Director of Public Prosecutions v Garrison (a pseudonym)
[2018] VCC 1379
•31 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Samuel Garrison (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2018 | |
DATE OF SENTENCE: | 31 August 2018 | |
CASE MAY BE CITED AS: | DPP v Garrison (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1379 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr M. Fisher (plea & sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr P. Kilduff (plea & sentence) | Valos Black & Associates |
HER HONOUR:
1 Samuel Garrison[1] you have pleaded guilty to an indictment containing five charges. One charge of aggravated burglary, one of contravening a family violence order intending to cause harm or fear, two charges of criminal damage and one charge of make threat to kill. You have also pleaded guilty to 12 unrelated summary offences being breaches of a family violence intervention order, and you have admitted your lengthy criminal history.
[1] A pseudonym name
2 The maximum penalty for aggravated burglary is 25 years imprisonment. The maximum penalty for contravening a family violence order intending to cause harm or fear is five years imprisonment. The maximum penalty for criminal damage is 10 years imprisonment and the maximum penalty for make threat to kill is 10 years imprisonment. The maximum penalty for the summary charge of breaching a family violence intervention order is two years imprisonment.
3 A summary of prosecution opening was tendered and marked Exhibit A. In summary, your offending occurred on 26 January 2017 at a house in Werribee. Your de facto partner Marie Anderson[2] lived at the house together with your four year old son Luke[3]. At the time of the offending, Samuel Anderson[4], Marie's brother, and Samuel's girlfriend Megan[5] were also staying at the house.
[2] A pseudonym name
[3] A pseudonym name
[4] A pseudonym name
[5] A pseudonym name
4 On 2 December 2016 an intervention order had been granted against you at the Werribee Magistrate's Court. Marie Anderson and Luke were both protected persons under the order. The order contained various conditions, including a prohibition on you attending within 200 metres of the Werribee house address, contacting or communicating with the protected person by any means and approaching or remaining within 100 metres of a protected person.
5 Despite the interim intervention order which was served on you on 6 December 2016, you and Ms Anderson continued to be in contact. On or around 21 January 2017 you travelled from Tasmania to Victoria to stay with Ms Anderson and Luke. There had been discussions between you and Ms Anderson about reconciling and she had paid for your ticket to come over from Tasmania. You stayed with her at the Werribee house address from about 23 January onwards.
6 During the evening of 26 January 2017 you and Ms Anderson took Luke to see the fireworks. You were both drinking alcohol heavily and an argument ensued. Ms Anderson and Luke left without you and returned to the Werribee house by taxi. Samuel and Megan were at home when they arrived and Ms Anderson was distressed and crying. You attended at the house shortly afterwards and gained entry to the house by banging on the laundry door until it broke. At this point, it is accepted that you did not believe anyone was at home and you had intended to retrieve your belongings and leave.
7 Upon entering the house, you realised a number of persons were present. Your four year old son Luke was screaming. You went into Marie's room and were yelling at her, demanding to know where Samuel was. Samuel grabbed his phone and ran out of the house and into the backyard. He then called 000. Megan who was inside the house also called 000 as did Ms Anderson on two occasions.
8 You were aggressive and you were screaming abuse. At one point you said to Megan, "Where's Samuel, I'm going to kill him." You walked around the house and kicked in the toilet and bathroom doors. You entered Samuel's bedroom intending to assault him. Megan was present in the bedroom and hiding. You said to her, "Where's Samuel? I'm going to kill him." It was your entry into the bedroom in these circumstances that constitutes the aggravated burglary charge.
9 At about 11.09 pm that evening the police arrived. You then ran back through the house and out the back door, abusing Marie Anderson as you did so. You then escaped through a neighbour's property.
10 You caused damage to the laundry door, bedroom door and bedroom wall. You also caused damage to an iPhone and sunglasses belonging to Samuel Anderson. You contravened the family violence intervention order by shouting at Marie causing her to fear for her own safety and that of Luke.
11 You were located later that night by the police at a friend's house and arrested. You were not interviewed due to your demeanour.
12 Whilst in custody you have had phone contact with Marie Anderson, your son Luke and your son Ian[6]. It appears you did this by calling Sandra Garrison’s number. Each call constitutes a summary charge. The content of the calls was not the subject of any breach charge, only the fact of the contact itself.
[6] A pseudonym name
13 There were no victim impact statements tendered in this matter.
14 It was submitted by your counsel that these are very serious offenses but they fall toward the lower end of the scale. There was no initial intention by you when you first entered the house to do anything other than retrieve your belongings. It is accepted the victims were in fear of you. It was submitted that the offending was of relatively short duration. Ms Anderson remains supportive of you and I am told you have been together on and off for some 24 years. Somewhat concerningly, Ms Anderson believes that she has a very good ability to set you off. She is in no way responsible for your behaviour. It is not a case of her setting you off. It is your decision to behave in the way that you do.
15 The offence of aggravated burglary was committed by you entering the bedroom looking for Samuel with an intention to assault him in circumstances where Megan was present. You did not have a weapon, you were not disguised and you were alone. You were already in the home, so this is not a home invasion and the prosecution accept that entering the bedroom in this way is a lesser form of aggravated burglary. Aggravated burglary is a serious offence, but this is not a serious example of that offence.
16 I accept the offending was of relatively short duration. However, no doubt it would have been terrifying for the victims, particularly Luke who was four years old. That is clear from the 000 calls that were made or attempted to be made. You are a big man and you were behaving aggressively.
17 You have a very extensive criminal record dating back as far as 1987. Your initial prior convictions were for matters such as being a nuisance, being drunk and driving offences. You graduated up through the criminal offence hierarchy, as it is, and committed a burglary in 1989. In 1993 you were charged with possession of drugs and then aggravated robbery in Tasmania. You were sentenced to five months for the aggravated robbery. Upon release you moved to South Australia briefly, where you offended, and then in 1995 you were jailed in Queensland for rape.
18 You were transferred back to Tasmania to serve at least part of that sentence and paroled in 1998. However you returned to custody early in 1999 because you committed an armed robbery whilst on parole. What followed was a pattern of you being paroled, committing offences whilst on parole and returning to custody. In February and March 2004 you committed serious offences of armed robbery, aggravated armed robbery and causing grievous bodily harm. You were sentenced for these offences on 29 November 2005 in Tasmania and I was provided with the sentencing comments of His Honour Justice Crawford. You were sentenced to a total of 10 years imprisonment with a non-parole period of seven years.
19 You were granted parole in 2011, however you breached a urine test as a result of drug use and returned to custody. You were again paroled but came to Melbourne in breach of your parole and were returned to Tasmania and to custody. You were paroled again but that parole was breached on 27 December 2014 and you returned to custody. In May 2015 you were again released on parole and breached parole within two weeks by providing a dirty urine screen. You were returned to custody and finally released in January 2016. I am told the later dirty urine screens on parole were as a result of alcohol use. You have to date, wasted most of your adult life committing offences and spending significant periods of time in custody.
20 I turn now to your personal circumstances. You have just turned 48 years of age, being born on 24 August 1970. Your mother is deceased. Your father lives in Launceston and has prostate cancer. You would like to be of help to him but you cannot in your current circumstances. Your parents separated when you were aged approximately 16. You attended primary school and then high school but left at Year 9. You worked in a sawmill, then meat works and then a tannery. A letter was tendered on your behalf stating that you can work in Hobart upon your release and there is someone out there willing to give you a go despite your history.
21 You have three sons. One is aged 27 from a prior relationship, and you have two children with Ms Anderson, Ian and Luke. Ian is 17 and I'm told he has a few problems and you would like to have contact with him. Luke is aged five. Ms Anderson was present in court and she remains supportive of you. You have had an on and off relationship with her for 24 years including whilst you have been in custody for substantial periods of time. It is remarkable and generous that she remains supportive of you given all that you have done.
22 You have been in custody since this offending on 26 January 2017. I am told you have been a well behaved prisoner and you're doing well. Your counsel described you as significantly institutionalised given the substantial periods of time you have spent in custody as an adult.
23 I'm told and accept that you have had problems with drugs and alcohol all your life, in particular alcohol. Justice Crawford wrote:
His biggest problem is drug and alcohol dependency which has never been appropriately addressed and has affected all areas of his adult life.
Unfortunately, this still appears to be the case. I accept that drugs may not be such an issue for you now but alcohol certainly is, and it seems you still have not sought or received the help you need in order not to drink. Alcoholics anonymous may be available to you in custody and if it is, I encourage you to participate. I turn now to other matters.
24 Your counsel described the unrelated summary charges of breaching a family violence intervention order as "technical" breaches. I understand what is meant by that submission. However, any breach of a court order is serious. Your history shows that you have little to no regard for court orders. If you wish to have any contact with Ms Anderson or your sons going forward then the order needs to be varied or you need to wait until February 2019 when it lapses. I do accept, however, that those charges are not serious examples of breaching a family violence intervention order.
25 Your counsel submitted that your pleas of guilty, whilst not being the earliest pleas of guilty, were still evidence of some remorse and still of value. In relation to the timing of your pleas of guilty, the matter resolved on the first day of the trial and the form of aggravated burglary to which you have pleaded guilty was not the form that was on the original indictment. I regard your plea of guilty to the aggravated burglary as a plea of guilty at the earliest reasonable opportunity. It was indicated in the defence response that Charges 2, 3 and 5 were capable of resolution. Your plea of guilty to Charge 4 was made late. However, it must be born in mind that the plea was to the whole indictment once all matters had resolved.
26 In the circumstances I find that your plea of guilty is indicative of some remorse. Your plea has utilitarian value in that it has saved the victims in this matter the ordeal of giving evidence and it does show an acceptance of responsibility by your for your offending.
27 General and specific deterrence are both very relevant sentencing considerations. In relation to the indictable charge of contravening a family violence order, the victims were a woman and a very small child . Domestic violence against women and children is prevalent and unacceptable. Intervention orders are put in place in an attempt to protect vulnerable victims. You blatantly disregarded that order. Aggravated burglary is a serious offence, although, as I have said, I accept in the circumstances that this is not a serious example of that offence. Threatening to kill a person is also serious and, in my view, it makes no difference here that the threat was made to Samuel's girlfriend and not directly to Samuel. Criminal damage, particularly to the doors and the wall are further examples of your violence.
28 Your counsel submitted that you have some good family support, being your father, your two brothers and your sister. Ms Anderson also remains supportive and wants the best for you, and wants you to have contact with your sons. Your counsel submitted that you have some good prospects of rehabilitation. The prosecution submitted that your prospects for rehabilitation are guarded or bleak given the number of court orders you have breached and your prior convictions. In my view your prospects of rehabilitation are perhaps best described as guarded.
29 You are now approaching 50 years old, Mr Garrison and you are most probably more than half way through your life. If the remaining portion is not to be spent going in and out of custody then it is critical that you get help for your alcohol addiction. It is a long standing problem for you, and if you continue to drink or abuse illicit drugs you are going to continue to reoffend, most probably in a violent way, and, if you do that, you will certainly return to custody.
30 The prosecution submitted that you fall to be sentenced on the charge of make threat to kill as a serious violent offender. The relevant prior conviction the prosecution submits places you in this position is your prior conviction from Tasmania on 29 November 2005 for causing grievous bodily harm.
31 Initially the prosecution submitted that the offence of causing grievous bodily harm is our equivalent of causing serious injury intentionally. The prosecution argued that pursuant to schedule 1, clause 3(b)(i)(ab) of the Sentencing Act 1991 you are for the purposes of being sentenced on Charge 4 a serious violent offender. The prosecution also relied on sub-paragraph (e) of clause 3 which stated that clause 3 applies to the following offences (it then lists a number of offences) and then states,
Any other offence, whether committed in Victoria or elsewhere, the necessary elements of which consist of elements that constitute any of the offences referred to in paragraphs (a) to (d).
In essence, the prosecution submitted that the Tasmanian offence of causing grievous bodily harm has the necessary elements of causing serious injury intentionally. However, Justice Crawford in his sentencing remarks for that crime stated:
"The accused pleaded guilty and is to be sentenced on the basis that the shooting resulted from criminal negligence in his handling of the loaded firearm and not upon the basis that he intentionally shot the householder."
32
In those circumstances, the offence of causing grievous bodily harm to which you pleaded guilty is not the equivalent of intentionally cause serious injury. The prosecution agreed with this and abandoned reliance on that part of
clause 3.
33 The prosecution then argued that the Tasmanian offence of causing grievous bodily harm to which you pleaded guilty was the equivalent of causing serious injury recklessly in circumstances of gross violence, being s.15B of our Crimes Act. Section 15B(2) of the Crimes Act sets out the circumstances that constitute gross violence. The prosecution relied on s.15B(2)(a)(ii) or (iii) and also paragraph (d).
34 Your counsel submitted that s.15B of the Crimes Act is not engaged here because the offence of causing grievous bodily harm to which you pleaded guilty in Tasmania resulted from criminal negligence.
35 A person acts with criminal negligence if his acts fall so far short of the standard of care of a reasonable person would have exercised and involved such a high risk of death or really serious injury that the conduct deserves criminal punishment.
36 As Justice Crawford stated, you were sentenced on the basis that the shooting resulted from criminal negligence in your handling of the loaded firearm and not upon the basis that you intentionally shot the householder. In my view, the charge to which you pleaded guilty in Tasmania does not have the same elements that constitute the offence of recklessly causing serious injury in circumstances of gross violence. The issue is not whether there are circumstances of gross violence. Rather, the element relating to state of mind is different. A reckless state of mind requires that at the time you did the acts that caused the complainant's injury, you were aware that those acts would probably result in the complainant being seriously injured but decided to go ahead anyway. In my view, it is clear from the comments of Justice Crawford that that was not the basis for your plea of guilty. Causing serious injury recklessly is a different offence to negligently causing serious injury. Our equivalent to your Tasmanian prior conviction would be s.24 of our Crimes Act, negligently causing serious injury, and not s.15B of our Crimes Act, causing serious injury in circumstances of gross violence.
37 Therefore you do not fall to be sentenced as a serious violent offender.
38 In all the circumstances the sentence of the court is as follows:
39 On Charge 1 you are convicted and sentenced to two years imprisonment. This is the base sentence;
40 On Charge 2 you are convicted and sentenced to 15 months imprisonment;
41 On Charge 3 you are convicted and sentenced to nine months imprisonment;
42 On Charge 4 you are convicted and sentenced to nine months imprisonment;
43 On Charge 5 you are convicted and sentenced to six months imprisonment.
44 On the unrelated summary offences, Charges 1 through 12, you are convicted and sentenced to an aggregate of three months' imprisonment.
45 I direct that four months of the sentence on Charge 2, two months of the sentence on Charge 3, two months of the sentence on Charge 4 and two months of the sentence on Charge 5 be served cumulatively upon the sentence on Charge 1 and upon each other. The aggregate sentence on the summary charges is to be wholly concurrent with the sentence on Charge 1.
46 This makes a total effect of sentence of two years, 10 months' imprisonment, and I fix a non-parole period of two years imprisonment. I order that the time you have already served by way of pre-sentence detention being – can we clarify?
47 MR KILDUFF: I agree with that, Your Honour.
48 MR FISHER: It's 582.
49 MR KILDUFF: Five eighty two, yes.
50 HER HONOUR: Thank you both.
51 Five hundred and eighty two days be reckoned as time already served under this sentence. Pursuant to s.6AAA of the Sentencing Act I state that but for your pleas of guilty the sentence I would have imposed is a total effective sentence of four years, three months imprisonment with a non-parole period of two years and nine months imprisonment.
52 I will make the s.464ZF order sought by the prosecution and my reasons for doing so are the seriousness of the circumstances of the offending, the prior convictions of you, Mr Garrison, the order is not opposed, and the granting of the order is in the public interest.
53 MR FISHER: Your Honour pleases.
54 MR KILDUFF: As Your Honour pleases.
55 HER HONOUR: Mr Garrison, Mr Kilduff will explain 464ZF order to you. It enables the authorities to take a forensic sample. Most probably from a scraping from your mouth and it will be placed on the DNA database. You need to cooperate with that process. Thank you. I've signed that order. Unless there's anything further. That was the only ancillary order sought by the prosecution?
56 MR FISHER: Yes, that's right. Yes.
57 HER HONOUR: Thank you gentlemen for your attendance and your assistance in the matter. I will adjourn now until 10.30.
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