Director of Public Prosecutions v Graham

[2016] VCC 246

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01887

DIRECTOR OF PUBLIC PROSECUTIONS

v

WARREN DAVID GRAHAM

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2016
DATE OF SENTENCE:	10 March 2016
CASE MAY BE CITED AS:	DPP v Graham
MEDIUM NEUTRAL CITATION:	[2016] VCC 246

REASONS FOR SENTENCE
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Subject: Aggravated Burglary
Catchwords:
Legislation Cited:
Cases Cited: Boulton v R [2014] VSCA 342: R v Verdins [2005] VSC 479
Sentence: 16 Months imprisonment, non-parole period of 9 Months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr V. Nankin	Office of Public Prosecutions
For the Offender	Mr R. T. Burns	Victoria Legal Aid

HER HONOUR: 

Charge

1Warren David Graham, you have pleaded guilty to one charge of aggravated burglary.  The maximum sentence for that crime is 25 years' imprisonment.

Circumstances of Offending

2The full background circumstances to your offending are set out in the comprehensive prosecution opening and that will form part of this sentence.

3In short, it all started with the theft of a Jayco Flamingo camper which was stolen by Rebecca Brown in late April 2014.  In early May, Ms Brown arranged for Mr Newman to sell the camper on her behalf for the sum of $3,500, the plan being that he was going to give her the money.  In the meanwhile,
Mr Newman arranged for the camper to be towed to Jason Trefouris' home in Lilydale and to be stored there in a locked up garage.  The camper remained there for a number of weeks before Mr Newman managed to sell it. However, after Mr Newman sold the camper he failed to pay Ms Brown the money.

4Ms Brown devised a way to recoup the money and this was by obtaining the bank account details of Mr Newman's girlfriend, Ms Avery.  As Ms Brown herself did not have a bankcard, she regularly transferred money from Ms Avery's account to the bank account of her friend, Mr Logan. After the money was transferred into his account Mr Logan gave Ms Brown the cash.

5On 30 May 2014 when you and Mr Newman were at Mr Trefouris' house you became aware that Mr Logan had withdrawn money transferred to him from Ms Avery's account and that he had given the money to Ms Brown.  At the time Mr Logan was living in Lilydale in a garage connected to his mother's house.  The three of you went to confront him about the money and confronted him in the garage.  You and Mr Trefouris were both armed with aluminium baseball bats. Mr Trefouris struck Mr Logan to his calf with the baseball bat.

6The prosecution accepted that you and Mr Newman had intended to intimidate Mr Logan with the baseball bats and that
Mr Trefouris acted outside the scope of this agreement when he struck
Mr Logan.  The three of you then told Mr Logan to come with you in the car that you had arrived in. However, Mr Logan ran away and his mother phoned Triple 0 and you all quickly left the premises.

Personal Circumstances

7As to your personal circumstances, there was a psychiatric report dated 8 September 2015 from Dr Lester Walton.  He described you as having had a difficult childhood in which you were exposed to violence, alcohol and drugs.  You first consumed alcohol when you were only five.  You used amphetamines when you were about 13, so it is not surprising that you struggled to concentrate at school and barely achieved literacy and numeracy.  You did, however, make it partway through Year 9.

8You have numerous prior convictions going back to 1987 and Dr Walton estimated that you have spent about 14 years in prison.  He diagnosed you as suffering from adult attention deficit hyperactivity disorder complicated by amphetamine use, which condition he considered significantly contributed to your offending. 

9In the opinion section of his report, Dr Walton described "ill-considered rather impulsive behaviour as being a hallmark of adult attention deficit hyperactivity disorder".  He also said, "It is fair comment that this man's behaviour is not entirely within his self-control.  The prognosis in relation to stability of mental health and avoiding further offending is guarded at best.”

10In his opinion, you were becoming increasingly institutionalised, compromising your ability to assimilate back into the community on any long-term basis.

Sentencing Submissions

11In his sentencing submissions your counsel urged the court to place you on a Community Corrections Order. In doing so he relied on the decision of the Court of Appeal in Boulton v R [2014] VSCA 342. It was submitted that a Community Corrections Order would ensure that you had supervision upon your release from prison and that such an order could provide for assessment and treatment. In this way the order had the capacity to assist in your rehabilitation and reintegration into the community.

12In support of this submission he relied on the following mitigating matters: your plea of guilty; the principle of totality; the principle of parity; the fact that despite your long criminal record you had not previously been sentenced to a Community Corrections Order, the only similar disposition being an Intensive Corrections Order back in September 2007, and on Dr Walton's opinion that you suffered from adult deficit hyperactivity disorder and that this condition significantly contributed to your offending.

13With respect to Dr Walton's opinion regarding the effect your adult attention deficit hyperactivity disorder had on your actions, your counsel relied on principles set out in a case called Verdins and relied on the five principles in this case.  It was submitted in essence that your condition reduced your moral culpability and that in these circumstances general and specific deterrence should be moderated. In addition, that your condition meant that a sentence would weigh more heavily on you than on a person of normal health.

Sentencing Remarks

14In sentencing you I have taken into account all the mitigating matters mentioned by your counsel.  You are entitled to a discount for your plea of guilty and I have given you one.  Your plea of guilty not only has a utilitarian value, it also reflects your acceptance and responsibility and remorse for your offending.

15I have accepted and taken into account Dr Walton's diagnosis of adult attention deficit hyperactivity disorder.  I accept that your actions on the day of the offending were impulsive and ill-considered and that your condition played some part in clouding your judgment.

16Accordingly, in sentencing you I have moderated the principles of general and specific deterrence to some extent.  I have also taken into account that due to your condition a sentence of imprisonment will weigh more heavily on you than it would on a person in normal health.  In addition, I have taken into account that recent lockdown conditions in prison have made your custody more onerous.

17Another matter I have had to take into account is the principle of totality and that is because on 4 August 2015 at the Ringwood Magistrates' Court you were sentenced to an aggregate sentence of five months' imprisonment.  Then on 21 September 2015 you were sentenced to a further sentence of eight months' imprisonment with 116 days reckoned as being served.  This sentence was concurrent with the sentence imposed on 4 August 2015 and expired on 25 January 2016.

18With regard to parity, your counsel relied on the fact that on the charge of aggravated burglary Mr Trefouris was sentenced by this court to a Community Corrections Order for a period of three years with condition of supervision and 250 hours of community work.  I accept that Mr Trefouris' conduct was objectively more grave than your conduct in that he actually struck
Mr Logan to the calf with a baseball bat.  However, at the time Mr Trefouris came before this court he had no prior convictions, he was the sole carer of four children and had a good work record.  In contrast, you have numerous prior convictions and I do not consider that a Community Corrections Order is appropriate.

19However, balancing the need for general and specific deterrence in a crime such as yours, with all the mitigating factors in your case, I consider that a longer than normal parole period is appropriate.  Taking all those mitigating factors into account, I am going to sentence you as follows.

Sentence

20On the charge of aggravated burglary you are convicted and sentenced to 16 months' imprisonment.  I fix a non-parole period of nine months.  I declare 178 days as pre-sentence detention, which means on my calculations you have a couple of more months to serve of your sentence. 

6AAA

21But for your plea of guilty it would have been two years, to serve one year and three months.

22There was a section 464ZF application.  I grant that application on the grounds that it is by consent and that it is in the interests of the community.  Do you understand what the taking of the sample involves, Mr Graham?  What they do is they get I think a cotton bud and you open your mouth - if you watch telly, any of the crime shows, you see they put it in and they take sort of a saliva sample.

23OFFENDER:  DNA.

24HER HONOUR:  Yes, DNA.  If you were to object to that, they can use force to hold you still while they take the sample.

25OFFENDER:  I offered to give the DNA to them (indistinct).

26HER HONOUR:  I would not have thought it would cause you any problems, yes.  I am just bound to warn you of that.

27I do not think I have anything else to attend to in this matter; is that correct?  Is there anything arising?

28COUNSEL:  No, Your Honour.

29HER HONOUR:  We will adjourn the court.

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