Director of Public Prosecutions v Graham
[2023] VCC 1772
•27 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR-23-01289
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAINE GRAHAM |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | 19 September 2023 |
DATE OF SENTENCE: | 27 September 2023 |
CASE MAY BE CITED AS: | DPP v Graham |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1772 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Intentionally damage property - reckless conduct endangering life - false imprisonment - make threat to kill - drive at a speed dangerous to the public – unlicensed driving
Legislation Cited:
Cases Cited:
Sentence:15 months' imprisonment plus 18-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions at hearing For the Director of Public Prosecutions at sentence | Mr S. Devlin Mr A. Cecil | Office of Public Prosecutions |
For the Accused | Mr J. Lavery | Richard Davis & Associates |
HIS HONOUR:
1Kaine Graham, you have pleaded guilty to four charges on the indictment, namely: intentionally damaging property, reckless conduct endangering life, false imprisonment and making a threat to kill. Each of those offences carries a maximum penalty of 10 years' imprisonment.
2You have also asked me to take into account and have pleaded guilty to two related summary offences, Charges 9 and 10: Charge 9 alleges that you drove at a speed dangerous to the public and Charge 10 alleges that you drove on a highway while the authorisation granted to you by a driver's licence was suspended. The maximum penalty for each of those summary offences is imprisonment for two years or a fine of 240 penalty units.
3You have also admitted a prior criminal history which included a Road Safety Act certificate setting out various driving offences in addition to the criminal history contained in your criminal record.
4The prosecution tendered and relied upon a summary of prosecution opening for plea dated 6 September 2023. That is marked Exhibit A. I shall summarise the content of that document which was read to the court at the earlier court hearing.
5You are now 32 years of age. At the time of the offending you were aged 31 years. Your victim in the matter is your former partner who was aged 30 at the time of the offending. You had been in a relationship with your victim for about two years. That relationship had ended some three weeks prior to the offending conduct.
6It was in that context that, on 6 March 2023, you had had some discussions during the earlier part of the day with your victim about a suitable time for you to collect your personal items from her home.
7The discussions escalated to an argument in which your victim threatened to ram your car. Your response to that was to return home, tell your mother of the threat, retrieve a wooden baseball bat from your room and then go to the front lawn in anticipation of your victim attending your address.
8Shortly afterwards your victim arrived in her car and parked on the lawn in front of your motor vehicle. Upon her arrival you were in possession of the baseball bat. You and your victim each yelled at each other. Your victim then slapped you to the face and kicked you in the crotch. When she went to kick you in the crotch a second time you caught her leg, unbalanced her and placed her on her back on the lawn.
9She stood up immediately and yelled at you before walking to the driver's side of her vehicle. You then got into the driver's seat of your vehicle and reversed a couple of metres, then accelerated forwards driving into the driver's side door of your victim's car. In accelerating towards her car, the front passenger corner of your car brushed against your victim's thigh causing no injury.
10She got into the front passenger seat of your car in an effort to calm you down. You then drove from your property to the Moe-Walhalla Road, which had a speed limit of 100 kilometres per hour. You drove along that road towards Walhalla.
11Your victim asked you a number of times to be let out of the car. You refused. At times your victim pulled on the handbrake to stop the vehicle but you released it and continued driving. You drove at speeds which she estimated at up to 220 kilometres per hour. That is in part in support of Charge 2 on the indictment, reckless conduct endangering life, and also the related summary offence of driving at a dangerous speed.
12During part of the journey a person was following in his vehicle. That person was somebody that you believed your victim had slept with. You questioned your victim about that. She refused to answer. Whilst driving at about 200 kilometres per hour you told your victim that you would drive the car into a tree and that that would be the end of it.
13Your victim asked a question of you, 'What about the kids?', meaning her children of which she has three. You responded saying, 'They had me until you got rid of me and now they've got …', referring to the other person that was apparently driving behind you who you suspected to be the person with whom your victim was in a relationship.
14At one point while travelling at high speed your victim tried to climb out the car window. She got halfway but you pulled her back into the car by her clothing. Eventually your victim told you that she would answer your questions about the relationship with the other man. You then stopped your car at a camp ground some 24 kilometres from your address. Your victim immediately got out of the car, ran into nearby bushland and hid from you.
15Your driver's licence had been suspended and you were also apparently on bail at the time of the offending.
16The police attended your address at about 11.45 pm that evening, arrested you and took you to the Moe Police Station. You participated in a formal record of interview in the early hours of the morning of 7 March 2023. You made what seemed to me to be full and frank admissions to the offending conduct.
17You added at the conclusion of the interview that after you had dropped your victim off in the bush you had told a friend of hers her location so that she could be collected.
18The prosecution also tendered a victim impact statement from your victim which sets out the adverse psychological impact that your offending has had, and it seems continues to have, upon her. It must have been a very frightening experience for her in that car whilst you were driving in that way.
19Your counsel provided me with a number of documents. Exhibit 1 is a medical certificate from United Medical Centre, Moe concerning your mother being wheelchair-bound and requiring a full-time carer, who is you.
20Exhibit 2 is a letter from a friend of yours of some 10 years, who speaks of your remorse, your value as a friend to her and her partner and of the kindness and the support that you have shown for her partner in particular who had suffered a serious back injury and had consequential physical and mental health issues.
21Exhibit 3 is a letter from your mother. She also speaks of your remorse and the care that you have provided for her up to the time of your arrest for these matters and the dependence that she has upon your continuing presence in her home. Fortunately her daughter has been able to help her in your absence albeit that she has a full-time job.
22Exhibit 4 is a letter from the Warragul Counselling Services indicating that a psychologist will support you with counselling when you have completed your time in custody.
23Exhibit 5 is an impressive bundle of certificates of completion of various rehabilitative programs that have been available to you whilst you have been remanded in custody, including tuning into respectful relationships and a number of other relevant programs in pursuit of your rehabilitation.
24Exhibit 6 is a bundle of two further documents, one being a letter from the New Beginnings Stronger Communities Vacro organisation evidencing the fact that you have been a voluntary participant in the Vacro family visits program since 6 July of this year at the Melbourne Remand Centre, along with a further certificate of completion of a jobs and careers program which is dated 22 August 2023. So it is plain that you have sought to make good use of your time in custody and that is commendable.
25You were schooled to Year 11 and since then you have done odd jobs. You have been heavily involved in the care of your mother who has motor neurone disease.
26You had an eight-year relationship with another lady prior to the relationship with your victim in this matter, and by that relationship you have a daughter who is now aged nine who resides with your former partner. Your victim had three children during your relationship who are aged nine, six and four.
27That relationship failed in February 2023. You reacted by taking an overdose which resulted in you being hospitalised and placed in an induced coma. You have various mental health issues which you seek to address and you would benefit from further treatment.
28Your counsel submitted that I needed to give you full credit for your pleas of guilty to these matters during the period following the COVID pandemic and during a period when there is still a benefit to the administration of justice in people admitting their guilt and avoiding a trial by jury. I give you full weight for your pleas of guilty, occurring as they do in the aftermath of the COVID pandemic.
29They also support the notion that you are remorseful. That is supported by the full and frank admissions that you made to police. There is an intervention order in place which protects the victim in these matters. That also needs to be taken into account in assessing an appropriate sentence.
30The prosecution sought a forfeiture order which included the motor vehicle that you drove on that day. It was put on your behalf that that vehicle had been obtained as a result of a loan and that in the circumstances I should not make that order.
31The offending was undoubtedly very serious. It could have ended in tragedy. The offences of conduct endangering life, false imprisonment and making a threat to kill were, in combination, a very threatening and frightening experience for your victim. The driving could have resulted, not just in your fatality and your victim's fatality but placed other road users in considerable potential danger.
32It is noteworthy that your previous driving record shows that prior to this occasion you had driven whilst your licence was suspended on six previous occasions. This was the seventh occasion upon which you have been apprehended for that offending. Your record generally, and your driving record in particular, suggests a lack of respect for the law, particularly in relation to the use of motor vehicles.
33I note that your criminal record includes drug offences and possession of a controlled weapon without excuse.
34In determining an appropriate sentence I need to denounce your conduct, to punish you adequately and, most importantly, to send a message to other people who may be tempted to behave in a similar manner by giving full value to the principle of general deterrence. There is an element of individual deterrence too which must be satisfied given your previous record, particularly in relation to driving.
35However, I accept that you have shown a willingness to participate in rehabilitation and that it may reasonably be said that your prospects of rehabilitation are good.
36This represents a very significant escalation of offending conduct over and above the offending in your previous record.
37I accept that it was aberrant behaviour on the day, that it arose out of a period during which you were suffering as a result of the aftermath of a relationship of two years and no doubt were in internal turmoil at that particular time, exacerbated by some aggressive behaviour by your victim. However, that cannot excuse the conduct in which you engaged and I need to mark the seriousness of that conduct with an appropriate sentence.
38Your counsel submitted on your behalf that, even allowing for the serious nature of the offending, an appropriate disposition would be a sentence of imprisonment limited to time served, coupled with a community correction order.
39The prosecution did not seek to oppose that outcome although they stressed that these were serious offences and that it was a matter for me to determine the appropriate term of imprisonment.
40As I pointed out during the hearing, because you had been in custody for about six months it was open to me to impose a sentence of 18 months or thereabouts and order a community correction order to commence at the conclusion of that sentence, allowing for the pre-sentence detention to be deducted from the overall sentence. I do not regard a sentence of 18 months as being necessary but I do regard a sentence in excess of six months as being necessary to meet the sentencing principles to which I have referred.
41Doing the best I can to satisfy all of those sentencing considerations and considering the content of a community correction order assessment report and the recommendations contained in that report, I sentence you as follows.
42On Charge 1 on the indictment, you are convicted and sentenced to imprisonment for two months.
43On Charge 2 on the indictment, you are convicted and sentenced to imprisonment for 15 months and disqualified from obtaining or holding a driver's licence for a period of three years from today.
44On Charge 3 on the indictment, you are convicted and sentenced to imprisonment for 15 months.
45On Charge 4 on the indictment, you are convicted and sentenced to imprisonment for 15 months.
46On the related summary offence Charge 9, you are convicted and sentenced to imprisonment for four months and disqualified from obtaining or holding a driver's licence for a period of three years. That will be a concurrent period of three years.
47On related summary offence Charge 10, you are convicted and sentenced to imprisonment for four months.
48All of those sentences will run concurrently. That makes a total effective sentence of imprisonment of 15 months.
49I declare pre-sentence detention of 204 days as time to be reckoned as served on the sentence that I have imposed and deducted from that sentence.
50In addition, I make the forfeiture order in the terms of the draft with which I have been provided which does not include the motor vehicle to which I referred earlier.
51I also order in respect of all of the offences, subject to your consent and willingness to comply with its terms, a community correction order for a period of 18 months which will commence upon your release from prison.
52In order for me to impose that I need to let you know what the terms of the order are and to give you the opportunity of indicating whether you consent to be placed upon that order and consent to comply with its terms.
53The order that I have in mind is for a period of 18 months, and you will be required to attend the Morwell Community Correctional Services office at 25 Ann Street, Morwell within two clear working days after the commencement of the order - which will commence at the conclusion of your term of imprisonment.
54The mandatory terms which apply to all community correction orders are that:
- you must not commit another offence for which you could be imprisoned during the time that the order is in force;
- you must comply with any obligation or requirement prescribed by the Sentencing Regulations, which includes not turning up to supervision appointments under the influence of drugs and that kind of thing;
- you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;
- you must report to the Community Corrections Centre to which I have referred within two clear working days of the order starting;
- you must let a Community Corrections officer know within two clear working days of you changing your address or job;
- you must not leave Victoria without first getting permission to do so from the secretary of the Department of Justice or his or her delegate; and
- you must obey all lawful instructions from and directions of the Secretary of the Department of Justice or his or her delegate.
55In addition to those mandatory terms, which are included in all community correction orders, I make the following additional terms:
- you will be required to perform 100 hours of unpaid community work over a period of 18 months as directed by the regional manager, but I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition - the purpose of that is to give you the incentive to pursue rehabilitation that will be offered to you under the terms of this order and I will say a little bit more about that in a moment - if you fail to comply with the order for the performance of unpaid community work then the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act;
- you must be under the supervision of a Community Corrections officer;
- you must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the regional manager;
- you must undergo any mental health assessment and treatment, which may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager; and
- you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
56I must warn you that if you breach the terms of the order then for that reason alone you may be liable for being brought back to this court, charged with the offence of breaching the order and you could face up to three months' imprisonment for merely breaching the order.
57If a breach of the order involved the commission of an offence punishable by imprisonment you could be re-sentenced for these offences as well as being dealt with for those offences. You would likely be brought back before me and you could reasonably expect that a more severe sentence might be imposed upon you.
58Now, do you understand the terms of the order, Mr Graham?
59OFFENDER: Yes I do, Your Honour.
60HIS HONOUR: And are you willing to comply with the terms of the order?
61OFFENDER: Yes, Your Honour.
62HIS HONOUR: Do you consent to my making the order in the terms that I have outlined?
63OFFENDER: Yes, Your Honour.
64HIS HONOUR: Mr Lavery, are you satisfied that he fully understands what I have said and what his obligations are under the order?
65MR LAVERY: Yes, Your Honour.
66HIS HONOUR: Mr Graham, your assent is sufficient for me to treat the order as being consented to and I will now sign the order and bring that order into effect.
67But for your pleas of guilty, I would have sentenced you to a term of imprisonment of four years with a non-parole period of two years and six months.
68Is there any other order I need make, counsel?
69MR CECIL: Not that I'm aware of, Your Honour.
70HIS HONOUR: No. Mr Lavery?
71MR LAVERY: No, none, Your Honour.
72HIS HONOUR: Mr Graham, I wish you well with your continued rehabilitation. I hope that I do not get wind of the fact that you have breached the terms of the community correction order and that you can put these matters behind you in due course.
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