Director of Public Prosecutions v Grima, Paul
[2012] VCC 1846
•19 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00828
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PAUL GRIMA |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August, 22 August, 24 October 2012 | |
DATE OF SENTENCE: | 19 November 2012 | |
CASE MAY BE CITED AS: | DPP v Grima, Paul | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1846 | |
REASONS FOR SENTENCE
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Catchwords: accused found guilty at trial of RCSI, RCI, reckless conduct endangering serious injury to two victims; drove car at victims causing one victim to suffer fractures in both arms; persuasive mitigating circumstances, including terminally ill son with very limited life expectancy; burden of imprisonment in such circumstances; dysfunctional and unstable upbringing; has developed some insight into offending and has strong motivation to avoid further offending; exercise of mercy appropriate (Markovic v R; Pantelic v R).
Legislation Cited:
Cases Cited: Markovic v R; Pantelic v R [2010] VSCA 105 (5 May 2010)
Sentence: Aggregate sentence – 3 months imprisonment; CCO 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Foote | Office of Public Prosecutions |
| For the Accused | Mr J. McQuillan: | Valos Black |
HER HONOUR:
1
Paul Grima, you have been found guilty by a jury of a number of charges arising out of an incident at a shopping centre two and a half years ago on
7 May 2010. You were found guilty of recklessly causing injury to Daniel Trumino, as well as recklessly causing serious injury to him, and also of reckless conduct endangering serious injury to him and to Stephen Judd. The last three charges were each lesser alternatives to more serious charges.
2 The maximum penalty is five years' imprisonment for each of those charges, except for recklessly causing serious injury for which the maximum penalty is 15 years. I will now inform you, Mr Grima, that I will be imposing a short term of imprisonment and I will explain more about that later.
3 The incident started inside the shopping centre when you were passing through with your wife and two children. A verbal altercation occurred between you and a group of tradesmen who were having lunch at a cafe in the shopping centre. It seems you thought they were displaying some animosity towards you for no reason and you reacted to that perception. It was alleged that you threatened to kill one of the men, Mr Falwell, but the jury acquitted you of that charge. A short time later you encountered the men in the car park and the jury found that you attacked them, stabbing Mr Trumino in the leg and then driving your car at him and Mr Judd. Your version was that you were acting in self-defence but the jury did not accept that.
4 You were also acquitted of the more serious charges relating to events in the car park. It was alleged but rejected by the jury that by driving your car at the men you had endangered their lives, and that you had intended to seriously injure Mr Trumino. Mr Trumino was indeed seriously injured. He provided a victim impact statement, giving details of two broken wrists, a stab wound to the upper thigh, and concussion. He had plaster on both wrists for six to eight weeks and then needed further surgery on the left wrist due to its deformity, resulting in a metal plate with ten screws remaining there. Movement in his wrist is very limited and this will be permanent. He suffers constant pain. He has been unable to work since then and his Workcover payments are about half his former earnings from his landscaping job. He has had to put aside his plans to commence his own landscaping business and is undertaking retraining, hoping for other employment.
5 The loss of his independence and reliance on others to take care of him brought about a state of depression, with episodes of anxiety and insomnia and unexplained anger. Those symptoms have settled to some extent, but he is still having regular psychological counselling, for which he had no need before these injuries.
6 Clearly, these are very serious injuries which warrant a sentence of imprisonment, not only by way of punishment but also to deter others from impulsive, ill-considered violence in response to perceived slights from strangers. I turn now to your personal background.
7 You are now aged 45, a married man with three children aged 21, 17 and four. Another child died tragically of SIDS when only four months old. You yourself are one of seven children and you experienced a turbulent and difficult childhood with your father leaving the family when you were aged eight, apparently because of your mother's periodic emotional breakdowns and her condition of obsessive compulsive disorder. This caused her to move house frequently when she believed the house had become contaminated, resulting in you attending many different schools and having little stability in your life. It appears that for these reasons your education was severely disrupted, and indeed you left school after year 7.
8 Since your teenage years you have worked as a truck driver and removalist and you seem to have had a relatively stable work history. You started using cannabis at age 19, moving on to heroin as you originally said, in your instructions to counsel, but it seems that that is not accurate. In any event, you committed burglaries and thefts around that time and of nine court appearances two involved violence, a charge of assault for which you received a three-month suspended sentence in 2001, and in 1994 a charge of resisting arrest resulting in your imprisonment for seven days.
9 That period of offending lasted until you were about 30 when you ceased offending, and until last year you were consistently employed and looking after your family, but in 2011 you were sentenced to six months' imprisonment for charges of burglary and related offending. You were released from prison in May of this year and have not sought work since then because of the trial that was pending.
10
You are on medication for anxiety and to manage drug addiction following what you reported as having been a relapse into drug use leading to the convictions in 2011, although as I say that information that you initially gave your medical practitioner was not accurate. In any event, you are seeing
Dr Winbury, your general practitioner in Horsham where you live, for this matter and he reports that you are a reliable patient, behaving in a gentle manner and wishing to change your life and turn your back on previous lifestyles. He also reports that you and your wife are a loving and interdependent couple and that your young son always appears happy and well cared for.
11 Sadly, your older son, Paul Jnr, suffers from an extremely serious and life-threatening illness, aplastic anaemia. His treating doctor, Dr Hannah Rose, who is the haematology registrar at Geelong Hospital, has provided a report which states that Paul has undergone two bone marrow transplants in the past, but both unfortunately have failed to cure the disease. He must therefore have blood transfusions every one to two weeks, and at the time of the report, weekly. He is very susceptible to infection and has been admitted to hospital several times in recent months. He recently spent three and a half weeks in hospital in intensive care, suffering from septicaemia and respiratory failure. He recovered and was discharged home, but according to a letter from Dr Rose dated 22 October 2012 he remains at high risk for severe infectious complications of his underlying illness. She said this may develop at any time, often rapidly, and be life-threatening, as it was in this instance.
12 Dr Rose further explained that submissions have been made through the hospital to two separate pharmaceutical companies for compassionate access to appropriate medication, but both submissions have been rejected. Paul continues to be treated with a drug which boosts his white blood cell count, but he remains at risk of severe overwhelming infection. She said this is likely to recur in the next weeks or months.
13 Dr Rose reports that in the medium term Paul will certainly require ongoing medical supervision and supportive care for the foreseeable future. She provided a letter dated 5 November 2012 which has now been tendered, and admitted in evidence, in which she elaborated upon Paul's condition. She said any admission to hospital could potentially be his last, and therefore his life expectancy could be measured in weeks or months.
14 In an earlier letter dated 27 August, Dr Rose stated that Paul's illness had been a constant source of stress and worry for you and that Paul recently told her that he is getting a lot of emotional support from you, which is helping him enormously at this difficult time. Paul is living in a flat in Geelong in order to be close to the hospital. You and your wife and young son presently live in Horsham but hope to be able to move to Geelong to be closer to Paul. Your daughter Hayley is a student, also living in Geelong. You have the promise of a rental property in the area and also the promise of employment as a truck driver with a company owned by your brother.
15 Paul's diagnosis in 2001 led to treatment which resulted in remission for several years, but his relapse in 2006 caused a deterioration in your mood and stress upon your marriage, leading to separation for a time. You were recently assessed by the psychologist Mr Newton, who reports that you suffer with quite complex anxiety and depression and from periodic panic attacks. Mr Newton described one of your reported symptoms as being "a generalised sense of lethargy bordering on exhaustion". His formal diagnosis is of chronic adjustment disorder, with mixed anxiety and depressed mood. He considers that there is a genuine risk of your mood deteriorating if you were to be imprisoned.
16 One aspect of Mr Newton's report was particularly illuminating, focusing on your lack of capacity to manage anger and to resolve conflicts. Noting your experience of prison as having made you wary and hyper-vigilant of other men, Mr Newton observed that you routinely monitor your environment for signs of threat or hostility, therefore you overestimate the degree of threat in a given situation and are over-sensitive to any indication of conflict. You are poorly equipped to defuse any conflict which might develop and are apt to resort to ineffective strategies, including manifestations of dominance which are more likely to increase the level of conflict and tension rather than defuse or decrease it. It may well be that this hyper-vigilance came into play at the shopping centre on the day in question and contributed to the unfortunate episode which unfolded.
17 Mr Newton concluded that there is a pressing need for you to have structured intervention to address these anger management issues. On the positive side, he notes that you have some insight into the futility of violence and do not deliberately pursue it.
18 I was referred to a number of authorities dealing with the issue of hardship and the exercise of mercy. In the case of Markovic it was held that an offender's anguish at being unable to care for a family member can properly be taken into account by the court as a mitigating factor and is not subject to the limitations of the need for exceptional circumstances. In this case the issue is not just that you will be unable to give your son emotional support, but that you could not be there during the last days of his life and that these combined aspects of the tragedy of his illness would increase the burden of imprisonment upon you.
19 It was urged upon me and I accept that your imprisonment at this time when your son is so ill would cause great distress to you. You would be unable to provide him with emotional support which you are presently providing at a time when further infections are predicted as likely to occur, and with his recovery on each such occasion not being a certain outcome.
20 When your baby son died of SIDS you were very much affected and relapsed heavily into drug use at the time. I take into account as a strongly mitigating factor that your absence from the family whilst in prison would be a burden weighing more heavily upon you than the experience of prison would otherwise be.
21 Following receipt of a copy of the most recent letter from Dr Rose, the prosecution sentencing range has been amended. The initial range submitted was a head sentence of three to four years with a non-parole period of 18 to 24 months. In the revised range the head sentence remains the same, with a non-parole period of eight to 12 months, which is a considerable reduction. Part of the prosecution submission was that life expectancy is an uncertain matter and can often be wrong. There are many uncertainties which apply to the task of sentencing and I can only say that I have been presented with cogent and persuasive views as to Paul's likely prognosis.
22 The defence submission has also changed, taking into account that prognosis. Mr McQuillan has urged me to consider imposing a wholly suspended sentence of imprisonment in the exercise of mercy in order to avoid you being imprisoned during the remaining weeks or months of your son's life and at the time when he might die.
23 General deterrence is an important consideration in this case because of the serious injury suffered by Mr Trumino and that there were other serious charges involved in the offending, all of which occurred in a public place. Specific deterrence is a matter of relatively slight importance given the minimal level of previous involvement in violent offending and the fact that those matters occurred a very long time ago. I am satisfied that you have developed a considerable degree of insight into the reasons for your offending and that you have very strong motivations for avoiding trouble in future. But a term of imprisonment is certainly warranted by this offending. I take into account that any term of imprisonment, however short, carries with it the risk that Paul might die while you are in prison and, of course, your time in custody will be a burden because you will not be able to be with him at all during what could be his last days. But in the exercise of mercy I shall impose a short sentence of imprisonment followed by a community corrections order.
24 I will ask you to stand now please, Mr Grima. I sentence you as follows. There will be an aggregate sentence of three months' imprisonment applying to all four charges. A community corrections order will begin on the day of your release and will last for two years. You will be required to perform 100 hours of unpaid community work and you will be subject to supervision. You will be assessed for drug treatment and for any necessary mental health treatment and for your suitability for programs to reduce offending.
25 You must report to the Horsham Office of Corrections within two working days of your release, and I understand that you have been informed that if you move to Geelong to live then you must report to the office in Geelong. The community corrections order is available now for you to sign and I will pass that down.
26 Mr McQuillan, do you want to have a look at it first?
27 MR McQUILLAN: I think I'm supposed to, Your Honour, yes.
28 HER HONOUR: I have just noticed, Ms Foote, that I have neglected the ancillary orders. I will just attend to those now.
29 MS FOOTE: Thank you, Your Honour.
(Order signed and acknowledged.)
30 HER HONOUR: Mr McQuillan, is there any opposition to the disposal order and the s.464ZF?
31 MR McQUILLAN: No, of course not, Your Honour.
32 HER HONOUR: Not opposed?
33 MR McQUILLAN: No, not opposed.
34 HER HONOUR: All right, I will explain those to Mr Grima.
35 MR McQUILLAN: Certainly, Your Honour.
36 HER HONOUR: Mr Grima, I am going to make an order for disposal of the trousers. I have a form here to sign, I will do that in a moment.
37 The prosecution also seeks an order for a forensic sample of saliva to be obtained from you under s.464ZF of the Crimes Act. I understand that is not opposed and I will make that order. I only need to add that the police do have the power to use reasonable force to obtain that sample if necessary, but I trust that will not be necessary.
38 Ms Foote, I have those orders here. I will sign them just outside in chambers and they will be ready for you in a few minutes if you want to wait for them.
39 MS FOOTE: Thank you, Your Honour.
40 HER HONOUR: Have I neglected anything?
41 MR McQUILLAN: No, Your Honour.
42 HER HONOUR: Thank you, Mr McQuillan, and perhaps you could pass on my thanks to Mr Hardjadibrata, Ms Foote.
43 MS FOOTE: Yes, Your Honour.
44 HER HONOUR: And to the instructors in this case as well for what has been quite a long, drawn out and difficult process.
45 MR McQUILLAN: Your Honour, my instructor is asking if you could try to influence the prison officer to let my client stay for a minute or two for us to explain the sentence to him, rather than go down to the cells at this time.
46 HER HONOUR: Yes, he may wait. Mr Percy, or my associate, will bring the orders back into court so he can remain for that period of time.
47 MR McQUILLAN: Thank you, Your Honour.
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