Director of Public Prosecutions v Granger, Brendan
[2013] VCC 777
•24 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00365 & CR-13-00772
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN GRANGER |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2013 | |
DATE OF SENTENCE: | 24 April 2013 | |
CASE MAY BE CITED AS: | DPP v Granger, Brendan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 777 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: cause serious injury recklessly – breach of suspended sentence – victim struck from behind – beer bottle – laceration – result of hitting another object whilst falling – prior criminal convictions – alcohol abuse – anger management issues – young offender
Legislation Cited: s.17 of the Crimes Act 1958 – ss.8A & 32 of the Sentencing Act 1991 – s.83AR(4) of the Sentencing Act 1991
Sentence: Convicted and detained in a Youth Justice Centre for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O'Halloran | Mr T. Sherwood (Office of Public Prosecutions) |
| For the Accused | Mr A. Jackson | Mr C. Nikakis (Haines & Polites) |
HIS HONOUR:
1 Mr Granger comes before this Court having pleaded guilty to a charge under Indictment No. C12456681. That is a charge of causing serious injury recklessly, contrary to s.17 of the Crimes Act 1958. The maximum penalty as prescribed by Parliament for such an offence is fifteen years. Self evident from that is the serious nature of this offence so committed.
2 While it is, in one way, a valuable plea, the summary provided, Exhibit A, sets out the details of the circumstances making up this assault. With, clearly, substantial drinking by way of background in the early hours of 29 April 2009, Mr Granger was drinking at the home of Vanessa Truman. There were a number of other persons present. At some stage there was a complaint or an argument between the victim and Mr Granger in this matter. I am not quite certain what it was about. I do not know whether anyone there would be able to remember. However, as a result, if I read paragraphs 5 to 7, it indicates the serious nature of this assault.
3 Mr Granger, who was then sitting on the other side of the table, stood up and walked towards the victim. He picked up a beer stubby and held it by the neck. Using the bottle, he hit the victim to the back of the head, in fact he had hit the victim from the rear. Fortunately for Mr Granger, the bottle did not break. The victim turned around. The offender struck again to the forehead with the bottle. The offender threw the stubby hard towards the victim. Fortunately again it missed.
4 The offender then pushed the victim to the floor and punched him to the face, and it was apparently during this fall that he damaged his forehead, such being subsequently sutured. The victim was bleeding as well from an injury to his head which was as a result of the blunt instrument injury, being the bottle in this case, although apparently the only suturing was the five centimetre laceration to the forehead.
5 Tendered as Exhibit B were the photos taken shortly after such events. They show considerable bleeding, most of the bleeding appears to be from the forehead injury where there is a clear cut and there was the need for the suturing. There is no photo of the head injury.
6 In addition to that, as Exhibit C, was tendered the hospital records from Peninsular Health. In the description given by the victim, he said he was at a friend's house, drinking alcohol, while he was sitting on a kitchen chair he was struck from behind with a stubby, causing a laceration, then punched to the ribs and fell off the chair to the floor. I think it was beyond dispute, if I am correct, Mr Jackson, that the laceration to the forehead was caused when he hit another object as he was coming down.
7 MR JACKSON: Yes, the broken vase.
8 HIS HONOUR: Yes. That was a vase. That had been admitted to by the victim, which seemed to me a very fair comment from the victim, given the circumstances of this matter.
9 The prior offences to which I have earlier referred and to which today Mr Granger has pleaded to a breach of, gave me great concern. I would not say that I have necessarily lost that concern, however, when you fully understand Mr Granger's background, suffice to say I have seen worse. When closely looked at, insofar as assaults, they involve an unlawful assault in May 2010 when he was given a community based order, and subsequent to that another unlawful assault when he was eighteen or nineteen in April 2011. What happened there was he came up on breach of compliance with the earlier community based order but, in addition, there are additional matters, again involving an unlawful assault matter. Then finally, on that time he was also convicted upon a separate occasion, as I understand it, of recklessly cause injury, for which he was given an aggregate period of four month's gaol, which must be reimposed today, there being no suggestion of any exceptional circumstances. As I say, those priors are concerning. It should be remarked that Mr Granger only turns twenty-one this month.
10 Exhibit 1, which was tendered on behalf of Mr Granger in the plea, was the report of Mr Jeffrey Cummins. Mr Jackson took me to such report as being a document which was particularly helpful. It shows from an early time Mr Granger had a difficult upbringing, to say the least. He had a father who, unfortunately, died from an early age due to abuse of alcohol. Due to his own excess consumption of alcohol from very early times, he has developed an inability to manage anger. Those two issues have led to him getting into the difficulties that I have just recounted by way his prior offences.
11 Again, as is remarked by Mr Cummins, intoxication is the background of these crimes, and as described to Mr Cummins, Mr Granger stated that he just lost the plot. At interview he openly conceded that he does have an anger management problem and that he was willing to participate in anger management issues training and programs. His partner was also interviewed. She also was aware of his difficulties with alcohol, cannabis and anger.
12 Fortuitously, his mental state examination does not show any personality disorder. That means as long as he can control his substance abuse and anger, then perhaps he can put himself back on the path of an orderly and law abiding citizen. Mr Cummins says this:
"I assessed him as someone who was somewhere between moderately and severely depressed and still in a state of obvious unresolved grief concerning his father's death".
13 It is difficult, of course, for the Court to fully understand those matters, but this unresolved situation, based upon an alcohol dependency and cannabis dependency and this weakness in controlling his anger, seems to be at the background of all of this criminality.
14 As Mr Cummins said, on page 6, it was his opinion that Mr Granger urgently required alcohol and drug detoxification, if necessary, a residential alcohol and drug rehabilitation program, it was also imperative that Mr Granger undertake an anger management program. Perhaps he needs some mood stabilising medication and perhaps some antidepressant insofar as his ongoing difficulties and he obviously needs some counselling insofar as dealing with his father's issues. As I said during the plea, Mr Granger, if you do not want to end up, unfortunately, like your Dad did end up, then you have got to change your life.
15 As a result of the totality of those matters I, at the suggestion of Mr Jackson, sought a report pursuant to ss.8A & 32 of the Sentencing Act 1991. I did not lightly seek that report, because though Mr Granger is classified under the Sentencing Act as a young offender, he turns twenty-one at the end of this month and, indeed, next week, and thereby could not avail himself of the young offender provisions. Such report was sought on the basis of no assurances and no indication by the Court that any particular order would be made.
16 The Court has much confidence in Steven Riordan, a senior Court advice officer, of the Melbourne Central Courts Unit. As is demonstrated from the report, one of the concerns that Mr Riordan had was that Mr Granger, given his age, came into the youth facility and caused difficulty. That is a matter that neither Mr Riordan nor the authorities would want. It was for that reason, and Mr Riordan's determination to see if he had a genuine person who was keen to change his life, that there were some three interviews conducted. In addition, there was an interview with Mr Granger's partner.
17 As is Mr Riordan's want, there was a full summary of the matters that I have essentially detailed already about Mr Granger and I will not go over them again. However, insofar as the statutory requirements of s.33, he reported to the Court as follows:
"Insofar as prospects for rehabilitation, that Mr Granger has reasonable prospects for rehabilitation".
18 Mr Granger, you were present when I last sentenced a person to gaol for more serious offences than yours, but in the end what I said to him applies equally to you. You are old enough now to know the ways of the world. We can say a thousand things here, your girlfriend can support you, your counsel can submit you, but it is up to you, and I hope that you do not disappoint everyone.
19 Mr Riordan also made the point that despite his age it is not necessarily inappropriate for Mr Granger to be treated in the Youth Justice Centre, because he is particularly, as shown in the report of Mr Cummins, somewhat immature and impressionable, and it was Mr Riordan's view that he would be subjected to undesirable influences in an adult prison.
20 The point that should be made is that to date, at the behest of judicial officers hoping that Mr Granger did not get into worse trouble, and has not ever been in a gaol before, you must realise therefore that this is your last chance. I should also tell you that there is a provision under the Youth Justice Centre provisions that if you play up down they can move you upstairs, and you are fully aware of that.
21 Mr Riordan also called upon the opinion of Mr Cummins in coming to his conclusion. He read all the relevant documents that I have referred to and noted the reticence of officers to have a person who may misbehave at Malmsbury. However, given all of those matters, his opinion was that Mr Granger meets all the criteria stipulated in the Act and, as a result of his determination the Department of Human Services, Youth Justice has deemed Mr Granger as a suitable candidate for a Youth Justice Centre order.
22 Given his age this Court must, obviously, also hope that by the determination that it makes, rehabilitation will be affected. I might say that I have had much more success than failure. Despite what one reads in The Sun newspaper people can change. I would hope that you change and do not disappoint everyone. In the circumstances, I am prepared to accept the recommendation. I am prepared to make an order that you serve your sentence by way of a Youth Justice Centre order.
23 Formally, therefore, if you would stand.
Sentence
24 Mr Granger, you are convicted of both offences. Firstly, the offence set out in the Indictment of cause serious injury recklessly, and then the additional offence to which you have pleaded guilty, of breach of the suspended sentence.
25 The provisions of the Sentencing Act 1991 mean that you are required to serve the period imposed in regard to the suspended sentence, and that is a period of four months, and the order I intend to make by way of Youth Justice Centre order is a period of two years from this date.
26 The effect of s.83AR(4) of the Sentencing Act 1991 is to this effect, that despite anything to the contrary, if in the case an offender is under twenty-one years of age at the time the finding is made under sub-s.(1), that is a breach of a suspended sentence, a Court restores the whole, which I have done in this instance. It may order the offender to serve it as detention in a Youth Justice Centre. I make such an order. The effect of that is that that four months will be served concurrently, although I do not have to make such an order but just so you understand, with the two year order, all right.
27 To the extent that I am able, under s.6AAA of the Sentencing Act 1991, all I can say is that had I not had the appropriate report from Mr Riordan I would not have imposed a Youth Justice Centre order, and of course had Mr Granger not pleaded guilty such an order would not have been possible or in the realms of possibility. That is about all I can say to satisfy the Legislature in that matter.
28 There is no pre-sentence detention to take into account.
29 I have signed the forensic sample order and disposal order. Insofar as the forensic sample. I advise you, and Mr Jackson will tell you, that as a result of your offence and the type of offence, I have determined that it is appropriate for a forensic sample to be taken of you. That means that you must present yourself at a police station, I think within a month, isn't it? I cannot remember the exact time but anyway, it will be on the document, and undertake a sample. They take a sample out of your mouth. If you do not then they can bring you back here and I will make an order. I would not be very happy if that did not happen, all right.
30 Mr Jackson, anything else I need to attend to?
31 MR JACKSON: I do not believe so, Your Honour. I think that covers the field.
32 HIS HONOUR: I thank you both and, Mr O'Halloran, for your assistance in this matter. There were a few little quirks that we got around and we managed to get there.
33 Finally, Mr Granger, do not let everyone down, all right? And this is you’re your chance. You come out after this or you mess up in there then there will not be any more chances, all right, and Mr Jackson will explain that very clearly. All right, thank you. All the best. Take the prisoner away.
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