Director of Public Prosecutions v Grant

[2019] VCC 253

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

AT MILDURA
CRIMINAL JURISDICTION

CR 18-02335

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB GRANT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	7 March 2019
DATE OF SENTENCE:	7 March 2019
CASE MAY BE CITED AS:	DPP v Grant
MEDIUM NEUTRAL CITATION:	[2019] VCC 253

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr L. Barker	Dowsley & Associates

HIS HONOUR: 

1Jacob Grant, you have pleaded guilty to one charge of recklessly causing serious injury and one charge of recklessly causing injury.  Those crimes carry maximum penalties of 15 years and five years respectively. 

2You are now 22 years of age and you were 20 years of age at the time of the offending.  You pleaded guilty at the earliest reasonable opportunity and you must get the utilitarian benefit of that plea.  I accept from the material before me that you are indeed remorseful and on one view of it totally ashamed of yourself.  All those factors play a part in this sentencing process.  You have no prior convictions or findings of guilt, which is of real significance. 

3Also in this situation there has been a delay between the commission of the offence and coming on for your plea.  There is a number of reasons for that, including that there was a causation argument that had to be argued out in various places over an extended period of time.  I can well understand the Crown not being prepared to accept a lower offer until such time as the manslaughter, which I will deal with in a moment, question was taken out of the equation.  But in any event there is a significant delay and for one so young that is important.  I am well aware of the authorities on that and I take them into account.

4The circumstances of the offending are concerning indeed.  You and the co-accused assaulted two elderly men in the front yard of their house here in Mildura in the early hours of the morning.  I point out from the outset that your co-accused is being assessed for a community corrections order.  He has done the same amount of gaol as you have.  He has an intellectual disability and there may be other factors involved in his sentencing.  He will not be sentenced for a couple of months.

5But in any event Graham Barnes was 77 years old and he was non-verbal because of a stroke he had suffered some months earlier.   After this assault that I am about to describe he was hospitalised for a period of approximately six weeks.  He died in hospital, but it is not said that the assault caused that death, certainly not in the legal sense and I certainly do not sentence on that basis. 

6What I do sentence on the basis of is, though, that an elderly man who was essentially minding his own business when two young hoons decided to come to his house spent his remaining days alive in a hospital.  I think that is very sad indeed and has to be taken into account in this process.

7But in any event on the afternoon of Saturday, 30 September you met your co-accused for the first time in the plaza here in Mildura while shopping for clothes.  You became friends and agreed to go to a party together that night.  You had purchased a significant amount of alcohol.  At approximately 7 o'clock the two of you met on The Boulevard and San Mateo Avenue in Mildura before going to the address of the party.  Alcohol was being consumed throughout this period of time.

8Shortly before midnight you were dropped off in the CBD area where you took bottles of Corona with you and then were going to go, as I understand it, to local nightclubs.  At approximately quarter to one on the morning of 1 October the two of you went in search of somewhere to buy cigarettes.  You left the CBD area and walked east along Seventh Street.  There is CCTV footage of you and your walkings about during the course of that night and I do not propose to refer to any of that.  It is common ground what occurred.

9At around about 1 o'clock the pair of you arrived in front of the Caltex petrol station in Seventh Street.  It was closed.  The two of you then walk off and head towards the victim's address at 94 Seventh Street.  Upon arrival at that address your co-accused begins to kick the side of the tin fence, kicking it several times.  The pair of you then move to the front of the house.  Whilst at the front of the house your co-accused, who would appear to have for some reason known of or known the victim, began damaging the victim's letter box on the frontline of the property.

10Mr Barnes heard the noise, got out of bed and went outside to investigate.  He attempted to move the two of you on.  In one of your interviews he is described there as using hand gestures to try and get you to move and that is clearly because he did not have the power of speech.  But in any event he sprayed you both with the garden hose, or at least you, in an attempt to get you to stop harassing him and damaging his property. 

11I am not going to go into the nitty-gritties of who did what to who at what stage.  Each of you is equally responsible for what occurred over the next few minutes and it does not really matter who threw what punch at who.  You were both doing it together.

12The Crown opening, which was agreed to, says that the two of you jumped the front fence, ran towards him and you assaulted him by punching him to his face and head area.  Your co-accused was standing over him as you were assaulting him.  His brother, who was 81 years of age, heard the noise and came outside to investigate.  He saw his brother Graham lying on the ground being assaulted.  He could see that he was not fighting back in any way. 

13Brian Barnes had tried to assist is brother but was prevented from doing so when your co-accused punched him to the face, causing him to fall into a bush.  That gives rise to the charges of recklessly causing serious injury to Graham Barnes and recklessly causing injury to Brian Barnes.  Obviously insofar as that matter is concerned it does not matter which of you threw the punch, you are complicit

14At some stage a glass Corona bottle was smashed against the front wall of the house, where it was found by police.  I note with some interest that the two of you, when speaking to police, claimed that injuries had been caused by a bottle being smashed in a laneway.  In any event Mr Graham Barnes was bleeding from his facial injuries; his brother retrieved a blanket and towel from inside the house before attempting to alert passing motorists of the assault and the need for medical assistance.

15Police saw the pair of you in the street later on and at some point following the assault the pair of you arrived at Subway where you used the toilets to wash the blood from your injuries.  You apparently obtained Band-Aids from the Subway staff.

16Brian Barnes was able to alert a passing motorist, police and ambulance were notified to attend, and they were both taken to hospital. A crime scene was established.  Cigarette lighters and black-framed sunglasses, which turned out to be yours, were found.  The pair of you were located outside a kebab shop in Langtree Avenue later that morning.  You were both arrested.  Clothing was seized.  There appeared to be blood on it.  Each of you appeared to have wounds and we do not need to go into the detail of that.

17Graham Barnes suffered the following injuries of a full type III fracture of the right side of the face, depressed fracture of the orbital floor bilaterally - that is a fracture to both eye sockets - displaced comminuted fracture of the nasal bones and bony septum - that is a broken nose - displaced fracture of the outer table and septa of the frontal sinus - that is a skull fracture which extends into the sinus - an injury to the left forehead and a swelling or abrasion to the back of the head.

18The forensic medical opinion is that it was caused by at least three impacts to the front of the face, the back of the head and the right side of the head and that one punch was a very unlikely mechanism to cause the injuries.  I sentence on the basis that one punch is simply not what did this, it was a number of punches, it was a concerted attack on an elderly man and a further attack, though not as concerted, on his even older brother when he came to try and help him.

19Mr Brian Barnes received facial bruising and swelling to his eyes, nose and cheek area and was later released from the Mildura Base Hospital.

20Each of you were interviewed a couple of times and came up with different versions.  I suspect that your memories of all this are pretty limited, but in the event each of you agreed that you were there, that the assaults took place, even though there seemed to be a passing of the buck between you, which is not uncommon in situations such as this.  I note that you were 20 and your co-accused was 18.

21So far as the investigation is concerned, there is CCTV footage of all sorts of matters.  I do not think that plays any part in this.  Each of you ultimately has pleaded guilty and have been endeavouring to settle the matter, and I take that into account, for quite some period of time. 

22It is a pretty disgraceful set of circumstances:  two elderly men minding their own business were attacked in their own property by two young, drunken hoons.  Elderly people are often afraid of living by themselves or even living jointly for a fear of this sort of thing, their inability to defend themselves, inability to protect themselves, if I can put it that way, in the case of something like this happening.  It is a fear that is common and you realised it for each of these men.

23The circumstances are that, as I indicated, not because of this attack, I accept that totally, but because of the incident and what occurred Mr Brian Barnes has had to leave the house where he has lived since he was a small boy, or born there I think he said.  I have read the victim impact statements two of the deceased man - as he is now, brothers and his daughter.  They bring home clearly the sense of fear, the anger, the disbelief that two young men could do this to two vulnerable and essentially defenceless older men.

24The offending is obviously serious.  A gaol sentence is the only option at this stage.  I note clearly that so far as delay was concerned that had you been able to enter pleas back well within a short time of this occurring each of you would have then been eligible for youth justice.  Youth justice obviously these days you can get four years for, so it was open to be there.  Youth justice would have been a far better option in terms of trying to rehabilitate particularly you, who had no prior convictions, and I take into account that that opportunity has been lost.

25Matters personal have been put on your behalf.  Firstly, you have been in custody since the incident, or since your arrest shortly after the incident.  You have now been in custody for some 523 days.  That is a significant period of time indeed for one as young as you.  During that period of time you have had 52 days in solitary at Fulham and you had to live with the fear of being a prisoner, which every prisoner obviously has to go through.  You are not a particularly robust-looking individual.  I would imagine that fear in gaol for you is a real one indeed.

26The submissions that were put on your behalf are that you had a relatively difficult childhood.  You only met your biological father once and he left when you were less than 12 months old.  Your mother formed a new relationship with a man which was tumultuous.  It was characterised by domestic violence and continuing arguing.  Your stepfather belted you, you had black eyes and stuff, and you told your solicitors that you told your mother and she would say he would not do that.  You were raised with them till you were about three or four years of age, at which stage they separated for the first time and then there was a reconciliation.

27You attended a number of primary schools, which is often a significant factor in this sort of offending.  At the end of Grade 6 you were diagnosed with having ADHD and you were prescribed Ritalin.  You continued to take that until you were about eight years of age.  You completed Year 7, did part of Year 8 at Mt Clear College when you had been sent back to your mother.  You were then sent back to your stepfather, where you completed Year 8 at Scoresby College.  You went back to your mother, you completed Year 9 and did not return to school again.

28You apparently were a relatively good student and that is to your credit, considering the dislocation, as your counsel says, of your education and the repeated shuffling of you between mother and stepfather.  This all to a young boy with ADHD I can only describe as unsettling indeed.  In any event, after leaving school you worked as a butcher and then you moved back to Ballarat with your mother.  You had psychiatric help at one stage with high anxiety and you had also had issues with alcohol.

29Not long before the current offending you had a bust-up with a girlfriend, which had been the catalyst for a period of binge drinking, and you had been drinking beer and Bourbon.  Working backwards, when you were 16 in 2013 your mother and stepfather had restarted their relationship and basically told you they were going to Mt Gambier and you could not come with them.  At that point in time you began living with the family of a primary school friend.  The father of that family has offered to give you work upon your ultimate release and that is a comforting factor.

30For about a year or so, though, around 2017, you were couch surfing between friends' houses.  You were able to work at McDonald's for a while, you worked at a hardware store and worked as a removalist jockey.  You have clearly got the ability to work and have endeavoured to do so.  You were visiting the family in Mt Gambier in early 2017, it says here, and had a conversation with your older sister, who told you of a job opportunity in Mildura doing painting and plastering and the like.  You came to Mildura basically knowing no one, and this is where you got yourself into this very serious problem.

31Whilst you have been in gaol to your credit you have done multiple rehab certificate programs.  I do not need to list all those, they are on file, and you held the position of a horticulture billet at the MRC.  You worked in the kitchen and you have done woodworking.  You have not sat there with your head down as so often happens, you have endeavoured to better yourself.  I have already indicated that you were in the rather terrifying situation of getting threats from another prisoner and being put in the, as described, slot at Fulham for 52 days.

32You were being seen by Mr McKinnon, a very respected forensic psychologist in this area, and he has given opinions about you.  He thinks you have a chronic generalised anxiety disorder.  He takes the view that your life has been to a large extent affected by synthetic cannabis and you are not the first young man we have had in the last week or so that has been on the receiving end of that substance.  You have said that you definitely will not go back to gaol, you will not drink at all when you get out, you just want to work and pursue your relationship with your former girlfriend. 

33McKinnon also says a significant term of imprisonment on you would be likely to - you would be likely to psychologically deteriorate.  I take that into account.  He points out that you were very psychologically distressed in your placement of isolation at Fulham.  He pointed out you are a not a particularly aggressive or violent character and that you were at risk in gaol.  I take all those matters into account and they are really why I would have wanted to put you in a YJC in the first place, but the fact of the matter is you have now been in adult prison for 523 days and I could not put you in YJC.

34They are the major matters that your counsel relied upon. I am well aware of the authorities in regard to young offenders and you are still indeed a young offender.  Cases such as Tomguenen and Tocava all refer to the fact of endeavouring to rehabilitate young offenders which rebounds very much for the community, not just the person involved.  I have to balance your youth and the prospects of your rehabilitation, which I think are good, against the seriousness of what you have done.

35With your background I am somewhat surprised that you have no criminal history, and that is very much to your credit.  But in these circumstances all those positive factors have to be balanced against what can only be described as a very, very ugly attack on two elderly men who were just simply minding their own business. 

36Accordingly on the charge of recklessly causing serious injury you are sentenced to be imprisoned for a period of three years.  On the charge of recklessly causing injury, nine months.  Three months of the nine months to be served cumulatively on the three years, which gives you an effective head sentence of three years and three months.  Because of your youth, because of the way you have endeavoured to rehabilitate yourself in gaol and because of your prospects, I am giving you an opportunity for parole that will come significantly earlier than would have been given had you been an older person or had you had a criminal history.

37Accordingly I direct that you serve a period of 21 months before becoming eligible for parole.  I direct that 523 days be reckoned as having been served under this sentence pursuant to s.6AAA.  Just so that you completely understand, had you pleaded not guilty and fought this out and been convicted by a jury I would have given you five with a three. 

38All right, are there any other orders I need to make?

39MR BARKER:  Disposal order, Your Honour.

40HIS HONOUR:  I've made that, yes.  Nothing else?

41MR BARKER:  Nothing else.

42HIS HONOUR:  All right, yes, you can take him now.  Thank you.

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