I accept the prosecution's submission that general deterrence is a significant sentencing purpose. 

62I also consider that specific deterrence is needed in your case.

63The sentence I will impose will punish you and denounce your behaviour whilst allowing for your continued efforts at rehabilitation, including from your sustained addiction to cannabis, which, as it was put, inspired your paranoia and associated sense of entitlement to seek vengeance upon your partner.

64Mr Cummins has assessed you as at moderate risk of committing a further act of violence, and in his opinion it is necessary and appropriate for you to participate in a comprehensive anger management program, to be completed either in custody or the community.  I note that you are waitlisted for such a program at present, and I encourage you to take responsibility for your anger. Mr Cummins expressed the opinion that there is a very significant likelihood that there is a nexus between your chronic dependency on cannabis and your mood regulation problems, including problems with anger management. 

65However, you are still a young man.  This is your first period in custody, and upon your counsel's submission, your time on remand has created some insight in you into the factors that led to your offending.  I consider that you do have prospects for successful rehabilitation, provided you can resist the temptation to consume cannabis and you can resist the temptation to act out on your anger.

66I am obliged to have regard to current sentencing practices in determining sentence, and have had regard to the cases to which your counsel and prosecution counsel drew my attention, which were relied upon as justifying a conclusion, in your counsel's view, that a combination sentence was appropriate in all of the circumstances of the case.  As is often the case, each of those cases bore significant dissimilarities to the present circumstances as well as similarities.

67I note the guidance of the High Court in DPP v Dalgliesh that current sentencing practices are one of many factors that must be taken into account in sentencing.  I have read and considered the Sentencing Advisory Council's sentencing snapshot in relation to the offence of aggravated burglary and also the VSCA overview of sentences imposed in relation to the count of aggravated burglary sentence as the principle offence, though I note of course that this is an attempted aggravated burglary and not the completed offence.

Sentencing submissions 

68It was submitted by your counsel that in all the circumstances, though a custodial sentence was required, I should impose a sentence which did not exceed your period of pre-sentence detention, plus 12 months' imprisonment, which would allow me to impose a community corrections order upon release from custody; alternatively, that a period of parole eligibility ought be imposed to allow for supervised release into the community.

69The prosecution submitted that the only sentence that was proportionate to all of the circumstances of the offending and offender was one of immediate custody.  I have considered carefully whether a sentence could be imposed which allows for the imposition of a community corrections order, and I am mindful of the propositions arriving in Boulton & Ors v The Queen (2014) 46 VR 308 and later decisions of the Court of Appeal relating to community corrections orders.

70Ultimately, and having due regard to the sentencing principle of parsimony, I am of the view that a sentence proportionate to all of the circumstances of the offence and of the offender requires a term of imprisonment to be imposed on count 1 that exceeds the amount that would enable the imposition of a community corrections order.

Sentence 

71On the count of attempted aggravated burglary, you are convicted and sentenced to a term of three years and six months' imprisonment.

72On the count of use unregistered general category handgun, you are convicted and sentenced to three months' imprisonment, one month of which is to be served cumulatively upon the sentence imposed upon count 1.

73On the charge of possess controlled weapon without excuse, convicted and sentenced to two months' imprisonment to be served wholly concurrently with other sentences.

74On the charge of possess cartridge ammunition without permit, you are convicted and fined $600.

75This results in a total effective sentence of three years and seven months' imprisonment on the first three charges, and I direct that you serve a period of two years before you are eligible to apply for parole. 

Pre-sentence detention

76I note presentence detention of 256 days excluding today. 

S 6AAA declaration

77Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you on the first three counts that I have named - that is, counts 1 and 2 on the indictment and the controlled weapons charge - to four years and six months' imprisonment, with a non-parole period of three years.

Ancillary orders

78Upon the application of the prosecution and with the consent of the accused, I grant the order for forfeiture in relation to the firearm, and given the seriousness of the circumstances of the offending and that the order is by consent, I order that you provide a mouth scraping under s.464ZF2 of the Crimes Act 1958.

79If you do not provide a scraping from the mouth - which is painless, by the way - by consent, then I order that a blood sample may be taken and police may use reasonable force to enable that forensic procedure to be conducted.  Are there any other matters, either counsel, to which I have not had regard, that I should?

80MS THORP:  No, Your Honour.

81HER HONOUR:  No?  Thank you.

82MS THORP:  There was one matter, Your Honour.  When you were talking about your assessment of the gravity of the offending, you used the word "aggravated burglary" as opposed to "attempted aggravated burglary".

83HER HONOUR:  Yes, that was a typographical error and I intended "attempted aggravated burglary".  I will make that amendment in my reasons.  I have misread it, because it was always intended that the reasons refer to the charged offence, as I have indicated.

84MS THORP:  And that's been clear the whole way through, yes.

85HER HONOUR:  Yes, thank you very much.  No, there was no error in my mind that this was a completed offence.

86MS THORP:  Yes.

87HER HONOUR:  Thank you.  I will stand down until 2.15.

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