Director of Public Prosecutions v Purchase
[2013] VCC 957
•8 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 12-02348
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY PURCHASE |
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JUDGE: | HER HONOUR JUDGE HARBISON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 July 2013 | |
CASE MAY BE CITED AS: | DPP v. Purchase | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 957 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: false imprisonment, theft, assault
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Sedgwick | Office of Public Prosecutions |
| For the Accused | Mr A. Purcell |
HER HONOUR:
1 Gregory Purchase, you have pleaded guilty before me to one charge of false imprisonment, one charge of theft and one charge of common assault. The circumstances of your offending are set out in the prosecution opening which I was told was an agreed statement of the facts surrounding your offending.
2 There were originally three co-accused in this matter. I have already sentenced Mr Peter Sherry for his part in the events which I am about to relate. I am told that the other co-accused Jamie Willis was discharged at committal.
3 The victim in this matter is a man by the name of Rhys Lumb. The offending occurred on 24 June 2011 at approximately 11.50 in the evening when the victim, Mr Lumb, was visiting a mutual friend by the name of Drew Comport at this house. Mr Lumb had met this man through another mutual friend called Leah who is the sister of Peter Sherry. At the time your victim, Mr Lumb, and Leah, had paid half each in a deal of ice priced at $2300. The victim had paid his half but Leah could only come up with $400. The victim had therefore paid the remaining $750 owed by Leah.
4 So, on the night of 24 June 2011, there had been text messages between your victim and Peter Sherry regarding this drug debt of Sherry's sister. Those messages had led your victim to believe that Peter Sherry was going to attend at Comport's house that night to pay to him the money owed by Leah.
5 You arrived at that address at about 10.15 on that night.
6 At approximately 11.50 p.m. whilst yourself, the victim and Comport were inside the house there was a loud noise outside. The noise was generated from the fact that a four wheel drive car had crashed into the victim's vehicle which was parked outside. Sherry had been driving the four wheel drive car.
7 On hearing the noise both the victim and yourself went outside to see what had happened. Willis and Sherry got out of the four wheel drive and Sherry ran towards the victim. Sherry then proceeded to attack the victim by kicking him in the ribs, head and back. Sherry demanded the victim's keys and wallet which contained five bank cards and a driver's license and the victim handed these to Sherry. Sherry then dragged the victim towards the victim's own car, a station wagon, and threw the victim into the boot or back of the station wagon.
8 Sherry then entered the driver's seat. Willis sat in the front passenger seat and you sat in the right passenger seat of the station wagon. Sherry drove off. Your action in participating in the theft of the wallet and keys is the subject matter of Charge 2 for which I am to sentence you.
9 Your action in participating in the imprisonment of the victim in the back of his own station wagon is the subject matter of Charge 1 of false imprisonment and Charge 2, being the theft of the station wagon. The theft relates to the manner of acquisition of this car as I have described it by Sherry.
10 At approximately 12.30 am Sherry drove the car, together with yourself, the victim and Willis in it to a 7-Eleven store in Sunbury. Sherry and Willis went inside the store and you briefly got out of the car. Apart from that brief occasion you remained inside the car with your victim still in the boot of the station wagon.
11 Sherry and Willis stole some food items from the store then returned to the car and drove away with yourself in the car and the victim still in the boot.
12 Shortly afterwards, you hit the victim and you asked him where you lived. The victim gave you directions to his house, and Sherry commenced driving there. Your action in hitting the victim in this way is the subject matter of Charge 3 of common law assault.
13 Whilst the car was being driven to its destination you produced a stun gun and threatened the victim with the stun gun and then pulled a trigger, producing an electrical charge which was administered to your victim. Your action in possessing that stun gun is the subject matter of a related summary offence of possessing a prohibited weapon and your action in pulling the trigger is the subject matter of Charge 3 which is a charge of common law assault.
14 I have very little information about this stun gun. Your counsel submitted to me that it was a much less dangerous weapon than a Taser. I have no information one way or the other. The prosecution had no instructions at the sentencing hearing. I sentence you on the basis that the weapon was dangerous in the sense that a Taser would be expected to cause very severe pain or loss of consciousness but I sentence you still on the basis that the electrical charge which was administered to your victim was a painful experience for him.
15 When the car arrived at the victim's house you again threatened the victim with the stun gun and instructed him to get out of the car. On being given directions to the victim's cabin at the address, Sherry asked where the money was. You and Sherry went through all the victim's belongings in the house, looking for money.
16 At the time your victim's fiancée was asleep in the cabin. She started to cry when she saw you and Sherry rummaging through her things in the dark.
17 Whilst in the house Sherry said to the victim, "If you tell anyone or go to the police I will come back and finish the job". The victim's watch and assorted jewellery was stolen from the house. This is also the subject matter of Charge 2 of theft.
18 Then you and Sherry drove off in the victim's vehicle. The vehicle was later located abandoned in Sunbury. The police located the stun gun at your residence and also located at your residence a set of keys to the victim's car.
19 You were identified by the victim through a photo board.
20 Your victim sustained a cut to his lower lip and abrasions to his back, a chipped tooth and bruising as a result of the assault by Sherry.
21 I received a victim impact statement into evidence. In that statement your victim described the injuries which he's received and the psychological damage which has been caused to him as a result of the incident. He described himself battling depression and insomnia for six months afterwards and becoming suicidal for a short period.
22 However it seems clear that the full extent of his injuries were not only as a result of the assaults which I have described that you committed yourself. Some parts of those injuries were caused by Mr Sherry in actions in which you had no part. I take this into account when sentencing you.
23 The maximum penalty for the offence of false imprisonment is ten years in gaol. The maximum penalty for the offence of theft is ten years' imprisonment and the maximum penalty for the offence of common assault is five years' imprisonment. The maximum penalty for the related summary offence of possession of a prohibited weapon is two years' imprisonment or 240 penalty units.
24 Prior to committing this offence you had only been before a court on two occasions. One of them was for being drunk in a public place and the other was for shop stealing. The shop stealing offence was dealt with in the Children's Court. I treat these prior offences as only marginally relevant to my sentencing task today.
25 You have however unfortunately committed several subsequent offences. These offences are relevant in assessing the prospects of your rehabilitation and in weighing up the appropriate sentencing dispositions today, although of course they cannot be treated as if they were prior instances of offending.
26 In August 2011 you were dealt with in the Magistrates Court for criminal damage. I understand that this related to damage to your sister's door at her house and arose over a domestic argument with her.
27 In June 2012 you were convicted of driving whilst your authorisation was suspended and using an unregistered motor vehicle and possessing amphetamines.
28 In October 2012 you were convicted of theft and failing to answer bail. For that offence you received a nine months' community corrections order.
29 In March of this year, just three months ago, you were convicted of using an unregistered motor vehicle and various other highway offences, including dangerous driving which I am told occurred whilst you were being pursued by police. For all of those offences, which were dealt with in March of this year, you were imprisoned for three months and the order for imprisonment was fully suspended.
30 You were also dealt with on that day for contravening the community corrections order imposed on you for the charge of theft in October 2012.
31 I was told on your plea that the contravention consisted in the committing of the further offences for which I am to sentence you today, although I note that the community corrections order assessment which I have received has indicated that there was also issues of non-compliance with the order previously made. The reason that you gave for the non-compliance was because you felt down and depressed following the death of an extended family member.
32 It's important to note however that although these are subsequent offences, the offending which was dealt with on those occasions was offending which had occurred around about the time of the offences for which I am to sentence you today, apart of course from the March driving offences to which I have just referred.
33 Your plea of guilty to the charges before me followed a contested committal hearing at which your victim was cross-examined. Quite some time elapsed from the first committal mention on 19 September 2011 at which you failed to appear and a warrant was issued and the final preliminary hearing in this court at which you indicated that you would plead guilty. This hearing was on 9 April 2013. To a certain extent some of the delays between the time of the committal and this plea hearing were caused without fault of any party.
34 I therefore sentence you as having made a guilty plea, not at the first available time, but at an early stage; still at a stage where there is significant utilitarian value in the plea and I note also that you have saved your victim the trauma of giving evidence at the trial, although he was cross-examined at the committal.
35 On 14 December 2011 I sentenced your co-offender Peter Sherry who had pleaded guilty to one charge of kidnapping, three charges of theft and one charge of common assault. That matter had proceeded by way of hand-up brief with a plea of guilty at the earliest possible time and in circumstances where Mr Sherry voluntarily implicated himself in other offending at the time of the police interview.
36 After hearing the plea I sentenced him to a total sentence of 27 months imprisonment with a non-parole period of 16 months.
37 As the prosecutor pointed out there were some similarities between your offending and that of Mr Sherry's. You were each about the same age. Both of you lacked prior convictions and each of you had subsequent convictions.
38 However in my view there are also some distinguishing features between his offending and yours. First of all I sentenced him for the offence of kidnapping, a crime which carries a maximum penalty of 25 years, a much more serious offence than that facing you. Secondly whereas Mr Sherry may have made a positive decision to undertake this attack on the victim, you appear to have become involved in it by being at the wrong place at the wrong time. That is simply by being present at the house when Sherry arrived as I have described.
39 Further, your involvement in this series of offences did not commence until well after the victim had been physically assaulted by Mr Sherry on the first occasion and his car had been smashed by him.
40 Like him, you were also charged with assault. The assaults which he committed on that night were more serious than the charges of assault facing you, although it must be said that inflicting harm with a stun gun is a very serious assault indeed.
41 Overall, I characterise the offending which you committed against your victim as being cowardly in the extreme. You participated in a dispute in which it appeared you had not been previously involved, to inflict pain upon your victim without any reason at all for doing so.
42 You assaulted him, you actively participated in him being imprisoned in his own car and you ransacked his house in the presence of his sleeping girlfriend.
43 The prosecution has submitted that by reason of the seriousness of these offences, the appropriate range would be a term of imprisonment between 18 months to two years with a minimum non-parole period of 12 to 15 months and concedes that a partially suspended sentence or community corrections order is within range.
44 Your counsel has told me something of your personal circumstances and details of the circumstances are a set out in a psychological report which was made an exhibit on the plea. You appear to come from a very good family indeed. Your mother, father and other family members were present at your plea. You've always had difficulties in learning and this contributed to your inability to learn at school and the fact that you left school after Year 10.
45 However you'd not got into trouble with the police at all, apart from the minor matters which I described earlier, until a long standing relationship with your girlfriend broke up in the 12 months before the offending for which I am to sentence you. I was told that you lost your way as a result of this relationship break up and you started for the first time, taking drugs and in particular the drug ice. It was your drug use which precipitated these events, in that it introduced you to a circle of other drug users and I accept that you were drug affected at the time of this incident.
46 Given the way that I have described the incident it is clear that at first you did not actively participate in the offending against the victim. It is clear also as I have previously indicated that you did nothing to distance yourself from the criminal acts being perpetrated on him by Mr Sherry and that you actively participated in him being held against his will in his car, took it upon yourself to injure him with a stun gun for no reason and committed the assaults which I have described.
47 I received a report from Carla Lechner, a clinical and forensic psychologist. She saw you once, a fortnight before the plea hearing. She noted in her report that for the past six months you have sought medical assistance for depression and prior to that you appear to have been self-medicating that condition of depression with the drug ice. Her view was that this had aggravated and exacerbated that condition of depression.
48 She notes that you have now been formally diagnosed with major depression and you have been commenced on an anti-depression medication. You told her that you have now not taken drugs for over a year and that you have permanently cut your ties with your former social network of drug users. She considers that you have good rehabilitation prospects, provided you continue with treatment.
49 She assessed you as being of low average intelligence and inclined to be easily overwhelmed by social and emotional factors which undermine your judgment and decision making. She referred to the fact that at times over the past few years you have entertained suicidal thoughts and for some period could barely leave your room because of your depression and because of the effect of drugs. You acknowledged your role in this offending behaviour to her and in her view made no attempt to shirk responsibility or minimise the seriousness of your actions.
50 She considers that you will need to be absent from drug use for two years before you are considered recovered and she suggests that you would benefit from counselling support to assist you.
51 I also received into evidence three character references. These were from your sister-in-law, your sister and your father. Each of those character references described you as having gone from being a happy, loving, contented family member to a person plagued with depression and dark moods following the break down of your first relationship. They each indicate that you have now returned to rebuilding your character and your life in the context of a new relationship with another woman of which they approve. They also attest to the fact that you have not been taking drugs.
52 I further received a letter from your family doctor. He also confirms that you are suffering chronic depression and tension migraines aggravated by the first relationship break up and that you are on anti-depression medication. His opinion is that your medical condition would have had an adverse effect on your judgment at the time, thereby contributing to your poor judgment and to these offences.
53 As I have said your actions in committing these offences were cowardly. Your victim was terrified and appears to be still suffering ongoing psychological disturbance. Although I accept that your role was secondary, that you had nothing at all to gain by subjecting the victim to this ordeal and that it was clear from the outset that you would be detected as you were known to the victim I do take into account the fact that this offence appears to have been a spontaneous event as far as you were concerned.
54 You are still young and the principle of rehabilitation is very important in sentencing you today.
55 You have not previously committed offences of violence. In relation to the false imprisonment charge for which I am to sentence you I note that there was no significant violence in that your victim was not tied up or blind folded for example and that the incident was comparatively short lived.
56 I note your drug use at the time and the evidence that appears that your drug use appeared to be escalating at that time as contrasted to your present presentation where you have stopped using drugs altogether.
57 I accept your counsel's submission that your condition of depression appears to have contributed to the incident in that it was because of your depression that you took the drug ice and that when you were in that drug addled state your judgement was affected.
58 I further accept your counsel's submission that your previous drug addiction, combined with the circumstances of you having had several of your close friends and relatives die within the last 12 months, makes it possible that imprisonment would have an adverse impact on your mental health. In saying that however I note that your position is that you are now drug free and you are taking medication for depression. You have been in prison since the plea hearing and I would expect that this medication has been continued in gaol.
59 I accept your counsel's submission that you are now remorseful and realise now how stupid your actions on that night were.
60 In sentencing you I have an obligation to take into account specific deterrence, that is the need to deter you from offending into the future. Although you have made great progress I am still concerned at the prospect of specific deterrence, given the fact that you have offended since the time of these offences.
61 In the past you have received a community corrections order and you have breached that by further offending and non-compliance and this is a significant indication that your rehabilitation is not yet complete.
62 I must also take into account the issue of general deterrence. To subject another member of the community to this assault as I have described it and to the deprivation of his liberty is very serious. I need to send a message to the community that actions of this sort will not be tolerated.
63 However I do take into account in doing so that as I have said there was no blindfolding, the circumstances of the false imprisonment were spontaneous, of short duration, and you and your victim were known to each other. I characterise your offending therefore as being at the lower end of seriousness for an offence of this type.
64 In my view given that you have never been in prison before and given that you have indicated that you have now stopped using drugs altogether the appropriate sentence for you is a sentence of imprisonment of a short duration followed by the imposition of a community corrections order.
65 MS SEDGWICK: Your Honour I apologise for interrupting Your Honour's sentencing remarks. There's an issue that's arisen in relation to the factual basis on which Your Honour proposes to sentence that I just seek to raise prior to Your Honour announcing the sentence.
66 HER HONOUR: Yes.
67 MS SEDGWICK: It relates to the use of the Taser Your Honour. The plea agreement is that the Taser was discharged but that it did not physically make contact with the victim. So it did not cause pain to the victim. So Your Honour should sentence the accused on the basis of the threat to use the Taser in that fashion by discharging it but not that it caused pain to the victim.
68 HER HONOUR: It's a pity that that wasn't said at the plea hearing but I accept that. I don't take the view that that would change the sentence which I am about to impose..
69 MR PURCELL: As Your Honour pleases. If it assists Your Honour it's paragraph 14 of the Crown opening Your Honour where it refers to the manner in which the weapon was used. It's certainly something that my learned friend had read out on the plea hearing.
70 HER HONOUR: "Purchase threatened Lumb with the Taser and pulled the trigger. Lumb saw a spark fly".
71 MR PURCELL: That's correct Your Honour.
72 HER HONOUR: So you say the sparks flew but - - -
73 MR PURCELL: Yes but there's no application of the weapon to his body in any way. So he sees a spark but there's no direct application - - -
74 HER HONOUR: All right.
75 MR PURCELL: - - - of the stun gun to the victim's body in any way.
76 HER HONOUR: Thank you.
77 MR PURCELL: Thank you Your Honour.
78 HER HONOUR: All right well insofar as in these sentencing remarks I have referred, Mr Purchase, to the pain inflicted to your victim by the stun gun, I withdraw those remarks. I sentence you on the basis that you used the stun gun and sparks flew from it but that there is no suggestion that there was contact between the sparks and the body of the victim.
79 All right. Mr Purchase I have some degree of confidence that with the support of your family and with the structure of a community corrections order this will be enough to ensure that you do not return to your old ways.
80 I have received a report that you are a suitable candidate for a community corrections order and a propose to impose one upon you.
81 However the full orders which I propose to impose today are as follows. On Charge 1, of false imprisonment, you are sentenced to be imprisoned for three months. On Charge 2 of theft, you are convicted and sentenced to be fined $500. On Charge 3 of common assault you are convicted and sentenced to undergo a community corrections order. On the summary charge of possessing a prohibited weapon you are convicted and sentenced to be fined $500.
82 Mr Purchase this means that you will therefore serve a sentence of three months imprisonment and following the completion of that sentence the community corrections order will begin.
83 Now Mr Purchase I can only make a community corrections order if you agree to it so I will outline the terms of the community corrections order and I will ask you at the end of this as to whether you agree to undertake a community corrections order with these conditions.
84 The period of the order will be two years which will commence from the date of your release from imprisonment or thereabouts. So the date which I have nominated as the date of commencement of the community corrections order is I think 8 October.
85 There are some standard conditions on every community corrections order and they are as follows. You must not, within the period of the order, commit, whether inside or outside of Victoria, any offence punishable by imprisonment. You must report to and receive visits from a representative of the Secretary during the period of the order. You must report to the community corrections order specified in the order within two clear working days after the order coming into force and in this respect I have specified a date on the order. My associate might be able to tell me what it is. That is – I think I put 10 October. 8 October I understand. My associate's just about to print out the order.
86 You must notify the Secretary of any change of address or employment within two clear working days of the change. You must not leave Victoria except with the permission of the Secretary and finally you must comply with any direction given by the Secretary.
87 Now I am going to make some special conditions attached to the order. Firstly, you are required to complete 300 hours of community work over the two years. Secondly, you are required to participate in assessment for drug abuse and for a mental health assessment and third you are required to be under the supervision of a Corrections officer for the duration of the order.
88 If you contravene any of those conditions you should expect a term of imprisonment.
89 Mr Purchase I can only make that order as I have said if you consent to it. Do you consent to the making of that order?
90 PRISONER: Can I have a word with my lawyer first please?
91 HER HONOUR: Yes. Mr Purcell?
92 MR PURCELL: May I approach Your Honour?
93 HER HONOUR: Yes certainly.
94 MR PURCELL: Your Honour my client's expressed some reservations at the sentence.
95 HER HONOUR: Do you wish me to leave the Bench for a few minutes while you talk?
96 MR PURCELL: It may assist Your Honour, yes thank you.
97 HER HONOUR: All right perhaps just before doing so I will indicate the other orders which I am disposed to make. The first is a retention order for a forensic sample. The second is a disposal order for the stun gun. The third is an order as to declaration of 11 days time served and the fourth is a guilty plea finding under s.6AAA and I would indicate that but for the plea of guilty Mr Purchase you would have been convicted and sentenced to an effective term of 12 months' imprisonment and I would have ordered that you serve a period of nine months' imprisonment before being eligible for parole.
98 Now, those are the orders that I propose to make.
99 MS SEDGWICK: As Your Honour pleases.
100 HER HONOUR: But I will stand the matter down while Mr Purcell gets some instructions.
101 MR PURCELL: Thank you Your Honour.
102 HER HONOUR: Thank you.
103 (Short adjournment)
104 HER HONOUR: Mr Purcell?
105 MR PURCELL: I thank Your Honour for that time. Despite some initial dissatisfaction by my client with respect to the sentence he's now prepared to accept the sentence that Your Honour's passed and he'll consent to the CCO.
106 HER HONOUR: All right, thank you.
107 MS SEDGWICK: Otherwise Your Honour we've spoken with Your Honour's associate in relation to the commencement date.
108 HER HONOUR: Yes.
109 MS SEDGWICK: And if 11 days were deducted to account for the pre-sentence detention we understand that the start date for the CCO would be 27 September and the date by which he would be required to report two days after that, 29 September.
110 HER HONOUR: Yes thank you. It's unfortunate that it has to be at the very conclusion at the gaol sentence because it doesn’t give much time to get organised and get to - - -
111 MS SEDGWICK: It doesn't, no Your Honour.
112 HER HONOUR: - - - the community corrections centre but I presume Mr Purcell will point out to Mr Purchase the very great importance of being on time for that date. The computer says 1 October is the appropriate date?
113 MS SEDGWICK: Yes thank you Your Honour.
114 HER HONOUR: All right 1 October and I made a mistake in the 6AAA in that I announced 12 months with eight months – nine months before being eligible for parole and that should be eight months before being eligible for parole.
115 MS SEDGWICK: Thank you Your Honour.
116 HER HONOUR: All right well Mr Purchase I was explaining to you that in relation to the theft – the charge of common assault I propose to convict you and sentence you to undergo a community corrections order for two years and I have read out to you the terms and conditions of the community corrections order. Mr Purchase I am only able to make such an order if you consent to those terms. Do you want me to read out the conditions again?
117 PRISONER: No.
118 HER HONOUR: Do you consent to the making of the order?
119 PRISONER: Yes.
120 HER HONOUR: All right thank you. I will impose a community corrections order in relation to Charge 3 of common assault and I have already indicated the other orders which I will make, subject to the changes to the time for commencement of the community corrections order and perhaps just to be quite sure if my associate could just tell me the date of commencement of the community corrections order and the date of reporting again? The community corrections order will start on 27 September and the date on which you must report is 1 October Mr Purchase. You must take note of those dates. Mr Purcell will explain to you the importance of that. If you don't report as directed then you may find yourself back in gaol in relation to a breach of the community corrections order.
121 Now Mr Purchase the orders which I have made in my view satisfy the need for the community to see that those who engage in the conduct that you have engaged in must be punished but they also satisfy in my view the need to give you some structure and support so that you do not re-offend.
122 Mr Purchase as I said before I left the Bench I have some degree of confidence that with the support of your family and with the structure that I am going to put in place that you will not re-offend. If you do re-offend then you will be in a position where you have now had two community corrections orders, you have had one suspended gaol term and you've had one actual term of imprisonment. So you should expect that if you do re-offend that you may well be sentenced to a lengthy term of imprisonment for any future offences.
123 Yes, thank you. Remove the prisoner.
124 MS SEDGWICK: As Your Honour pleases.
125 HER HONOUR: Just a minute. The community corrections order needs to be signed, I'm sorry and we need to print it out. So Mr Purchase if you could sit down for a few minutes? We've got a problem with the printer but the document for Mr Purchase to sign is available. Mr Purcell perhaps if you could go to the dock and you can explain this document to Mr Purchase.
126 Yes thank you, remove the prisoner.
127 All right now Mr Purcell and Ms Sedgwick we've just got a problem with printing out the order.
128 MR PURCELL: Yes Your Honour.
129 HER HONOUR: I need to sign it and you need a copy of it. I'm going to leave the bench and then come back for the next plea but if you could just stay for a few minutes so that we can work out some way in which the order can be printed out.
130 MS SEDGWICK: Thank you Your Honour.
131 MR PURCELL: Thank you Your Honour.
132 HER HONOUR: Yes thank you. I'll leave the bench Madame Tipstaff.
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