Director of Public Prosecutions v Bibby & Wilson
[2023] VCC 129
•9 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00031
CR 22-00032
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS BIBBY |
| JAKE WILSON |
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JUDGE: | HER HONOUR JUDGE HAMPEL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 February 2023 |
DATE OF SENTENCE: | 9 February 2023 |
CASE MAY BE CITED AS: | DPP v Bibby & Wilson |
MEDIUM NEUTRAL CITATION: | [2023] VCC 129 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Guilty Plea – affray - recklessly cause injury - unlawful assault - kicking - weapon – childhood trauma – deprivation – disadvantage - machete
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Wilson: 230 days' imprisonment and community correction order for a period of 12 months.
Bibby:12 days' imprisonment and community correction order for a period of two years.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Raimondo | Office of Public Prosecutions |
For Accused Bibby | Ms L. Conwell | |
| (For Plea) | ||
| Mr J. McGarvie | Stary Norton Halphen | |
| (For Sentence) | ||
For Accused Wilson | Mr A. Marshall | |
| (For Plea) | ||
| Ms S. McLennan | Chris McLennan & Co | |
| (For Sentence) |
HER HONOUR:
Jake Wilson
1Jake Wilson, together with your younger brother Thomas Bibby, you were involved in a disgraceful course of conduct on 4 February 2021 and as a result of that you have pleaded to and now come to be sentenced for one charge of affray and two charges of recklessly causing injury.
2You and your brother had been at the Seaford Hotel on the afternoon of 4 February 2021. A group of people, it would appear previously unknown to you, were also there: Aaron Bevis, Daniel Bunting, Matthew Bunting and Kade Nugent. They were celebrating Mr Bevis' birthday. In the course of the afternoon there was intermingling between the Bevis-Bunting-Nugent group and you and your brother. Initially it was amicable, but some sort of dispute broke out and you and your brother were ejected from the hotel.
3There was some verbal aggression directed by you towards the Bevis-Bunting-Nugent group as you left the hotel and you and your brother then were seen to be wrestling in the car park of the hotel together. About an hour later, after things seemed to have quietened down between you and your brother, the other group of men left. You and your brother were hiding in the bushes in the car park and jumped on them.
4It is said that one you yelled out, 'let's go where there's no cameras'. You had armed yourself with a machete, and your brother was armed with a knife or box cutter. The two of you then set upon the other group and a fight broke out in the car park, spilling out onto the Frankston-Dandenong Road. Everybody, it would appear, was trading blows and everybody, you, your brother, and the four in the Bevis, Bunting and Nugent group sustained some injuries. It is that initial fight that gives rise to the charge of affray to which you have pleaded guilty.
5During the course of that fight you swung the machete towards each of the Bunting brothers. Each of them attempted to disarm you, but each of them was struck by the machete in the course of trying to disarm you. They each received injuries from the bladed edge of the machete in the course of that melee and their attempts to disarm you.
6Daniel Bunting received a deep cut on his left knuckle and Matthew Bunting received a deep cut to his right hand. It is the infliction of those injuries on Daniel Bunting and Matthew Bunting that gives rise to the two charges of recklessly cause injury to which you have pleaded guilty.
7The fight between you and Mr Bunting continued out onto the road and Daniel Bunting eventually was able to pin you down to the ground. You were still holding the machete. He was hitting you in the head. Mr Bevis and a security guard from the hotel intervened, stopped the fight and you were eventually disarmed, relieved of the machete and it was thrown away. Mr Bunting was then removed from on top of you and you were lifted up from the ground and pushed away.
8It would appear that after that, a fight occurred in the car park between your brother and Daniel Bunting. And whilst you were not party to that, that gives rise to other charges concerning your brother.
9Towards the end of the fight your sister Tessa Bibby arrived or came to the hotel and drove the two of you home. It was that, it seems, that led to the eventual stopping of the fight.
10You were easily identified and police contacted you not long after. You attended Frankston police station by arrangement and participated in an interview. You told the police that you could not recall much of the incident because you had been drinking so much. You said you remembered being hit while you were being held down on the ground, but you said you “did not recall” carrying a machete.
11You were charged and remanded in custody where you remained for 230 days before you were released on CISP bail. By the time of your release, negotiations were well underway to resolve the matter and you ended up entering pleas of guilty to these charges that bring you before the court today.
12There is nothing that can be said really in your favour in relation to the affray or the cause injury charges. Your behaviour was disgraceful. There is no other word for it. And as the older of the two brothers who waited in the car park for the other group to emerge, and the one who went home and armed himself with a machete, your conduct was particularly disgraceful.
13Normally conduct such as this would call for a significant term of imprisonment because clearly the needs of denunciation, deterrence and just punishment are significant. People are entitled to go to licensed premises, to engage with their own group of friends and even to mingle with others without the mingling turning to aggressive words and, even worse, aggressive actions.
14That you and your brother were the ones initially evicted from the hotel means that, even if you were not the instigators of the ill feeling between you and the other group, you had done sufficient to lead security to come to the view that you were the ones who were the troublemakers and should be evicted. Additionally, that there was time to cool down but instead you went home and armed yourself with a machete also indicates the need for denunciation, deterrence and just punishment.
15At the age of 26 as you then were, you should have been mature and calm enough to be able to walk away. Violence of the sort that you engaged in, with a weapon, lying in wait, clearly cannot be countenanced and people who think that they can act in that way, whether intoxicated or not, must understand that they will, when found, as they so often are, be punished appropriately.
16What then is relied on to temper the weight to be given to denunciation, general deterrence and just punishment?
17There are some common features between you and your brother and I will deal with those first. You come from a family that was marred by substance abuse and violence, active abuse and what one might call abuse by neglect. Your parents both struggled with substance abuse and clearly do not appear to have been well equipped to be able to bring up their children. You are six years older than your younger brother and by the age of nine it would appear you were shouldering the bulk of the responsibility for caring for him and your other younger siblings. You were not only exposed to your parents' drug taking and violence towards each other, but you were, yourself, as was your brother, subjected to violence directed to you. Not surprisingly, you started abusing substances early yourself as a result.
18All the research we have now in relation to child deprivation and disadvantage makes it clear that the effect of that trauma is enduring on people and can mark the patterns of their behaviour for a long time. I accept that in your circumstances the deprivation and disadvantage were significant and that they have had a significant effect on you. Therefore, the weight to be given to denunciation and deterrence must be tempered by reason of that childhood trauma and the impact that has had on your development.
19Not surprisingly, you and your brother both report a history of abuse of drugs and alcohol that can clearly be seen to have its genesis in that disadvantaged background and, early exposure and early use yourself. Despite those disadvantages you and your brother have both enjoyed long-term stable relationships. Yours has endured for 11 years and you have two children. Your wife appears to be a supportive partner and the relationship between the family unit appears to be good.
20One of your children lives with autism and that puts an additional strain on your family. By all accounts you are a devoted father and your history of support for your wife and children is something that clearly stands well in your favour.
21You also have, as does your brother, a long-term history of stable and responsible employment. I was very impressed by the reference that was provided by your long-term employer. You have worked in the green waste or e-waste industry for most of your life. Your employer noted how disappointed he was to discover that you had been charged with these offences and remanded in custody. However, he considered it to be out of character with the responsible man he had always seen in the workplace.
22I was very taken by the fact that he said he had reservations, as did his other employees, about what he described as “allowing” you to return to work, that he engaged his employees in a discussion about whether it was appropriate to have you back and that there was a collective decision that you deserved a chance given the history in your workplace. You were demoted, returned to work but showed that the faith that had been put in you was well placed and you have since been promoted to a site supervisor.
23The pride you take in your work and the pride your employer takes in your discharge of your role speaks really well for you. Your history of commitment to your family, your work, sits in stark contrast to the disgraceful behaviour that you engaged in that night.
24The fact that you were charged and remanded in custody has clearly meant that you have had to sit back and take stock. It would appear that you have done that, and done that responsibly and maturely, and taken responsibility for your conduct. You have acknowledged the correlation between your alcohol abuse and the offending and you have taken active steps to address that. You have also acknowledged that you suffer significant mental health issues and that you can and do benefit from professional assistance.
25You have a criminal history, again not surprising given your background and the disadvantage and deprivation to which I have referred. But notably, it does not include a history for offences such as this, so this again supports the conclusion your behaviour was out of character. Your conduct since being charged, both during the time you spent in custody and upon release, fortify that conclusion that it was indeed out of character.
26You spent 230 days on remand before you were released on CISP bail. The final CISP bail report notes that you were polite, actively engaged in supervision, and compliant with all your supervision conditions. Although you were identified as a person of high needs the report reveals you understood those high needs and actively committed to addressing them so as to enable you to not only stay offence-free but to address the underlying problems.
27The CISP report was glowing at the end. You successfully completed your CISP bail and were ultimately discharged from its conditions well before the matter came on before this court. You therefore were able, on your release, to return to work, return to your partner, return to your children and continue to engage with the supports in the community that were to be of assistance to you.
28You acknowledge that you need continued assistance to deal with your mental health and to deal with your substance abuse. It was a somewhat unusual plea as your counsel acknowledged. Instead of directing the submissions to a sentence that in effect sentenced you to the time served with no more, that you were the one who expressed the desire to have a sentence that included release on a community correction order so as to enable you to benefit from the mental health and drug and alcohol rehabilitation conditions that would attach to that.
29I was taken by that understanding of the support and benefit that you had derived and wanted to continue to derive and by the fact that you had no doubt been advised that you had a prospect of the matter being dealt with only by way of sentencing you to time served, but you elected to argue for that additional hold over you.
30The prosecution agreed that in the circumstances a combination sentence with no term of imprisonment greater than time served was appropriate. I have had you assessed for suitability for a community correction order. You have been assessed, although as having a high risk score for repeat offending, as being a suitable and committed candidate for a community correction order.
31There are some differences between you and your brother that I also need to address that lead to some difference in the sentences ultimately to be imposed.
32You are six years older. You were 26 at the time, now 28. You should have known better and you should have been modelling better behaviour rather than encouraging and facilitating bad behaviour. So at one level, although you face fewer charges and at one level charges of less gravity overall than those faced by your brother, there are factors that point to differences in the assessment of your moral culpability.
33You have a criminal history and your brother does not, although, as I have said, not for similar offending. You spent a considerably longer period in custody. You spent 230 days on remand whilst your brother only spent 12. The charges are different, as I have noted: two recklessly cause injury for you; one intentionally cause injury, one recklessly cause injury for your brother. He also has three summary assault charges. Some disparity in sentence is required to reflect those differences, and the need for consistency and proportionality between the sentences imposed upon the two of you.
34So purity of principle in terms of distinguishing between the two of you and your roles has to be tempered by the practical considerations of those different considerations, I think in particular of that additional extra time that you spent in pre‑sentence detention.
35The sentences that I have fixed on for you are these. On the charges of affray and the two charges of recklessly cause injury, I am imposing an aggregate term of imprisonment followed by a community correction order. The community correction order is lower than that that I propose to impose on your brother.
36What I propose to do is to sentence you to an aggregate term of imprisonment no longer than the time already served and then to release you on a community correction order for a shorter period than that I propose to impose upon your brother.
37It has all the conditions that were recommended by Corrections in addition to the core conditions: unpaid community work, to be under supervision, to undergo assessment and treatment including testing for drug and alcohol abuse or dependency, to undergo a mental health assessment and treatment as directed and, to participate in programs relating to your offending behaviour as directed. And in addition, I will make that disposal order sought in respect of the machete.
38You understand, Mr Wilson, that you must consent to the terms of the CCO and you have had those explained to you.
39OFFENDER WILSON: Yes.
40HER HONOUR: And can I ask you before I formally go through it whether you are going to consent to it?
41OFFENDER WILSON: Yes, I do.
42HER HONOUR: All right, thank you. Could you please stand now, Mr Wilson.
43Jake Wilson, on the three charges to which you have pleaded guilty you are convicted. On Charges 1 of affray, 2 of recklessly cause injury and 3 of recklessly cause injury you are sentenced to an aggregate term of imprisonment of 230 days imprisonment. I declare that the time that you have been in custody in respect of these offences, namely 230 days, be reckoned as the term of imprisonment already served under this sentence.
44In addition, on each of these three charges you are ordered to serve a community correction order for a period of 12 months. That order is to commence today, 9 February 2023, and ends on 8 February 2024.
45There are mandatory terms that apply to all community correction orders. They are that you must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by substances when you attend upon Corrections or anywhere else at Corrections' direction for the purposes of this order and you must submit to drug or alcohol testing if directed to do so.
46You must report to and receive visits from the Secretary or delegate. You must report to the Frankston Community Correctional Services at Ground Floor, 431 Nepean Highway, Frankston within two clear working days after the commencement of this order. Today being Thursday, that means by Monday of next week.
47You must let a community corrections officer know within two clear working days if you change your address or change your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.
48In addition to those core conditions I impose the following special conditions. First, you must perform 100 hours of unpaid community work over the period of 12 months of the order as directed by the reginal manager. If you fail to comply with this unpaid community work condition the Secretary to the Department of Justice or their delegate may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act.
49You must be under the supervision of a community corrections officer for a period of 12 months. You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager. You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager. You must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager.
50And you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. Do you understand the effect and the conditions of this community correction order, Mr Wilson?
51OFFENDER WILSON: I do.
52HER HONOUR: And do you consent to it being made?
53OFFENDER WILSON: I do.
54HER HONOUR: Very well. I will have that handed to Ms McLennan and ask her to take it down to you. And when you are confident that it reflects what I have just read out, can you please sign it, signifying your consent. Thank you, I am now about to countersign that and a copy of that will be made and provided to you once I have stood down. And once you have been given it you can leave court with your counsel.
55I also make a disposal sought in respect of the machete and I declare that pursuant to s6AAA of the Sentencing Act but for your pleas of guilty to these charges I would have sentenced you to a total effective sentence of nine months' imprisonment followed by an 18-month community correction order.
56HER HONOUR: Copies of that CCO will be provided to you, Mr Wilson, and to Ms McLennan. And you will then be free to go. I sincerely hope that it is the last time you are before me, before this court or before any other court, unless you are coming to court to support someone who has done the wrong thing and you can show them there is a way ahead to bring your life back.
57You have got clearly a lot going for you despite the disadvantage of your youth and I hope you make the most of the advantages that you do have and the opportunity that you have been given today.
Thomas Bibby
58On 4 February 2021 you, Thomas Bibby, then aged 20, went to the Seaford Hotel after work with your 26-year-old brother Jake Wilson. The two of you drank for some considerable time and you mingled with another group of people, Aaron Bevis, Daniel Bunting, Matthew Bunting and Kane Nugent, a group of men who worked together and who were previously unknown to you.
59I adopt what I said of what happened after that when I was sentencing your brother earlier this morning and I am not going to repeat the summary that I gave then. However, I will pick it up from where I left off, where your brother's role effectively ended once he was disarmed of the machete that he had. It was thrown away. Daniel Bunting, who had been on top of your brother, trying to stop him attacking any further with the machete, had been lifted up by Mr Bevis and the security guard and removed. Your brother had got up and been removed.
60Once Daniel Bunting had been removed from the presence of your brother, he and you then fought in the car park, some distance from the roadway where he had been fighting with your brother. The two of you went down to the ground. You were on top of Mr Bunting. One of the other men, Mr Nugent, got a shovel and hit you a few times on the head in order to try and get you off Daniel Bunting.
61You had armed yourself, as I noted earlier, with a knife, either a box cutter or some other form of knife You swung it at Mr Nugent, slashing his right thumb, which caused a laceration and gives rise to related Summary Charge 10 of unlawful assault. Mr Nugent chased you across the road and then went back to his companions.
62You approached Daniel Bunting Mr Bevis and the security guard. You slashed Mr Bevis across the forehead with your knife and stabbed him to the right side of his body. He was bleeding. That gives rise to Charge 4 for you of intentionally causing injury to Mr Bevis.
63At some stage you ran towards Daniel Bunting who was on the ground and kicked him in the shoulder and the head. That gives rise to another related summary offence of unlawful assault in relation to Daniel Bunting, to which you have pleaded guilty.
64You then stabbed Matthew Bunting twice in the back after he had come onto the roadway and tackled you as you were kicking his brother Daniel. The two of you, that is Matthew Bunting and yourself, went down on the ground and it was during the struggle on the ground that you stabbed Matthew Bunting in the back. That gives rise to the second indictable assault charge that you pleaded guilty to, one of recklessly causing injury to Matthew Bunting.
65You and your brother then walked off to a car that your sister Tessa was in. She had come to pick you up. Another woman, Ms Richards was standing near, the car, speaking to your sister. As you got into the back seat of the car Ms Richards asked you what you were doing. You swore at her and spat in her face. You had blood on you and a combination of blood and saliva went into her mouth and sprayed on her chest and dress. That gives rise to the last of the summary assault charges to which you have pleaded guilty, another charge of unlawful assault relating to the disgraceful behaviour in spitting at Ms Richards.
66Most of your victims received injuries for which they sought medical attention. Matthew Bunting had a cut over his right hand and a broken finger. There was swelling and an exposed tendon. He also had two lacerations on his back. The lacerations on his back are the injuries attributable to you; the lacerations on the hand seem to be attributable to the assault by your brother on him.
67Daniel Bunting's injuries seem also to be related to your brother's attack on him. Mr Bevis had a deep scalp laceration to his forehead that was caused by you and a stab to his lower chest level near the ninth rib. That relates to your causing injury to Mr Bevis. And Mr Nugent, who you slashed at and whose hand you cut in the course of the fight, also had a laceration to this thumb that required treatment.
68You needed to get your arm plastered because you had fractured two bones in your wrist. That you also suffered injuries is no mitigation. It is some indicator of the force that you used.
69Like your brother, you surrendered yourself by appointment to Frankston police on 10 February and participated in recorded interview. You too said you could not recall much of the incident because you were drinking heavily at the hotel. You said you remembered being hit with the shovel and ending up at Frankston Hospital. You said you did not recall carrying a knife. You expressed some remorse for your actions when police detailed exactly what you had done. Like your brother, you were charged and remanded in custody. You spent 12 days in custody before being released upon CISP bail.
70As I said when sentencing your brother, there is nothing mitigating in the circumstances of the offending. It was disgraceful. You and your brother seemed to be, at least were perceived by security at the hotel, to be the aggressors and the ones who needed to be evicted after what appeared to be an initially friendly interaction turned into an aggressive one between you and your brother and the other group.
71It is clear that, as it was also the case for your brother, general deterrence, specific deterrence, denunciation and just punishment are important sentencing factors. People are entitled to go to licensed premises to drink with their friends, to mingle with others without being subjected to aggressive and violent attacks.
72The fact that an hour passed between the time that the two of you were evicted from the pub and the others came out, that you were lying in wait and attacked them in the manner you did, having armed yourself in the meantime, is something that clearly calls for condemnation. Clearly that must be marked by a punishment that stands as a warning to others who think that they can engage in behaviour, that it is unacceptable and must be punished in a way that reflects society's condemnation.
73What then are the matters that were relied upon to mitigate the sentence that otherwise would be appropriate for the offending and your role in it. Well, there are some common factors between you and your brother. Both of you clearly experienced a childhood of significant deprivation and disadvantage. From birth you were exposed to the substance abuse and violence between your parents, exposed to substances being abused in your presence and both of you were exposed to drug use and encouraged into drug use, through your parents, when you were very young.
74Your deprivation and disadvantage extended to being subjected to violence yourselves and to being neglected so that from a very young age your older brother and your sister were responsible for looking after you and the younger children, when they were still children themselves. It is very clear, as I said when sentencing your brother, that childhood deprivation and disadvantage, whether it is active or what one might call the more passive deprivation by reason of neglect and poor parenting, has lifelong and enduring effects.
75And one effect that clearly manifests itself in you and your brother was a very early development of substance-abusing habits, for you, alcohol and methylamphetamine in particular. It is not surprising in that sense, given that history, that you do have a troubling history of substance abuse for one so young.
76You were only 20 at the time and you are now 22. But like your brother, despite the disadvantages of your upbringing and despite the early exposure to and then embarking, yourself, on substance abuse you have managed to maintain a long-term, stable relationship. You have been with your partner, who I am told has no drug history and no criminal history, for five years. That bodes well, that speaks very well in terms of commitment to relationship, capacity to follow something through and to have someone who is not in trouble and not abusing substances trust you, believe in you and support you. I think you should be thanking her.
77In addition, like your brother, you have got a very good employment record and one that again is somewhat unusual for someone who has had such disadvantage, which reflected itself to some extent in your schooling and with parental at least disinterest if not actual neglect in terms of supporting your schooling.
78You left school young and have worked ever since. You have been engaged trying to pursue an apprenticeship and you are clearly determined to work hard and better yourself. And you have had sustained and consistent employment. Yours is not a history of being sacked or having to leave a job because you cannot be bothered getting up in the morning or because you are substance impaired.
79You have had a couple of changes of employment. That does not to me indicate lack of commitment on your part. Your first change was when you could no longer get the time off to pursue your apprenticeship studies as well as your on course training. Your second change was when you were concerned, particularly after your release from custody, that the drinking culture in the workplace you were in was not good for you. You recognised after being charged, after that short time in custody and after your release on supervised bail that for you, drugs and alcohol were a bad combination and your best opportunity to be able to continue to live a meaningful and offence-free life was to abstain.
80But you found employment again, so again that suggests not somebody who is prepared to be a victim, to sit around and idle away time, but to engage in meaningful employment and make a contribution and that is in itself commendable in a 22-year-old. It is even more commendable in someone who has had the childhood disadvantages you have.
81There are some differences between you and your brother too. You are six years younger and you were only 20 at the time. As I said to your counsel in the course of the plea, the evidence that the brain does not properly mature to adulthood particularly in men until about the age of 25 is clear and incontrovertible. So you are properly entitled to be treated as a young offender where rehabilitation must get more weight generally than punishment and deterrence and where it is accepted that immaturity and poor impulse control are more associated with youthful offenders.
82And what is also different from your brother and something that stands very much to your credit is the fact that despite the disadvantage of your background you have no criminal history. And you are entitled not only to be treated as a first offender but to have that taken positively in your favour.
83I have already mentioned the fact that you were remanded in custody and that you spent 12 days in custody before being released upon bail. The fact that you only spent 12 days compared to the 230 your brother spent is clearly a reflection of your youth, your lack of criminal history and the stable family support that you had from your partner and, at that stage, a place to live with your sister.
84You were released on strictly supervised bail under CISP and to your credit you engaged very actively and positively with CISP. Very good reports were provided. A report was provided by CISP as you were exited after the first four months of what had been the recommended period. Those supervising you on your CISP bail were satisfied that you were linked in with the services that you needed and that you were committed to engaging with them and didn't need further CISP support in order to keep you engaged with them.
85You acknowledged both mental health problems as well as substance abuse problems and engaged positively with the therapy and treatment that was offered to you. You had a number of sessions with Headspace, which you report were very helpful to you. They came to an end not because of lack of commitment on your part but because your treating clinician was transferred and you were placed back on a waiting list pending appointment of a replacement.
86Again, it is very much to your credit that you did not relapse during that time but have remained on the waiting list and actively pushed to re-engage. You recognise you need more help if you are going to stay out of trouble and lead that happy, meaningful, contributing life that you clearly want to lead.
87Were it not for the combination of the disadvantage in your youth and those very positive matters speaking for you, and the fact that you had done so well in that time you have been released on bail both on CISP and later, then I would have thought a sentence involving only 12 days' imprisonment even in combination with something else would have been inadequate. But your early plea of guilty, your lack of priors and lack of anything pending, together with the stability you have and the obvious efforts you made to rehabilitate yourself all combine to point me to the conclusion that the appropriate sentence was one that did not involve returning you to prison.
88I am satisfied that to do so would have actually been of detriment to you and to the community, that it was much more likely to set you on a criminogenic path and to set you back, to make it more difficult to return you to the path that you have shown you are capable of keeping to: of working and keeping out of trouble.
89And so, although the sentence I impose on you is a little different from your brother's and the offences that you face are different from his, what I have sought to do is to accommodate what has to be, if not strict parity, a relativity in the sentences reflecting these different levels. At one level, in one sense his culpability is greater because he is older; at another, your culpability is greater because you face more charges, including one of intentionally causing injury, whereas your brother's are both recklessly causing injury, consistent with flailing around when armed in the course of a fight. Whereas one of yours, the intentionally cause injury, was clearly a deliberate stab.
90You have also got the three summary assault charges, all of which are elevated from the normal three months to six months' maximum sentence because of the aggravating circumstances. Spitting is a terrible thing to do and spitting blood and saliva, on a woman, who was doing no more than remonstrating with you for fighting as you did, is shocking. Kicking someone when they are down is terrible and assaulting someone when you are armed is also clearly reprehensible. Normally that conduct would have resulted in a greater term of imprisonment.
91The way I have sought to adjust between you and your brother to have that proportionality and the relatively, reflecting the fact that he spent longer in custody, is to sentence him to that whole time in custody and give him a shorter community correction order. For you, because you only had 12 days in custody, you have got a longer community correction order and more hours of unpaid community work because the punitive element, the punishment element of your CCO, should be greater than the punishment element of his.
92So that is how I have sought to balance between the two of you to have sentences that, as best as possible, reflect the seriousness of the offending and your mitigating circumstances.
93In accordance with the favourable assessment from Community Corrections and accepting their assessment that you are a high risk of reoffending, rather than Mr Cummins' assessment that you are at a lower risk of reoffending, I propose to impose a two-year community correction order on you with 200 hours of unpaid community work as well as conditions relating to drug and alcohol assessment and treatment, mental health assessment and treatment, programs to address reoffending, that is the behavioural change programs that you had indicated you wanted, and on the recommendation of Corrections supervision as well because of the high level of risk and the number of conditions.
94Before I impose a community corrections order I have to be satisfied that you are going to consent to it. I understand that you have had the terms already explained to you and the need for consent explained and you have indicated to Corrections that you consent, but can you just indicate to me, Mr Bibby, whether you do propose to consent to a CCO.
95OFFENDER BIBBY: Yes, Your Honour.
96HER HONOUR: Thank you. Now there are a couple of conditions that will have particular significance for you. One is that you must tell Corrections within two days if you change your address. And your employment has just recently changed again. You must tell Corrections, if you change your job within two clear days, whether you lose your job, or whether you start a new one.
97All right, can you now please stand, Mr Bibby.
98Thomas Bibby, on the three indictable charges and the three related summary offences to which you have pleaded guilty, on all of them you are convicted.
99On Charge 1 of affray, Charge 4 of intentionally cause injury and Charge 5 of recklessly cause injury, you are sentenced to an aggregate term of 12 days' imprisonment.
100On the three summary Charges 7, 8 and 10 of unlawful assault, one by kicking, one by assault with a weapon, one by assault on a woman, you are also sentenced to 12 days' imprisonment as an aggregate sentence. They are concurrent with the sentences on the indictable offences.
101I declare that the time that you have spent in custody in respect of these offences, namely 12 days, to be reckoned as the term of imprisonment already served under this sentence and which is to be deducted administratively. In other words you are sentenced to time served.
102In addition, on indictable Charges 1, 4 and 5, that is the affray, the intentionally cause injury and the recklessly cause injury, you are ordered to serve to a community correction order for a period of two years. That commences today, 9 February 2023, and ends on 8 February 2025.
103There are mandatory terms that apply to all community correction orders. They are that you must not commit another offence for which you could be imprisoned during the time that the order is in force. That is just about anything these days, almost every offence is punishable by imprisonment.
104You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations. That means you must not be impaired by drugs or alcohol when you attend on Corrections for any part of your program or go to any place directed by them as part of your program. And you must submit to drug or alcohol testing if directed by them.
105You must report to and receive visits from the Secretary or a delegate. You must report to the Frankston Community Correctional Services Centre at Ground Floor, 431 Nepean Highway, Frankston within two clear working days after the commencement of this order. Today being Thursday, that means by Monday.
106You have got a phone number there and you may well have to call them first to work out whether they want to do that report by phone or by personal attendance, but the obligation is on you to do that and make sure you comply with the reporting.
107You must let a community correction officer know within two clear working days if you change your address or change your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.
108In addition to these mandatory terms I impose the following special conditions. You must perform 200 hours of unpaid community work over the two years of the CCO as directed by the reginal manager. And if you fail to comply with this unpaid community work condition of the order, the Secretary to the Department of Justice or their delegate can give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act.
109You must be under the supervision of a community corrections officer for a period of two years. You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager. You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager. You must undergo any mental health assessment and treatment as directed by the regional manager and that may include psychological, neuropsychological or psychiatric assessment or treatment or treatment in a hospital or residential facility.
110And you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. Do you understand the effect, the conditions of this order?
111OFFENDER BIBBY: Definitely, Your Honour.
112HER HONOUR: And do you consent to them, Mr Bibby?
113OFFENDER BIBBY: Definitely.
114HER HONOUR: I will then hand that to Mr McGarvie and ask him to take it down to you and when you are satisfied and he is satisfied that what I have read is what is on that order can you please sign it indicating your consent. Mr Bibby, I have countersigned that order, so it has got your signature and mine on it now.
115Pursuant to s6AAA of the Sentencing Act I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of six months' imprisonment followed by a two-year community corrections order.
116Mr Bibby, I said this to your brother and I will say it to you: I hope this is the last time you are before me, before any other court, either in this building or anywhere else, and that if you come back to court again it is because you are there supporting somebody else who has been in trouble, to show they can turn their lives around, that a troubled past and history does not have to define who they are as the adults that they grow into and who can live meaningful, offence-free and substance-abusing-free lives.
117OFFENDER BIBBY: Thank you very much, Your Honour.
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