Director of Public Prosecutions v Gration
[2019] VCC 1388
•13 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-02041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONNIE CLIFF GRATION |
‑‑‑
| JUDGE: | HIS HONOUR JUDGE JOHNS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 June 2019 |
| DATE OF SENTENCE: | 13 August 2019 |
| CASE MAY BE CITED AS: | DPP v Gration |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1388 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren Mr P. Pathmaraj | Office of Public Prosecutions |
| For the Accused | Mr T. Danos | Pica Criminal Lawyers |
1HIS HONOUR: Jonnie Cliff Gration, on 26 February this year, you pleaded guilty before me to a single charge of aggravated home invasion on Indictment No.C1711134.3. In March 2018, you pleaded guilty to Indictment No.C1711134.2, alleging two charges of handling stolen goods and a charge of being a prohibited person carrying a firearm.
2The maximum penalty for aggravated home invasion is 25 years' imprisonment; the maximum penalty for handling stolen goods is 15 years' imprisonment; the maximum penalty for being a prohibited person in possession of a firearm is 10 years' imprisonment.
3The facts of the charge of aggravated home invasion are set out in the agreed circumstances of offending, which is Exhibit A on your plea, and forms part of these reasons for sentence. I also heard a trial in relation to the related matter of your co-accused, Mr Murphy and Mr Goodfellow. I sentence you, of course, on the basis of the agreed circumstances of offending tendered as Exhibit A on your plea
4In very brief terms, you attended at residential premises in St Albans in company with three other males with the intention of forcing your way into the home as trespassers intending to steal items of value. It is likely your intention was to steal cash and possibly drugs also.
5You and your co-offenders arrived in two vehicles. You were armed with a firearm which was probably unloaded. Charge 3 on Indictment No.C1711134.2 relates to your possession of this firearm. One of your co-offenders, Mr Murphy, was armed with a baseball bat. Another co-offender, Mr Goodfellow was unarmed.
6Prior to entry, one of your number shouted, 'Open up, it's the police'. One of the occupants, NL, had observed on CCTV footage that you had a firearm and were wearing gloves. Another occupant, Mr S, fled the premises from a rear exit.
7The door was kicked in and all four of you entered.
8Whilst inside the premises, items of value were collected by your group.
9After collecting items of value and returning to the vehicles, you all fled the scene. Police arrived at that point. One of the vehicles containing a number of stolen items crashed into a tree during the escape and the occupants fled on foot. An unloaded Diana long arm rifle was located in the front of the car. This was the firearm you were holding during the home invasion.
10You were arrested on 21 January 2017. You declined to participate in an interview with police.
Victim Impact
11The principal victim, NL, made a victim impact statement. As one would expect, having gone through such a terrifying experience, it has had a lasting effect. She has severe anxiety; she suffers nightmares; she does not feel safe in her own home, understandably; and her behaviour and enjoyment of life has been dented. The trauma has affected not only her, but those dear to her.
12None of these impacts are surprising given the nature of the crime and the circumstances of this example of it. Armed men bursting into a home at night with malevolent intent is one of the most frightening experiences that one contemplates as a member of our community. NL was defenceless and terrified. The trauma she has experienced as a result of your crime is significant.
Objective Circumstances of Offence
13The offence of aggravated home invasion carries a maximum penalty of 25 years which reflects the objective seriousness of the offence. The salient aspects of the offending in your case include:
·The fact you were armed with a firearm and you were aware a co-offender was armed with a baseball bat
·You were in company with three other men
·The offending took place in the dead of night
·Forced entry was accompanied by raised voices
·There were persons present and you knew that, or were at least reckless as to their presence prior to entry
·The facts demonstrate a level of planning.
14The number of intruders, the nature of the weapons and the time and mode of entry are all features that give this offence its character. The use of a firearm is an aggravating feature of the offending. It is a serious example of the crime of aggravated home invasion with intent to steal. It was not of a particularly long duration however. No one was physically harmed and the value of the items stolen was not significant.
15General deterrence, denunciation, and the protection of the community are very important sentencing factors in a case such as this, and I have given them appropriate weight in the sentence I will impose.
16In your case, specific deterrence is also an important consideration.
Personal Circumstances
17You were born on 20 April 1987 in Dandenong to Mark Folds and your mother Denise. Your parents separated when you were two or three years of age and your father relocated to Adelaide where he was subsequently incarcerated for a number of years. Both your parents were drug users, leading chaotic and destructive lifestyles. Your mother re-partnered with Mark Gration, a man you regard as like a father to you. Your own father subjected you to severe mental and physical abuse, the latter of which resulted in hospitalisation when you were reunited with him at the age of 12.
18Your life has been a tragic example of how extreme childhood disadvantage, neglect, and trauma can all but destroy an individual's prospects of leading a law-abiding life, free from drug abuse, mental health issues, and negative peer influences.
19Your personal history is a sad one. You have many prior convictions and have spent the significant portion of your teenage and adult years in detention or prison. You have significant prior convictions for armed robbery as well as being a prohibited person in possession of a firearm. I was provided with previous sentencing reasons from this court dating back to 2006, which set out your history.
20Judge Dyett sentenced you in August 2006 for two charges of armed robbery when you were 19 years of age. He noted at that stage that despite your youth, you had admitted some 160 prior offences from 22 appearances, mainly in the Children's Court commencing from the age of 11 - now not before me of course.
21I also received a report from Bernard Healy, Psychologist that was before Judge Dyett and dated from that sentence. Judge Dyett summarised much of your history in his sentencing reasons at paragraphs 8 to 11, and I will now refer to those. He stated at paragraph 8:
22'Your disadvantaged background is set out at justified length in the report of Mr Bernard Healey, clinical psychologist, dated 16 July 2006. It makes depressing reading. Your mother was a heroin addict for many years. As a child, you lived with your mother and stepfather in the Dandenong area and then from the age of 12, you lived with your biological father and stepmother for two years at Hallam. You related poorly to your father who abused amphetamine, was aggressive and paranoid, and refused you any contact with your natural mother and stepfather, whom you regarded as your real father.
23'In addition, the Department of Human Services was concerned about your lack of supervision from the age of eight and you became subject to a protection order from the age of 10, spending time intermittently in children's homes where you were subject to adverse influences of other juveniles similarly placed.
24‘At the age of nine, you committed your first armed robbery in company with and under the influence of other youths, and you were described in a report as a significantly disadvantaged child exhibiting entrenched antisocial behaviours. At the age of 13, early in the year 2000 you ran away from your father's home and left school, having only completed Year 8. Tendered certificates relating to courses while in custody confirm that you are endeavouring commendably to remedy your lack of early education.
25‘A protection application report of 18 August 2000 from the Department of Human Services states that you had run away from the home of your father and stepmother, that your natural mother was unable to manage you, and your activities include chroming and lighting fires. 'You were diagnosed with Attention Deficit Hyperactivity Disorder and prescribed Dexalacphetamine under the supervision of a paediatrician, Dr Lim
26‘Your continued offending compelled the Children's Court, after exercising a range of lesser sentencing options, to sentence you to periods of detention in youth residential centres and ultimately youth training centres, the latter commencing in 2002 including a period of 12 months in May 2003 and 20 months in April 2004, followed by a cumulative term of four months in June 2004 for offences committed in custody including causing injury intentionally, threatening to kill, and the two charges of damaging property.
27'On 18 April 2005, you were released on parole. You were unemployed and according to your counsel resumed your association with other wayward young men whom you had encountered during unsatisfactory youth hostel placements in the past. In this setting, the two offences before the court were committed.'
28Judge Millane of this court sentenced you for two charges of armed robbery, two charges of assault, and a charge of robbery in 2008. Judge Millane also noted your sad history at paragraphs 32 to 33, and I'll now refer to those. Judge Millane stated:
29'Yours is a background of childhood trauma where you grew up in a dysfunctional and damaged family. It appears that both your parents are drug users; your mother a long-term heroin user, with your father abusing amphetamine and during your late teens spending a long period in gaol. Consequently save for the input of your maternal grandparents, your stepfather, who you regard as your real father, and a maternal aunt who continues to demonstrate an interest in your wellbeing, your childhood and teenage years were marked by depravation, instability and inability to profit from any education beyond Year 8 or appropriate experience and training in the workplace.
30'You no longer have or want to have contact with your father whose violence in your early teens, you say, caused you to run away from the home you then shared with him, your stepmother and step-siblings. In fact, I note that the years preceding your first period in adult custody were spent living on the streets, in detention in a Youth Training Centre, or in foster care during which time some effort was made to address your behaviour through treatment of your diagnosed Attention Deficit/Hyperactivity Disorder and through general counselling.'
31In 2011, Judge Gullaci sentenced you for being a prohibited person in possession of a firearm and other firearms offences. He summarised your history in detail. I will refer to paragraph 7 and 8 of Judge Gullaci's sentence. He stated:
32'I turn to factors personal to you, Jonnie Gration. At 24 years of age, you are currently serving a sentence for breach of parole. You have endured a chaotic and destructive childhood and adolescence. Your father was mostly in prison and your mother worked as a prostitute. Their relationship ended when you were nine years old and you lived with your mother. You faced significant difficulties. Your counsel informed me that you committed your first serious offence at the age of nine or 10, when you and an older person committed an armed robbery on a shop. You were diagnosed with ADHD and prescribed medication, but you did not take it. You began abusing alcohol at the age of 11 and by the age of 13, you were using other drugs including heroin. Your life had no boundaries, you received no guidance, and you had no role model.
33‘You began to receive residential orders, youth training sentences from the age of 14. You have been in and out of both juvenile detention centres and adult prison right up until the present time. A chronology of your recent history demonstrates that you have been substantially imprisoned since 2005 with short periods in the community.
34He then went on to provide a detailed chronology of your custodial history. As I have noted, the criminal record before me does not contain the Children's Court matters referred to by Judge Dyett of course. I mention those matters in support of what I find to be the indicia of an upbringing in circumstances that give rise to the considerations highlighted in the High Court decision of Bugmy v The Queen.
35The prosecution readily conceded the presence of Bugmy factors in your case in light of the detailed material that described your background. In Bugmy v The Queen, the High Court described the manner in which those factors are relevant to an assessment of an offender's culpability in the following terms:
36'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence, because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
37'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
38‘Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision. However, this is not to suggest that an offender's deprived background has the same mitigatory relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'
39These principles have relevance to your case, in particular to your inability to remove yourself from a destructive drug lifestyle and pursue more gainful and law-abiding lifestyles.
40There is a tension, of course, between the Bugmy considerations and other sentencing factors such as prospects of rehabilitation. As acknowledged on your plea, you have numerous prior convictions for violent offending, principally armed robbery prior convictions. You also have two prior convictions for being a prohibited person in possession of a firearm. Whilst you are not to be resentenced for your previous offending, these prior convictions are relevant for the court to consider in assessing your prospects of rehabilitation and determining the weight to be given to specific deterrence and the protection of the community.
41As stated during your plea, generally speaking as the years roll by and violent offending continues, factors such as specific deterrence and the protection of the community tend to overtake the weight that can be given to Bugmy principles in the sentencing exercise. The effects of profound deprivation do not diminish over time, but other considerations may surpass the weight to be given to those effects.
42The application of the Bugmy principles still have significant effect in your case in my view however, in light of what I have found to be your genuine resolve to make every endeavour at this point in your life to leave the drug lifestyle and associated criminal offending behind you.
43I received a neuropsychological report on your behalf, Exhibit 1. The report was obtained to explore the possibility of brain injury or cognitive deficit. Fortunately for you, you possess the empathy and cognitive ability to make good on your expression of remorse and desire to rehabilitate.
44I will now refer to some aspects of Exhibit 1, the neuropsychological report of Dr Loretta Evans. The report was sought for the purpose set out at p.1 of her report:
45'Mr Gration has a history of offending behaviour on a background of multiple risk factors for an acquired brain injury, namely alcohol consumption from an early age, chronic polysubstance abuse, head trauma and prior drug related overdoses.'
46Dr Evans summarised your autobiographical history at paragraphs 2 and 3, including the following:
47'His parents separated when he was two or three years of age and his father relocated to Adelaide where he was subsequently incarcerated for a number of years. His father eventually re-partnered with Kelly and they had a daughter, Zoe. Following his parents' separation, Mr Gration remained in the care of his mother, who re-partnered with Mark Gration.
48'However, Mr Gration described his mother as a “drug addict and prostitute” and during his early childhood, he reported he was primarily cared for by her partner, Mark Gration, whom he referred to as ‘dad’. His step-father and his mother separated, but Mr Gration maintained contact with Mark, who had since fathered a son, Matthew, who Mr Gration referred to as his step-brother.
49'At the age of 12, Mr Gration's biological father and his family returned to Melbourne and Mr Gration was placed into his father's care. However, he alleged a high degree of physical and mental abuse, stating he had been hospitalised on one occasion because of injuries inflicted by his father. After two years of living with his father, Mr Gration disclosed he ran away and explained it took him eight hours to walk from Dandenong to Flemington to the home of a maternal aunt.
50'However, his aunt contacted child services and he was placed into the care of the Department of Health and Human Services. From that time onwards, Mr Gration stated he was “in and out of resi units” but constantly “used to run off with the local hoodlums”. When asked to comment on his childhood, Mr Gration answered, "it was shit. I didn't really even have a childhood. The only person who ever wanted me was Mark Gration. I was a burden on everyone else".'
51Paragraph 5, Dr Evans referred to your comments reflecting on your past. You were asked how you spent a typical day before coming to prison, and you replied:
52'When we were living together with Ange and had an apartment, it was the most normal of my life that I’d lived. We went to movies, did the grocery shopping, just did normal things. Before that, I'd spent a lot of time doing crime. When Ange went to prison in 2016, it all went to shit because I couldn't pay the bills, I didn't know how. I missed corrections appointments.'
53When questioned about future plans, you said:
54'Waiting for greener pastures, just taking each day as it comes, do my time. When I get out, I just don't know. I'm not certain. I do know I've got to get out of this life, sever certain connections. I don't want this life anymore.'
55Paragraph 37, you reflected on the offence of aggravated home invasion. You said, 'I was getting lazy. Drugs was easy money. Then, someone I taught, who was taking advantage of me. I thought crime on a criminal wasn't as bad'. However, you went on to acknowledge the wrongfulness of your actions and explained, 'It's horrible. I couldn't imagine my girlfriend being at home and someone kicking the door in.’
56You expanded further about your past and experiences in gaol. In relation to experience of gaol you said, 'It's shit. I know the ins and outs of it. It's been 16 years of my life'. When asked about your thoughts regarding an additional custodial sentence you explained, 'I've already set on doing it. Just got to use the time to do the services and counselling, get qualified, be a B-grade prisoner'. When asked what would prevent you from committing further crimes you said, 'More self-control, making better decisions, take control of my life. I want to be a better person'.
57When asked how the court could be convinced change could be achieved you replied, 'They can't. I've got 36 pages saying I'm a useless piece of shit. I can only do what I'm doing now to show them'. Finally, when asked what you would say to the court if given the opportunity you said, 'The incident that happened should never have happened the way it happened. I didn't want anyone to get hurt. My actions could have led to so much more stuff, even for me, it was out of character and I'm ashamed of it'.
58In relation to Dr Evans' assessment, she observed that you are well able to demonstrate empathy, social judgment, interpersonal communication skills, and make and retain friendships. Despite your lack of employment, she was satisfied you have the ability for self-management and personal care. She said:
59'Mr Gration reveals slight (at best) reductions in cognitive processing speed and working memory capacity. These very slight inefficiencies are likely to be secondary to mildly depressed mood state, and do not affect cognitive or functional abilities appreciably, with all performances still well within normal ranges.
60'Furthermore, Mr Gration possesses the cognitive skills to allow him to self-reflect, reason, problem solve, apply strategies and respond appropriately to feedback. Therefore he is well able to consider consequences and adapt his behaviour.
61'Finally, during the current interview, he responded in a manner to indicate he is well aware of the influence of others and states his intent to sever ties with associates from his criminal past. Additionally, Mr Gration reports his intention to address poor anger management issues. Hence any mild inefficiencies are not considered permanent at this point in time and do not impede his ability to effect change.'
62You gave evidence before me at your plea hearing. I am satisfied that your evidence was sincere and genuine. I detected no signs of someone who was merely ‘rolling the dice’ out of desperation in the hope of providing some personal mitigation on the plea. Quite the opposite. You impressed me as intelligent and genuine in the sentiments you expressed.
63As I observed during the plea, confidence in your ability to see through your genuine intentions at the present must be tempered somewhat given you are not in an environment at present which would subject you to the normal pressures and lures as you would be in the community. However, your evidence did impress me and the findings I have made in relation to it have been a significant factor in the exercise of my sentencing discretion. You have undertaken steps to rehabilitate whilst on remand for these matters.
Mercy
64The extreme disadvantage and hardship you experienced as a child together with what I find to be a genuine ‘watershed’ moment in your life due to your strong desire to rehabilitate provide an occasion, in my view, for the application of some mercy in your case.
65I consider that some leniency at this stage of your life might lead to reform. Thus, the application of some mercy can justify the imposition of a sentence that may bear a little less heavily upon you than if you were to receive your ‘just desserts’ for your offending.
Totality
66Totality is also an issue I have had regard to given your custodial history on remand and the pre-sentence detention available to you.
67You were arrested on these matters on 21 January 2017. You were remanded in custody in relation to unrelated matters. You were formally charged and remanded in respect of the matters before this court on 13 February 2017. The period from 21 January 2017 to 13 February 2017 is not available as a matter of declaration pursuant to s.18 of the Sentencing Act 1991. You also received a sentence of 14 days' imprisonment on 28 March 2017 and 14 days of pre-sentence detention was declared in relation to that matter. On 19 September 2017, you received a sentence of three months' imprisonment and 90 days' pre-sentence detention was declared.
68Accordingly, you have available in this matter by way of pre-sentence declaration, 821 days as being served in relation to the sentence that I will impose. However, I have taken into account that the period you have spent since your arrest on 21 January exceeds this figure by some four months or so.
Mandatory Minimum Non-Parole Period
69A mandatory minimum non-parole period of three years' imprisonment for adult offenders applies to this offence. The mandatory minimum applies unless ‘special reasons’ exist in accordance with s.10(a) of the Sentencing Act 1991. In your case, Mr Gration, there are no special reasons.
Plea of Guilty
70Your plea was a late one in relation to the principal charge of aggravated of home invasion. It was much earlier in relation to the other matters on the other indictment. In relation to aggravated home invasion, you pleadedat the door of the court effectively. Nevertheless you are entitled to a discount for that plea. You also receive a discount for your earlier pleas of guilty in relation to the matters on the second indictment.
Parity
71I sentenced Mr Murphy to six years for aggravated home invasion. He ran a trial and thus he received no discount for pleading guilty. Against that difference in your circumstances, it was you who carried the firearm. Your criminal history is significantly more relevant to the sentencing exercise than was Mr Murphy's. Mr Murphy also had a matter of mitigation available to him in relation to the circumstances of the offending that is not available to you. Having said that, I have also found matters of personal mitigation in your case, Bugmy principles, and what I have found on the basis of your evidence before me that were not present in Mr Murphy's case.
72I have also taken into account the fact that you were on bail at the time of the commission of these offences.
Sentence
73Those who commit the offence of aggravated home invasion must expect condign punishment for their crime. No doubt you would have expected severe punishment if apprehended and convicted at the time of the commission of your crime. General deterrence and specific deterrence are important components of the sentence I impose, so too is the community's denunciation of the crimes you have committed and the protection of the community.
74On Charge 1 on Indictment No.C1711134.3, aggravated home invasion, you are sentenced to five years' imprisonment. This will be the base sentence.
75On Charge 1 on Indictment No.C1711134.2, you are sentenced to four months' imprisonment.
76On Charge 2 on Indictment No.C1711134.2, you are sentenced to four months' imprisonment.
77On Charge 3 on Indictment C1711134.2, you are sentenced to be imprisoned for two and a half years.
78I direct that that one month of the sentence imposed on each of Charges 1 and 2 on Indictment No.C1711134.2 be served cumulatively on the sentence imposed on Charge 1 on Indictment No.C1711134.3 being aggravated home invasion.
79I direct that 12 months of the sentence imposed on Charge 3 on Indictment No.C1711134.3 be served cumulatively on the sentence imposed on Charge 1 on Indictment No.C171134.3, aggravated home invasion.
80That makes a total effective sentence of six years and two months' imprisonment. I set a non-parole period of three years and six months.
81I declare pursuant to s.18 of the Sentencing Act that you have served 821 days not including today as pre-sentence detention.
82I declare pursuant to s.6AAA that but for your pleas, I would have imposed a total effective sentence of seven years' imprisonment with a non-parole period of five years.
83 I make the forfeiture orders sought, I have signed that now.
You understand that, Mr Gration, you have a non-parole period of three years and six months. You have served 821 days of that and I wish you well in the future.
84OFFENDER: Thank you.
85HIS HONOUR: Anything else?
86MR DANOS: Just one minor matter, Your Honour, in relation to 8 August, would Your Honour grant a certificate?
87HER HONOUR: Yes, of course. Yes, last week. Yes, I will grant a certificate for last week, 8 August, when I adjourned the matter. We will adjourn the court until 10.30. Mr Gration can be taken away now, thank you.
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