Director of Public Prosecutions v Gray

[2022] VCC 171

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00728

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONNOR GRAY

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2021, 17 November 2021 & 18 February 2022
DATE OF SENTENCE:	22 February 2022
CASE MAY BE CITED AS:	DPP v Gray
MEDIUM NEUTRAL CITATION:	[2022] VCC 171

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords:  Burglary - Theft - Arson - Damaging emergency services vehicle - Aggravated burglary - Common assault - Early plea of guilty - Extensive and relevant criminal history - Specific deterrence - Community protection - Youthful offender - Childhood deprivation - Mental health issues - Guarded as to prospects of rehabilitation

Legislation Cited: Crimes Act 1958; Road Safety Act 1986

Cases Cited: Bugmy v The Queen [2013] HCA 37

Sentence:  Total effective sentence – Imprisonment of 7 years with a non-parole period of 3 years and 9 months – s.6AAA declaration – Imprisonment of 9 years with a non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Ms S. Gaunt	SLKQ Lawyers

HIS HONOUR:

1Connor Gray, you have pleaded guilty to the following charges -

i.Burglary contrary to s 76 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment;

ii.Two charges of theft contrary to s74 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment;

iii.Arson contrary to s197 of the Crimes Act 1958. The maximum penalty for that offence is 15 years imprisonment;

iv.Damaging an emergency services vehicle by reckless driving contrary to s 317AG(1) of the Crimes Act 1958. The maximum penalty for that offence is five years imprisonment;

v.Aggravated burglary contrary to s 77 of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment;

vi.Common assault contrary to common law.  The maximum penalty for that offence is five years imprisonment.

2You have also pleaded guilty to the following related summary offences -

i.Failing to stop a motor vehicle following a direction by police contrary to s 64A of the Road Safety Act 1986. The maximum penalty for that offence is six months imprisonment or a fine of 60 penalty units; and

ii.Dangerous driving contrary to s 64 of the Road Safety Act 1986. The maximum penalty for that offence is three months imprisonment or a fine of 240 penalty units.

3You pleaded guilty at committal following negotiations between the parties and before any evidence was called, and accordingly your plea is properly characterised as at an early stage of the proceedings.  Your plea has also facilitated the administration of criminal justice during the COVID-19 pandemic and I accept that it is evidence of remorse for your offending.

4I have taken your high value plea of guilty into account in your favour in mitigation of sentence.

5You have admitted an extensive and relevant criminal history through a range of serious offences dating into 2012 and you have been the subject of a number of custodial and non-custodial dispositions which have to date failed to rehabilitate you and deter you from offending.

6At the time of your offending in this instance, you were the subject of a Community Correction Order.  Plainly, specific deterrence is a prominent sentencing consideration in your case.

7A prosecution opening was tendered in evidence and your offending may be summarised as follows -  

8On 30 December 2019 at approximately 6 am, you entered a residential property in Mooroolbark occupied by Lisa Dehnert and her son, Luke, a serving police officer.  Upon entering the house, you observed Luke Dehnert's police equipment which you stole.  You also stole the keys to a vehicle owned by a friend of Luke Dehnert.  Before leaving the house, you set fire to furniture in it resulting in the premises becoming engulfed in flames and ultimately destroyed.

9You then stole Dehnert's friend's vehicle and drove from the premises at a high speed.  Another person who had accompanied you to the premises in your car followed you in that car.  Emergency services were called to the fire but were unable to extinguish it, and both the house and the personal belongings of the Dehnert’s were completely destroyed.

10Whilst the house and its contents were insured, I accept that this loss was a tragedy for Lisa and Luke Dehnert and I will return to the impact of your crimes upon them.  It had been the family home for 25 years.

11Later that day, at approximately 5 pm, investigating police attended at the Manhattan Hotel in Ringwood after receiving information that your vehicle had been seen there.  Upon their arrival, they observed you drive from the car park and commenced to pursue you.  You were driving in an erratic and dangerous manner.  You drove into a dead-end street as you were pursued by police.  You made a U-Turn in the street and drove your vehicle towards the police vehicle and collided with it but were able to continue driving.

12After a further pursuit, the police lost sight of you.  You then dumped your vehicle in Wantirna South and proceeded on foot, entering a home occupied by Kathlyn and Jeffrey Pervis at approximately 7.50 pm.  Mrs Pervis went to her bedroom and discovered you hiding in a cupboard holding a spray can.  Mr Pervis responded to her screams and you demanded his car keys and sprayed him in the face with the contents of the can.  You continued to demand the car keys and kicked Mr Pervis in the groin.

13Police conducted an extensive search for you and ultimately you were arrested at premises in Ringwood the following day.

14During the course of the record of interview with investigators, you told them you have an acquired brain injury and third-party assistance was provided by the investigators to you. You made a number of admissions to questions that were put to you but also threatened witnesses who would make statements to the investigating police.

15It is plain from this summary that you were engaged in a course of serious criminal conduct over an entire day characterised by complete disregard for the welfare and security of others.  I am satisfied that the offence of arson that you have pleaded guilty to, whilst not premeditated or for financial gain, is a serious example of that offence, and I do not accept your denials of responsibility for it to the psychiatrist and a neuropsychologist who interviewed you.

16In an intercepted Arunta telephone conversation with your father on 7 March 2020, you stated,

'I'm in because I found the cop's house and burned it down.'

17I am not able to finally conclude why you did set fire to the house but I am satisfied to the criminal standard that it was a deliberate act of destruction carried out in a stranger's home.

18I have received in evidence a victim impact statement of Lisa Dehnert and a victim impact statement of Luke Dehnert and I accept that your offending has had a profoundly traumatic effect on both of them.  Their family home and belongings were destroyed by you in an appalling and senseless criminal act.

19Furthermore, I am also satisfied that the offence of aggravated burglary is also a serious example of that crime.  You entered an elderly couple's home in order to avoid detection and arrest whilst in an aggressive and agitated state.  Thereafter, you committed a cowardly and completely unwarranted assault on an elderly man and your conduct in that regard must also be roundly denounced.

20I have also received in evidence victim impact statements of Mr and Mrs Pervis detailing the traumatic effect your crimes had on them and their quality of life.  I have no doubt that the protection of the community is another prominent sentencing consideration in this case and you must also be punished for your utter disregard for the welfare of others and for the police who were attempting to lawfully arrest you.

21This sentence must be calculated to make it clear to persons minded to offend in this manner that conviction for offending of this nature will be met with the imposition of a significant term of imprisonment.

22I now turn to your personal circumstances.

23You were born on 1 April 1994 in Ferntree Gully and are now aged 24.  You were 22 at the time of your offending.  I accept that you are a youthful offender and your future rehabilitation remains an important factor for me to take into account in the formulation of the sentence in this case.

24I accept that your childhood and developmental years were severely disrupted by reason of the physical and emotional abuse you were subjected to by your parents.  Child Welfare Services were engaged in your case from a young age and the failure of your parents to provide a stable and supportive childhood for you led to the development of attention deficit hyperactivity disorder, oppositional defiance disorder, anxiety and depression in your case.

25Your education was also disrupted and your behaviour led to your expulsion from school in Year 8.  You also suffered a number of head injuries and acts of violence or motor vehicle collisions in your teenage years and it would appear that that too has impaired your cognitive development and capacity for emotional regulation.

26You have suffered polysubstance abuse disorders since your early teen years and you were supplied with cannabis by your father when you were a child.

27I have received in evidence the following reports in relation to your mental health -

i.A psychological report together with a supplement prepared by Dr Aaron Cunningham dated 8 September 2021;

ii.A Forensicare psychiatric report prepared by Dr Maria Treglia dated 3 November 2021;

iii.A neuropsychological report prepared by Ms Suzzanne Kerry dated 23 June 2016; and

iv.A further neuropsychological report of Dr Harriet Downing dated 21 January 2022.

28I have also received in evidence mental health notes of Eastern Health in relation to mental health assessments undertaken of you in 2010.

29It is clear from this body of evidence that you do not suffer from a mental illness or an intellectual disability.  Nevertheless, I accept that your history of childhood abuse has probably resulted in the development of borderline personality disorder with features consistent with post-traumatic stress disorder.  As I have already said, you also suffer from attention deficit hyperactivity disorder for which you are treated with Seroquel.  Furthermore, you suffer from longstanding anxiety and depression for which you are also medicated.

30I accept that this constellation of mental health issues whose origins would appear to reside in childhood abuse will increase the burden of imprisonment upon you.  It is also clear that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are engaged in your case and your profoundly disadvantaged upbringing has led to an inability on your part to adopt a prosocial life. This in turn is compounded by your polysubstance abuse disorder.

31Whilst these considerations are relevant to my assessment of your moral culpability, they also suggest that the community must be protected from you and, in my opinion, your prospects of rehabilitation are to be approached with caution.

32Yours is a tragic case and, as I observed during the plea in mitigation, you have spent a considerable time on remand during the restrictions imposed by reason of the COVID-19 pandemic and it would also appear that you have engaged in productive work and courses whilst in prison.  These factors are also significant matters in mitigation of sentence.

33Nevertheless, for the reasons that I have referred to, in my opinion, I have no alternative but to impose significant terms of imprisonment upon you governed by the principle of totality for the serious crimes that you have pleaded to.

34I have also taken into account the fact that you have served 89 days imprisonment for the breach of the community correction order that you were the subject of at the time of your offending.

35In the result, the sentence of the court is as follows.

36On Charge 1 on the Indictment, you are convicted and sentenced to be imprisoned for 18 months.

37On Charge 2 on the Indictment, you are convicted and sentenced to be imprisoned for 6 months.

38On Charge 3 on the Indictment, the charge of arson, you are convicted and sentenced to be imprisoned for 4 years.

39On Charge 4 on the Indictment, you are convicted and sentenced to be imprisoned for 6 months.

40On Charge 5 on the Indictment, you are convicted and sentenced to be imprisoned for 12 months.

41On Charge 6 on the Indictment, the charge of aggravated burglary, you are convicted and sentenced to be imprisoned for 3 years.

42On Charge 7 on the Indictment, you are convicted and sentenced to be imprisoned for 8 months.

43In relation to the charge of failing to stop, you are convicted and sentenced to be imprisoned for 3 months.

44In relation to the charge of dangerous driving, you are convicted and sentenced to be imprisoned for 1 month.

45The sentence imposed on Charge 3, the charge of arson, is the base sentence.

46I direct that 6 months of the sentence imposed on Charge 1, 6 months of the sentence imposed on Charge 5, 18 months of the sentence imposed on Charge 6 and 6 months of the sentence on Charge 7 be served cumulatively on each other and cumulatively on the sentence imposed on Charge 3.

47This makes for a total effective term of imprisonment of 7 years. 

48I direct that you serve 3 years and 9 months before becoming eligible for release on parole. 

49I declare you have served 783 days by way of pre-sentence detention not including today.

50But for your plea of guilty, I would have imposed a total effective term of imprisonment of 9 years with a non-parole period of 5 years.

51All drivers licences held by you are cancelled and you are disqualified from obtaining a licence in the State of Victoria for 3 years from 1 March 2023.

52I have also made the disposal order sought on behalf of the prosecution.

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