Director of Public Prosecutions v Nash
[2022] VCC 2327
•5 October 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01312
CR 20-01314
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRANT NASH JONATHAN GRAY |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 October 2022 |
| DATE OF SENTENCE: | 5 October 2022 |
| CASE MAY BE CITED AS: | DPP v Nash |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 2327 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea following Sentence Indication – aggravated burglary – common assault – theft – moderately serious offending – plea for both offenders evidence of remorse – general deterrence important sentencing factor – protection of the community important sentencing factor – denunciation important sentencing factor – specific deterrence less important due to significant rehabilitation efforts of offenders – parity considerations
Cases Cited: Worboyes v R [2021] VSCA 169
Sentence:Both offenders sentenced to a Community Correction Order for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
| For Accused Nash | Mr A. Patton | SLKQ Lawyers |
| For Accused Gray | Mr C. Terry | Milardovic Legal |
HIS HONOUR:
Introduction
1On 21 September 2022, Grant Nash and Jonathan Gray sought sentence indications, not in relation to the charges in the then indictment but in relation to charges of aggravated burglary, common assault and theft. I gave such indications.
2A fresh indictment has been filed and both Mr Nash and Mr Gray have pleaded guilty to the charges of aggravated burglary, common assault and theft.
3The circumstances giving rise to these charges are set out in a document entitled ‘Prosecution Opening for a Sentence Indication’. This is Exhibit A. Its contents were then, and are now, accepted by your respective counsel as accurate.
4There are no victim impact statements although I can assume confidently that the experience for the two occupants of the house was indeed frightening.
5Mr Nash, you have no criminal history relevant to these charges. Mr Gray, you have one appearance in a court for offences, which are of little moment in this exercise of sentencing.
6The proceedings themselves have taken an extraordinary amount of time to reach this stage. I understand the committal hearing took more than a year, with numerous adjournments due to the non-attendance of witnesses, the unavailability of a magistrate, and other problems created by the virus.
Circumstances
7Although the circumstances of the offending are set out in Exhibit A, for these sentencing remarks, they should be briefly summarised.
8At about 4.30 am on 17 May 2019, both of you entered the house occupied by two others by smashing a glass panel next to the front door. Your entry was heard by the occupants. One of them, Emily Thompson[1], hid in a bathroom. The other, Wen Ju[2], armed with a mop, came downstairs and approached both of you. After pinning Mr Ju down, you, Mr Gray punched him several times. You, Mr Nash, held a metal pole, raising it as though to strike Mr Ju. Each of you made demands upon Mr Ju, one for money, the other for drugs. Mr Ju went upstairs and got $250 in cash and a small bag of methylamphetamine. Meanwhile, you, Mr Nash, returned to your car and obtained another metal pole. Mr Ju came back downstairs and gave you the money and drugs. At this stage, both of you were armed with metal poles. Mr Ju said that Ms Thompson had called the police. Both of you left. Before leaving, one or other or both of you stole two rings belonging to Ms Thompson and valued at about $4,500. The rings have not been recovered.
[1] A pseudonym
[2] A pseudonym
9Following your arrests, you, Mr Nash, were interviewed and denied any involvement in the incident. While you, Mr Gray, said you could not remember.
Mr Nash
10Mr Nash, you are now 35. At the time of these offences, you were 32.
11You are the youngest of two boys. Your parents separated when you were about 12. You stayed with your mother. However, the separation affected you adversely. You started using drugs and associating with anti-social peers.
12After completing Year 12, you undertook and completed an apprenticeship as a refrigeration mechanic. You then worked as a refrigeration mechanic until late 2018 when your employment ended as a result of your use of drugs.
13In 2015, your father suicided. This caused a deterioration in your mental health and extensive use of methylamphetamine. The latter ended with your remand in custody in late 2019.
14At the time of the offending, you were using drugs, unemployed, in a toxic relationship and had been significantly affected, as I said, by the suicide of your father.
15Since 19 December 2019, you have used the time profitably in two ways: by remaining offence free; and by seeking frequent and regular professional counselling for your drug addiction between 23 December 2019 and March of 2022. You have not taken illicit drugs for more than two years. The fact that you have obeyed the conditions of your bail is incidental to the fact you have remained law-abiding over a long period.
16Unlike Mr Gray, you spent 157 days on remand before being granted bail.
17Following your release from custody, you have worked in various jobs in civil construction and a short-term job unloading containers. You ended contact with drug users and are trying to establish your former relationships. At present, Mr Nash, you have employment and stable accommodation. Judging from the references, you have very good support.
18For both of you, pleas of guilty to charges have a practical effect or benefit to the criminal justice system in various ways including relieving the witnesses the ordeal of giving evidence in a trial. During the time of the pandemic, they have an additional benefit to the criminal justice system, identified in Worboyes v R[3] and other cases. In terms of timing, your respective pleas of guilty are neither early nor late. They are mid-way in the process starting with the laying of charges and ending in a trial.
[3] [2021] VSCA 169
19For both of you, I accept your pleas of guilty are evidence of your remorse. More importantly, I accept both of you are remorseful for your offending. Your respective past actions demonstrate that.
Mr Gray
20Mr Gray, you are now 40 and were 36 at the time of this offending.
21You were raised in Bayswater. You have an older brother. Your family life was generally unexceptional except for the inability of your father to obtain work after being unexpectedly made redundant. This caused your mother to work more and your grandmother to assist with the upbringing of you and your brother.
22You were a good student, successfully completing Year 12. You started one year of a science degree before transferring to, and completing a Diploma in Network Engineering.
23After a time caring for your sick father, you entered the IT industry. You worked hard, taking drugs to enable you to work harder and gain promotion. You were successful, ultimately becoming National Infrastructure and Network Manager for a Asahi Beverages. Your drug taking took its toll. You took a voluntary redundancy. At the time of the offences, you were unemployed and using up to a gram of methylamphetamine daily and associating with other drug users.
24You resumed working in IT on contract with various groups. During 2022, you worked as a Solutions Engineer with an engineering company. You are awaiting the outcome of this proceeding before entering a new contract.
25At the time of the offending, you were experiencing a difficult time in your life. You had been through a divorce. You were battling substance abuse. You were unemployed.
26Currently, you use methylamphetamine three times a month. In the main, you have used it to calm yourself down. This represents a significant decrease in your usage since the offending. However, if the subject of a community correction order you will need to stop using any illicit drugs.
27You have a partner. Having been an addict herself, she is helping you to overcome your addiction. You have accommodation. You have confessed the fact of your addiction to your parents. Presumably they are a source of support to you.
28You were married and have a daughter, Lily, aged seven. During the last two years and with the agreement of her mother, you have stopped contacting Lily. You will resume contacting her once this proceeding has finished and you have overcome your addiction.
29You have no criminal history. Very largely, you have not reoffended since then.
30I consider your prospects of rehabilitation are very good. You are remorseful for your offending. You have used the delay in finalising these charges profitably by remaining free of offending. They would be excellent if you had completely ceased taking drugs. The fact that you do raises a doubt. It is a doubt you apparently share with your former wife.
CCO Assessments
31For the purposes of a community correction order, each of you were assessed on 21 September 2022. Each was assessed as suitable for such an order and assessed as a low risk of re-offending.
Discussion
32Undoubtedly, general deterrence, protection of the community from you and denunciation of your offending are important sentencing considerations. Specific deterrence is of lesser importance because of your efforts to rehabilitate yourself over the time waiting for these charges to come to an end. The same situation applies to protecting the community from each of you. What is very much to the forefront is rehabilitation. Both of you have made significant steps to achieve that end.
33Apart from the charge of theft, the circumstances of the offending were moderately serious. This must be seen in the light of the maximum penalties for the offences, which are:
(a) aggravated burglary – 25 years' imprisonment;
(b) assault – five years' imprisonment; and,
(c) theft – 10 years' imprisonment.
34In a second submission, Mr Nash's counsel submits a community work condition will have an impact on your ability to work in your present schedule but will not imperil your employment. Relying on the factors submitted in the original plea, the submission extended to the duration of the order and the extent of the unpaid community work.
35In assessing those submissions, among other things, one must remember the gravity of the offending and the maximum penalties especially for aggravated burglary.
36Although it has other uses, in your cases, the community correction order is an alternative to imprisonment. It has its punitive and therapeutic aspects. Apart from the restriction on a person's liberty imposed by any community correction order, the unpaid community work condition forms an important part of the punitive aspect of the order. With your consents, I propose a sizeable amount of unpaid community work.
Sentence
Nash
37Mr Nash, I propose, with convictions for these offences, placing you on a community correction order for two years with these conditions:
(a) to perform 250 hours of unpaid community work over two years;
(b) to undergo assessment and treatment (including testing) for drug abuse or dependency; and
(c) to undergo any mental health assessment and treatment.
38All of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purpose of the unpaid community work condition.
Gray
39Mr Gray, with your consent, I propose, with convictions, to place you on a community correction order for two years with these conditions:
(a) to perform 300 hours of unpaid community work over two years; and,
(b) to undergo assessment and treatment (including testing) for drug abuse or dependency.
40All of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
Parity
41I have not treated both of you equally for the purposes of these sentences. The amount of unpaid community work is greater for you, Mr Gray, than it is for Mr Nash. I accept you, Mr Gray, acted in support of Mr Nash even though you actively participated by, at least, punching Mr Ju. Mr Nash has spent 157 days in custody while you, Mr Gray, have spent no time in custody.
42So firstly, to each counsel, I need the consent of each man to the community correction order in those terms. Do you want an opportunity to use this facility to speak to your respective clients in my absence?
43MR PATTON: Your Honour, I do not need that opportunity. Mr Nash consents to the making of the order in those terms.
44MR TERRY: Likewise, Your Honour. Mr Gray consents to the making of the order in those terms.
45HIS HONOUR: All right.
S6AAA Declaration
46Absent your pleas of guilty, for each of you I would have imposed sentences of nine months' imprisonment together with the same community corrections order with the same conditions.
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