Director of Public Prosecutions v Gray

[2024] VCC 262

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02026

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIN GRAY

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2024
DATE OF SENTENCE:	14 March 2024
CASE MAY BE CITED AS:	DPP v Gray
MEDIUM NEUTRAL CITATION:	[2024] VCC 262

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence  

Catchwords:              False imprisonment – Causing injury intentionally – Theft – Sentence Indication given – Premeditated offending committed in company with others – Victim’s injuries towards the lower end – Offender played lesser role in the offending – No criminal history – Pregnant – Stable employment – Good prospects of rehabilitation – Genuine remorse – Parity.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).

Sentence:                  Community Correction Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F Martin (Plea) Mr A Hodgeman (Sentence)	Office of Public Prosecutions
For the Accused	Ms J Swiney	Giorgianni and Liang Lawyers

HIS HONOUR:

Introduction

1Erin Gray (“Gray”), you have pleaded guilty to the following three charges on indictment number N11225098:

(a)   False imprisonment, contrary to common law;

(b) Causing injury intentionally, contrary to s 18 of the Crimes Act 1958; and

(c) Theft, contrary to s 74 of the Crimes Act.

2Each charge carries a maximum penalty of 10 years’ imprisonment.

3You have also consented to this Court hearing and pleaded guilty to the summary offence of drive whilst suspended, contrary to s 30 (1) of the Road Safety Act 1986. This charge carries a maximum penalty of 240 penalty units or 2 years’ imprisonment.

4This matter initially came before me on 20 March 2023 for a pre-trial hearing relating to the admissibility of hearsay evidence. The victim in this matter passed away some three months following the offending. I ruled that the majority of the victim’s previous representations were admissible pursuant to either s 65(2)(b) or s 65(2)(c) of the Evidence Act 2008.

5Following a sentence indication, I sentenced your co-accused, Philip Maynard (‘Maynard”), on 15 December 2023, to a total effective sentence of three years imprisonment with a non-parole period of two years.

6You made an application for a sentence indication which was heard by me on 4 March 2024. I indicated to you that if you were to plead guilty to the charges on the indictment, I would impose a Community Correction Order (“CCO”). You accepted this indication, and the matter was adjourned for a plea hearing to today’s date.

Circumstances of the offending

7The circumstances of your offending are set out in an agreed summary of prosecution opening for plea dated 6 March 2024.[1]

[1]Exhibit A.

8In early March 2022, the victim, Mr Ali, met you and your co-accused Maynard’s son Thomas Prestage (“Prestage”) for the first time in the carpark of the Highlands Pub in Craigieburn. You were standing outside your black Holden Commodore. You asked the victim and his friends for help to push the vehicle as the battery was flat.

9The victim exchanged phone numbers with you and saved your number in his phone. In the following days he purchased GHB from you which you dropped off at his home address along with Prestage in a Holden Captiva vehicle. You and the victim subsequently exchanged flirty communications and Prestage blocked the victim’s number on your phone.

10In the early hours of 15 May 2022, you contacted the victim from mobile phone number ending ‘717’ which he did not recognise, and told him that you had broken up with Prestage. This mobile number was used by Maynard at the time.

11You stated that you had GHB that you wanted to “get rid of”, and it was agreed that you would drive to the victim’s home later that day.

12At 4:37 pm, your vehicle was captured on CCTV travelling East on Quebec Avenue, Craigieburn to pick up the victim. You were driving despite your licence being suspended.[2] It is alleged by the prosecution that you were accompanied by Rory Walker (“Walker”). The victim got into the car and sat in the rear passenger seat behind Walker.

[2]Summary charge of driving whilst suspended.

13The victim attempted to open his window to have a cigarette, however, the controls had been disabled. You, through the driver’s seat controls, opened the window to allow him to have a cigarette before closing it again shortly thereafter.

14You told the victim you were going to Bunnings in Craigieburn. Whilst you were driving, Walker used her mobile to text Maynard, on his mobile number ending ‘717’.

15Walker told you that she had a buyer for some of the GHB and had arranged a meeting. You then drove to a dead-end dirt road surrounded by farmland on Summerhill Road, Craigieburn and parked at the end of the dirt road.

16Shortly after you arrived, Maynard pulled up alongside your vehicle in a white Mitsubishi Triton Ute. The victim attempted to have another cigarette and again noticed that his window wouldn’t open, but you were able to open it from the front driver seat controls. After he had his cigarette, you closed the window and he tried to open his door but could not. At this point, the victim became suspicious. (Charge 1 – False imprisonment begins)

17Maynard then got into your vehicle, sitting in the rear driver’s side next to the victim.

18Maynard said to the victim, “Apparently you stood over my son for juice” and that his son was ‘Tommy’. The victim denied this and at this point both you and Walker got out of the car.

19Maynard then began to punch the victim a number of times with both hands to both sides of his face and the back of his head. In between the punches, he grabbed a wooden handled mini sledgehammer. He hit the victim on his face, the back of his head and left hand with the handle of the sledgehammer. He asked the victim, “Is Tommy a liar?” At this point, Prestage got into the front driver’s seat of your car and Maynard asked him, “Did he stand over you?” to which he replied, “Yes”. Maynard said to the victim, “So are you saying my son is a fucking liar?” and the victim replied, “Yes, your son is a fucking liar.” Maynard then repeatedly hit the victim’s right kneecap with the sledgehammer. (Charge 2 – Causing injury intentionally)

20Maynard asked the victim for the pin to his mobile phone which he provided as he was in fear. Maynard then went through his phone and kept it. (Charge 3 – Theft)

21The assault lasted approximately 30 minutes.

22During the incident, the victim told Maynard that he was part of the Hells Angels OMCG.[3] Maynard told the victim he was making a call to a member from the East County Hells Angels Chapter and started driving your car. Maynard used his phone to make a call to and stated to the member, “I’ve got one of yours and he is running around saying he is the President”. The victim heard the member say, “Just drop him off”.

[3]Outlaw motorcycle gang (“OMCG”).

23The victim was fearful but was unable to get out of the vehicle due to the child lock on his door and his window being locked. (Charge 1 continues)

24Maynard continued driving and performed a burnout on Summerhill Road which was captured on CCTV. Maynard stopped the vehicle at the corner of Donnybrook Road and Brookville Road in Craigieburn and got into the backseat and further assaulted the victim by punching him. (Charge 2 continues)

25Maynard handed the victim a blue packet of baby wipes and told him to clean himself up because there was blood everywhere. He then opened the victim’s door, the victim got out and Maynard drove off.

26The victim tried to run but was unable to because of the injury to his kneecap/thigh and collapsed on the ground before dragging himself to the side of the road. He was located by passers-by a short time later who called triple zero. By this point it was approximately 5.30 pm.

27The paramedics and police attended the location and the victim disclosed to the paramedics and police what had occurred. This was captured on the body worn camera of First Constable David Barlow and Constable Joseph Lual.

28The victim was conveyed by the ambulance to the Royal Melbourne Hospital for medical assessment where his t-shirt and shoes were seized and his injuries were photographed by the police. The photographs depict bruising and swelling to the victim’s face and right knee and a small laceration above the right eye.

29The victim self-discharged prior to the completion of his assessment and treatment by the medical staff.

30On 17 May 2022, the victim attended the Mill Park Super Clinic for treatment. Dr. Iman Jamali assessed him and concluded he had a fracture to his right knee and bruising over his right eye. He did not present with any other head trauma.

31On 16 June 2022, you attended Melbourne West Police Station for an interview by appointment. Other than confirming your mobile number, you exercised your right to silence. 

32You also provided investigators with your PIN number to enable a download of your mobile. This enabled investigators to identify approximately 50 communications between you and the victim.

33You were charged and remanded into custody. You remained in custody for 17 days before being granted bail.

No criminal history

34You have no prior convictions, no subsequent matters and there is nothing else pending.

Personal circumstances

35You are now 37 years old. Your parents are both employed. You have a younger brother and sister who are also working. You enjoyed a happy and loving  upbringing and maintain a close relationship with your parents.

36Having completed high school you commenced training as a veterinary nurse.

37In 2009, when you were training to become a nurse, you and your family lost the family home in the King Lake area due to the bushfires. Many of your friends died in the fires. You also lost your place of employment. Despite this, you continued your traineeship as a veterinary nurse and qualified in 2011.

38In 2017, you gave birth to your daughter. You worked and lived with your former partner in Wallan, until your relationship broke down. 

39You then met your current partner and temporarily separated from him. Around the time of separation, your life went into a downward spiral. You began using recreational drugs, including methylamphetamine. You began associating with Maynard and others but maintained your employment.

40Following the offending you lost your employment. However, you are currently working at a veterinary clinic.

41You spent 17 days in custody, which I am told was a terrifying experience. While on bail, you reconciled and resumed your relationship with your partner. Regrettably, you suffered a miscarriage losing twins. You and your partner did some work as farm hands before moving back to your parents’ home. You were able to secure employment at a veterinary clinic where you continue to work four days a week.

42Since the offending, you have ceased using illicit drugs and undertook weekly drug counselling for a period of six months from May 2023.[4]

[4]As well as two further sessions after the six-month period. See exhibit 2.

43You are your partner are saving for a home and you are now six months pregnant.

Objective gravity and sentencing purposes

44As I said when sentencing Maynard, I regard both the false imprisonment and intentionally cause injury offending as serious. While the false imprisonment was of relatively short duration, it involved premeditation.

45You brought the victim to a secluded location under false pretences where the offending was committed in company. During the course of the false imprisonment, the victim was subjected to violence. The injury charge involved a persistent attack on the victim over some 30 minutes with both fists and a sledgehammer. Fortunately, the injuries were, as the prosecution concede, towards the lower end. While there is no victim impact statement, it is plain that your victim was subjected to a terrifying ordeal.

46By your pleas of guilty you accept that you were complicit in the offending. However, I accept that you were fearful of Maynard and felt under pressure to partake in the offending. You were acting on his instructions when you brought the victim to him. Your role in the offending was limited. You were not an active participant in what occurred in your vehicle after Maynard had entered it. You did not physically assault the victim.  

47In sentencing you, general deterrence and denunciation are particularly important. In circumstances where you have no prior history, have not re-offended and are now leading a stable life, I am able to give your rehabilitation greater emphasis.

Matters in mitigation

48You pleaded guilty following a sentence indication. The prosecution case relied upon the untested hearsay representations of the victim. In those circumstances, I regard your pleas of guilty as valuable. Your pleas entitle you to a significant discount. You have saved valuable court time and expense, facilitated the course of justice and accepted responsibility for your actions.

49I accept that your pleas of guilty and the steps you have taken since the offending demonstrate your genuine remorse.

50You are 37 years old and have no prior convictions. 

51It is regrettable that someone of your background became embroiled in this out of character offending. It appears that the enormity of the offending has left its mark on you and you have taken steps to re-assess your life and have made positive changes over the last 22 months.

52I am told that you have been drug free since being remanded in custody. As I stated earlier, you attended weekly drug counselling since May 2023 for a period of six months.

53I am told that your time on remand, your first experience of custody, was terrifying. That should be a salient reminder to you not to get involved in any future criminal activity.

Parity

54I have considered the question of parity. There are many factors that allow me to impose a community sentence in your case. Maynard played the principal role in the offending. I accept that you acted on his instructions to bring the victim to him. You became involved in the offending as you were fearful of saying no to Maynard. Unlike Maynard, your offending was out of character. Maynard has a significant prior history including offences of violence. I regard your prospects of rehabilitation as good. You have made encouraging progress over the last 22 months, and now enjoy a stable relationship and employment, and are free from illicit substance use.

Sentencing 

55Your counsel submitted that in light of your role in the offending and the fact that it represented an aberration, albeit a serious one, your lack of priors, and your encouraging progress since the offending, all sentencing objectives could be met by a suitably structured CCO. The prosecution agreed that such a disposition was within range in the circumstances of your case.

56Noting that imprisonment is always a sentence of last resort, I agree that I can appropriately punish you and at the same time maintain your rehabilitation by imposing a CCO.

57Having considered all relevant matters, on charges 1, 2 and 3, you will be convicted and sentenced to a CCO for a period of two years commencing today.

58In respect of the summary charge of driving whilst suspended, you are convicted and fined the sum of $500.

59Every CCO has core conditions that you both must comply with. They are as follows:

-    You must not commit any offence punishable by imprisonment.

-    You must comply with any obligation or requirement prescribed by the regulations.

-    You must report to and receive visits from the Secretary.

-    You must report to the community corrections centre within two clear working days.

-    You must notify the Secretary of any change of address or employment within two clear working days of the change.

-    You must not leave Victoria except with the permission of the Secretary.

-    And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

60In addition to the mandatory core conditions, the CCO will also include special conditions. They are as follows:

·        First, you will have to perform 200 hours of unpaid community work as directed.

·        Second, you must undergo any mental health assessment and treatment as directed.

·        Third, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

·        Fourth, you will be subject to supervision as directed for the duration of the CCO.

61You must report to Seymour Justice Service Centre within two working days.

62Pursuant to s 48CA(2) of the Sentencing Act 1991, I direct that treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

63You need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.

64The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you have been placed on the order. You would then face a real possibility of being sent to prison.

65So, there are serious consequences attached to any breach. Do you understand?

66ERIN GRAY: Yes.

67HIS HONOUR: Do you also understand all the conditions of the proposed CCO?

68ERIN GRAY: Yes.

69HIS HONOUR:  Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?

70ERIN GRAY: Yes, I do.

Section 6AAA declaration

71Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted I would have sentenced you to a term of 3 years’  imprisonment with a non-parole period of 2 years.