Director of Public Prosecutions v Grant

[2024] VCC 852

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-02081

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL GRANT

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April and 3 June 2024
DATE OF SENTENCE:	5 June 2024
CASE MAY BE CITED AS:	DPP v Grant
MEDIUM NEUTRAL CITATION:	[2024] VCC 852

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Aggravated burglary – possessing a firearm – significant delay – delay of 16 years – plea of guilty – criminal history

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Meyers [2014] VSCA 314; Salapura v The Queen [2018] VCC 255; R v Schwabegger [1998] 4 VR 649; Hogarth v The Queen [2012] VSCA 302

Sentence:                  Total effective sentence of 3 years imprisonment; 11 months to be served immediately and 2 years 1 month to be suspended for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms O. Sparrow	Office of Public Prosecutions
For the Accused	Mr A. Kennedy	Victoria Legal Aid

HER HONOUR:

1Daniel Grant, on 12 April 2024, you pleaded guilty on Indictment No.P11767461 to one charge of aggravated burglary and one charge of possessing an unregistered Category A longarm.

2You also admitted a limited criminal history that was entirely from offences committed and dealt with in New South Wales.

Circumstances of offending

1At your plea, the summary of prosecution opening dated 21 March 2024 was read and tendered and the following is a summary of your offending.

2Your offending occurred in 2008 when you were only 24 years old. The target of your offending was an address in Bayswater, occupied by three men.

3

On the morning of Sunday 11 May 2008, the victims, Mr Hart and

Mr Millwood were asleep in their bedrooms, Mr Schultz was not at home. At approximately 8.10 am Mr Hart and Mr Millwood awoke to the sound of smashing glass.

4

Mr Hart went to the loungeroom where he was confronted by you holding a gun. Mr Millwood stood in his bedroom doorway and observed this unfold. Mr Hart described the gun as a single long barrel that looked 'fairly old', or 'an old 80s model single barrel shotgun'. He did not know if the gun was loaded. You said, 'Don’t move, don’t move', so Mr Hart remained still.

Mr Millwood yelled, 'He's not here'.

5An unknown co-offender entered through the smashed glass sliding door. He smashed the door into Mr Schultz's bedroom and entered. Mr Millwood went back into his bedroom and locked the door. He then left through a window and went to a neighbour's house.

6You said, 'I've cut my hand'. You took your hand off the gun and blood dripped from your left thumb onto the floor. After approximately 20 seconds, the unknown co-offender exited Mr Schultz’s room carrying a small black toiletries bag. Both you and your co-offender said, 'let's go, let's go' and left the premises.

7Mr Millwood returned and Mr Hart phoned Triple 0. Police attended and observed blood on the smashed glass door, on the floor nearby and along the hallway.

8Police obtained forensic materials including swabs of the blood. Police made enquiries in relation to the thumb injury and identified you.

9On 31 October 2022, a warrant was issued by Ringwood Magistrates' Court for your arrest. On 15 August 2023, you were arrested in Rooty Hill, New South Wales and stated, 'I cut myself, DNA aye'. And when asked, 'Who did you do the job with?' you responded, 'I can't remember, I don't even know them. These blokes came up to me at a party and asked me to help them. I can't even remember their names. I just remember going to the house and yeah that’s about it.'

10You were extradited to Victoria the following day. You participated in a record of interview where you made partial admissions. You told police that the gun was a wooden stick or handle with some silver – not a replica; not a shotgun; it was not loaded and there were no bullets; there was only one person in the house.

11During the interview you provided a buccal swab. Your DNA was matched against both blood samples taken by police at the scene.

Nature and gravity of the offending

12Mr Grant, the charge of aggravated burglary is inherently serious as reflected in the applicable maximum sentence of 25 years' imprisonment. The community view offending of this kind as extremely serious and the expectation is that the courts will impose sentence accordingly.

13Ms Sparrow for the Crown submitted that your offending fell within the
mid-range for offences of this type. Further, Ms Sparrow submitted that whilst not sophisticated there was evidence of planning in your offending. This she said was evidenced by you and your co-offender attending the premises at a time the victims would be vulnerable; the fact that you were armed with a gun and the speed and certainty with which the targeted item was located.

14It was also submitted by the prosecution that the violent mode of entry, the not insignificant quantum of that damage, and the brandishing of a firearm were all significant features of the offending to which the court should have regard when assessing the objective gravity of your offending.

15Mr Kennedy on your behalf conceded that your offending was serious and as such warranted a term of imprisonment. Further, Mr Kennedy submitted that there should be some concurrency given the possession of the firearm was also an element of the principal charge of aggravated burglary with a firearm namely a single barrel shotgun.

16In assessing the objective seriousness of your offending, I have had regard to the case of the DPP v Meyers.[1] In that case the Court of Appeal referred to a non‑exhaustive list of considerations that are relevant to such a determination. With those factors in mind I make the following observations regarding your offending:

(a)   given what occurred inside the premises according to the victims, the target of the offending was a toiletry bag belonging to their housemate Schulz. Your accomplice entered, went to the bedroom of Schulz and took this item. Therefore your intent upon entry appears to be to steal rather than assault or cause damage;

(b)   entry to the premises was gained by force, that is a glass sliding door was smashed. It was a cut on the glass that resulted in your blood being left at the scene and your DNA being located. This is what ultimately led to your arrest and no doubt your plea of guilty;

(c)   you were carrying a weapon which appeared to be a firearm. There is no evidence that this gun was real, although I do note that you have pleaded to having a Category A single barrel shotgun. There is no evidence that it was loaded or discharged. However, the victims described it as a gun and both were extremely intimidated and scared by its presence. Proof that the firearm was loaded would have aggravated your offending;

(d)   in committing this offence you did not act alone. There was another unknown offender who as I mentioned entered the bedroom of Schulz and retrieved the toiletry bag;

(e)   this offending took place at a relatively early time in the morning when you might have expected the occupants to be in bed and therefore off guard;

(f)    given the significant passage of time since the offending, it is unclear what you knew about the victims. I find as a result of the direct actions of your accomplice, that he knew at least one of the occupants and the toiletry bag contents were the target of the offending. It would appear that the victims did not know you or your unknown co-offender;

(g)   there is no evidence to dispute what you told the police, that is you were enlisted at relatively short notice and were not involved in the planning for the offence.

[1]DPP v Meyers [2014] VSCA 314.

17Further, you have not been charged with theft or criminal damage. Accordingly you cannot be sentenced for these offences and these acts cannot be treated as aggravating features of the aggravated burglary charge. Given the overlap between the two offences before the court, I am mindful of the need to avoid double punishment.[2]

[2] Salapura v The Queen [2018] VCC 255 at [58]-[67].

18Notwithstanding there is an absence of victim impact statements, I agree with the submission of Ms Sparrow that your victims were entitled to feel safe and secure in their home and your intrusion would have been a frightening experience that was made all the more distressing by the presence of a firearm.

19In my assessment, your offending is serious and warrants significant punishment.

Personal circumstances

20You are currently 41 years old and were 24 years old at the time of the offences in 2008 and I will touch on this delay in further detail later in the sentence.

21You were born in Sydney, New South Wales, to a single mother. You have not had any contact with your father and you have three younger sisters.

22You were raised by your grandparents with whom you reported having a good childhood. You were placed in Boys' Town between the ages of 12 and 16 and you enjoyed your time there and engaged in sports and gained assistance from youth workers. On weekends you maintained connection with your family by visits to your grandparents.

23Whilst at Boys' Town, you were diagnosed with ADHD and received counselling and medication in the form of dexamphetamines during this time. Upon leaving Boys' Town, you did not follow up with a psychiatrist and accordingly did not continue any treatment.

24Your education continued at Boys' Town and you attained a Year 10 pass. Since that time you have worked in various jobs including as a tyre fitter for eight years between the ages of 14 and 22, as a forklift driver in warehousing and in the building industry. Apart from periods of time you have served in custody you have mostly been employed. Just prior to your arrest and remand you were engaged with the Salvation Army employment service in Liverpool and about to start a night shift position. Whilst in custody you have been employed as a billet and you are hopeful of returning to New South Wales and finding employment upon release.

25Apart from one significant romantic relationship you have mostly lived as a single man. You do not have children. Generally you have lived alone in private rental accommodation. You have a good relationship with your mother and have maintained phone contact with her during your current incarceration. It is your intention to stay with her briefly when you return to Sydney.

26For the purposes of this offence you have a limited prior history. The most relevant prior convictions for the purposes of this offending include being dealt with in 2004 for larceny and common assault in 2006. Since this offending you have amassed numerous subsequent convictions. You have since served two terms of imprisonment. In 2013 a term of two years with a 12 month non-parole period for assault occasioning actual bodily harm, destroy or damage property and use an offensive weapon to commit indictable offence and in 2014 you were sentenced to 12 months with six months' non-parole period for assault occasioning actual bodily harm and destroy or damage property. You have also been sentenced to several suspended sentences in the past which you do not appear to have breached.

27

Given concerns raised in relation to your mental health I requested a pre-sentence report from Forensicare. A psychiatric registrar Dr Sharath Thimmareddy assessed you and provided a report dated 20 May 2024.

Dr Thimmareddy did not have adequate information for a diagnosis but opined that your symptoms fit the pattern of underlying ADHD. Further he opined that there was no evidence of formal thought disorder, delusion and no disturbance in perception. He noted no gross impairments in insight and no display of psychotic illness.

28

Dr Thimmareddy had contact with consultant psychiatrist at Fulham prison, Dr Harris, who confirmed that he last reviewed you on 2 February, 2024.

Dr Harris stated that you had a diagnosis of mixed anxiety and depression for which you received treatment with mirtazapine and quetiapine. These medications have seemingly had a positive impact on your day-to-day functioning.

Delay

29Your counsel submitted there are a number of mitigating factors in your case, the most significant of which is the delay in the prosecution of this matter. Your offending occurred in May 2008, and you fall to be sentenced just over 16 years later.

30

The prosecutor Ms Sparrow detailed the broad reasons for the delay. In 2013, your DNA was obtained in New South Wales which then alerted the Victorian database. This five-year delay is not irrelevant, although it may not be attributable to investigating authorities nor was it a result of your actions. From this time Ms Sparrow submitted there were several handovers of your file and from 2020 there were issues caused by

COVID-19 that impacted travel and extradition. The net effect of this is an inordinate delay as you were only arrested for the offending on 15 August 2023 in New South Wales and extradited to Victoria. You have been on remand since.

31

It is my view that in your case the delay in sentencing is largely because of the slow and lax approach of investigators and as such general deterrence should be accorded reduced weight. In the 1998 Court of Appeal case of

R v Schwabegger

Justice Vincent stated the following;[3]

'There is a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion.'

[3] R v Schwabegger [1998] 4 VR 649.

32Further to this, there are generally two limbs to delay as a mitigating factor. The first concerns the unfairness brought about by the impact of charges hanging over an offender's head and the second concerns any progress made towards rehabilitation. In your case, whilst it cannot be said that you went on to lead a blameless life since 2008, given the many subsequent offences dealt with in New South Wales, what can be said is that since 2016 that is in the last seven years you have not offended. It appears that you have matured and rehabilitated. It was during this period of time that you were arrested for these matters and consequently you have been returned to prison thus interrupting your rehabilitation.

33In addition, you now fall to be sentenced as a mature aged man. At the time of your offending at age 24 you would have been considered a youthful offender and sentencing principles that apply to youthful offenders would have had application in your case.

34Further consequences of the delay in your case relate to issues of totality. Although your subsequent offending has been in a different jurisdiction, that is, you have come to the attention of police in New South Wales, you have since 2008 served two sentences of imprisonment such that there may well have been opportunities to deal with this matter earlier and at a time more proximate to those sentences.

35An important aspect of delay raised by your counsel Mr Kennedy, is the change in sentencing regimes since your offending. The suspended sentence regime was in place as at 2008 and as such is a sentencing option available to this court. Although the prosecution concede a suspended sentence is an option available, Ms Sparrow maintained her submission that the only appropriate sentence is one that involves a head sentence and a non-parole period.

36Section 27 of the Sentencing Act as it then was provided that:[4]

[4] Section 27Sentencing Act 1991 (Vic) (as it then was).

(1)On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.

(1A)In considering whether it is desirable in the circumstances to make an order suspending a - suspended sentence of imprisonment, a court must have regard to:

(a)the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting directly from the offence, to ensure that the sentence—

(i)adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and

(ii)adequately deters the offender or other persons from committing offences of the same or a similar character; and

(iii)      reflects the gravity of the offence; and

(b)any previous suspended sentence of imprisonment imposed on the offender and whether the offender breached the order suspending that sentence; and

(c)without limiting paragraph (b), whether the offence was committed during the operational period of a suspended sentence of imprisonment; and

(d)the degree of risk of the offender committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended.

37I have also had regard to considerations of equal justice and 'current sentencing practices'. Whilst I accept that current sentencing practices are those applicable at the time of sentence, equal justice may require a court to consider historical sentencing practices so far as they can be established. To this end the Sentencing Advisory Council Sentencing Snapshot No.124 from June 2012 for aggravated burglary indicates that in 2007-08, 33 per cent of people received a wholly suspended sentence and in 2008-09, 42 per cent of people received a wholly suspended sentence. In the same period the average length of imprisonment term imposed on people sentenced for aggravated burglary was two years and four months. In quoting these figures I am mindful of the usual limitations that accompany the reliance on statistics in sentencing. And I am also mindful of the relatively recent Court of Appeal cases of Hogarth and Meyers.[5]

[5] Hogarth v The Queen [2012] VSCA 302; DPP v Meyers [2014] VSCA 314.

Plea of guilty

38A further matter in mitigation relied upon by your counsel is your plea of guilty. This was entered at committal case conference and while it may not have been the earliest opportunity, it still is an early plea of. Further the court system was spared the substantial expense and the resources of contested proceedings and most importantly the victims were spared the need of having to relive this ordeal many years later. In these circumstances, your plea has significant utilitarian value and I find you have facilitated the course of justice. I intend to allow a significant discount for your plea of guilty.

39Your plea of guilty is also indicative of a level of remorse and willingness to take responsibility for your actions.

Sentencing purposes and principles

40The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In your case as I have previously stated, given the lengthy delay in your case general deterrence should be moderated. Further, it is my view that given your recent sustained efforts towards rehabilitation and the period of time you have served in prison specific deterrence has limited relevance in the sentencing matrix.

41I consider that you have significant supports available to you in New South Wales and understand that it is your intention to return to New South Wales initially to live with your mother whilst you re-establish yourself in the community. Given your past work history and connection with the Salvation Army Employment Service I expect you will be able to find employment. In addition, I understand you have an established therapeutic relationship with a doctor and medical centre in Liverpool and it is re-connection with these services that will provide for your ongoing rehabilitation and by doing so provide protection for the community.

42I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[6] where relevant to your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offence of aggravated burglary. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentences in the circumstances of your particular case.

[6] Section 5 Sentencing Act 1991 (Vic).

43The principles of totality, proportionality and parsimony are also important considerations here. They require me to make sure the total sentence is appropriate for the total criminality. I have taken these principles into account in fixing the individual sentences and the structure of the sentence I will now impose.

44In my view the only appropriate sentence in your case is a term of imprisonment. However, given the delay in your case it is my view that the court can appropriately punish, denounce and deter both yourself and others by the imposition of a partially suspended sentence. In this regard I have taken into account that you have been sentenced to three suspended sentences in New South Wales without breach. As such I consider this fact in combination with your efforts towards rehabilitation both in the last seven years in the community and whilst in custody here in Victoria, limit the degree of risk that you will commit another offence during the operational period of the sentence I propose to suspend.

45So Mr Grant ordinarily I would ask you to stand but please remain seated because otherwise we will not see you. So in relation to both charges before the court you are convicted. On Charge 1 of aggravated burglary you are sentenced to be imprisoned for a period of two years and nine months. This is the base sentence. On Charge 2 of possessing an unregistered Category A longarm you are sentenced to be imprisoned for a period of six months. I order that three months of the sentence on Charge 2 be served cumulatively. Therefore, the total effective sentence is one of three years. I order that you serve 11 months immediate imprisonment and the balance of two years and one month will be suspended for two years. This means if you commit and offence punishable by imprisonment in Victoria in the next two years you will be required to show exceptional circumstances to avoid returning to prison to serve out the entire sentence.

46I declare that you have served 295 days by way of pre-sentence detention and this is to be deducted from your sentence.

47Pursuant to s6AAA of the Sentencing Act if you had not pleaded guilty but been found guilty after trial the sentence I would have imposed would have been three years and six months with a non-parole period of 23 months.[7]

[7] Section 6AAA Sentencing Act 1991 (Vic).

48Mr Grant, the net effect of this sentence  will be you've got about a month to serve and then you'll be right to be released and you'll be released on a suspended sentence. I've got no control over where you stay and there's nothing keeping you in Victoria so you'd be free to go back to New South Wales and I'm pretty confident that, and I'm not encouraging any offending but I'm pretty confident if you committed an offence in New South Wales then you're out of the jurisdiction but were you to stay in Victoria and commit an offence that's when you can potentially be in breach of this suspended sentence.

49OFFENDER:  Okay then.

50HER HONOUR:  Yes if that happens then you'd be brought back to court and as I say you'd have to satisfy exceptional circumstances that have arisen since today's date so you couldn't rely on anything that's been said today, it would have to be something that's arisen. 

51OFFENDER:  Yep.

52HER HONOUR:  I'm pretty confident though that neither the New South Wales or the Victorian courts will see you given the fact that you seem to have turned the corner and been out of trouble for around  seven years.

53OFFENDER:  Yep.

54HER HONOUR:  It's a significant period of time.

55OFFENDER:  Yep.

56HER HONOUR:  And it seems that you had really put that behind you and then coming back into custody must have been pretty difficult given where you were at.

57OFFENDER:  Oh yeah.

58HER HONOUR:  So I've taken that into account.

59OFFENDER:  Thank you.

60HER HONOUR:  Thank you very much counsel, thank you, Mr Kennedy and Ms Sparrow. We'll adjourn.

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