Director of Public Prosecutions v Grassi
[2022] VCC 1727
•5 October 2022
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00842
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIRK GRASSI |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2022 | |
DATE OF SENTENCE: | 5 October 2022 | |
CASE MAY BE CITED AS: | DPP v Grassi | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1727 | |
REASONS FOR SENTENCE
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Subject:Trial - plea - sentencing
Catchwords: Recklessly causing injury - threat to inflict serious injury
- use carriage service to menace, harass or cause offence - theftLegislation Cited:
Cases Cited:
Sentence:17 months' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Goding | Office of Public Prosecutions |
| For the Accused | Mr C. Grant | Stary Norton Halphen |
HIS HONOUR:
1 Kirk Grassi, on 20 May 2022 you pleaded guilty to two charges on Indictment No. 1610939.2B: Charge 1, which alleged that you used a carriage service to menace, harass or cause offence to your victim, has a maximum penalty for that offence of imprisonment for three years, and Charge 2 of theft of a mobile phone from your victim, which carries a maximum term of imprisonment for 10 years.
2 On 25 July 2022 you were found guilty by a jury in this court on two charges on Indictment No. 1610939.2A, the first being Charge 4 alleging recklessly causing injury to the same victim, for which the maximum term of imprisonment is 5 years and the second being Charge 7 of threatening to inflict serious injury upon that victim, for which the maximum term of imprisonment is also five years.
3 You have admitted a prior criminal record dated 17 January 2022, which shows offending going back to November 1999 involving convictions for a number of offences of dishonesty, two offences of assault occasioning actual bodily harm in 2011 and 2009 and an offence of common assault in August 2007.
4 The prosecution has provided me with a summary of facts dated 3 October 2022 for the plea of mitigation following trial – that is Exhibit A. I do not propose to read it out in detail. The facts, very briefly, are that in the context of a domestic relationship which began with your victim in about August 2014, you caused her to indicate that she did not want you to attend her premises and to obtain a family violence intervention order against you with the assistance of police. Whether or not that order had been served upon you at the time of offending, you were aware in general terms of its existence and its effect.
5 In terms of the chronology of your offending for which I have to deal with you today, the offences the subject of Indictment No. 1610939.2B involved you making a posting on Facebook between 12 and 13 September 2014 showing your victim naked. On Charge 2, after being told by your victim that you were not welcome at her apartment, you entered her apartment without her permission via a window and stole a mobile phone. You refused to give it back when asked, although it was ultimately recovered from you by police who were forced to intervene.
6 The offence of using a carriage service to menace, harass or cause offence was a particularly spiteful example of that offence. As I indicated during the course of the plea hearing, it should attract a term of imprisonment.
7 Insofar as the verdicts of the jury on Indictment No. 1610939.2A, the circumstances arose from your attendance at the apartment of your victim on 12 October 2014 after spending some time with her at an event in a nearby park. Upon arrival back at her premises during the late afternoon of 12 October, you went to her bed, lay down and went to sleep. After putting the children to bed and feeding them, she also went to bed and went to sleep beside you.
8 According to her evidence, she was awoken in the early hours of the morning by you holding a fist to her face, and then flipping her over and hitting her between five and 10 times to the back of the head, causing a lump which was painful and was the subject of evidence from a nurse who examined the injury at the hospital later that morning.
9 During the same incident, you also threatened to snap your victim's neck. That is the subject of the charge of threatening to inflict serious injury, of which the jury also found you guilty. Those offences also occurred in the context of a domestic relationship and should rightly attract the denunciation of this Court and a term of imprisonment which is appropriate, not just to mark the severity of crimes of that nature, but to punish you adequately for your offending, to deter you from further conduct of that kind and to deter others from committing offences of that kind; also, to offer a measure of protection to the community from further offending by you of that nature.
10 Your victim provided a victim impact statement which has been read to the court, and not surprisingly, she suffered humiliation as well as pain as a result of your conduct, particularly on the morning of 13 October 2014.
11
Turning to matters personal to you, your counsel provided me with an outline of submissions on the plea dated 3 October 2022, a letter from Dr John Williams, consultant psychiatrist, dated 2 February 2017, and a letter from the
GEO Group Australia Pty Ltd under the signature of a Mr Stewart, NEXUS Post Release Case Manager, dated 4 October 2022.
12 You are now 41 years of age. You were 33 at the time of the offending. Your life has been blighted, it seems, by a number of injuries that you received. As I pointed out to your counsel during the plea hearing, the impact of those injuries may have been relevant to this sentencing exercise. Indeed those facts are relevant, but the evidence in support of the effects of those injuries is so scant that I can only proceed on the basis of that level of information. As I pointed out to your counsel, that was quite inadequate, in my view, to support any contention that I should apply the Verdins principles to this sentencing exercise.
13 Your counsel submitted that given the long delay in reaching this point, much of which is attributable to your own conduct, it was preferable to proceed to sentence, notwithstanding that further evidence might indicate a further significant reduction in sentence beyond those reductions that flow from the pleas of guilty that you have tendered and other factors.
14
The other matter that was in contention to some extent was your prospects of rehabilitation. I note your admitted criminal record up to the date of these offences in September and October 2014. As Ms Goding correctly pointed out, there are a number of relevant prior convictions which need to be considered in imposing a sentence upon you.
15 Reference was made during the plea to further offences committed subsequent to these offences. Whilst no detail of that was provided, it was agreed by both parties that on the information available to me, I could not be satisfied that your prospects of rehabilitation were any better than guarded and that there was no greater cause for optimism than was permitted by the information before me; however, your counsel, again, was accepting of the fact that I can proceed to sentence on that basis.
16 You have had a chequered career in terms of work. I understand that you are on a disability support pension, but your intention when free would be to return to work, and that you have reasonable prospects of obtaining work in Western Australia as things stand at present.
17
It remains to be seen how well you adapt to your freedom when you receive it and the extent to which you are able to hold down work after a period of incarceration, which in terms of pre-sentence detention now amounts to
531 days.
18 I was urged by your counsel to impose sentences which would permit your immediate release, taking into account the 531 days that you have been on pre-sentence detention. Ms Goding on behalf of the prosecution frankly accepted that she did not have instructions either to support or oppose that submission.
19 I think, frankly, that it is a borderline situation. There is no doubt that offences of this kind arising in a domestic context, particularly those for which you were found guilty by a jury, should attract significant terms of imprisonment for all the reasons that I have indicated, and that they should properly reflect the application of the principles of sentencing that I have already enumerated.
20 The delay is relevant in that we are now some eight years after the events the subject of the indictments. As I have already indicated, and it is conceded, much of that delay has been occasioned by your own conduct, but I accept that having a rape charge hanging over your head for a period of about seven years would have caused you a good deal of mental anguish. It seems to me that that is not irrelevant despite your contribution to the delay, given that you have now been acquitted of that charge.
21 Doing the best I can to balance all of the relevant factors, competing as they clearly are, I sentence you as follows.
22 On Indictment No. 1610939.2A for which you were found guilty by a jury on Charge 4 of recklessly causing injury, you are convicted and sentenced to imprisonment for a period of 14 months.
23 On Charge 7 on that same indictment of which you were found guilty by the same jury for threatening to inflict serious injury, you are convicted and sentenced to imprisonment for a period of 12 months.
24
I order that three months of the sentence imposed on Charge 7 be served cumulatively upon the sentence of 14 months imposed on Charge 4, making a total effective sentence on that indictment of imprisonment for a period of
17 months.
25 On Indictment No. 1610939.2B, on Charge 1 of using a carriage service to menace or cause offence, you are convicted and sentenced to imprisonment for a period of five months. That sentence will commence today.
26 On Charge 2 of theft on that indictment, I convict you and sentence you to imprisonment for a period of two months.
27 The total effective sentence on that indictment is therefore imprisonment for five months.
28 Although I do not think I need to make this order, I order that the total effective sentence will run concurrently with the sentence of 17 months on Indictment No. 1610939.2A.
29 The overall total effective sentence over both indictments is imprisonment for 17 months.
30 I do not need to, and will not, set a non-parole period.
31 I declare pre-sentence detention of 531 days as time to be reckoned as served on the period of 17 months for which you are sentenced on these two indictments, and to be deducted from that sentence, and I order that those facts be noted in the records of court.
32 Are there any other orders that I need to make, counsel?
33 MS GODING: Your Honour, as artificial as it might be, a 6AAA declaration in relation to the plea indictment.
34 HIS HONOUR: I'm not inclined to do that.
35 MS GODING: No, Your Honour, that's - - -
36 HIS HONOUR: I don't think it really makes any difference and I don't think it results in any deficiency in the sentencing order, or if it does, it's not something that ultimately affects the overall sentence - - -
37 MS GODING: That's the only matter I'd raise.
38 MR GRANT: Nothing from me, Your Honour.
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