Director of Public Prosecutions v Grose
[2022] VCC 1073
•8 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
CR-21-02091
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN GROSE |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2022 | |
DATE OF SENTENCE: | 8 July 2022 | |
CASE MAY BE CITED AS: | DPP v Grose | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1073 | |
REASONS FOR SENTENCE
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Subject: burglary and theft - multiple charges.
Sentence: 5 and ½ years imprisonment with a non parole period of 3 years and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. D'Arcy | |
| For the Accused | Ms B. Oliver |
HIS HONOUR:
1 Kevin Grose you have pleaded guilty to twelve charges contained in indictment C2114158, and two related summary charges, and you have agreed to those summary charges being dealt with by me in this Court.
2 Charges 3 and 11 on the indictment are each charges of Burglary, with intent to steal, The maximum penalty for this offence is imprisonment for 10 years. In Charge 3 you were charged with offending together with Jackson Paul Hilson who I have sentenced separately. In sentencing him I said that I regarded you as being the principal offender in that charge.
3
Charges 1, 2, 4, 8, 10, 12 and 13 on the indictment, are each charges of theft. The maximum penalty for each of these charges is also imprisonment for
10 years.
4 Charges 6 and 7 on the indictment are each charges of theft of firearms. The maximum penalty for each of these charges is imprisonment for 15 years.
5 Charge 9 on the indictment is a charge of being a prohibited person you possessed a firearm. The maximum penalty for this charge is imprisonment for 10 years.
6 Turning to the related summary charges, Charge 23 is a charge of using a mobile phone whilst being the driver of a motor vehicle. The maximum penalty for this summary offence is a fine not exceeding 10 penalty units. Summary Charge 25 is a charge of dangerous driving for which the maximum penalty is two years' imprisonment.
7 The circumstances of your offending are contained in a summary of prosecution opening dated 10 May 2022. That document was read to the court by the learned prosecutor, and your counsel accepted that the prosecution opening is accurate and forms a proper factual basis upon which I can proceed to pass sentence. In those circumstances, it is not necessary that I here, again, set out in full, that which is contained in the prosecution summary, and I will do so only in an abbreviated way. These sentencing remarks should, however, be read in conjunction with what is set out in the amended prosecution summary, which was tendered in evidence and marked as Exhibit 'A'.
8
Your offending was somewhat prolific and repetitive. The offending in
Charges 1 and 2 occurred at Wendouree where you acted alone on 21 October 2020. The offending in Charges 3 to 10 inclusive occurred at Charlton on
18 November 2020. In Charges 3 and 8 you acted with co-offender Hilson at Charlton, in the other charges you acted alone. Your offending in Charges 11 and 12 occurred at Wychitella on 29 November 2020 where you again acted alone, and the offending in Charge 13 occurred at Wedderburn on 1 December 2020. The offending in related summary Charge 25 occurred at Tarnagulla also on 29 November 2020.
9 On 21 October 2020 at 2.40am you entered the rear yard of a vehicle mechanic’s business in Wendouree. You stole two sets of number plates from two vehicles. (Charges 1 & 2)
10 About a month later you, and Hilson, entered a rural property in Charlton which was unattended. You gained access to buildings where you searched sheds and using bolt cutters you gained access to a gun cabinet. You stole four (4) long-arm firearms and a quantity of ammunition that had been safely secured by the owners. Those firearms have not been recovered. (Charges 6, 7 & 9) When you entered the premises at the farm and sheds your intent was to steal (Charge 3 Burglary)
11 You carried out your intention. As well as stealing the firearms, you also stole a number of other items (Charge 8). You also stole a white Ford Ranger vehicle belonging to the owner of the farm property. (Charge 4)
12 On 23 November 2020 you attended at another property at Alfredton, near Ballarat, where you stole another set of number plates affixed to a different white Ford Ranger vehicle. (Charge 10)
13 On 29 November 2020 you, and another unidentified person, committed a burglary at a rural property located on the Old Charlton-Boort Road at Wychitella. (Charge 11). Once inside the property you stole a number of valuable items listed in paragraph 14 of the prosecution opening including approximately $5,000 in coins located in a jar. (Charge 12)
14 Later that day whilst driving you took a picture of the speedometer of the Ford Ranger when it was being driven by you along the Wimmera Highway at Tarnagulla. It showed you were driving at 163 KPH. (Related summary Charges 23 & 25) The video was found by police who analysed the content of videos and photos stored on your iPhone. That analysis also found evidence of videos apparently taken by you in the process of casing the Charlton property later burgled by you and Hilson.
15 On 4 December 2020, acting on information received police attended at a property in Kangaroo Flat near Bendigo believing you to be present there together with the stolen white Ford Ranger vehicle you had stolen from the Charlton property. You were located at that property and arrested. Police also located a number of objects known to have been stolen and referred to in paragraphs 17 to 19 of the prosecution summary. When interviewed you made no comment. When asked about the stolen firearms you said “I know nothing about firearms”.
16 You were remanded in custody and a number of items stolen by you were found in the premises where you were arrested. CCTV footage taken at an ATM machine showed you depositing coins believed to have been stolen by you.
17 This is clearly serious offending. It is repetitive, targeted and planned. You stole number plates later used on other stolen vehicles which in turn were used to commit crimes. You burgled remote farm properties which were unattended to avoid detection. You had earlier cased and videoed the Charlton property. You stole objects which were relatively easily converted to cash. The theft of the firearms which were secured in a gun safe is particularly serious especially when those weapons have not been recovered. Your offending in the related summary offences shows you had little regard for the safety of other road users. Your offending is best described as having occurred whilst you were engaged in an out of control crime spree which would probably not have ended until you were stopped by the police.
18 I received into evidence a victim impact statement from Leonie McGurk one of the owners of the burgled property at Charlton. The mental harm suffered by victims of these crimes as well as the inconvenience and physical loss occasioned by these kind of crimes on country folk is there clearly described. In passing sentence I have full regard to the content of this victim impact statement, as I must.
19 You are now 28 years of age. You were 26 at the time of this offending. When arraigned you admitted a number of prior convictions from ten previous court appearances in the Bendigo Magistrates’ Court. You have prior convictions for burglary, dishonesty offences, drug offences, driving offences. You have previously received sentences involving short terms of imprisonment in combination with Community Corrections Orders. Your criminal history shows you have repeatedly breached those Community Corrections Orders. Further it shows that sentencing courts have recognised your drug addiction and made orders clearly designed to assist you break that addiction.
20 In August 2019 you were convicted of dishonesty offences and possessing ammunition. You were sentenced to three months imprisonment and a Community Corrections Orders for 10 months. In December 2019 you were again before the Bendigo Magistrates’ Court charged with further offending and two charges of breaching the Community Corrections Orders imposed in August the previous year. The Community Corrections Orders was varied to recommence for a further 12 months. Four months later, in March 2020, you again appeared before the Bendigo Magistrates’ Court charged with theft of a motor vehicle, burglary and receiving stolen goods and with breaching the Community Corrections Order that had been varied the previous December. You were sentenced to 3 months imprisonment.
21 Clearly, specific deterrence is enlivened as a sentencing principle it must be applied in the sentencing of you. In sentencing for crimes of this kind, the court must have full regard to deterrence (both general and specific), denunciation, protection of the public, just punishment and your prospects for rehabilitation. For reasons that I will shortly come to, I regard your prospects for rehabilitation as being poor.
22 Importantly, you have pleaded guilty to the charges and that is to your credit. The charges resolved into a plea in February of 2022 after a contested committal in August 2021. Although you did not indicate an intention to plead guilty at the earliest possible opportunity, I nevertheless treat you for sentencing purposes as having pleaded guilty at an early time. For that you are entitled to receive, and will receive, a reduction in sentence, which I will refer to when I pass sentence shortly.
23 By your pleas of guilty, you have saved the time and costs of a trial. By your pleas of guilty, you have taken responsibility for your crimes and you have advanced the administration of justice. I accept there has been some delay in disposing of this matter and that you have had these matters hanging over your head for some time without the benefit of finality.
24 Further, your pleas of guilty come at a time where the courts have a considerable backlog caused by the Covid-19 pandemic. The disposition of these charges has been somewhat fragmented because of this backlog and the consequences of the Covid-19 pandemic. By pleading guilty, you have not added to that backlog and you are entitled to receive a noticeable reduction in sentence for having pleaded guilty to the charges in the midst of the Covid-19 pandemic.
25 Further, your time served has been entirely through the pandemic in the result that your imprisonment has been more burdensome because of lockdowns in prisons, restrictions on movement within prisons and restrictions on prisoners receiving visits. The pandemic has also meant prisoners have been restricted in the courses they can undertake whilst in custody on remand.
26 I accept that your guilty pleas evidence some remorse for your conduct. All of these things go to mitigate the sentence you will receive and need to be taken into account, in arriving at an appropriate sentence. But you have not disclosed to police the whereabouts of the long arm firearms stolen by you, or to whom you passed those weapons onto. There were two 12 gauge shotguns and two rifles stolen but not recovered.
27
Mr Rolfe filed with the Court a helpful outline of his submissions in writing together with a psychological report from Gina Cidoni dated 18 December 2020, Exhibit 2. He also provided two medical records from your general practitioners Tristar Medical Group in EagleHawk dated March and December 2019,
Exhibit 2 & 3
28
You were interviewed by Ms Cidoni whilst on remand for this offending on the 18 December 2020, some 14 days after your arrest. The interview proceeded via a telehealth conference over a period of two and a half hours. You told
Ms Cidoni you were using drugs during this offending and that you committed these crimes to attempt to obtain funds to support yourself and your drug habits. You also told Ms Cidoni about your family background, your education and how you developed a drug habit.
29 Ms Cidoni carried out limited psychological testing restricted because of the fact it was carried out via a telehealth conference. She opined you are of low average intelligence. She went on to give this opinion in part,
'His intellectual function is in the low average range across the sub-test administered. There were no test signs of cerebral dysfunction. Personality testing was indicative of post-traumatic stress disorder, adjustment disorder and substance use disorder according to the diagnostic and statistical manual for mental disorders DSM-5. My assessment is that Mr Grose is psychological impairment was a significant contributor to his offending. His particular profile produces activation, distress, avolition, avoidance, disordered thinking and functional impairments that predisposed him to irrational, reckless and self-destructive behaviours. It effects his ability to control his behaviour, exercise appropriate judgement to make calm and rational choices and to think clearly where the application of Verdins may apply. Insight and awareness of own functioning is reduced, contributing to his lack of help seeking. Whilst his substance abused provided escape and solace he also produced disinhibition, deficits in reasoning tendencies towards irrational and reckless behaviours. He was not involved in psychological treatment over the cause of the offending and his use of prescribed anti-depressants was sporadic. In view of his mental conditions, Mr Grose experience of prison would be a greater burden upon him than of a person with normal facilities. The effect of a custodial sentence is already weighing heavily upon him due to his surroundings that they are tense and unpredictable resulting in higher anxiety and exacerbation of his post-traumatic stress symptoms. He would benefit with drug treatment and phyco-therapy that promote insight into emotion disturbance and develop functional strategies to manage his symptomatology, thereby reducing his reliance on self-medication and his risk of recidivism. Noting his previous failures on CCO's any community sanction would need to involve a high degree of support and supervision towards compliance with treatment needs and require a case manager with advanced skills to manage boundaries and to limit behaviours.'
30
Whilst I accept that at the time of this offending you may have been suffering from post-traumatic stress disorder, and an adjustment disorder and substance use disorder, I do not accept Ms Cidoni’s opinion that your psychological impairment was a “significant contributor to his offending”. The fact remains, you were drug affected when you engaged in this offending which as I said earlier was repetitive, planned and targeted. Your past criminal history, particularly in the twelve months leading up to this offending suggest you well knew that if you take drugs you would need to offend to maintain your drug habit. The circumstances of the offending do not evidence any signs of your being distressed or of disordered thinking, and nor is there evidence of any “irrational, reckless and self-destructive behaviours.” This is not one off offending. It is offending behaviour that proceeded over a period of two months. There was ample time for you to stop and think about what you were doing. There is no evidence shown by the full circumstances of offending to show your “Insight and awareness of own functioning” was reduced. In fairness to
Ms Cidoni, when she prepared her report the full circumstances of your offending do not appear to have been fully provided to her.
31 I regard your moral culpability for this offending as high and it should not be reduced because of any psychological impairment. I note from the general practitioners records that when interviewed in March 2019 it was his opinion you then were suffering “symptoms consistent with anxiety”. That medical record went on to say “I have provided the patient with a detailed explanation of my rationale for my diagnosis. The patient has developing insight and is agreeable to engaging in the treatment process. The prognosis is generally very good and I have discussed the prognostic picture with the patient”.
32 I accept what I was told by your counsel about your background and personal circumstances. You are the only child of a relationship between your parents who separated when you were very young. You were raised by your father who re-partnered and you have two paternal half brothers. You grew up in Werribee and Wedderburn and you attended school until aged 17 when you left home.
33 You completed year 11 schooling but since leaving school you have had only spasmodic employment. In 2015/16 you were employed on a full time basis in a factory at Castlemaine but you were unreliable as an employee due to drug use and you lost that job. From that date you have not had full time employment. You have had one longstanding relationship with a woman whom you met in 2012. That relationship produced one child and remained on foot up until the time of your arrest.
34 On New Years Eve 2017 you were stabbed in an incident at the Wedderburn Hotel. You were hospitalised in consequence and suffer ongoing trauma, flashbacks and nightmares. You told Ms Cidoni about this and this accounts for your post-traumatic stress disorder.
35 You have a long history of drug use and abuse. In 2007 you commenced using cannibas which escalated to use of amphetamines and methamphetamines in around 2014. You also used cocaine and MDMA. You told Ms Cidoni that in the three months prior to your arrest you were using a gram of cocaine and ICE daily along with 5 to 10 MDMA tablets.
36 Mr Rolfe relied upon the opinions of Ms Cidoni as to your psychological make up at the time of the offending as enlivening Verdins principles. For reasons set out above I reject those submissions. I accept that you may presently be depressed because of the position you now find yourself and you may suffer from PTSD and somewhat from an adjustment disorder. In arriving at an appropriate sentence I have taken all of this into account.
37 I said above that I regard your prospects for rehabilitation as being poor. That is because you clearly have an entrenched drug addiction of long standing. Whether or not you can be rehabilitated will depend upon whether you respond to drug counselling and treatment which you will clearly need upon your release from prison. I am conscious of the fact you are still a young man and this will be by far the longest sentence of imprisonment you have had to endure. But this is clearly serious offending which is emphasised by the circumstances of the firearms offences.
38 Your counsel Mr Rolfe acknowledged the seriousness of your offending and that I would have to impose a total effective sentence and fix a non-parole period. He submitted that time already served of 580 days by way of pre-sentence detention should suffice. In all the circumstances of your lengthy episode of offending I do not accept that submission. In my judgement such submission does not give sufficient weight for the need for the sentence here to reflect general and specific deterrence or denunciation. I think your best prospect for rehabilitation is to properly comply with a lengthy period on parole.
39 On Charge 1 theft of number plates you are convicted and sentenced to a term of imprisonment of three (3) months.
40 On Charge 2 theft of number plates you are convicted and sentenced to a term of imprisonment of three (3) months.
41 On Charge 3 burglary at Charlton with intent to steal you are convicted and sentenced to a term of imprisonment of three (3) years.
42 On Charge 4 theft of the Ford Ranger motor vehicle at Charlton you are convicted and sentenced to a term of imprisonment of one (1) year.
43 On Charge 6 theft of three firearms at Charlton you are convicted and sentenced to a term of imprisonment of two (2) years.
44 On Charge 7 theft of a firearm at Charlton you are convicted and sentenced to a term of imprisonment of one (1) year.
45 On Charge 8 theft of various items at Charlton you are convicted and sentenced to a term of imprisonment of one (1) year.
46 On Charge 9 being unauthorised possessed a firearm you are convicted and sentenced to a term of imprisonment of three (3) months.
47 On Charge 10 theft of number plates you are convicted and sentenced to a term of imprisonment of three (3) months.
48 On Charge 11 burglary at Wychitella with intent to steal you are convicted and sentenced to a term of imprisonment of two (2) years.
49 On Charge 12 theft of various items at Wychitella you are convicted and sentenced to a term of imprisonment of one (1) year.
50 On Charge 13 theft of a motor vehicle at Wedderburn you are convicted and sentenced to a term of imprisonment of one (1) year.
51 On related summary Charge 23 you are convicted and discharged.
52 On related summary Charge 25 you are convicted and sentenced to a term of imprisonment of three (3) months.
53 I direct that one year of the sentence imposed on Charge 6 and six (6) months of the sentences imposed on each of Charges 4, 11, and 12 cumulate upon the sentence imposed on Charge 3, making a total effective sentence of five and a half years imprisonment.
54 I direct you serve a minimum term of three years and eight months before being eligible for release on parole.
55 I declare there has been 580 days pre-sentence detention of the sentences passed this day and direct that 580 days be reckoned as having been already served of the sentences passed this day and be entered into the records of the court and deducted administratively.
56 For the purposes of s6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have sentenced you to a term of imprisonment of eight (8) years, and I would have fixed a minimum term of five and a half years imprisonment before being eligible for parole.
57 On Charges 4, 13 and related summary charge 25 any licence that you hold to drive a motor vehicle is cancelled, and you are disqualified from obtaining a licence to drive for a period of two (2) years.
58 Now there has been a compensation order applied for and I will hear the parties in relation to that and I understand that there may be a question about the calculation of the pre-sentence detention.
59 MR D'ARCY: Yes, I get 606 days including today Your Honour.
60 HIS HONOUR: Sorry how many?
61 MR D'ARCY: 606. It was when we were at (indistinct) on 23 June it was 591 I think.
62 HIS HONOUR: No it wasn't. No it wasn't.
63 MS OLIVER: Your Honour my instructions was arrested and remand in custody on 4 December 2020. My calculation total inclusive would be 582 days.
64 HIS HONOUR: At the plea Mr D'Arcy you told me that I should amend paragraph 29 of the summary in respect of Mr Grose - - -
65 MR D'ARCY: Oh that's right.
66 HIS HONOUR: - - - to 566 days.
67 MR D'ARCY: Yes that's right Your Honour I beg your pardon.
68 HIS HONOUR: So what does that make it 582? Is that what you say Ms Oliver?
69 MS OLIVER: That would be my calculation Your Honour, perhaps - - -
70 HIS HONOUR: I think you – the 566 days did not include the day of the plea and it doesn't include today, so that's how I've calculated 580.
71 MR D'ARCY: Yes.
72 MS OLIVER: Yes, Your Honour.
73 HIS HONOUR: Thank you. Now what about this compensation order that's sought?
74 MS OLIVER: It's not opposed by the defence Your Honour.
75 HIS HONOUR: Very well, in those circumstances I'll sign them.
76 MS MALOBABIC: Thank you.
77 HIS HONOUR: All right. Thank you both. I've just been told that we lost transmission with the prison about six or seven minutes ago. Apparently, that can not be restored. So I don't know why that's happened but I think my sentencing remarks are clear, Ms Oliver. I'll make sure they are revised as soon as possible and have them forwarded to you.
78 MS OLIVER: Yes Your Honour, thank you for that.
79 HIS HONOUR: Very well. I've just had the transmission terminated Mr D'Arcy, thank you.
80 MR D'ARCY: Thank you Your Honour
81 MS OLIVER: As the court pleases, thank you Your Honour.
82 HIS HONOUR: I'll just leave the Bench for the moment whilst we attempt to reconnect. Just stay there for a moment if you would Mr D'Arcy, I'm sorry.
83 MR D'ARCY: Yes Your Honour.
84 HIS HONOUR: Thank you.
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