Director of Public Prosecutions v Gray, Christopher James
[2013] VCC 422
•8 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01393
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| CHRISTOPHER JAMES GRAY |
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JUDGE: | His Honour Judge Dean | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2013; 8 March 2013; 18 March 2013 | |
DATE OF SENTENCE: | 8 April 2013 | |
CASE MAY BE CITED AS: | DPP v Gray, Christopher James | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 422 | |
REASONS FOR SENTENCE
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Catchwords: Possession of firearms and explosives; psychiatric illness; R v Verdins applied; Protection of the community.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused | Mr T. Fitzpatrick | Tony Danos Lawyers |
HIS HONOUR:
1 Christopher James Gray, you have pleaded guilty to the following charges. Making an explosive substance without lawful object contrary to s.317(4) of the Crimes Act 1958. The maximum penalty for that offences is five years' imprisonment. Causing an explosion likely to endanger life or cause serious injury to property, contrary to s.317(2) of the Crimes Act 1958. The maximum penalty for that offences if fifteen years' imprisonment. Two charges of possession of an unregistered general category handgun contrary to s.7B(1) of the Firearms Act 1996. The maximum penalty for that offences is 600 penalty units or seven years' imprisonment.
2 One charge of being a non prohibited person possessing an unregistered Category A or B long arm contrary to s.6A(1) of the Firearms Act 1986. The maximum penalty for that offences is 120 penalty units or two years' imprisonment. Two charges of owning a Category E long arm or Category E handgun without a licence contrary to s.135(3) of the Firearms Act 1996. The maximum penalty for that offence is 240 penalty units or four years' imprisonment. And one charge of shortening the barrel of a long arm contrary to s.134(1) of the Firearms Act 1996. The maximum penalty for that offence is 240 penalty units or four years' imprisonment.
3 You have also pleaded guilty to the following related summary offences. Manufacturing a prohibited weapon contrary to s.5(1)(c) of the Control of Weapons Act 1990. The maximum penalty for that offence is a fine of 240 penalty units or two years' imprisonment. Possession of a prohibited weapon namely a double ended knife contrary to s.5(1)(e) of the Control of Weapons Act 1990. The maximum penalty for that offence is 240 penalty units or two years' imprisonment. Being a non prohibited person in possession of a silencer without a permit contrary to s.57(1) of the Firearms Act 1996. The maximum penalty for that offences is a fine of 120 penalty units or two years' imprisonment. And, finally, possession of ammunition whilst not being the holder of a licence pursuant to the Firearms Act contrary to s.124(1) of the Firearms Act. The maximum penalty for that offence is a fine of 40 penalty units.
4 You pleaded guilty at committal mention on 2 August 2012 and I have taken your early plea of guilty into account in your favour in mitigation of sentence.
5 A prosecution opening was read to the court and tendered in evidence and your offending maybe summarised as follows–
6 In 2009 you joined the Australian Army and trained as a combat engineer. You were discharged from the Australian Army in March 2010 following an incident whereby you discharged a firearm at the Holsworthy Army Barracks in New South Wales. Following this incident you were admitted to an Army hospital suffering from a major depressive episode accompanied by symptoms of borderline personality disorder.
7 At the time you joined the Australian Army you did not disclose your then longstanding mental health history. After your discharge from the Australian Army you returned to live with your mother and your siblings at the family home in Kurunjang, a suburb near Melton.
8 On 12 December 2011 your younger brother, Lance Gray, attended at the Melton Police Station to seek an intervention order against you as a result of your assaulting him.
9 On 13 December 2011 you were bailed from the Melton Police Station to appear at the Sunshine Magistrates' Court on 14 December 2011 for an intervention order hearing.
10 Prior to the hearing police conducted a search of your premises for a firearm that a family friend had observed in your bedroom. During the search police located a number of firearms and following your arrest a thorough search of the premises was conducted. That search disclosed that you had accumulated an arsenal of weapons and devices capable of being used to construct improvised explosive devices.
11 It is clear that following your discharge from the Australian Army you obtained a number of illegal firearms and you used your training as a combat engineer to prepare, develop and to test explosive devices capable of seriously injuring or killing other people. Your activities took place in a quiet suburban location.
12 Investigating police also took possession of your computer and related technology. An analysis of this equipment revealed that you had regularly accessed neo-Nazi and white supremacist material and websites. You also examined material relating to mass shootings in the United States. Also located in your bedroom was a note book which contained the following entry.
"I really want to kill my old vice principal because I thought I'd feel better and be cured. I know that that won't make me any better. I was really sad to realise this. I know it is true. I wanted to kill him to reclaim some dignity and thought it would be like karma, you hurt me, I hurt you, fair's fair. I used to want to kill his whole family and pets and anyone in the house. At the time I never wanted to shoot him because it seemed too easy, I wanted to use a chain saw because it seemed appropriate. I see now I had and still have a little rage. These are not sane thoughts, I am really angry at him for doing things to me and I wanted to do something to him personally so I reclaim dignity."
13 This entry concerned a teacher at a school you had previously attended. In combination your military training, possession of weapons and explosives, interest in extreme neo-Nazi material and white supremacist material, and your statements of contemplated acts of violence plainly indicate that your offending is of the utmost seriousness.
14
The counts on the indictment concern the following particular facts.
Charge 1
15
The Victoria Police Bomb Response Unit located at your premises numerous improvised explosive devices constructed from metal and PVC piping. They also located detonation devices and precursor chemicals for the preparation of high explosive compositions. Furthermore they located fishing sinkers, presumably to be used as shrapnel in the improvised explosive devices. These items were capable of use in the construction of pipe bombs capable of causing serious injury or death.
Charge 2
16
Police located at your premises a mini DVD 60 tape depicting the detonation of two explosive devices in the rear garden of your premises. Whilst the maximum penalty for this charge is 15 years' imprisonment and the maximum penalty for Charge 1 is five years' imprisonment, in my opinion your offending in relation to Charge 1 is the more serious of these two charges as you accumulated a large quantity of materials capable of use in the construction of a number of improvised explosive devices and your detonation of the devices in your rear garden depicted in the DVD tape was in all probability a step in the preparation and development of such devices by you.
Charges 3 and 4
17
These charges concern the possession by you of two home made pistols, of .22 and .410 calibre. Both pistols were in working order when located at your premises.
Charge 5
18
This charge concerns your possession of a Winchester 3030 lever action rifle in working order. The disassembled rifle was located by police in your bedroom.
Charge 6
19
This charge concerns your possession of a .22 bolt action repeater rifle. This rifle was fitted with a telescopic sight and bipod. The barrel of the rifle had been shortened and the muzzle threaded to enable the fitting of a silencer. This weapon is depicted in Photograph 33 of Exhibit 3. I do not accept that it was modified by you in the manner described in order to shoot rabbits as was submitted by your counsel.
Charges 7 and 8
20 During the course of the search of your premises police conducted a search of your vehicle and located within it a bag containing a sawn off double barrel shotgun, an ammunition belt containing eight shotgun cartridges, a balaclava and a pair of gloves. These charges concern you reducing the length of this shotgun and your possession of it. The shortening of it and the circumstances of your possession of this weapon in my opinion make it a serious example of this offence.
21 The related summary offences that you have pleaded guilty to concern you manufacturing knuckledusters and your possession of a silencer, double end knife and cartridge ammunition.
22 As I have already observed, your offending is of the utmost seriousness. I do not accept that your accumulation of this arsenal of weapons and explosive devices was driven by a simple interest in firearms and fireworks. These materials were clearly capable of being used by you in a planned act of mass violence.
23 The sentence that I impose must be formulated with the protection of the community as a significant sentencing consideration, and furthermore the sentence must be calculated to deter you and others from offending in the way that you have.
24 I now turn to your personal circumstances.
25 You were born on 2 October 1989 and you are aged 23. You are a youthful offender and I have taken this into account in the formulation of the sentence that I must impose. You have no prior convictions. You are of above average intelligence but only completed Year 11 at Melton High School. You have a younger sister and brother. Your parents separated when you were 11 as a result of your father's violence and gambling addiction. I accept that your childhood and developmental years were seriously disrupted by this.
26 From the age of approximately 12 you developed a complex psychological and psychiatric profile culminating in the diagnosis of Asperger's Disorder in 2007. You have also experienced episodes of psychosis accompanied by hallucinations and delusions and at the time of your arrest in relation to these charges you were in a psychotic state and unfit for interview by investigating police.
27 I have received in evidence a psychological report of Mr David Ball, a consulting and forensic psychologist. Mr Ball expressed the following conclusion in his report:
"Mr Gray impressed me as a highly fragile and paranoid individual with remedial, social and communication skills. He also impressed me as having paranoid, narcissistic and antisocial personality features. He was unable to articulate any insight into his Asperger's Disorder and has little insight into his general psychological functioning. He presents as deficient in his current capacity to plan and execute positive and self sustaining behaviour. He presents as having difficulty in initiating and maintaining friendships and appropriate relationships in most contexts. Consistent with a previous diagnosis of Asperger's Disorder he has a history of an encompassing preoccupation with white nationalism, improvised explosive devices and firearms."
28 Mr Ball also gave evidence before the court and expressed the opinion that the risk of you committing a serious act of violence is high in the absence of you receiving long term supervision, monitoring and psychiatric treatment.
29 I have also received in evidence the psychiatric report of Dr Kevin Ong, a consulting forensic psychiatrist employed by Forensicare. Dr Ong spoke to you on two occasions for the purposes of preparing his report and in my opinion during these consultations you sought to rationalise the seriousness of your offending and the risk that you posed to the community. Dr Ong describes you as having a maladaptive personality and that during periods of depression it is likely that the risk that you pose to the community would escalate. During your interview with Dr Ong you repeated your white supremacist beliefs stating that you would "feel safer in a magical white nation."
30 The evidence of Mr Ball and Dr Ong supports my conclusion that the protection of the community is a significant sentencing consideration in your case. In my opinion any realistic assessment of your prospects for rehabilitation must be guarded, but I do accept that your psychiatric condition has stabilised since your incarceration and it would appear that you are responding favourably to the antidepressant medication now prescribed for you. You have also sought the support and counselling from a prison chaplain.
31 I accept that the principles enunciated in R v. Verdins (2007) 16 VR 269 are engaged in your case. I accept that your offending was linked to your delusional beliefs and underlying psychiatric illness, and further that your moral culpability must be assessed in this context. For this reason I have moderated the application of the principle of general deterrence in your case. I also accept that imprisonment will impose a greater burden upon you by reason of your illness.
32 However it is also your mental condition that gives rise to the risk that you pose to the community. In R v. Veen (No.2) (1988) 164 CLR 465 at 476, the High Court of Australia said this–
"The purposes of criminal punishment are various, protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects. One, which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."
33 I accept that I cannot impose a disproportionate penalty in order to protect the community but it is permissible for me to consider the protection of the community when assessing the significance of your mental condition in the formulation of the sentence that I must impose in your case.
34 Furthermore the Court of Appeal in R v. Howell (2007) 16 VR 349 when speaking of the impact of the R v. Verdins upon sentencing considerations in a particular case said this–
" The point of Verdins is that each case depends upon its own facts and in particular on the nature of the mental condition in question. Accordingly it advances understanding little to conjecture that there may be some classes of sociopath whose conduct warrants the full weight of general deterrence and denunciation, for just as certainly there may be others whose mental condition and circumstances will be such as to warrant a sensible moderation of the need for general deterrence and denunciation. In each case it will depend on the facts. The theory and reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique, and in this case, in my view, it results in the need for amelioration of the need for general deterrence and denunciation."
35 Whilst I have moderated the principle of general deterrence in its application in your case, in my opinion it is necessary for any sentence that I impose to deter you from offending again in the way that you have.
36 Your counsel submitted that you will benefit from intensive supervision on parole and in my opinion it will be necessary for such supervision to occur in the event that you are released from prison on parole.
37 In the result the sentence of the court is as follows–
38 In relation to Charge 1 you are convicted and sentenced to be imprisoned for three years and six months. Charge 1 is the base sentence. In relation to Charge 2 you are convicted and sentenced to be imprisoned for two years. In relation to Charge 3 you are convicted and sentenced to be imprisoned for six months. In relation to Charge 4 you are convicted and sentenced to be imprisoned for six months. In relation to Charge 5 you are convicted and sentenced to be imprisoned for three months. In relation to Charge 6 you are convicted and sentenced to be imprisoned for three months. In relation to Charge 7 you are convicted and sentenced to be imprisoned for six months. In relation to Charge 8 you are convicted and sentenced to be imprisoned for nine months.
39 In relation to the related summary offences–
40 On the charge of manufacturing a prohibited weapon you are convicted and sentenced to be imprisoned for two months. In relation to the charge of possession of a prohibited weapon you are convicted and sentenced to be imprisoned for two months. In relation to the charge of being a non prohibited person in possession of a silencer you are convicted and sentenced to be imprisoned for two months. In relation to the charge of possession of ammunition you are convicted and fined the sum of $500.
41 I make the following orders in relation to cumulation. I order that 12 months of the sentence on Charge 2, three months of the sentence on Charge 3, three months of the sentence on Charge 4, one month of the sentence on Charge 5, one month of the sentence on Charge 6, three months of the sentence on Charge 7, six months of the sentence on Charge 8, the entire sentence in relation to the charge of manufacturing a prohibited weapon, one month of the sentence in relation to the charge of possession of a prohibited weapon and one month of the sentence in relation to the charge of being a non prohibited person in possession of a silencer be served cumulatively upon each other and cumulatively on the sentence that I have imposed in relation to Charge 1.
42 This makes for a total effective term of imprisonment of six years and three months. I order that you serve four years and three months' imprisonment before becoming eligible for release upon parole.
43 But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of eight years and fixed a non-parole period of six years.
44 I declare that you have served 481 days not including today by way of pre-sentence detention.
45 I have made the ancillary orders sought by the prosecution.
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