Director of Public Prosecutions v Graham
[2023] VCC 744
•12 May 2023
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01481
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK WAYNE GRAHAM |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 9 May 2023 | |
DATE OF SENTENCE: | 12 May 2023 | |
CASE MAY BE CITED AS: | DPP v Graham | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 744 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Aggravated burglary – Intentionally cause injury – Commit indictable offence whilst on bail – 55 year-old offender – Victims known to the offender – Committed at night – Early guilty plea – Genuine remorse – Full and frank admissions – Limited but relevant criminal history – Good prospects of rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Bail Act 1977 (Vic)
Cases Cited:Worboyes v The Queen (2021) 96 MVR 344; Hogarth v R (2012) 37 VR 658; Boulton v The Queen (2014) 46 VR 308
Sentence: Total effective sentence of 9 months’ imprisonment in combination with an 18-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Hammill | Office of Public Prosecutions |
| For the Accused | Ms A. Peek-Lasry | Kate Freshwater Lawyer |
HIS HONOUR:
1Mark Wayne Graham, you have pleaded guilty to an indictment containing two charges. Charge 1 is an offence of aggravated burglary, contrary to s 77(1) of the Crimes Act 1958. This offence carries a maximum penalty of 25 years’ imprisonment. Charge 2 is an offence of intentionally causing injury contrary to s 18 of the Crimes Act. This offence carries a maximum penalty of 10 years’ imprisonment.
2You have also consented to this Court hearing, and pleaded guilty to a Summary Charge of commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977. This offence carries a maximum penalty of 30 penalty units or 3 months’ imprisonment.
Circumstances of the offending.
3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 7 February 2023.[1] I will sentence you in accordance with this agreed summary.
[1]Exhibit A.
4At approximately 12:13am on 2 March 2022, you attended the victim, Mr Clark’s home in Timmering. You were driven there by your 15-year-old son.
5You believed the victim was responsible for having you and your family evicted from the property you lived in for two years. You went there to confront Mr Clark.
6You smashed a large glass panel in the front door with your shoulder and entered the property with your son (Charge 1 – Aggravated Burglary). At the time you were aware that Mr Clark would be present in the house, along with Ms Rigby who also lived there. You were known to both of them.
7Mr Clark and Ms Rigby were awoken by the sound of glass shattering and went to the lounge room to investigate.
8You entered Mr Clark’s bedroom as he was exiting his bedroom. You chased him. Mr Clark ran around the kitchen table to get away from you. You flipped the kitchen table and Mr Clark ran back into his bedroom. You followed him into his bedroom, blocking his exit with the kitchen table.
9Mr Clark laid down on his bed and covered himself with a doona to protect himself. You yelled and struck him 10 to 12 times with a clenched fist (Charge 2 – Causing Injury Intentionally).
10Ms Rigby pulled you off Mr Clark. You and your son then left the property.
11It is not suggested that your son was involved in the offending. I was told that no charges were laid against him.
12The neighbours came to the property and called triple zero. First aid was provided to Mr Clark by one of the neighbours who observed swelling on the left side of his face.
13Mr Clark was seen at the Echuca Regional Health Emergency Department that same night. A radiology report confirmed no fractures were sustained. Soft tissue swelling was noted to the left frontal and preseptal region.
14You were on bail at the time of this offending (Summary Charge – Commit indictable offence whilst on bail).
15On 4 March 2022 you were arrested and interviewed by police. You made full admissions including:
(a) You had been given an eviction notice by your landlord;
(b) Mr Clark was a friend of your landlord and you believed he caused your eviction;
(c) You were angry about the eviction;
(d) Your son drove you to Mr Clark’s address;
(e) You “shouldered” the large glass panel in the door, breaking it;
(f) Once inside the premises, you had a quick talk about what was going on with Mr Clark and then punched him;
(g) Mr Clark was on his bed under his doona when you started punching him;
(h) You accepted punching him “pretty hard”;
(i) You were on bail at the time.
Personal circumstances
16I have had regard to your background set out in the Defence Outline of Submissions[2] and in Ms Cidoni’s psychological report dated 10 March 2023.[3]
[2]Exhibit 1.
[3]Exhibit 2.
17You are now 55-years-old. You were born in Melbourne, and adopted at two weeks old. You have had no contact with your biological parents. You enjoyed a good upbringing and shared a particularly close relationship with your father who worked as a dairy farmer. Your adoptive parents had a child of their own and had also adopted a second child. You have had no contact with either of them since the age of 18. Your father passed away five years ago. You struggled coming to terms with his death. Following your father’s death, your mother moved to Queensland.
18You left school in Year 10. At the age of 17, you commenced work on a dairy farm. You worked on farms until the age of 21. You then obtained a truck licence and have been working as a truck driver for over 30 years. You currently work long hours, seven days a week, as an interstate truck driver.
19You have been in several relationships that have produced seven children. You have been with your current partner since 2005. Together you have a son. Your partner is employed as a bartender and your teenage son has commenced work on the farms. Your partner remains supportive of you. Prior to your remand in custody, you lived with her and your son.
Criminal history
20Your criminal history dates back to 1986. While you have a relevant history, there are significant gaps when you have not offended. In fact, your last appearance before a court was some 18 years ago in February 2005. All your prior appearances have been in the Magistrates’ Court. You have old convictions for dishonesty and violence. These includes offences of burglary, theft, obtain property by deception, intentionally causing injury and unlawful assault. You have received sentences involving financial penalties, a wholly suspended sentence, short terms of imprisonment, and a sentence of imprisonment to be served by way of an Intensive Correction Order.
Gravity of the offending
21The maximum penalty in respect of charges 1 and 2 make plain the seriousness with which Parliament views these offences.
22I was told by your counsel that this offending occurred as you believed Mr Clark was responsible for your eviction, as you had shared matters with him that he then relayed to your landlord. Having been notified of the eviction, you were highly agitated, fearing that you and your family would become homeless. On the night of the offending you had consumed some 18 cans of beer. In an agitated state and under the influence of alcohol, you decided to go round to Mr Clark’s home and confront him.
23The fact that you believed he was responsible for your eviction provides no excuse for your violent and aggressive outburst. Similarly, your intoxicated state provides no excuse. You chose to travel to the victim’s home and confront him in a manner that would have been terrifying for him and Ms Rigby. You accept that you knew Ms Rigby, whom you describe as a “lovely lady”,[4] would be present in the house. The offending occurred late at night when the occupants were asleep. They were awoken by you smashing the glass in the door. Having entered the house, you chased Mr Clark and assaulted him by repeatedly punching him whilst he tried to hide under the doona. Ms Rigby and Mr Clark were entitled to feel safe in their home. While there are no victim impact statements, it is plain that the incident would have been utterly frightening for them. At the time of the offending you were on bail. I accept that the offending did not involve any careful planning, no weapons were involved, and it was short lived. Those factors do not, however, detract from the seriousness of what occurred.
[4]Ibid, [11].
24In sentencing you, I must adequately punish you and denounce your conduct. Deterring others from committing similar offending is also an important consideration. Your criminal history requires the sentence to act as a deterrent to you. The community must be protected from violence committed in the sanctity of their homes.
Matters in mitigation
25Your pleas of guilty were entered at the earliest opportunity in the Magistrates’ Court. By entering pleas of guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have also saved the community the time and expense of a trial and have spared your victims from having to give evidence. You are entitled to an additional and palpable discount, having entered pleas of guilty, when this Court is facing a considerable backlog of trials.[5]
[5]Worboyes v The Queen (2021) 96 MVR 344.
26I also accept that you have demonstrated wholly genuine remorse. Your early pleas of guilty and, more importantly, your full and frank admissions in your police interview make that plain. Your remorse is also evident in Ms Cidoni’s psychological report.[6]
[6]Paragraphs [11] and [71] of the report (exhibit 2).
27Whilst you have a relevant prior history, I accept that you are someone well capable of leading a law-abiding and hard-working life. You have been working since leaving school in Year 10. From the age of 23, you have consistently been employed as an interstate truck driver. Until your remand in custody, you were working long hours and seven days a week. You enjoy a settled relationship with your partner and teenage son.
28As you appreciate, your alcohol consumption is something that you must address. I was told by your counsel that your prior history is related to alcohol use. The offending for which you fall to be sentenced also occurred in the context of you consuming a large quantity of alcohol coupled with stress over being evicted. I am told that whilst you continue to drink every night, your consumption has reduced.
29Your limited criminal history, genuine remorse, insight into your offending and your ability to maintain employment and support your family, all indicate that your prospects of rehabilitation are good. This offending occurred on 2 March 2022. You have not been in any further trouble over the last 14 months and there is nothing pending.
Sentencing submissions
30On your behalf, Ms Peek-Lasry acknowledged the seriousness of your offending conduct. She accepted that general and specific deterrence, along with denunciation of your conduct assumed importance in the sentencing process. Further, protection of the community from such violent conduct was also a relevant consideration. Whilst there was a tentative suggestion of a disposition involving no incarceration, Ms Peek-Lasry accepted that a more realistic submission would include a term of imprisonment in combination with a Community Correction Order (CCO) focusing on addressing your issues, in particular alcohol abuse.
31On behalf of the prosecution, Mr Hammill acknowledged the matters in mitigation including the early plea attracting an additional utilitarian discount, genuine remorse, and full and frank admissions. He concurred with the sentencing principles relevant in the sentencing exercise as conceded by Ms Peek-Lasry. Whilst acknowledging the pertinent mitigating factors, Mr Hammill maintained that the seriousness of the offending called for a disposition involving a head sentence and a non-parole period.
32I have had regard to the pre-sentence assessment report from the Department of Justice dated 9 May 2023.
33I have had regard to Hogarth v R (2012) 37 VR 658. I have also firmly borne in mind the guidance from the Court of Appeal in Boulton v The Queen (2014) 46 VR 308. I was not referred to any comparative sentencing decisions but have had regard to the recent summaries of sentencing decisions of the Court of Appeal and the County Court.
34Having balanced all relevant sentencing considerations, I am able to adequately deal with all sentencing purposes by imposing a term of imprisonment followed by a CCO.
35On Charge 1, you will be convicted and sentenced to 9 months’ imprisonment.
36On Charge 2, you will be convicted and sentenced to 6 months’ imprisonment.
37The sentences of imprisonment will run concurrently, making a total effective sentence of 9 months’ imprisonment.
38In addition, on Charges 1 and 2 on the Indictment, and the Summary Charge of committing an indictable offence on bail, you will be convicted and sentenced to a CCO for a period of 18 months commencing upon your release from custody.
39Every CCO has core conditions that you must comply with. They are as follows:
(a) You must not commit any offence punishable by imprisonment.
(b) You must comply with any obligation or requirement prescribed by the regulations.
(c) You must report to and receive visits from the Secretary.
(d) You must report to the community corrections centre within two clear working days of your release.
(e) You must notify the Secretary of any change of address or employment within two clear working days of the change.
(f) You must not leave Victoria except with the permission of the Secretary.
(g) And finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
40In addition to the mandatory core conditions, the CCO will also include the following special conditions:
(a) First, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.
(b) Second, you must undergo any mental health assessment and treatment as directed.
(c) Third, you must engage in programs that address factors relating to your offending behaviour.
(d) Fourth, you will be subject to supervision as directed for the duration of the CCO.
41You must report to Shepparton Community Correctional Services within two working days following your release from custody.
42Mr Graham, you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.
43The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally, namely the charges of aggravated burglary, causing injury intentionally and committing an indictable offence on bail. You would then face the very real possibility of being sent back to prison.
44So, there are serious consequences attached to any breach. Do you understand that?
45OFFENDER: Yes, Your Honour.
46HIS HONOUR: Do you also understand all the conditions of the proposed CCO?
47OFFENDER: Yes, Your Honour.
48HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
49OFFENDER: Yes, Your Honour.
50HIS HONOUR: Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances where an accused is appearing by way of an audio-visual link.
Pre-sentence detention
51Pursuant to s 18 of the Sentencing Act 1991, the period of 6 days of pre-sentence detention is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
52Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted I would have sentenced you to a term of 2 years and 6 months’ imprisonment with a non-parole period of 20 months.
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