Director of Public Prosecutions v Grant
[2021] VCC 1813
•16 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02445
CR-21-00745
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COREY GRANT |
---
JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2021 | |
DATE OF SENTENCE: | 16 November 2021 | |
CASE MAY BE CITED AS: | DPP v Grant | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1813 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Intentionally cause injury; Serious example of offence; Prohibited person using firearm; Factual and elemental overlap; Prohibited person possess firearm; Handling stolen goods; Related summary offences; General and specific deterrence; Denunciation; Protection of the community; Some prospects for rehabilitation. Plea of guilty resulting in substantial reduction in sentence.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 4 years and 9 months imprisonment; Non-parole period of 2 years and 9 months; Fines of $1,400.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Piggott | Office of Public Prosecutions |
| For the Accused | Mr J. Desmond | Rainer Martini and Associates |
HIS HONOUR:
Introduction
1Corey James Grant, on 3 August 2021 you pleaded guilty to the following four charges on Indictment No. K10533616.1:
· that on 24 February 2019, you intentionally caused injury to Alan James Giffen without lawful excuse (Charge 1);
· that on 24 February 2019, being a prohibited person, you used a firearm (Charge 2);
· that on 25 February 2019, being a prohibited person, you possessed a firearm (Charge 3); and
· that on 25 February 2019, you dishonestly undertook the retention of stolen goods, namely personal documents belonging to Murtaza Faiazy (Charge 4).
2On 9 November 2021, your plea in mitigation came on for hearing, at which time you pleaded guilty to the following four additional related summary offences:
· that on 25 February 2019 you possessed cartridge ammunition without a license or permit (Summary Charge 6);
· that on 25 February 2019 you possessed a prohibited weapon namely a set of nunchakus (Summary Charge 7);
· that on 25 February 2019 you possessed a prohibited weapon namely a double headed axe (Summary Charge 8) and;
· that on 25 February 2019 you possessed a controlled weapon namely a baton (Summary Charge 9).
3Ms Piggott, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered and read to the court a Summary of Prosecution Opening dated 29 October 2021 (Exhibit A). Mr Desmond, who appeared on your behalf, accepted that the summary was accurate and could form the factual basis for sentence. The following description of your offending is largely based on that summary.
Circumstances of offending
4
In February 2019, you were living in Mooroolbark with your
15-year-old daughter and your then partner. The victim, Alan Giffin, lived nearby where he rented a room from the son of the owner of those premises, Jay Gidley.
5On 22 February 2019, you sent a text message to Mr Gidley in the following terms:
“That Scotsman has 110 minutes to explain to me where my fucking money is before I come up there shooting”.
6The reference to “Scotsman” was a reference to the victim. Mr Gidley replied, “Yeh Alan said come up”.
7At about 8.10 pm on the evening of 24 February 2019, the victim left his home on his motorbike. CCTV footage shows you standing in the street as the victim rode past, attempting to flag him down. At the time you had a .22 calibre firearm concealed behind your back.
8Soon afterwards, you walked to the victim’s house. You first came across Mr Gidley, who was sitting in the lounge room with his dogs. When they barked you said, “Get your dogs out or I’m going to hurt them”. Mr Gidley got up and took the dogs outside, telling you that he did not want any trouble.
9Around this time, a witness, a neighbour, was standing outside her home having a cigarette. She heard two male voices arguing but could not make out what was being said, other than that she heard swearing. She was outside for three to five minutes and the arguing continued during that time.
10Mr Gidley, who had remained outside, heard a loud bang or smash. He then heard a man yell in pain. He ran inside to find the victim on the floor near the TV in the lounge room. He had been shot in the leg.
11The prosecution contend, and you accept, that you attended the victim’s residence, argued with him and shot him in the leg. That conduct constitutes Charge 1: intentionally causing injury, and Charge 2: being a prohibited person using a firearm.
12At 8.21pm that evening, your daughter used your mobile phone to send a text message to your then partner in the following terms:
“Dad just shot the Scotsman and we need to get out of here”.
13Shortly afterwards, you contacted a friend requesting that he pick you up and help book a hotel room for you. CCTV footage shows you leaving the area by jumping over the back fence.
14Thereafter you sent a number of text messages to your partner, telling her, amongst other things, that you were in hiding and that you had “shot the Scottish cunt”. You checked into a motel in Ferntree Gully. You also sent numerous text messages to friends regarding the incident and switched your phone to aeroplane mode intermittently in an attempt to avoid detection by the police.
15On 25 February 2019, a warrant was executed on your premises. Amongst other items, police located a pen pistol (Charge 3: prohibited person possess firearm), cartridge ammunition (Related Summary Offence Charge 6), a set of nunchakus (Related Summary Offence Charge 7), a double headed axe (Related Summary Offence Charge 8) and a black baton (Related Summary Offence Charge 9).
16Also located at your house were some personal documents in the name of Murtaza Faiazy. Those items had been stolen from a motor vehicle in mid-2018 (Charge 4: handle stolen goods).
17On 26 February 2019 you contacted your mother requesting some money from her to buy food. In one message to her you stated:
“thank you… we are safe but I’m fucked I’m gonna be doing 5 years easy for this… Google Mooroolbark firearms incident… I’ll try to keep you updated as possible… I’ve ditched my phone obviously…”.
18On 27 February 2019 you were arrested shortly after you left the Ferntree Gully motel in the company of your partner. When interviewed that day you gave an exculpatory account in which you asserted that you had gone to Mr Gidley’s house in order to see him about some money that he owed you. You alleged that Mr Gidley had produced a firearm which went off in the ensuing struggle injuring Mr Giffen.
19On the night of the shooting, police went to the emergency department of the hospital to which the victim had been taken in order to speak with him about what happened. He was reluctant to cooperate and did not disclose the identity of the shooter.
20Medical records confirmed a 1cm x 1cm entry wound lateral to the victim’s patella. An x-ray to his right knee confirmed a bullet had lodged within the knee. The bullet was removed during an arthroscopy carried out the following day. The victim was otherwise treated with dressings, intravenous antibiotics and immobilisation. He was discharged two days after his operation with a splint, gait aid and antibiotics for two weeks.
21The victim was reviewed after three months. He had healed well from the injury with some residual pain on kneeling.
22I was told that the victim had been provided with an opportunity to provide a victim impact statement but had declined to do so.
Procedural history and plea of guilty
23It is now two years and eight and a half months since you were charged with these offences. The delay in resolving this matter is, to say the least, unfortunate. As I understand it, despite what was said in your police interview, you indicated through your legal representatives that you were prepared to accept responsibility for shooting the complainant in the leg, however you were also charged with aggravated burglary which you denied.
24Throughout the committal process in 2019 there appears to have been a number of delays caused by the lack of cooperation of the victim. Thereafter, your trial listing was vacated due to the pandemic. Eventually, the matter came before me in July 2021 for case conference. Once the prosecution indicated a preparedness not to proceed with the aggravated burglary charge, you readily pleaded guilty to these charges.
25Two points might be made about that procedural history:
· First, for reasons which I will explain below, your pleas of guilty will result in a substantial reduction in the sentence that would otherwise have been imposed.
· Second, your time in custody throughout those delays has coincided with the entirety of the pandemic. The resultant loss of personal visits, access to programs, the restrictive prison regime, and stress caused by the lack of control over exposure to COVID-19 in the prison environment must be taken into account in your favour.
Personal history
26You were born in September 1983 and are now 38 years of age. You were 35 when you committed these offences.
27You grew up in Brisbane, where you were raised by your mother to whom you remain close. As a young child you did not know your father. Your mother ceased that relationship and re-partnered, having four further children who became your half-siblings. You describe yourself as being something of a “handful” as a child and struggling to settle at school. In that context, you were sent to live with your father at the age of 13. That was a negative experience because he was apparently a bikie who did not exercise any discipline over you and did not care what happened to you. You had very little in the way of secondary schooling, though you are literate.
28It seems that substance abuse has always been an issue for you. You were introduced to cannabis at the age of the age of 11. When you went to live with your father you were introduced to amphetamines, which you came to use regularly. Ultimately, in your mid to late 20s, you progressed to the use of methamphetamines in the context of working long hours as a DJ. Your addiction to that drug provides the setting within which you acquired much of your previous criminal history and in which these offences occur.
29When you were 18 or so you decided to move to Melbourne. Not long after doing so, you formed a relationship with a woman who was two years younger than you. The relationship lasted almost 10 years, until the end of 2012. There were five children of that relationship, now aged between 9 and 17 years of age. Your partner was not a drug user and the relationship finally broke down in the wake of your continued drug abuse. You had regular contact with your children in the first 18 months after the separation but that ceased in the wake of your continued drug problems.
30Although you only completed part of a spray-painting apprenticeship, you have over the years worked in that capacity in addition to working as a DJ at nightclubs.
31Your criminal history is somewhat more limited than your personal history might suggest. In the period 2005–2008 you committed a number of dishonesty, damage and summary assault offences, some of which attracted short terms of imprisonment. There is then a gap until you were sentenced to 10 months' imprisonment and to undertake a two year community correction order for aggravated burglary and assault in 2016.
32It appears, with respect to this offending, that you were heavily addicted to methamphetamine and in that setting became paranoid and fearful. You installed cameras around your house and collected the weapons the subject of these charges. Over some time, you developed animosity towards the complainant and when in a drug-affected state determined to confront him.
33How Mr Giffen was shot, however, remains unclear. You told your assessing psychologist Mr Simmons that you should not have used a weapon and believe that you would not have done so if you had not been drug-affected. In explaining your offending to Mr Simmons, he formed the view that you were not attempting to justify your actions and that you appear to have shown some appreciation of the way in which substance abuse has impacted your relationships and your life more generally.
34Mr Simmons did not suggest that you suffered from any specific psychological disorder, however he noted that your childhood experiences left you vulnerable to substance abuse in later life. He also noted your ongoing difficulties with anxiety and suggested psychiatric review or a referral to a psychologist to assist with cognitive behavioural strategies. He concluded his report in the following terms:
“Mr Grant has some motivation to make changes in his life, particularly as he is about to become a grandfather. There is a history of employment over the years and should he be able to reengage in further work, then there is no doubt that Mr Grant has prospects for rehabilitation.”[1]
[1] Psychological report of Warren Simmons dated 5 November 2021, p 6, para [32].
Defence submissions
35Mr Desmond submitted that I should impose a sentence with a lower non-parole period to reflect the particular matters of mitigation in your circumstances. They included:
· your guilty plea;
· the pandemic discount;
· your disadvantaged background, particularly insofar as it normalised drug abuse;
· your relatively limited criminal history in light of your upbringing;
· the insight that you appear to have shown in respect of your offending and the fact that you have prospects for rehabilitation;
· the principle of parsimony;[2]
· the fact that you have already served 987 days in custody, much of which was under the restrictive conditions imposed as a result of the pandemic; and
· the principle of totality.
[2] Section 5(3) of the Sentencing Act 1991 stipulates that a court must not impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentences imposed – here the principle refers to the obligation to impose the shortest term of imprisonment consistent with the achievement of the relevant sentencing purposes.
Prosecution submissions
36Ms Piggott submitted that this was a distressing and brazen offence, committed in a quiet suburban area, which was likely to have caused great fear and disquiet. The text message sent to Mr Gidley on 22 February 2019 to the effect that you wanted your money from the victim or else you would come up there shooting, suggests a degree of premeditation as to what followed on 25 February.
37It was submitted that although it is not known what precisely occurred inside the house leading to the shooting, on any view this was an example of the offence of intentionally causing injury which should be placed at the higher end of the spectrum of seriousness for that offence. The sentence imposed therefore needed to emphasise general deterrence, and having regard to some of your prior convictions, specific deterrence.
Analysis
38The use of a firearm to internationally inflict injury is an inherently cruel and serious criminal act that must be punished as such. Whilst it is fortunate that the victim appears to have recovered, that should not obscure the fact that you must have caused him great pain and suffering.
39I accept Ms Piggott’s submission to the effect that this was not an offence which should be seen as simply isolated to the injury caused to the complainant. It is the kind of criminality which is calculated to spread fear and disquiet in our community and make all of us feel less safe. It is indeed a serious example of this offence.
40The fact that you were in the grip of an uncontrolled addiction to methamphetamine provides no excuse or justification for what you did. On the contrary, it heightens the need to ensure that the community is protected from you.
41That said, it may be that in the last two years and eight months whilst you have been in custody you have, as Mr Simmons suggested, developed some insight into the way in which your substance abuse has wrecked your life and, in many respects, the lives of those close to you. I accept that you were socialised to drug abuse during your formative years by your father and that overcoming the long-term effects of that upbringing can be no easy task.
42However, I am prepared to act on Mr Simmons’ view that you have prospects for rehabilitation and that your time in custody, which is the longest period by far, may have had a salutary effect. As I mentioned earlier it is no small matter that your incarceration spanned the entirety of the pandemic with all of the additional stress and restrictions that entailed.
43In addition, I take some comfort from your plea of guilty. As I see it, there are a number of components to that plea which, taken together, merit substantial mitigation. They are:
· First, you indicated well before your formal pleas of guilty a preparedness to accept responsibility for the gravamen of your offending.
· Second, the pleas were made in the face of a prosecution case which was to some extent dependent on uncooperative witnesses.
· Third, it is possible, in my view, to discern some remorse through your plea when taken in combination with the stance you took in seeking to resolve the matter and the comments you have made to others, particularly your assessing psychologist, which showed some insight and did not attempt to justify your actions.
· Fourth, your plea has facilitated the course of justice and resulted in a significant saving of court time and public expense.
· Fifth, the utilitarian benefit flowing from your pleas of guilty is enhanced by the fact that those pleas were made during a time in which the resources of the court are in great demand in dealing with the backlogs created by the pandemic. For that reason, “A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time”.[3] That will be so in your case.
[3] Worboyes v The Queen [2021] VSCA 169.
44Whilst it is necessary to impose a term of imprisonment that emphasises the sentencing purposes of denunciation, just punishment, general deterrence and, to some lesser extent, specific deterrence, I accept Mr Desmond’s submission that it is also appropriate to give some weight to encouraging your rehabilitation by providing the opportunity for you to be released in the relatively near future, subject to parole supervision over a reasonably lengthy period. Such supervision, it seems to me, will offer some measure of protection for the community.
45Finally, I note that there is some factual and elemental overlap between Charges 1 and 2. In order to ensure that you not be doubly punished, the extent to which the sentences imposed on those charges should be served cumulatively must be limited.
Sentence
46Taking all relevant matters into account you will be sentenced as follows, Mr Grant:
· On Charge 1, causing injury intentionally, you will be convicted and sentenced to four years' imprisonment.
· On Charge 2, being a prohibited person used a firearm, you will be convicted and sentenced to 18 months' imprisonment.
· On Charge 3, being a prohibited person possessed a firearm, you will be convicted and sentenced to five months' imprisonment.
· On Charge 4, handling stolen goods, you will be convicted and sentenced to two months' imprisonment.
47On Summary Charge 6 you will be convicted and fined $200.
48On Summary Charge 7 you will be convicted and fined $400.
49On Summary Charge 8 you will be convicted and fined $500.
50On Summary Charge 9 you will be convicted and fined $300, rendering a total of $1,400 in fines with respect to the related summary offences.
51I will order that six months of the sentence imposed on Charge 2, two months of the sentence imposed on Charge 3, and one month of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 1, rendering a total effective sentence of four years and nine months' imprisonment. I will fix a non-parole period of two years and nine months.
52I will declare pursuant to s 18 of the Sentencing Act 1991 that you have already served 987 days imprisonment by way of pre-sentence detention, and I will cause that declaration to be noted in the records of the court.
53I will further order, pursuant to s 6AAA of the Sentencing Act 1991, that but for your pleas of guilty, you would have been sentenced to a total effective sentence of six years and three months' imprisonment with a non-parole period of four years and three months' imprisonment.
54I will make the orders for forfeiture and for disposal as sought by the prosecution and as agreed by the defence.
- - -
0