Director of Public Prosecutions v Grant
[2013] VSC 53
•19 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0102
| THE QUEEN |
| v |
| DWAINE ANTHONY GRANT |
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JUDGE: | OSBORN JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2013 | |
DATE OF SENTENCE: | 19 February 2013 | |
CASE MAY BE CITED AS: | DPP v Grant | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 53 | |
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CRIMINAL LAW – Sentencing – Murder – Plea of guilty – Remorse – Young offender – Rehabilitation – Relevance of effects of alcohol at time of offence – Alcoholism – Moral culpability – General deterrence – Specific deterrence – 20 years’ imprisonment – Minimum non-parole period 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC | Office of Public Prosecutions |
| For the Accused | Mr M Regan | Victoria Legal Aid |
HIS HONOUR:
Dwaine Anthony Grant, you have pleaded guilty to the murder of Julie Simmonds at Dromana on 26 April 2011.
On that date you were aged 22 and your victim was 54. You were both alcoholics and had formed the habit of drinking together on a regular basis over the previous year.
On the day in question, you had purchased a four litre cask of wine in the morning and engaged in an extended bout of drinking and smoking tobacco and cannabis together at Ms Simmonds’s house. At the time of her death in the afternoon the deceased had a blood alcohol content of 0.33 grams per millilitre and I accept your counsel’s submission that it is probable that you had also ingested a significant amount of alcohol.
After you had been drinking together for some time you had sex with Ms Simmonds, but at some point in your own words you ‘snapped’. You called her a ‘fuckwit’ and a ‘gutter slut’ and then attacked her, bashing her mercilessly and strangling her in a state of rage.
You punched her repeatedly to the head and body, first in the living room of the house and then upon the bed in the bedroom.
You also choked her and, either at that point or subsequently, used such force that you crushed her larynx.
You then pulled her off the bed and across the floor by her hair and, again either at that point or subsequently, used such force that clumps of her hair were ripped from her scalp.
You then punched her again as you held her by the hair and then finally battered the back of her head repeatedly with a piece of wood. The forensic pathologist identified some 68 areas of external injury. After a post-mortem examination he found in summary:
· multiple bruises and lacerations to the face, head, neck, trunk, limbs, back and buttocks;
· multiple fresh bruises to the genitals including vulva and vagina;
· multiple bruises and superficial lacerations to the anus and bruises in the anal canal and rectum;
· a fracture to the right greater horn of the thyroid cartilage and haemorrhage to the surrounding soft tissues;
· traumatic brain injury including microscopic inferior front para-sagittal contusion and early multi-focal traumatic axonal injury.
He found that the cause of death was ‘multiple injuries including neck compression’. He confirmed that all the injuries suffered by the deceased were inflicted when she was still alive.
A further report from Dr Parkin details the injuries to the genital and anal areas and confirms they are consistent with blunt force trauma.
The brutality and extent of the injuries is confirmed by the photographs which have been tendered to me. Together with the forensic evidence of blood stains and spatter, this evidence satisfies me beyond reasonable doubt that:
(a) the attack was an extended one which progressed over time at a series of different locations; and
(b) the attack was one of unremitting ferocity and savagery in which your victim suffered battering to the greater part of the head, body and limbs including her sexual organs and anus.
The Court has heard the victim impact statements of Ms Simmonds’s former husband and her daughter, who is one of her three children.
They eloquently express the fact that, despite her weaknesses, Ms Simmonds was dearly loved and her loss has been a profound one for her family.
Your actions have left her family not only with protracted grief, but also with a cruel and unjustified feeling that they did not protect her adequately in the vulnerable state which it is plain her alcoholism created. My sentence cannot restore her to them, but it must be informed in part by an acknowledgment of the deep and genuine human suffering you have caused both directly and indirectly by your horrific actions.
There are a number of aggravating factors involved in your offending:
(a) the overwhelming brutality, extent, duration and ferocity of the injuries you inflicted;
(b) the fact that your victim was a woman more than twice your age who was very materially affected by alcohol and, I am satisfied, was physically entirely at your mercy;
(c) the fact that your victim was killed in her own home at a time when she was extending hospitality and some friendship towards you.
On the other hand, I accept the opinion of Dr Sullivan that it is probable you were so affected by alcohol at the time of the killing that you were unable to think clearly or make calm and rational choices, were disinhibited and had impaired judgment.
I also accept that the killing was not premeditated. In my view it is probable that the assault was somehow sparked either by some irrational reaction to the sexual relationship which it appears you had had with Ms Simmons since your early teens and/or some alcohol fuelled delusion. Whatever its trigger however it is plain that you were, as you told police, ‘filled with rage’.
Lastly, I accept that at the time of the killing you were agitated and anxious about imminent proceedings which you faced in the Magistrates’ Court, although how this affected the mechanisms of your mind is unclear.
I turn then to your personal circumstances. You come from an unhappy family background. Your father died before your birth and your mother’s subsequent de facto remarriage was not a happy one.
You were lucky to have the support of foster parents in your early years but came to spend a significant part of your boyhood in an extended family within which you suffered sexual abuse and were a witness to recurrent domestic violence.
You nevertheless came to find a home with your maternal grandmother in Dromana in your early teens.
You were not particularly successful at school and came into contact with the Children’s Court for a variety of dishonesty and motor vehicle offences.
For some years in your early adulthood however it appears you were able to move to inner Melbourne and, despite a sequence of alcohol related offences, held down a series of jobs and obtained a series of partial trade qualifications. This all fell apart however when you were sacked for alcohol related issues in 2010. For the year prior to the killing of Ms Simmonds you had been back living in Dromana on welfare benefits without, it appears, much in your life other than continual drinking.
Although you have a series of convictions from the Children’s and Magistrates’ Courts, none of them reflect a tendency towards violence and I do not regard them as materially relevant to my task, save that they might be thought to reflect an ongoing inability to engage meaningfully with society.
I do however place considerable weight upon the unchallenged opinion of Dr Sullivan, who expresses the following conclusions:
[41]Mr Grant is a 24 year-old single man charged with murder. His background was of a difficult upbringing, paternal absence, sexual abuse and estrangement from his family. He exited school in his early teens due to worsening behavioural disturbance, and had held a number of jobs, although had not worked more recently.
[42]Mr Grant has an established history of polysubstance dependence involving alcohol and cannabis, and has also abused a range of other drugs including cocaine and hallucinogens (datura). His alcohol use was substantial and appeared to be associated with physiological withdrawal symptoms and possibly alcoholic hallucinosis and blackouts. Alcoholic blackouts refer to periods of time during which a person functions in an intoxicated state, but cannot recollect the events, considered due to impairment of registration of memories occurring while intoxicated. Alcoholic hallucinosis refers to auditory and/or visual hallucinations which may occur during intoxication, or more commonly, during withdrawal or periods of reduced alcohol usage.
[43]There is a history over the last couple of years of recurrent attendance at hospital, intoxicated, often belligerent, demanding medications or admission. Often he threatened deliberate self-harm. A possible (‘probable’) diagnosis was made of personality disorder.
[44]He reports longstanding anxiety symptoms with recurrent and intrusive thoughts of past negative life events, and appears prone to rumination. His anxiety symptoms are likely to reflect a diagnosis of anxiety disorder not otherwise specified, mild in severity. This diagnosis reflects that his symptoms are in the broad category of anxiety disorders, but do not clearly fall within a specific subtype of anxiety disorder.
[45]It is likely that Mr Grant’s heavy substance use was strongly associated with anxiety although it is difficult to determine whether substance use caused anxiety, or conversely his anxiety predisposed to substance use. On the information available I consider that there is an association, but could not with confidence clarify the causal direction or nature of the association.
[46]His recent and past hallucinatory experiences do not appear to reflect a psychotic illness. They are uncharacteristic of psychotic illness due to retained insight, the vivid nature of the symptoms, and the limited association of visual hallucinations with psychotic conditions. Rather, I would regard these symptoms as reflecting anxiety and characterise them as “pseudo-hallucinations” – an unfortunate term which reflects the sort of symptoms noted here, more commonly found in vulnerable personalities and reflecting decompensation under stress. Although there is evidence of some personality vulnerabilities, Mr Grant would not clearly meet the formal criteria for a personality disorder.
[47]There is a history of transient depressive and paranoid symptoms, frequently but not always associated with high level substance abuse. There is no indication of sustained or significant mood disorder separate from substance abuse. Mr Grant is currently treated with an antidepressant, but his mood is relatively stable despite his long remand and the stress of his pending sentencing.
[48]I cannot elicit a clear history of any sexual disorder. He does not appear to have any significant cognitive impairment although his recall of events occurring while he has been chronically intoxicated may be understandably patchy.
[49]The victim was reputedly alcohol dependent and for a number of years had engaged in a dysfunctional relationship with Mr Grant which involved substance use and sexual interactions…
[50]At the time of the alleged offences Mr Grant was intoxicated with alcohol and cannabis. The offence involved marked violence. It appeared unplanned, and was described by Mr Grant as unpremeditated. The crime scene was chaotic and disorganised. The cause of his anger and assault on Ms Simmonds is not clear although the nature of their relationship, predicated on heavy alcohol use, was unusual.
[51]Mr Grant has no other criminal history of aggression although his intoxicated interactions with hospital staff have recurrently demonstrated irritability, hostility, belligerence and threatening behaviour. There is no indication of aggressive behaviour in custody.
[52]Mr Grant appears to have a limited recollection of the offence. His impaired recollection was apparent at the police interview, although he recollected more about the alleged offences later in the interview. This is consistent with research into violent offenders’ recollections of their offences, particularly when intoxicated. Mr Grant otherwise makes it clear that he was responsible and regrets the alleged offence.
[53]At the time of the alleged offence Mr Grant was intoxicated. Due to intoxication I consider that he was unable to think clearly or make calm and rational choices, was disinhibited and had impaired judgment. The intent of the offence was obscured. I cannot determine that any other mental disorder was associated with the offending as alleged, although I have noted that there may be some association between anxiety disorder and substance use disorder, an association which cannot be further clarified with any certainty.
[54]Mr Grant has been subject to threats from others and this has constrained his placement and restricted the opportunities he would have in prison to participate in employment and programs; this will likely cause Mr Grant’s incarceration to weigh more heavily upon him.
[55]Mr Grant expresses remorse and in his statements to me I was satisfied that, despite his reported intoxication at the time, he accepted responsibility for the offending.
[56]His main treatment needs are in the domain of substance abuse. I hold the strong opinion that Mr Grant should herewith permanently abstain from all substance use. His pattern of heavy alcohol and cannabis use and the development of dependence at such a young age augurs poorly for any future prospect of controlled or limited substance use. He will remain at risk of escalation and is likely to return to dependence if he attempts to use small amounts of substances. Any future substance use will likely be associated with escalated risk of relapse into dependence, and potential violence, particularly in relationships.
[57]He has required intermittent mental health input. He may benefit from a longer term psychological treatment to help him manage anxiety symptoms, develop increased insight into his personality and address interpersonal problems. In addition he may require intermittent treatment with psychotropic medication in periods of increased distress or poor coping.[1]
[1]Report of Dr Danny Sullivan, Consultant Psychiatrist, dated 12 February 2013.
On your plea, your counsel urged four principal matters in mitigation of penalty:
(1) your plea of guilty;
(2) your remorse;
(3) your youth; and
(4) your relatively lesser culpability because of the effects of alcohol upon you at the time of the offence.
I accept that you must be given substantial credit for your plea of guilty. Because of the specific intention which the Crown must prove to establish the crime of murder, many murder cases involving events clouded and fuelled by alcohol go to trial. You have accepted your criminal responsibility for the murder of Ms Simmons and you must receive credit for that for a number of good reasons, including minimisation of distress to the victim’s family and savings to the community.
I further accept that the delay which has occurred in making your plea occurred in the circumstances which your counsel explained to the Court and should not be seen as materially detracting from its value.
I also accept that your plea demonstrates remorse and that the opinion of Dr Sullivan in this respect should be accepted. The fact that your offending occurred when you were materially affected by alcohol helps support the view that your remorse when sober is genuine. In turn, remorse is a significant basis for potential rehabilitation. That issue must always be important when an offender is only 22 years old, no matter how grave the crime. Your youth raises the hope that you may yet develop into a positive member of society. It follows from Dr Sullivan’s opinion that your prospects of rehabilitation are in part directly linked to your alcohol addiction. I would add however that the savagery of your attack on Ms Simmons was such that I have grave fears as to your capacity for further violence. Nevertheless, I accept your counsel’s submission in particular that your youth supports the view that the Court should provide for the possibility of a relatively substantial parole period.[2]
[2]R v Mills [1998] 4 VR 235.
I would record for the assistance of the Parole Board that Dr Sullivan’s report might be regarded as supporting the view that any parole granted to you should be subject to conditions requiring abstinence from alcohol and some regime of testing.[3]
[3]Cf R v Bugmy [2011] NSWSC 357, [59].
(Let me also say to you that if, when you do get parole, you relapse into alcohol use it seems to me inevitable first that you will not satisfactorily complete your parole; secondly that there is little prospect of you ever finding a positive way of life; and thirdly that your prospects of remaining out of jail are in practical terms zero.)
I come then to the issue of the effects of alcohol upon you at the time of the killing. In Rv Redenbach,[4] to which your counsel referred, the Court of Criminal Appeal said:
Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence.[5]
[4](1991) 52 A Crim R 95.
[5]Ibid 99.
In R v Angus,[6] Southwell AJA further stated:
Where an innocent citizen is set upon and savagely attacked, it would, in my opinion, be a rare case indeed where a court would be persuaded to extend leniency to the culprit upon the basis that he was intoxicated.[7]
[6]Unreported, Court of Appeal, 1 February 1996.
[7]Ibid 9 (emphasis in original).
This is not a case where I can be satisfied beyond reasonable doubt that you have previously acted violently when affected by alcohol to such an extent that your use of alcohol on the day in question must be regarded as an aggravating factor.[8]
[8]Cf R v Joyce [2007] VSCA 215; R v Grimmett [2011] VSC 506, [34].
Conversely however it is not a case in which I can be satisfied on the evidence that your offending when affected by alcohol was totally out of character.[9]
[9]Cf Hasan v R (2010) 31 VR 28, [35].
I have already said I accept that your alcoholism and the fact that you offended when affected by alcohol are contextually relevant to the factors of remorse and rehabilitation.
I am also prepared to accept that, in one sense, given Dr Sullivan’s opinion, your alcohol use may be regarded as diminishing your moral culpability to some extent. In particular, it is inherently probable, in my view, that your alcoholism derives to some substantial degree from the deprivations of your childhood for which you are not to blame.[10]
[10]R v Redenbach (1991) 52 A Crim R 95; Morrison v The Queen [2012] VSCA 222, [20].
On the other hand, your offending did not reflect a momentary lapse in judgment. Rather, it was constituted by a protracted course of assault of horrific brutality. There is no satisfactory explanation as to why you descended into such ‘marked violence’, as Dr Sullivan calls it. Moreover, the commission of murder whilst affected by alcohol raises discrete issues of specific and general deterrence.
More particularly, the penalty I impose must directly encourage you to persist in the total abstinence which Dr Sullivan so strongly recommends.
Moreover, insofar as general deterrence is concerned, the Court cannot send out a message that killing whilst affected by alcohol is in itself less culpable than killing when an offender is not so affected. To the contrary, violent behaviour when drunk must be unequivocally condemned.[11]
[11]Pato v R [2011] VSCA 223.
I therefore accept that your plea of guilty, your remorse and your youth are all significant factors in your favour. Your alcoholism and the effects of alcohol upon you at the time of the offending raise a more complex set of considerations, but insofar as they bear on moral culpability I accept they also favour a lesser penalty.
Ultimately I must impose upon you a penalty which is just in all the circumstances and which reflects the seriousness of your offending.
Deliberate, vicious, extensive and protracted violence resulting in the death of another person breaches the most fundamental of human values.
The Court’s sentence must also reflect the need to deter alcohol fuelled violence generally and violence between those who are parties to a sexual relationship however dysfunctional in particular.
Further, as I have said, your case raises particular issues of specific deterrence and my sentence must ensure that you understand the gravity of your crime and its terrible consequences. I must make plain to you that the Court and the community which it represents will not tolerate further violent behaviour on your behalf.
Taking these matters into account, including the mitigating circumstances to which I have referred, I sentence you as follows.
Dwaine Anthony Grant, I sentence you for the murder of Julie Simmonds to a term of 20 years’ imprisonment with a minimum non-parole period of 16 years.
I declare that pursuant to s 18(4) of the Sentencing Act 1991 that you have already served 533 days in custody by way of pre-sentence detention and I shall cause that declaration to be noted in the records of the Court.
I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to a term of 25 years’ imprisonment with a minimum non-parole period of 21 years.
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