Director of Public Prosecutions v Graham
[2013] VCC 1473
•11 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEIGH GRAHAM |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2013 | |
DATE OF SENTENCE: | 11 October 2013 | |
CASE MAY BE CITED AS: | DPP v Graham | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1473 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Excell | Office of Public Prosecutions |
| For the Accused | Ms C. Woodward |
HIS HONOUR:
1 Leigh Andrew Graham, you have pleaded guilty to an indictment charging you with attempted robbery on 2 April of this year and you have admitted a number of prior convictions and court appearances. The maximum term of imprisonment for attempted robbery is 20 years imprisonment.
2 The prosecution has tendered and relied upon a summary of prosecution opening on the plea dated 4 October of this year which sets out the factual basis upon which I proceed to sentence. There does not seem to be any dispute with the facts contained in that document. I am not going to read them again but suffice it to say that at about 11.30 pm on 2 April of this year, it appears that you had become intoxicated. One of the witnesses observed you crossing Wells Road, Chelsea Heights, and almost being struck by a car as you did so. You then went to the Caltex Service Station, where you were apparently known. One of your victims recognised you and let you in. You threatened him with a knife. He was then joined by another employee of the Caltex Service Station. You threatened him with a knife. They are the two victims named in the charge.
3 You demanded money. Essentially they told you not to be so stupid and that you were going to end up in gaol. You said you knew it but you were under financial pressure. The police were called and you were trapped inside the premises by police. It did not deter you from trying to make good your escape, however you were overpowered by police and arrested.
4 The offence would have caused anguish to each of your two victims. Only one of them has provided a victim impact statement but it may be supposed that the other victim, as with the victim who did provide a victim impact statement, would have been substantially affected by the experience. One of the features of offending conduct of that kind is that it does frighten people and that it causes emotional damage which can last for a very long time, if not the remainder of their lives. That is a sentence consideration that I am required to take into account.
5 I was helpfully supplied with an outline of the case that was sought to be made on your behalf in the form of a document headed "Plea Material and Submissions on behalf of the Accused" and that document was accompanied by a chronology of events in your life and more recent brushes with the law. The submission document set out a deal about your personal history and identified a very difficult childhood and background, physical abuse in your childhood leading to you leaving home at approximately age 15-16 to live with your then girlfriend.
6 You have three children by different relationships, aged between the ages of five and now 11 years. Although you have had a relationship with a young lady up to the day of the offending conduct, you are now single.
7 You attained Year 10 in your education. You have had some fairly significant periods of employment but you have also been a substance abuser and were certainly abusing alcohol at or about the time of your offending conduct.
8 Your previous court appearances and convictions, although some of them are quite serious offences, pale into insignificance compared with this offence. Had it been the case that I thought that this was an escalation in your criminal conduct which required significant deterrence of you from that kind of offending, then inevitably I would have been looking at a substantial term of imprisonment.
9 Also the various psychological and psychiatric reports indicate that you suffer from a condition called borderline personality disorder. It was first diagnosed in 2007 and it seems that it has been a very difficult condition for you to manage. It has no doubt affected your personal relationships with partners and had a major effect on your life and undoubtedly contributed to the offending conduct.
10 That said, it is to your credit that you have in more recent times sought to do something about it and get some treatment for it. As you probably are aware, it is a very difficult condition to treat effectively and requires a sustained period of psychological expert help and unless you maintain that treatment regime, then the condition is liable to continue to dog you for the rest of your life. So it is very important not just from your point of view but from the community's point of view that efforts are made to rehabilitate you. Had it not been for the fact that you have shown an inclination to and a willingness to knuckle down and seek and obtain treatment, then I would have regarded your prospects of rehabilitation as being poor and your chances of re-offending as being substantial.
11 The material also indicates that there were very significant stressors on that particular day. You had thought that you were about to have your status with the social security as a disability support pensioner established. That hope was dashed as a result of your contact with social services on that particular day.
12 The author of the letter that forms part of Exhibit 2, your community support case worker from Chelsea Community Support Services, supports the proposition that you were in contact with her and expressed extreme frustration. No doubt that formed the background to you resorting to alcohol abuse on that day, taking some Xanax tablets and ultimately committing this offending conduct.
13 It is submitted that those events, coupled with your mental impairments enable me to assess your level of culpability as significantly lower than the offence would otherwise warrant. It is also submitted and indeed supported by the psychological and psychiatric reports that you would find a term of imprisonment particularly onerous and that it would be more onerous for your than somebody who did not suffer from the same mental impairments as you, and that indeed there is a risk of significant psychological harm by a substantial term of imprisonment.
14 As I said earlier, ordinarily offending of the conduct of this would require me to sentence you to a substantial term of imprisonment of years rather than months. I note that you have already done 49 days in custody of pre-sentence detention in relation to this matter. I note also that Parliament introduced the community correction order option to deal not just with minor offending conduct but also serious offending conduct in appropriate circumstances and in particular where it was thought that the community could best be served by rehabilitating rather than merely punishing and locking people away for the period of the sentence in order to protect the public. It seems to me that this is a case where a community correction order is justified and indeed indicated in order best to protect the public in the longer term. That much has been conceded very fairly by the prosecution in this case.
15 All of that leads me to conclude that my obligation to stress the denunciation of this court of conduct of this kind, to punish you adequately, to deter you adequately and to send out an adequate message to other people who might be inclined to offend in this way against soft targets can be dealt with by a community correction order, having regard to the balance that I have to reach with facilitating your rehabilitation.
16 I cannot impose a community correction order unless you consent to it. I understand that you have already indicated to the Corrections officer who assessed you today that you are willing to consent. Do I understand that is correct?
17 OFFENDER: Absolutely, Your Honour.
18 HIS HONOUR: All right. Well, I of course was required, given that I had in mind to impose certain conditions, to obtain a report and the community corrections officer who assessed you has recommended that you are suitable and recommended that the order that I make contain a number of conditions requiring you to submit to treatment for drug abuse and dependency, alcohol abuse and dependency, mental health treatment and rehabilitation, and offence specific programs which include anger management. It seems that anger played a part in your actions on this particular day and anger has played a part in other aspects of your offending conduct and that to is a condition that seems to me to be entirely appropriate.
19 So on top of that, rather than impose a term of imprisonment which will really only serve to interrupt the rehabilitation measures which you have already put in place and which will be supported by a community correction order, my inclination is to require you to participate in and complete 200 hours of unpaid community work over the period of the order, which would be for a period of two years.
20 Now, with those conditions attached, including also a condition of supervision, would you be willing to consent to a community correction order?
21 OFFENDER: Yes, Your Honour.
22 HIS HONOUR: All right. There will of course be a number of other mandatory terms. The most important of which is that you do as you are told and you obey the directions of the managers of the community corrections centre that you will be going to report to, and that you stay out of trouble. If you commit an offence during the period of the order, which will be two years. Or offences punishable by imprisonment, you will be up for three months imprisonment for the breach plus any sentence that should be passed for the conduct that puts you in breach and also you are liable to be re-sentenced for this matter, which would inevitably be a substantial term of imprisonment. Do you follow that?
23 OFFENDER: Absolutely, Your Honour.
24 HIS HONOUR: So it is a bit like having a suspended sentence hanging over your head and you can also be in breach if you fail to attend appointments, fail to participate in the various programs that are designated for you and fail to meet all the conditions of the order. All right? So it is not necessarily an easy order to negotiate. So are you up for that?
25 OFFENDER: Absolutely, Your Honour.
26 HIS HONOUR: Yes, all right. Well, the order will be for two years and it will commence today and you will be required to report to the community corrections services at 431 Nepean Highway, Frankston, within two clear working days of today's date, which will be by - I think an appointment has been made for you, has it not?
27 OFFENDER: It has, Your Honour.
28 HIS HONOUR: Midday on the 14th, so you will have to keep that appointment, otherwise you will be in breach immediately. As I say, I also require you to perform 200 hours of unpaid community work during that period of two years. Now, I am going to ask your counsel - I should also say I convict you for the offence, as well as indicating that I am prepared to make that order.
29 Had it not been for your plea of guilty to this matter, I would have sentenced you to a period of three and a half years imprisonment with a non-parole period of two years.
30 I am going to ask your counsel just to accompany my associate to the dock and ensure that you fully understand the terms of the order that has been drafted and then if you are happy with it, you will sign it, I will counter sign it and the job is done.
31 There are two other orders that I am asked to make. One is for the disposal of the knife that you used in the course of the offence and the other is for you to provide a forensic sample by a scraping from the inside of your mouth, all right? Now that will require you to report within four weeks to the officer in charge at - Frankston?
32 MS WOODWARD: Yes, it would be Frankston.
33 HIS HONOUR: Frankston Police Station. You will be asked to use a swab or some other instrument to make a scraping from the inside of your mouth. If you fail or refuse to do that, then the officer will be authorised to take a blood sample from you and may use reasonable force to obtain that. I am sure you would not put them to that trouble, all right?
34 OFFENDER: Most certainly. I have nothing to hide.
35 HIS HONOUR: All right. I will sign those orders whilst you are considering the - all right?
36 MS WOODWARD: May I be excused from the Bar table?
37 HIS HONOUR: Yes, of course you may. Mr Travers will come up there with you. Sorry, Mr Excell?
38 MR EXCELL: If I could just seek one point of clarification, Your Honour?
39 HIS HONOUR: Yes?
40 MR EXCELL: Your Honour is not minded to, am I correct, to impose the 49 days and then declare it already served?
41 HIS HONOUR: I am not minded to do that. I think that just has to stay in abeyance.
42 MR EXCELL: Yes thank you, Your Honour.
43 HIS HONOUR: To the extent that if it needs to be it could be taken into account, I suppose, if he were to receive any term of imprisonment for any of the other matters.
44 MR EXCELL: Yes, Your Honour. Thank you.
45 HIS HONOUR: Yes, thank you for that. All right, those orders are now all signed. You can leave the dock now. I will give you the alternative form back as well.
46 MR EXCELL: Thank you, Your Honour.
47 HIS HONOUR: Mr Graham, in the nicest possible way, I hope we do not meet again. Because if we do, I do not think it will be on a happy occasion.
48 OFFENDER: If I could just say, I thank you, Your Honour and also the prosecution for their impartiality and fairness.
49 HIS HONOUR: Yes, well we expect that of the prosecution and they fortunately almost always deliver. So good luck.
50 OFFENDER: Thank you, Your Honour.
51 HIS HONOUR: You are excused from the Bar table.
52 MR EXCELL: Thank you, Your Honour.
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