R v Blair
[2005] VSC 519
•20 September 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1496 of 2005
| THE QUEEN |
| v |
| GAVIN DOUGLAS BLAIR |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 20 September 2005 | |
DATE OF SENTENCE: | 20 September 2005 | |
CASE MAY BE CITED AS: | R v Blair | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 519 | |
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Plea.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Gilligan | Mr M Andison, Office of Public Prosecutions |
| For the Accused | Mr P Morrissey | Mr N Buccen, VLA |
HER HONOUR:
Gavin Douglas Blair, you have pleaded guilty to one count of assisting an offender in respect of an aggravated burglary, one count of trafficking in a drug of dependence, namely cannabis, one count of theft and one count of assault with intent to resist apprehension. You have admitted a number of prior convictions.
The penalties for these offences in respect of Count 1, a maximum penalty of five years; Count 2, 15 years, Count 3, 10 years and Count 4, five years.
You are now aged 30, having been born on 13 May 1975. You have been in the most recent of times employed as a lab technician in Western Australia.
The Crown opened these matters of some length and tendered a copy of that opening which became Exhibit 1 on the plea. I do not intend to repeat that summary but will give a brief synopsis of the offences to which you have pleaded guilty. It should be noted that they fall into two distinct categories, being Counts 1 and 2, the more serious offences that occurred on 21 May 2002, and Counts 3 and 4, which occurred on 12 September 2005.
Very briefly, the circumstances are that a co‑offender named Leonard Stratton conducted a "run through" aggravated burglary in respect of a marijuana crop being cultivated by the deceased in the garage of his home. You were aware that he was going to do a run through but were unaware of any other details. You had been at a friend's home, that friend being Stratton's sister, the day before this occurred and Mr Stratton indicated that he was going to commit such a crime.
The next that you were aware of the crime was when you received a phone call in the early hours of the morning of the next day, asking you to come and trim some marijuana plants at the co‑offender's sister's home. You went there to assist in the trimming and saw a large quantity of cannabis plants that had been clearly recently uprooted and a pump action rifle that had been cut down. You moved the rifle and it discharged. The rifle was then put in the manhole of the premises and Leonard Stratton made a comment to you about shooting a person when he pinched his dope. You all then continued trimming the cannabis. Other comments were made by the co‑offender and you continued with that trimming of the cannabis until about 8 p.m. that evening.
You returned to Tracey Stratton's house a few days later and agreed to help by taking the gun, which had been in the manhole of her house, and you put it in the manhole of your house for one day. For some reason, you then returned it to her home. As there was no‑one there, you secreted it in the cubby house and subsequently told her where it was located. That really constitutes the summary in respect of Counts 1 and 2.
You left the jurisdiction shortly thereafter and were contacted in November of 2002 by the Homicide Squad. You were asked to provide information about this offence. You apparently voluntarily returned to Melbourne and made a lengthy record of interview wherein you admitted the matters to which I have referred. You then made a statement to that effect and an agreement was reached that you would plead guilty to an offence of assisting an offender in relation to a count of murder and to give evidence for the Crown against the co‑offenders.
Although I have not been able to ascertain with total accuracy, it is my understanding that you were not charged or arrested at that time and that you left the jurisdiction and went to Western Australia to join other family members residing there. After being contacted by police, you voluntarily returned to Victoria and a notice of trial was produced in which it was proposed that you were going to plead to the offence that I have outlined. You were not at that stage represented and you were referred to Legal Aid for assistance on your plea by the informant. You were there given legal advice that there was a defect in the charge against you. You followed that legal advice and the plea accordingly did not proceed at that time. You were immediately arrested and bailed some three days later, on 6 June 2005. One of the conditions of your bail was that you had to reside in Victoria at a specific address. You sought variation of that condition of that bail before me last Friday 16 September.
Just prior to 16 September you were, in fact, arrested on the 14th in respect of what now constitutes charges 3 and 4, being a theft of a shoplifting nature and a resist arrest in relation to that same shoplift. Subsequently, before the matter came on before me, and after discussions between counsel, it was resolved. It was resolved in the manner that currently is before this Court.
The shoplifting offence related to stealing meat and lollies from a supermarket and assaulting and resisting the security staff who attempted to arrest you. There was no injuries suffered by any member of the security staff. This would ordinarily be a matter dealt with in the Magistrates' Court, attracting a not significant penalty.
You grew up in the western suburbs, in particular around Laverton. You were educated to partway through Year 11 and you described your childhood to your counsel as relatively good until the separation of your parents. As counsel said, you did not have what many would describe as a sad life. You lived locally, you associated with local people, you had friends, you worked. In the main, with a few exceptions, you led a very ordinary life. You got yourself involved in some criminality that would be described as relatively minor, certainly by comparison to the type of crime in which you find yourself now involved.
Your father departed the home when you were aged about 14 and from the age of 16 you have not seen him since. It appears that your father formed a new family and just ceased to have any contact.
You have been a machine operator, you have worked in chemical plants, and you had, at the age of 19, a trip to Karratha which, for some reason, clearly stayed in your memory, so when the chance came to go back there, as your counsel put it, you took it.
You have unfortunately also been heavily involved in marijuana usage for a substantial period of time. That is clearly demonstrated by your prior criminal history which includes possession and use of cannabis in 1993 at the age of around 18 years, and cultivation and possession of cannabis in 1996 at about 21 years of age. Your counsel stated that you do not really have any explanation for your early marijuana usage nor to the level to which you have admitted you have been involved. There is no psychological evidence before the Court of any dependency upon cannabis such as to justify or explain your behaviour.
Your counsel submitted to me that there is a danger in being a heavy user of marijuana because it brings you into a circle of people who deal in that substance, and if you intend to be on the fringes of that sort of society, there is a significant chance that you will become involved in the criminality which that society deals in, and he submitted that is exactly what happened to you.
At the time of the offence you were working, even though that work ceased shortly after, you were in fact working. You were at CSR Gyprock in Yarraville. You were earning remarkably good money, up to $900 a week. This was done through long shift work. You had met a man called Brett Dolan, and my reading of the materials is that he was the de facto of Tracey Stratton and she was the sister of the person who ultimately was your co‑offender, Leonard Stratton. Mr Dolan, at the time of this offence, had been sent to prison for, I believe, some three months. You were obviously well known to Tracey Stratton as having an ability to trim marijuana plants in an efficient way, obviously because you had done it numerous times before.
You have, since this time, the time of these offences, lived in the Northern Territory and Western Australia and have been gainfully employed. You went to Western Australia to join your sisters and your mother has now relocated there. You reside normally in Geraldton, as I understand it, and I have received a number of character references on your behalf, which are Exhibit 3 on the plea. They demonstrate that you have attempted to make something of your life in the time that has elapsed since in the commission of this offence and now. You have been employed working, firstly, at Lobster Australia in Geraldton and, more recently, as a laboratory assistant in assessing sands used in mining. That position has been kept open for you but will have to be filled if you cannot return fairly immediately.
You have been described in those character references as being a kind and considerate human being who has helped a number of other people and you, fortunately, and I say "fortunately" because this is not always the most common thing, you have the support of your family. They are willing to do all that they can to assist you and clearly have done so to present time.
In the last two weeks you have drifted into heroin usage but I am informed by your counsel that you are fortunately not at a point of addiction with no return. An appointment has been made for medical treatment upon your return to Geraldton. A friend has flown to Melbourne and has the airfare available and will take you back to Western Australia if you are released.
You have given evidence before me and undertaken to give evidence in any proceeding that may arise out of the statement that you made to the police and sworn before me is true and correct. The importance of the evidence cannot be overestimated, as, without your evidence, there is, in my view, having heard and granted the bail application of Leonard Stratton, no evidence upon which this matter would in all likelihood even get to a jury. The person Tracey Stratton was discharged at committal because your evidence was not available and obviously the Magistrate took the view that there was insufficient evidence to commit for trial. Thus your evidence can be rightly described as crucial in bringing the alleged co‑offenders to trial.
Equally, your cooperation and indication of an early plea and your willingness to give evidence prior to any involvement of lawyers are, to me, clear indications of your remorse and your willingness to try and lead a more law‑abiding life.
Whilst I note your brief involvement in heroin usage and your shoplifting charge for which you are to be sentenced today, I do accept that it was the result, to a large degree, of having to remain in Melbourne away from your family and support systems and no employment.
The fact that you are going to be giving evidence of such a crucial nature in a trial of murder equally means that you are at risk if you were to be immediately incarcerated for this offence. That threat does not necessarily come from your co‑offenders but from the fact that persons who are giving evidence of this nature are viewed in a very poor light within the prison system by other prisoners. It is not uncommon for those persons to be the subject of threats, violence or even death whilst in prison.
The Crown submitted that you were, despite your prior convictions, a person who should be granted an opportunity to serve your sentence other than by immediate imprisonment and submitted that a suspended sentence would be the most appropriate sentence for the particular offences and your particular circumstances. Your counsel equally submitted the same.
I must say that I agree. There is no victim impact statement in this case, but I have no doubt that the family of the deceased would wish justice to be served by, at the very least, presenting the best case that the Crown can put forward against the person alleged to be responsible for the death of their family member.
These are serious offences and but for your cooperation and remorse you would be serving an immediate custodial sentence.
In respect of these offences, I sentence you as follows:
Count 1, assisting an offender, to be imprisoned for a period of two years; Count 2, trafficking in cannabis, to be imprisoned for a period of 18 months; Count 3, theft to be imprisoned for a period of one week; Count 4, resist arrest, to be imprisoned for a period of one week.
I direct that three months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1 and that the sentences imposed on Counts 3 and 4 be served concurrently with each other and concurrently with the sentences imposed on Counts 1 and 2. That makes a total sentence of two years and three months.
I further direct that such sentence is to be suspended for a period of three years from today.
It is to be noted in the records of the court that you have served 10 days' pre‑sentence detention.
I make the retention order sought in respect of the DNA sample.
It should be noted that if you breach that suspended sentence you will be brought back before me. Be under no allusion, you will serve that sentence in prison. Be under no allusion, if you breach the undertaking that you have given, you will be serving the sentence in prison, Mr Blair.
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