Director of Public Prosecutions v Gration

[2016] VCC 893

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00318

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRIAN GRATION

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 June 2016
CASE MAY BE CITED AS:	DPP v Gration
MEDIUM NEUTRAL CITATION:	[2016] VCC 893

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. J. Malobabic	Office of Public Prosecutions
For the Accused	Ms. M. O'Brien

HIS HONOUR:

1Brian Gration, you have pleaded guilty to one charge of attempted armed robbery.  This offences carries the maximum penalty of 20 years imprisonment.  It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, the agreed summary of prosecution opening.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

2At approximately 9.50 am on 7 December 2015 you entered a milk bar wearing a hood and a mask disguising your face.  The victim, a shop assistant, ran towards the till area.  You ran to the opposite side of the counter, produced a knife and demanded money from the victim.  You said "Give me the money, I want money."  You held a long kitchen knife with a silver blade.  The victim grabbed a tyre lever he had hidden behind the counter and he swung it at you striking you on the arm.  You then ran out of the store with the victim in pursuit.  The victim told police he was very scared when he saw the knife and he had to react to protect himself. 

3You were arrested and charged on that day.  In your record of interview you said you were on drugs and could not remember anything. 

4I state to you that I have taken into account the following matters in mitigation of sentence. 

5You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.

6You pleaded guilty at an early stage.  I accept that you are generally remorseful.  I have been told something of your personal circumstances.  You are 23 years of age, having been born on 3 March 1993.  You are unemployed.  You live with your mother in Cape Patterson.  You are single and have no dependents.  You were raised by your mother in a single parent household.  You struggled at school and completed Year 9 but you had poor academic results.  You have been a heavy drug user for many years.  You commenced using cannabis when you were 13 years of age and over time you graduated to using heavier drugs.  You started using methyl amphetamines when you were about 18 years of age.  You continue to use cannabis. 

7You have had very little employment.  You commenced a plumbing apprenticeship but never completed the apprenticeship as you injured a hand.  You had some work as a roof tiler for about three years and you enjoyed this employment.  As a result of persistent drug use you have experienced significant periods of homelessness and you have not been able to retain employment. 

8You are still a relatively young man and I accept the psychological opinion of Dr Barth that you are an immature individual.  You appear directionless.  You have tried to address your drug use in recent times.  You have been attending counselling and in the past you participated in two periods of intense detoxification at rehabilitation facilities, however on each occasion you relapsed shortly after your release.

9Dr Barth noted your extensive substance abuse history and commented that you are in the very early phases of addressing your significant drug addiction.  As your rehabilitation is at a very formative level I assess your prospects of rehabilitation as being cloudy.  Your future prospects will be largely dependent upon your capacity to become drug free. 

10I accept Dr Barth's opinion that extensive psychological treatment and ongoing drug rehabilitation is needed if you are to achieve a healthy and positive direction in your life.  I accept his opinion that in order to enhance your long term prospects in the community you require substance abuse treatment, psychological treatment and vocational education and training. 

11Against these matters in mitigation however your actions were very serious indeed.  This was a brazen act of attempted armed robbery.  You had a weapon.  It was a terrifying ordeal for the victim.  A further aggravating factor is that you were on a 12 month without conviction community corrections order imposed on 7 May 2015 at the Ringwood Magistrates' Court at the time of this offending.  You have, however, continued to participate in that Community Corrections Order.

12The Community Correction Order imposed at the Ringwood Magistrates' Court was in respect of charges of intentionally cause injury and assault in company.  This prior matter is relevant to my task of sentencing you today.  There have been 37 days of pre-sentence detention. 

13As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant.  General deterrence is also of considerable importance in a case such as this.  This type of offending must be discouraged. 

14I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. 

15Your counsel submitted that I ought impose a Community Correction Order.  It was submitted on behalf of the prosecution that a Community Correction Order would be within the range of appropriate dispositions.  I have had you assessed and you are suitable for a Community Correction Order.  Before I can make such an order I must explain the effects of the order to you and you must consent to the making of such an order.  I note that you have already consented to the making of such an order to the assessing Community Corrections officer on 15 June 2016, however it is necessary for me to go over these matters with you again. 

16I have prepared the proposed Community Correction Order and I will just provide a copy to your barrister and just ask her to take this to you.  I will just ask Ms O'Brien if she can approach you.

17MS O'BRIEN:  Yes, Your Honour.  Can I approach?

18HIS HONOUR:  Yes. 

19What is proposed, Mr Gration, is a Community Correction Order in these terms.  It is directed to you Brian Gration of 10 Spray Street, Cape Patterson.  Your date of birth is 3 March 1993.  You will be convicted of attempted armed robbery, one charge, and placed on a two year Community Correction Order  commencing on this date.  You must attend at the Korumburra Community Correctional Services at Courthouse, Bridge Street, Korumburra within two clear working days after the commencement of this order.  The mandatory terms of the order are as follows. 

20You must not commit another offence for which could be imprisoned during the time that the order is enforced.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.  You must report to and receive visits from the Secretary.  You must report to the Community Corrections Centre within two clear working days of the order starting.  You must let a Community Corrections officer know within two clear working days of you changing your address or job.  You must not leave Victoria without first getting permission to do so from the Secretary.  You must obey all lawful instructions from, and directions of the Secretary.

21In addition to the mandatory terms, the following conditions also apply:

22Unpaid community work:  You must perform 100 hours of unpaid community work over a period of two years as directed by the Regional Manager.  If you fail to comply with this order, the Secretary to the Department of Justice may give you a direction to perform additional hours of unpaid community work. 

23Supervision:  You must be under the supervision of a Community Corrections officer for a period of two years. 

24Treatment and Rehabilitation:  You must undergo assessment and treatment including testing for drug abuse or dependency as directed.  You must undergo any mental health assessment and treatment.  That may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed.  You must participate in programs and/or courses that address factors relating to the offending as directed. 

25Do you understand the terms of the order that I propose to make?

26OFFENDER:  Yes, Your Honour.

27HIS HONOUR:  If you breach the order you are liable to be brought back before me and dealt with in respect of both the breach of the Community Correction Order and you may be re-sentenced in relation to the charge of armed robbery.  Do you understand that?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  Do you consent to the order being made?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  If you could please sign the order. 

32So Mr Gration, you are convicted and sentenced to a Community Correction Order of two years duration.  The terms of that order have just been read to you.  I will not read them again. 

33There was 37 days of pre-sentence detention I think.  That was correct?

34MS MALOBABIC:  Yes, Your Honour.

35HIS HONOUR:  That needs to be included in the formal order of the court doesn't it?

36MS MALOBABIC:  If, Your Honour is imposing a term of imprisonment in combination, yes.

37HIS HONOUR:  I am not.

38MS MALOBABIC:  No, it doesn't have to be.

39HIS HONOUR:  All right.  So I do not need to include that on this.  It is not on the order.  All right. 

40I have noted that 37 days of pre-sentence detention, but it will not be noted in the records of the court. There is an application made by the prosecution for a forensic procedure for the taking of samples pursuant to s.464ZF of the Crimes Act, I intend to make an order that pursuant to s.464ZF of the Crimes Act you undergo a forensic procedure for the taking of samples in accordance with subdivision 30(A) of Part III of the Crimes Act, until a sample of sufficient standard is obtained for placement on the data base.  The reasons for making the order will be published on the order which I will sign.  I must inform you as a matter of law that a member of the police force may use reasonable force to enable the procedure to be conducted and I have made the disposal order which is sought by the prosecution. 

41So I have signed all those orders.  There is a copy of all those orders for the parties.  Does that cover the formalities?

42MS O'BRIEN:  Yes, Your Honour.

43HIS HONOUR:  10.30 tomorrow morning. 

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