Director of Public Prosecutions v Grange

[2019] VCC 875

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01113
CR-18-02559

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN GRANGE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2019
DATE OF SENTENCE:	11 June 2019
CASE MAY BE CITED AS:	DPP v Grange
MEDIUM NEUTRAL CITATION:	[2019] VCC 875

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Mr G. Porter	Kim McFarlane Solicitors

1HIS HONOUR:  Ian Grange, you have pleaded guilty to one charge of conduct endangering life and one charge of prohibited person using a firearm. 

2MR PORTER:  Sorry, Your Honour, I was asking my client to stand up.

3HIS HONOUR:  No.  Each of those crimes carries a maximum penalty of ten years' imprisonment.  You have also pleaded guilty to three uplifted summary matters; one of possessing ammunition which carries a monetary fine.  Accordingly, in this situation, I have simply convicted to discharge; another summary charge of possess a prohibited weapon which was a baton, which was found in the police search.  Again, for that I will just give you 30 days and make it concurrent; and, a third, not failing to provide information when requested in regard to electronic devices.  It carries two years but, again, in this situation, I will just give you 30 days concurrent and that will make an end of all that and that is not the gist of what this offend is really about.

4You, Mr Grange, of 45 years' of age – sorry, 46 years' of age, but 45 at the time of the offending.  At the time of the offending you were residing in a large shed in Mena Street in Moe.

5Firstly, you have pleaded guilty and at a reasonably early opportunity to a settled indictment and obviously you must get the utilitarian benefit of that plea of guilty.  Insofar as remorse is concerned, I will give you the benefit of the doubt, though, I have a significant doubt I must admit in respect of all that, having, now, viewed the messages that went between you and the ultimate victim.

6But in any event, the victim was one Hurst who was aged 32 years at the time of the offending.  He is a person with an extensive criminal history, who was known to you and, indeed, I am told from the Bar table, and do not necessarily accept it, but that the firearm used in this matter had, in fact, been purchased from him.  There is clearly a drug connection involved in all of this.

7When this occurred, you had been put on a community corrections order or a community corrections order had been confirmed for trafficking amphetamines only a week or so previously.  Obviously whilst that was being confirmed in the Magistrates' Court, you had a sawn-off 22 at home.  You do have priors for violence and obviously relatively serious priors for violence.  They, now, go back some seven years or so and, whilst it is no excuse, obviously would appear to have been in a domestic situation, rather than this drug milieu in which I have got no real doubt all this occurred.

8The victim had left a trailer with you to be stored or whatever was going to be done with it.  You wanted storage costs; a dispute started between the two of you about the payment of those costs.  In the end, as I understand it, you wanted $200 from him to get the trailer back.  You, in your factory, had a CCTV monitoring system and you were able to watch what was occurring outside.

9You observed the victim arrive at your address in a white four-wheel drive vehicle.  He clearly had a grinder with him and it is clear from the messages going backwards and forwards that you were aware of that and he had said that he did.  He had another person called Thornby in the vehicle with him and what Mr Thornby's purpose was in all this, I don't know. Mr Thornby needs to stay out of it.

10In any event, the victim started to grind the locks off the gate at your shed.  I have, now, been able to have a look at – and these are just a few of them – the messages that have transpired between the two of you in this dispute.  He had sent a message to you at some stage saying: 

'If you find the need to sell my shit, go for fucking gold.  I'll return the favour by coming to your shed, chopping your fucking door down with an axe and coming in and destroying everything you use for work.'

11That had been sent some months earlier by the look of it, but the circumstances became worse and on what would appear to have been just a week or so prior to this, he sent you a text which said, 'If there's one thing missing from that trailer, I swear to God, cunt, I will smash your fuckin' head in.'

12Again, it goes on and on the actual day, itself, he says, 'I'm at your gate to get trailer.' You then say to him, 'I told you it was $10 a night storage.'  He, then, says to you, 'So I thought you would say that, so I brought my cordless grinder.  So you can, please, open the gate or I'll just cut the lock.'

13He, then, says a little time later before he comes in – in terms of letting him in – he, then, says, 'So "yes" or "no"?  I'll give you some of this Koori puff I got or not?' – it's obviously a reference to cannabis – and, then, when you do not reply to that, he says, 'Fuck you then.  No reply?  I cut the cunt.  Play God all you want.'  His next message is, 'You just shot me, you fucking rat cunt.'

14What had happened was that you – being a 'felon in possession' is the old description of the crime – owning a sworn off 22 single shot, went and got it.  You, then, were able to, hiding behind a door – and I have seen the video of all this that you filmed yourself, somewhat accidentally I suspect – fire one shot, go back in and reload.  You, then, fire a second shot in the direction of the victim.  That bullet hit him on the upper right-hand side of his shoulder.  He retreated to his vehicle and told the person in the car what had happened and there was, then, an exchange between the two of you for about 20 minutes, about what had just occurred.

15You had said to him – I don’t think I need to go into all the detail of that.  At one stage, I think you asked him if he needed a band aid.  But, in any event, that is the milieu in which all of this took place.  Mr Hurst said that if he was not with his friend, he would have come in and got you after you had shot him.  So it is clear that he was more angry than hurt, but the fact of the matter remains that you did fire a firearm at a person or in direction of a person in circumstances where there was a risk of death.  It did hit.  The wound, itself, is not serious by any stretch of the imagination and he should not have had a loaded rifle, let alone a sawn-off one - although I think it is probably described as a pistol - in your possession in any event, bearing in mind your circumstances.

16For starters a comparative case - a helpful one actually – was handed-up to me by the Crown and I have read that.  That was a matter of Garovski.  In that was a violent home invasion by three men.  They came into Mr Garovski's house.  He had a loaded shotgun behind a door.  They were assaulting him.  He fired his shotgun from close quarters.  One of them has sustained life-threatening injuries and life-threatening injuries they were, indeed.  For some reason I cannot quite follow, that man was simply charged with reckless conduct and in that situation the gravity of the offending was recognised by the judge, but the Court of Appeal said, 'Not recognised enough.'  They pointed out that, even though that man had been shot as he was leaving, the person who shot him should not have been in possession of a loaded shotgun in the first place.  Then, a combination CCO was not available.

17There are significant differences between you.  I accept that the weapon used in that matter was a weapon far more likely to cause death than the weapon you used.  In fact, having seen the CCTV and my own knowledge of firearms, to have actually even hit him at that distance with a sawn-off 22, is somewhat remarkable in itself.  The real risk I think would have been had it hit him in the eye or something like that.  However, whilst it is at the low end of risk of death, it is still a very dangerous thing to do as the Court of Appeal pointed out in the matter of Garovski.  In any event, Mr Garovski probably did pretty well out of all of that.  I do note also that he had had five months of Renzella time and obviously that played a part there.

18You have, now, been in custody for some 296 days.  Your ages are similar.  You have both got priors and I think that the example given just about balances out with you.  There is no victim impact statement in this matter.  Hardly surprises me in these circumstances.  The situation was that your Counsel suggested that a combination sentence was in range.  I do not think that is right.  Not for this sort of offending and not where you have breached a CCO within a week of starting it. I think the risk of you reoffending if you get out and go back to that lifestyle would be pretty high.  The risk of you reoffending would depend upon rehabilitation.  Whether you can do that or not, I don't know.

19In terms of the length of the gaol sentence, there are matters tendered and documents tendered on your behalf.  Firstly, the submissions of your counsel and report from Mr Cunningham the psychologist, a letter from your former wife who still supports you.  I am told that your current girlfriend had been in court on a previous occasion and is supportive of you. There are certificates from gaol which show that you have been making an effort.  You endeavoured through counsel to tender a letter which, about one paragraph into it, I realised was totally self-serving so that is of little significance I think in this overall situation.       So, then, in terms of what is it?  A serious example even though I am – well, it is one of those circumstances where the victim does not seem to have been particularly concerned about it all.  There has to be, as I said, a gaol sentence of proper proportions.  The victim did undergo medical treatment, but it was determined at the Alfred Hospital that there was no surgery required or removal of the bullet required.

20Then, going to matters personal to you. Succinct submissions were tendered on your behalf.  I have also read the report of Mr Cunningham which I take into account.  Basically your life story is that you came from England when you were a child and you remained in Gippsland ever since.  You grew up in a dysfunctional household.  Your parents, on the face of it at least, were dysfunctional.  They ultimately separated when you were about 14.  You lived with your father until you were about 20 and you have had three relationships.  You have two children aged 15 and 13 from a previous marriage.  That person is the one, who I understand it, has given you some support since.  You still have regular contact with those children.  You were married to that women for 11 years and, as I understand it as properly put to me by your counsel, a number of your prior convictions for violence and that type of thing relate to that relationship and clearly it cannot work.

21The situation is that you began using drugs when you were at a relatively young age.  You were in your late teens as I recollect from the material.  You have been diagnosed as having depression and a substance induced psychotic disorder, which does not really help you all that much in this situation, but I do take into account that you are and were depressed and that being in prison in that situation would be harder for you than for a prisoner that did not have those difficulties.

22You tell your counsellor that it has been your dream to run your own business and just before being remanded, as I understand it, you were trying to set up a business using the New Enterprise Incentive Scheme in being a motor mechanic.  Whether it is for small engines or what, I am not quite certain and this is what the whole property had been set up for.  Unfortunately, in that scenario you did have in your possession a firearm.  You loaded it and, in the end whilst I cannot sentence on the basis that you intended to actually hit him, you fired in his direction and certainly did hit him.      

23I am aware of your prospects of rehabilitation and reoffending that is really all up to you.  The offending has got to be regarded as serious. It calls for the application of general and specific deterrence as well as denunciation to a certain extent and obviously there has to be an appropriate punishment.  You have done gaol before so you are no stranger to it and it is just to be hoped that on this occasion it has finally dawned on you that it is not a very helpful place to spend your life.  But in any event, taking into account all those factors and bearing in mind also that I am conscious that the charge here is a prohibited person using a firearm, which means I have got to be careful about double punishment.  I notice with the other case it was possession of a firearm.

24So bearing all those things in mind, I still think the appropriate sentence is that on charge of reckless endangerment, 18 months; charge of prohibited person using a firearm, 18 months; six months of two, on top of one gives you 24 months, minimum term of 12 months.  As I have indicated, the summary matters will be totally concurrent with all that; direct that 296 days be written as having been served under this sentence.  And so that you realise and understand the benefit of your plea of guilty to a settled indictment, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of three years, with a minimum term of two, so there was a significant benefit for you.  Any other orders I need to make, gentlemen?

25MR GRAY:  In relation to the weapons and the firearm; that be 'firearm and the ammunition and the weapon'.

26HIS HONOUR:  I have signed those.

27MR GRAY:  Yes.

28HIS HONOUR:  I have done that, Prue, have I not?

29UNIDENTIFIED SPEAKER:  Yes, Your Honour.

30HIS HONOUR:  Yes.  Those orders are made and handed to you.  Though I have left out – I did not sign the one that related to the matters you objected to.  So accept for the weapons and the socks.

31MR GRAY:  Yes, understood, Your Honour, yes.

32HIS HONOUR:  What they are like after a year and if they sell, I have got no idea.  All right, yes, thank you for that.  Yes, you can take him, now, thank you.  All right, yes, thank you, Mr Porter.  Yes, you are excused.  I just want to talk to the Crown for a second. 

33MR PORTER:  Thank you, Your Honour.

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