DPP v Graoroski

[2018] VSCA 332

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0242

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
OLIVER GRAOROSKI	Respondent

---

JUDGES:	MAXWELL P, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 November 2018
DATE OF JUDGMENT:	7 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 332
JUDGMENT APPEALED FROM:	DPP v Graoroski (Unreported, County Court of Victoria, Judge Wraight, 11 October 2018)

---

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Reckless conduct endangering life – Prohibited person possess firearm – Whether sentences manifestly inadequate – Whether sentences reflected offence gravity – General deterrence – Mitigating circumstances – Relevance of maximum penalties – Appeal allowed – Respondent resentenced – Boulton v The Queen (2014) 46 VR 308 considered – Sentencing Act 1991 s 5(2)(a).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B F Kissane QC with Ms G A Coghlan	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr L W G Hartnett with Mr P J Doyle	Papa Hughes Lawyers

MAXWELL P
T FORREST JA
WEINBERG JA:

Summary

1. The Director of Public Prosecutions (the ‘Director’) has appealed on the ground of manifest inadequacy against sentences imposed for the offences of reckless conduct endangering life and possessing a firearm as a prohibited person.  The judge imposed a combination sentence, comprising a total effective sentence of seven months’ imprisonment with a two year community corrections order (‘CCO’) (including 250 hours community service).

1. The reckless conduct offence was committed in most unusual circumstances.  The respondent was the victim of a violent home invasion by three men, acting in concert with his then girlfriend.  As the offenders retreated, the respondent fired a shotgun from close quarters.  One of the offenders sustained life-threatening injuries.

1. On the reckless conduct offence, the judge recognised that the gravity of the offence, and the respondent’s moral culpability, were mitigated by the very difficult circumstances in which he found himself.  Quite properly, the judge gave consideration to whether a combination sentence, which would serve both punitive and rehabilitative purposes, was sufficient punishment in the circumstances.  His Honour ultimately concluded that it was.

1. For reasons which follow, we respectfully disagree.  Notwithstanding the mitigating circumstances on which the respondent could rely, the reckless conduct offence was very serious.  By the time he fired the gun, the danger had passed and his conduct in firing the gun at close quarters was highly reckless.  Moreover, as a prohibited person, the respondent should not have been in possession of a loaded shotgun in the first place.  The mitigating circumstances had no application to that offence, which was also very serious. 

1. We would allow the Director’s appeal and resentence the respondent to a total effective sentence of two years’ imprisonment, with a non-parole period of 12 months.

Background

1. The following table sets out the details of the sentences imposed on 11 October 2018:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Reckless conduct endangering life[1]	10 years’ imprisonment	6 months’ imprisonment and 2 years’ CCO (including 250 hours’ community service)	Base
3	Prohibited person possess firearm[2]	10 years’ imprisonment or fine of 1200 penalty units	4 months’ imprisonment and 2 years’ CCO (including 250 hours’ community service)	1 month
Total Effective Sentence:		7 months’ imprisonment and 2 years’ CCO
Non-Parole Period:		N/A
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		79 days
Other relevant orders:		Forfeiture Order

[1]Crimes Act 1958 s 22.

[2]Firearms Act 1996 s 5(1).

1. The sole ground of appeal is expressed as follows:

Ground 1 — The individual sentences, the order for cumulation, and the total effective sentence imposed are each manifestly inadequate.

Particulars:     The sentences reflect that the learned sentencing judge:

(a)failed to properly consider the objective gravity of the offending conduct;

(b)failed to give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence, specific deterrence and the protection of the community;

(c)gave too much weight to mitigating factors concerning the offender;  and

(d)failed to have sufficient regard to the maximum penalties for the offences.

1. The circumstances of the offending were as follows.  The respondent (who was then 37 years of age) lived with his parents at an address in Delahey.  (We shall refer to him as ‘Graoroski’ or ‘the respondent’ throughout these reasons.)  His bedroom was towards the front of the three bedroom house;  his parents slept at the rear of the house.

1. Rachel Sacco and the respondent had conducted an intimate relationship for about one month leading up to 18 October 2017.  They were both using drugs during this period.  Sacco had previously been in a long-term relationship with Jose Vargas.  She told Vargas and his associate, Nick Anagnostou, that Graoroski kept drugs and money in his bedroom.  Sacco agreed with Vargas and Anagnostou that the two would break into Graoroski’s house, and intimidate him into handing over what cash and drugs he possessed.  They subsequently recruited Matthew Thomas into the scheme.

1. At about 12:30am on 18 October 2017, Sacco arrived at the respondent’s house.  Graoroski smoked marijuana;  Sacco used heroin.  Sacco sent Vargas text messages advising him, amongst other things, that:

·Graoroski has got some ‘gear’ (drugs);

·there is a ‘shottie’ (shotgun) behind the bedroom door;

·there is a ‘great’ Sony smart TV in the bedroom and a laptop on the couch in the lounge room;  and

·Graoroski is asleep.

1. Sacco, using a ruse, had left the front door of the house unlocked to facilitate the entry of Anagnostou, Vargas and Thomas.  Those men, each wearing gloves and a balaclava, entered the house at about 3:30am.  Anagnostou carried a black baseball bat and a machete.

1. Vargas, by prearrangement with Sacco, gave the appearance of restraining her.  Anagnostou and Thomas seized Graoroski and made him kneel by the side of his bed.  When he resisted, the two assailants endeavoured to tape his hands together and cover his mouth.  They tried to tie his feet with cable ties.  Graoroski continued to struggle, so they threatened him with the baseball bat and machete.  Graoroski’s left hand was badly lacerated.

1. Kiro Graoroski, the respondent’s father, entered the bedroom.  He wrestled the baseball bat from Thomas.  The respondent managed to retrieve his shotgun from behind the door.  For a time, Anagnostou and Graoroski fought over possession of the loaded gun.  Thomas ran out of the house, as did Vargas.  Anagnostou tried to leave shortly after this.  Graoroski ran towards the front door.  Anagnostou was, at this stage, at the bottom of the front steps.  From a distance of one to two metres, Graoroski shot Anagnostou in the left upper back.  Anagnostou dropped to the ground, quickly recovered his feet and ran towards Vargas’ car.  Vargas and Thomas had left the scene on foot.  Thomas, Vargas and Anagnostou were subsequently arrested.

1. Anagnostou sustained life-threatening injuries.  Numerous pellets and pellet fragments were lodged in his chest and abdomen.  His left eighth and ninth ribs were shattered.  His stomach and bowel were perforated.  He suffered a pulmonary haemorrhage and a left apical pneumothorax.  In the early stages of his recovery, he experienced fever and tachycardia.  He underwent lengthy surgery and was placed, for a time, on life support.  He remained in hospital for six weeks.

1. Graoroski sustained deep lacerations to his left ring and little fingers.  Damage to the tendon sheath required plastic surgery.  He also sustained a 5 cm laceration to his head that required five sutures, linear abrasions to his neck, and bruising and/or swelling to his right ear, right cheek, chest wall (with overlying abrasion), thigh and upper abdomen.  He also sustained abrasions to both knees.

1. Graoroski made admissions to police in an interview conducted on 18 October 2017.  In substance, he admitted discharging the firearm and asserted he was in fear for his life at the time.  He admitted he bought the firearm from a friend three or four months earlier.

1. The three male offenders pleaded guilty to one count each of aggravated home invasion and recklessly causing injury.  Vargas was sentenced to five years and nine months’ imprisonment with a non-parole period of three years and eight months.  Anagnostou and Thomas were both sentenced to five years and six months’ imprisonment.  Anagnostou’s minimum non-parole period was three years and six months;  Thomas’ was three years and four months.  Astonishingly, Sacco, who had agreed to give evidence against her co-offenders, was placed on a CCO, which was operative for 22 months.

The plea

1. In written submissions, counsel for Graoroski emphasised the following:

·the respondent was taken into custody on 20 October 2017 and was released on bail on 7 May 2018.  For five months of the nearly seven months’ incarceration, he was serving an unrelated sentence.  Thus 50 days were available to be declared as pre-sentence detention;

·the principle of totality;

·the objective gravity of the offending conduct was said to be ameliorated by the following matters, namely, that:

a)   the respondent found himself in a situation of acute danger;

b)     he acted out of panic and fear;

c)   his shot was meant to scare off the offenders;

d)     he suffered not insignificant injuries himself;  and

e)   his possession of the firearm, whilst unlawful, had been without incident until that time;

·Graoroski’s guilty plea was a significant demonstration of remorse, as were his full admissions made in a hospital interview and reiterated to police once released from hospital.  His re-enactment was relied upon to reinforce this submission;

·on 23 October 2017, he provided a signed witness statement in relation to the home invasion and the discharge of the firearm;

·his guilty plea also carried with it a significant utilitarian benefit;  and

·the respondent remains at risk in custody given his preparedness to give evidence against the three male offenders, all of whom are now serving lengthy terms of imprisonment.  He should be given a significant sentencing benefit for this cooperation with authorities.

1. Counsel then turned to the respondent’s background.  The respondent is 38 years old, from a stable and supportive family, and before his descent into drug use, had a solid work history after leaving school in Year 10.  His criminal history commenced at 31 years of age and is directly related to his drug habit.  His experience of this incident and his subsequent incarceration have provided substantial motivation for him to address his addiction;  whilst on bail, he attended a Suboxone program, and submitted urine samples for screening.

1. His parents have relocated to a regional town and he resided with them at the time of the plea.  It was submitted that he had excellent prospects for rehabilitation.

1. The respondent contended that time served (50 days), together with a CCO, adequately balanced the competing sentencing considerations.

1. Counsel spoke to his written submissions.  He placed significant emphasis on the respondent’s willingness to give evidence against the home invaders, and the benefits and risks that came with undertaking that course.  Ms Collins, the respondent’s sister, gave evidence about the respondent’s background, his drug addiction and his efforts to overcome it.  She gave evidence that since the respondent had been released from prison on bail, he had moved to Shepparton and, for the first time in years, had a full-time job.

1. The prosecutor submitted that this was serious offending, and that general and specific deterrence, protection of the community and denunciation were relevant sentencing considerations, as was recognition of the respondent’s efforts towards rehabilitation.  She advised the Court her sentencing instructions were that a CCO with a term of imprisonment was not within range.  She submitted that some degree of cumulation was appropriate. 

The sentence

1. His Honour summarised the circumstances of the offending.  He summarised the injuries sustained by Anagnostou and the respondent respectively, and the treatment they had each received.  He set out the sentences imposed on the home invaders.  His Honour then considered the objective seriousness of the offending.  He summarised the submissions made by counsel and said:

Nonetheless, despite the very serious offence committed in your parents’ house and on you, you were caught up in a world of drugs and violence where you yourself were in possession of a dangerous weapon, which was loaded and at hand when this incident occurred. 

Whilst I accept that the incident would have been a frightening experience for you, the fact is that once you produced the gun, the three offenders left the house.  You made the choice to pursue them and then recklessly fired the gun.  However, I accept that you reacted in a state of fear following a violent assault on you in your home.[3]

[3]DPP v Graoroski (Unreported, County Court of Victoria, Judge Wraight, 11 October 2018) [24]–[25].

1. His Honour set out the respondent’s personal circumstances, his addiction to ice from about the age of 19 or 20, and his virtually complete unemployment from 2005 until very recently.  His Honour referred to the Graoroski family’s unstinting support, to the evidence of Ms Collins, and various references from other family members.

1. His Honour then summarised various ‘sentencing considerations’.  These included:

·general deterrence should be given primacy in the sentencing exercise;

·specific deterrence, protection of the community and denunciation must be taken into account in that exercise, as must rehabilitation;

·the respondent’s cooperation with police, particularly where Anagnostou refused to assist police was significant, as was his preparedness to give evidence against the offenders in the home invasion charges;  and

·the respondent’s early plea, which with his cooperation, demonstrated a willingness to accept responsibility for the offending.

This appeal

1. In short, the appellant submitted:

·his Honour said little about the objective seriousness of the offending;

·by the time the respondent discharged his shotgun, the threat presented by the home invaders had dissipated;

·his Honour placed too much weight on the respondent’s motive or explanation for offending and not enough on his possession of a shotgun as a prohibited person, the inadequate storage of the loaded shotgun, and the fact that the respondent pursued the offenders from his house and fired a shot in the direction of Anagnostou when only one to two metres from him;

·the injuries sustained were very significant but not much was said about them;

·not much was said about general deterrence, specific deterrence, community protection and denunciation, whilst the mitigating factors were canvassed at length;

·the sentences imposed demonstrate that the aspects of general and specific deterrence, community protection and denunciation were given insufficient weight;

·a review of similar cases, including Zogheib v The Queen,[4] R v Rudd,[5] Director of Public Prosecutions v Arvanitidis[6] and R v Bradley,[7] may assist in demonstrating the manifest inadequacy of the impugned sentences;  and

·the sentences imposed failed to have sufficient regard to the maximum penalties for the offences.  The sentencing judge was required to consider the maximum penalties.[8]  The sentence imposed on Charge 1 is less than six percent of the maximum penalty and on Charge 2, less than four percent of the maximum penalty.

[4](2015) 257 A Crim R 454.

[5](2009) 23 VR 444.

[6](2008) 202 A Crim R 300.

[7][2010] VSCA 70.

[8]Sentencing Act 1991 s 5(2)(a).

1. In an attractive submission, Mr Hartnett (who appeared with Mr Doyle for the respondent) contended that there was a powerful combination of mitigating circumstances, as follows:

·the offence of reckless endangerment was committed in circumstances where the applicant feared for his life and his parents’ safety;

·the sentencing discretion was correctly tempered with an understanding of the reasons why the offender reacted in the manner he did;  

·the respondent acted in panic, not reprisal;

·the respondent had taken significant steps towards rehabilitation;

·general deterrence ought be accorded less significance where an offender acts in fear or panic as opposed to a premeditated act;

·the cases relied upon by the Crown were easily distinguishable on the facts and are of no assistance;

·the very positive steps that the respondent has taken towards reform that were correctly identified and acted upon by his Honour;

·the respondent’s plea of guilty and his cooperation with authorities were correctly identified by his Honour as significant mitigating considerations.  This fact was accepted by the Crown;

·the imposition of a CCO in addition to the prison sentence served both a punitive and therapeutic purpose.  This was correctly recognised by his Honour, who specifically referred to Boulton v The Queen;[9]  and

·the sentence reflected a careful and considered synthesis of the competing sentencing factors.  It should be left undisturbed.

[9](2014) 46 VR 308.

Analysis

1. It is not suggested in this appeal that the sentencing judge had mistaken a fact or made an identifiable error of law.  The applicant contends that this Court can infer error from the sentences themselves, which, when measured against the objective gravity of the offending and the other relevant circumstances, are wholly outside the range of available sentences, both individually and in combination. 

1. This is not an easy ground to make out.  This Court has repeatedly stated that to establish a ground of manifest inadequacy, the Director assumes a burden of establishing that it was not reasonably open to the sentencing judge to come to the sentencing conclusion reached, if proper weight had been given to all of the relevant circumstances of the offending and the offender.  In other words, the Director must establish that the sentence imposed was ‘wholly outside the range of sentencing options available’.[10]

   [10]DPP v O’Neill (2015) 47 VR 395, 427 [132], citing DPP v Karazisis (2010) 31 VR 634, 662−3 [127].

1. After anxious consideration, we have concluded that the Director has discharged this burden.  We shall deal first with Charge 1.  It is unarguable that the respondent was confronted with an extremely difficult set of circumstances.  His home had been invaded and he had been attacked with a baseball bat and a machete by three violent criminals.  He had sustained injuries to various parts of his body.  His father was also placed in danger.

1. All of these factors were relevant to his Honour’s evaluation of the respondent’s objective criminality.  While they do operate powerfully to ameliorate it, they do not extinguish it.  By the time the respondent chased Anagnostou from his house, the danger had passed.  And, as a prohibited person, he shot Anagnostou with his loaded shotgun in the upper back from a distance of one to two metres.

1. Whilst the respondent could not be punished for intentionally injuring Anagnostou, his action in discharging the shotgun so close to Anagnostou was extraordinarily reckless and caused life-threatening injuries.  We have concluded that his Honour, in imposing the sentence on this charge, gave insufficient attention to these factors and, as a consequence, insufficient attention to general deterrence.  We are unable to discern any ‘primacy’ given to general deterrence in either of the impugned sentences.  

1. We have also concluded that the sentence imposed on Charge 2 was manifestly inadequate.  As the Chief Crown Prosecutor correctly pointed out, this offence — possessing a firearm while a prohibited person — was complete before the home invasion commenced.  The gravity of the offence, and the applicant’s culpability, were unaffected by what happened subsequently.

1. The respondent was a prohibited person because of his prior convictions for firearms offences.  In 2011 at the Melbourne Magistrates’ Court, the respondent was convicted under the Firearms Act 1996 of possessing a general category handgun, storing an unlicensed firearm in an insecure manner, possessing ammunition without a licence and storing unlicensed ammunition in an insecure manner.  For this and other drug-related offending, he was sentenced to 12 months’ imprisonment, wholly suspended for 18 months. 

1. In the present case, the loaded shotgun was kept behind the respondent’s bedroom door.  We consider that this is a relatively serious example of this offence, which carries a maximum of 10 years’ imprisonment.  The offending was aggravated by the fact that the shotgun was loaded, kept unsecured and within easy reach in the respondent’s bedroom.  Both Charge 1 and Charge 2 carry the same maximum sentence.  We consider that the objective criminality that attended the Firearms Act1996 offence is at least the equal of the reckless conduct offence. 

1. The policy behind the ‘prohibited person in possession’ offence was clearly stated when the provisions were introduced in 1996.  The then Minister for Police and Emergency Services said:

I feel it is universally accepted in our community that firearms should not be in the hands of those who have demonstrated they cannot meet standards of behaviour approved by the community.  The Firearms Bill is emphatic about this.  Accordingly, a person who is classified a prohibited person under the bill will not be entitled to hold any licence or possess any firearm for a specified period of time.[11]

[11]Victoria, Parliamentary Debates, Legislative Assembly, 31 October 1996, 1006 (William McGrath).

1. This case provides a powerful demonstration of the risks which the criminalisation of such possession was intended to mitigate.  The possession of a shotgun by someone in the respondent’s position — operating in the notoriously violent world of drug transactions — creates the obvious risk that it will be used to cause serious injury or death.  That was the risk which materialised here.

1. His Honour was impressed by the respondent’s steps towards rehabilitation, as are we.  We are also impressed by his cooperation with authorities, his preparedness to give evidence against the men who invaded his home and his early pleas of guilty when there was a respectable defence available at trial, at least with regard to Charge 1.  We have concluded, however, that while these mitigating factors weigh heavily in the respondent’s favour, the objective gravity of the overall offending demands a significantly higher sentence than that imposed by his Honour.

1. At the same time, we wish to reinforce the appropriateness of his Honour’s careful consideration of whether a combination sentence would suffice.  On that question, his Honour directed himself correctly by reference to the following passage from the recent decision of this Court in Williams v The Queen:

As was made clear in Boulton, in an appropriate case, a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously.  A CCO can be fashioned to address the particular circumstances of the offended and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.  And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[12]

[12][2018] VSCA 171 [47].

1. We have concluded, however, that a combination sentence was not within range of sentences available, either on Charge 1, Charge 2, or the total effective sentence.

Conclusion

1. The appeal will be allowed, the sentences imposed on Charges 1 and 2 set aside, and the respondent resentenced as follows:

(a)        On Charge 1, reckless conduct endangering life, the respondent is sentenced to 18 months’ imprisonment.  This will be the base sentence.

(b)        On Charge 2, prohibited person possessing a firearm, the respondent is sentenced to 18 months’ imprisonment.  Six months of this sentence will be cumulative on the sentence imposed on Charge 1.

1. Thus the total effective sentence is two years’ imprisonment.  This respondent will not be eligible for parole for a period of 12 months.

---