Director of Public Prosecutions v Grasserbauer

[2019] VCC 1344

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02582

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN GRASSERBAUER

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May & 20 August 2019
DATE OF SENTENCE:	21 August 2019
CASE MAY BE CITED AS:	DPP v Grasserbauer
MEDIUM NEUTRAL CITATION:	[2019] VCC 1344

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Arson – Burglary – Pleas of guilty – Offender with intellectual disability & acquired brain injury
Legislation Cited:	Crimes Act 1958; Sentencing Act 1991
Cases Cited:	R v Verdins & Ors (2007) 16 VR 269; R v Mazur [2000] VSCA 111; Boulton v R (2014) 46 VR 308
Sentence:	Convicted and sentenced to 490 days imprisonment and a community correction order for a period of three years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Office of Public Prosecutions
For the Accused	Ms J. McGarvie	Stary Norton Halphen

HIS HONOUR: 

1In this matter, Mr Grasserbauer who I think, if my maths is correct is now 53, was born on the 26th day of June 1966 and is a disability pensioner.  In both hearings before me, Mr Raimondo has represented the Director and
Ms McGarvie, Mr Grasserbauer. Mr Grasserbauer pleaded guilty on the 8th day of May 2019 to two charges on indictment J11885350. Firstly a charge of burglary under s.76, that burglary being committed upon the premises of his brother Michael's place at Connewarra Avenue, Aspendale on the 18th day of July 2018.

2Burglary, being an offence against s.76 of the Crimes Act, is a serious offence as demonstrated by the fact that Parliament has prescribed a maximum penalty of 10 years' gaol. The second charge on the indictment was one of arson. Such was committed the same day at the same premises, and is an offence under s.197(1) and 197(6) of the Crimes Act. Such is an even more serious offence as demonstrated by the fact that the maximum penalty prescribed is 15 years gaol. 

3Exhibit A was the prosecution summary, dated 8 May 2019. It was accepted by Ms McGarvie that the facts which were set out in Exhibit A, were the facts upon which I am to sentence her client.  Shortly, these crimes occurred post a psychiatric admission of Mr Grasserbauer.  For some reason he decided there was an issue with his brother.  On the morning of these crimes, the police were at his premises when he expressed concern about his brother's role.  This was at 7.41 am.  Subsequently at approximately 8.30 am he phoned 000 and expressed a similar complaint, but there was no further police attendance.

4Thereafter between the time police then attended the home and 8.30 am, Mr Grasserbauer must have attended the premises.  His attendance there was altered to the police by a social worker, but unfortunately by the time the police got there, it was far too late.  The house had been engulfed in flames.  He was at the scene.  He admitted his guilt.  The house was, to use a well known phrase, a total write-off.  Fortunately it was insured for the cost of replacement, as I understand to be the figure, $276,000.

5His brother Michael whose house it was, and who has been a great supporter of his brother John, was too upset apparently to do a victim impact statement.  Subsequently, the prisoner, has had to contemplate the impact on his life of his brother now not being a supporter.  I am told that Mr Grasserbauer has been particularly remorseful about that, and in regard to what he has done to his brother.  I think it is now agreed that he served, by way of pre-sentence detention, 304 days, is that correct?

6MR RAIMONDO:  It is 400 now, Your Honour.  It was three, ninety ‑ ‑ ‑

7HIS HONOUR:  Sorry, 399.  I apologise.

8MR RAIMONDO:  ‑ ‑ ‑ yesterday, so it is 400 today.

9HIS HONOUR:  399 when we last spoke.  It is 400.  I am sorry this was drafted at the wrong time.  The learned prosecution sought an order under s.464ZF which is a forensic order and I intend to make that order.  Mr Grasserbauer your counsel explained to you what that order means.  It means that you have got to give a forensic sample that will be requested in gaol.  If you do not give it, you can be brought back before this Court, so I would ask you to give that.  I have also been asked to sign a disposal order and forfeiture order, both of which I think arrived today and I will sign those.

10The only prior offence that Mr Grasserbauer has, while not a related offence, is a serious offence, rape. He was convicted for that on 1 April 2016, when His Honour Judge Smallwood pronounced reasons for sentence. 

11In regard to his background, despite the particular difficulties he has had in his life, which I will refer to later, it is remarkable that his priors sheet is so limited.  However, when one reads the judgment of Judge Smallwood, the circumstances that related to the rape were, it seems to me, quite marked and unique.  Equally in this case, it seems to me that the circumstances are very particular to Mr Grasserbauer and what was happening in his mind at the time, being some thwarted feeling that his brother had let him down and done the wrong thing in regard to him being placed in a psychiatric institution.

12But there it is, he does have a prior for rape.  He was given at that time a community correction order for four years.  I have a lot of respect for the legal intelligence of Judge Smallwood.  I have read his decision closely.  It is a very humane judgment if I may say so. I was impacted particularly by [29] of such judgment, which I will refer to. The Judge referred to the principles of Verdins, as in this case it is clear there is no suggestion that Mr Grasserbauer did not know what he was doing was wrong.  However, His Honour went on to say this:

'However, I consider that a person who has the difficulties that you have had over your life as I have already outlined in brief form, would have difficulty in terms of equating their conduct at a given time, and accordingly their moral culpability can be moderated to a limited extent'. 

13His Honour went on to say, and I stress, at [31], the following:

'Clearly in your circumstances, gaol would be a dreadful experience for you'.

14And clearly given what I have read, that has proved to be true from the time that you have been in gaol, and indeed by way of total misapprehension or not, the circumstances recounted to the Court yesterday show the truth of His Honour's statements.  His Honour went on to say:

'…and if you were imprisoned, I think you would be continually on suicide watch, and I think that would be an act of cruelty, to put it quite bluntly'.

15I must say those words have impacted upon me. Mr Raimondo, as always, was of particular assistance to the Court.  He put to the Court the Crown position initially, and confirmed yesterday, that it was within range to pass a combined period of gaol and a community correction order.  Because of the nature of the crime of course, there is no restrictions on the period of imprisonment, and I will not go into the judicial authority in regard to that.

16I should however say, of course, as indicated by the sentences imposed by Parliament, both of these crimes are objectively very serious, and equally so on the factual scenario in the indictment.  In The Queen v Mazur [2000] VSCA 111, a general proposition was proposed by a very strong Court of Winneke P and members of the then Court of Criminal Appeal, Brooking and Chernov JJ, that immediate imprisonment is appropriate for arson.

17However, given the process of sentencing and the structure of sentencing that this Court must go through, despite an analysis of the objective seriousness of this matter, one has to take into account the subjective factors relevant to an offender, they are of some consequence in this case. 

18In the plea, Ms McGarvie tendered written submission, Exhibit 1 and talked to those submissions. As she summarised, Mr Grasserbauer has longstanding complex mental issues.  He has an intellectual disability and acquired brain injury.  Those matters have been exacerbated by severe alcoholism, or alcohol abuse disorder, and throughout his life he has also suffered from, as a result of these conditions, suicidal ideation.  Ms McGarvie tendered Exhibit 2 from Monash Health centre which confirmed that, and a psychological report from Ms Amos, Exhibit 4.  That report showed, in particular at p.928, that his intelligence quotient is between 57 and 65.

19In addition was tendered the neuropsychological report of Sami Yamin, Exhibit 5, which confirmed, insofar as his status, to use the statement made at p.3 of the report, that he has:

'An extremely low range of overall functioning'.

Confirmation also at p.3 of his acquired brain injury and the severe cognitive impairments. 

20Subsequently, this Court, having considered the submission of his counsel sought, pursuant to s.80 of the Sentencing Act, relevant reports. The first of those, dated 14 August, was the Client Overview Report which became Exhibit C. Such was provided pursuant to s.80(3)(b) and, as such, confirmed his status.

21The fundamental issue that stands out from that Client Overview Report is the need for Mr Grasserbauer to be able to enter, upon release from gaol, appropriate accommodation, be it crisis accommodation or more permanent accommodation. In addition, pursuant to s.80(3)(a) was the Justice Plan pre-sentence report and, further, pursuant to s.37(b), the community correction pre-sentence report. I note in regard to the community correction pre-sentence report that Mr Grasserbauer was deemed to be unsuitable for a further community correction order (Exhibit B).

22The reason was that, considering the experience that the Department had had with Mr Grasserbauer since the determination of Judge Smallwood, they questioned their capacity to provide the assistance that Mr Grasserbauer needs. Such presents a very difficult situation for the Court in these circumstances.  Indeed not only for the Court, but it seems to me people of Mr Grasserbauer's status present a challenge to our whole community.  In my view, a community correction order together with an attached justice plan is the best we can create to assist him in these circumstances.  In saying that I do not in any way underestimate the difficulties that those in the Department have had in dealing with him, or dealing with the issues to which I and Judge Smallwood have referred to.

23In addition, tendered at yesterday's hearing was further reports of his participation whilst in prison of programs, particularly, one was the healthy lifestyle program and the other was the substance use program.  Let us hope they are of assistance.  It was, I thought, important yesterday that we had, and again today have, the support of his family of which I understand two sisters,

24Indeed I left the Bench to allow discussion between the family and Ms Raitman, who was the Department of Health and Human Services contact, and the person who prepared the s.80 documents for this Court, and was by video in attendance at the Court yesterday.

25As submitted by Ms McGarvie, I accept the appropriateness of all of the principles set out in Verdins (2007) 16 VR 269 as to the need for a tempering of the usual sentencing objectives when dealing with persons of the prisoner's capacities, and also to the principles set out by the Court of Appeal, a court of five in that instance, in Boulton (2014) 46 VR 308. Having considered all of the submissions, in particular, the submission of the prosecutor on behalf of the Director, I find, albeit, the rejection as to suitability by the Department in its report, Exhibit B, there is no alternative but to provide for a humane determination.

26I did discuss yesterday, and one of the reasons I left the Bench was the importance, as I read the material, in particular, the material received from Ms Raitman of the importance, as set out in the Client Overview Report, of appropriate accommodation.  Doing as best I can and bearing in mind the comments of Judge Smallwood, which do impact upon me in particular, my sentence hopefully provides a situation where appropriate accommodation can be attained.  Mr Prosecutor, it is my intent to impose a combined sentence under s.44.  I intend to impose, as a period of imprisonment a figure of 490 days.  The amount of that sentence already served pursuant to s.18 for a declaration would be 400, is that right?

27MR RAIMONDO:  Yes, Your Honour.

28HIS HONOUR:  And I then, pursuant to the provisions of s.44 intend to release Mr Grasserbauer at the end of the service of the 490 days, effectively three months from now, on a CCO of three years, conditions of which will have one of supervision, programs to assist him in overcoming his problems with alcohol and drugs, anger management and reoffending.  Also, appropriate psychological or psychiatric help and in addition, pursuant to the provisions of the Sentencing Act having made consideration of those matters as I am required under s.80(2), to attach to the community correction order the Justice Plan pursuant to s.80(1) for a period of two years, and order that Mr Grasserbauer participate in such recommended programs as set out in that Justice Plan.

29MR RAIMONDO:  Yes, Your Honour.

30HIS HONOUR:  I cannot make those orders of course unless Mr Grasserbauer consents.  And at this stage Ms McGarvie I will ask you to take the opportunity to explain to your client what I propose and seek from his advice as to whether he consents to that.

31MS McGARVIE:  Yes, Your Honour.  Yes, Your Honour, I am instructed, my client consents to the conditions of that order.

32HIS HONOUR:  Mr Grasserbauer, if you would stand up please.  I intend, as I indicated, and I do pronounce an aggregate sentence upon you of 490 days by way of imprisonment, which will effectively mean there is another three months for you to serve.  Upon your release you will enter into a community correction order of three years.  The conditions in regard to that will be that you will be supervised and undertake programs to assist you in dealing with your prior alcohol and drug problems, and any issues of aggression or re-offending and also to undertake any psychological help that can be obtained and subject yourself to the conditions as suggested in the Justice Plan that we received yesterday from Ms Raitman.

33As I said, Mr Grasserbauer, given your difficulties in life, your criminal offending is relatively limited, although spectacularly serious.  It is very important that you try and comply as best you can.  That means that you attend as best you can to any appointments.  You are going to be breached because of this offending on the matters that Judge Smallwood sentenced you on. I am sure he will deal with you accordingly.  But it is certainly the wish of this Court, and as expressed by Judge Smallwood, not to put you in gaol if we can help it.  But you have got to do the best you can not to commit serious crime.

34And that is why I put you in the various programs with a community correction order.  You have already started a couple of them in gaol yourself.  Very important with the assistance of your sisters and your niece that you take the opportunities.  Let us hope that you can patch up the problem with your brother because obviously he was a strong supporter of yours and I understand your remorse in regard to that.  I do not think there is anything I can say more except have you - have we prepared the - if you just take a seat, we will get counsel to bring you the document.  You will have to sign it?

35Mr Prosecutor, I am probably required to give a 6AAA somewhere along the line.

36MR RAIMONDO:  Yes, you are, Your Honour.  Because there is imprisonment.

37HIS HONOUR:  Do not ask me how one can comply with what Parliament wants in all the circumstances but I will do as best as I can.

38MR RAIMONDO:  Yes, Your Honour.

39HIS HONOUR:  I declare that the 400 days served is to be deemed service of this sentence and such declaration is to be recorded in the records of this Court. 

40Having pleaded to these crimes, you are entitled to an appropriate discount.  Parliament has asked me to indicate what that discount is based upon one factor only and that is your plea of guilty. It is almost impossible in the reality of this case to so indicate. Doing as best I can to comply with Parliament's wishes, I indicate that you would not have a combined order under s.44 had you not pleaded guilty.  That is the best I can do.  Good luck.  Listen to your sisters, all right.  And try and make sure you comply with the community correction orders.  All the best.

41OFFENDER:  Thanks.

42HIS HONOUR:  Yes, thank you.

43MR RAIMONDO:  Your Honour pleases.

44MS McGARVIE:  As Your Honour pleases.

45HIS HONOUR:  Any other matters?

46MR RAIMONDO:  No, sir.

47MR MORRISSEY:  No, Your Honour.

48HIS HONOUR:  The prisoner can be taken down.  Any chance of Michael coming back on board or?

49VOICE (from body of court):  Oh, yes, he - look, he's - he suffers PTSD because of the whole thing.  He has nightmares.  He has all sorts of things and, um, but he still loves him.  He says good things.  He still loves him and I think it's just taking time, you know.

50HIS HONOUR:  Yes.  Time is a healer hopefully.

51VOICE:  Yes.  Yes.

52HIS HONOUR:  All right, well all the best.

53VOICE:  Thank you so much.

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