Director of Public Prosecutions v Gaby

[2020] VCC 752

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01545

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILIP GABY

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2020
DATE OF SENTENCE:	29 May 2020
CASE MAY BE CITED AS:	DPP v Gaby
MEDIUM NEUTRAL CITATION:	[2020] VCC 752

REASONS FOR SENTENCE
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Subject: conduct endangering another person
Catchwords: low–medium offending – early guilty plea – deeply remorseful – history of mental disorders – Verdins principles applicable – excellent prospects of rehabilitation
Legislation Cited:
Cases Cited:
Sentence: 2 year community correction order – 125 hours of unpaid work – treatment for mental health

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire
For the Accused	Mr M.Thomas

HIS HONOUR: 

1Philip Gaby, you have pleaded guilty to one charge of engaging in conduct endangering another person, contrary to s.23 of the Crimes Act.  The maximum penalty for the offence is five years' imprisonment.  The circumstances of your offending are set out in the summary of prosecution opening, which was Exhibit A.  They are agreed facts. 

2On 19 January 2019, during an argument with your wife, you threatened to burn down the house.  You got a container of petrol from the garage and poured petrol on the kitchen floor.  Your wife slipped and fell in the petrol.  Somehow, the fuel ignited and her clothing caught alight.  She ran to the bathroom and extinguished her burning pyjamas under a cold shower.

3Meanwhile, the house caught alight.  Your wife ran out of the house and you had climbed onto the roof.  You got down, and neighbours helped the two of you.  You both suffered serious burns and you had a cut to your left hand.  Ambulances took the two of you separately to hospital for treatment. 

4Your wife suffered very serious burns to 44 per cent of her body, which required surgery and physical and psychological therapy.  You were also hospitalised.

5After a fortnight, on 6 February 2019, you were well enough to be questioned.  You exercised your right to remain silent.  You were charged with a number of offences and remanded in custody. 

6The next day, on 7 February 2019, you were discharged from hospital and taken into prison custody. 

7On 12 March 2019, you were granted bail.

8On 6 August 2019, following a contested committal, you were discharged on some charges and committed to stand trial for others. 

9On 18 November 2019, after continuing discussions, you pleaded guilty to the offence for which you now stand to be sentenced.

10You have admitted a criminal record of summary court appearances from
30 November 1994 to 22 November 2001. 

11Relevantly, on 20 February 1998 at Melbourne Magistrates' Court, two charges of intentionally or recklessly cause injury were adjourned without conviction for 12 months.  And, on 8 August 2000, in the Magistrates' Court at Robinvale, you were convicted of recklessly causing serious injury and assault in the company, and fined $2,500.  The fine was varied to an order you perform unpaid community work.  You failed to complete that order.

12You were born on 20 March 1977.  You were 41 years old when you offended.  You are now 43.

13Mr Thomas, who appeared for you, relied on the following documents in support of his comprehensive submissions.  Exhibit 1 was the report dated 13 May 2019 of Associate Professor Andrew Carroll, forensic psychiatrist.  Exhibit 2 was a report dated 12 May 2020 of Patrick Newton, forensic psychologist.  Exhibit 3 was a CISP final progress report dated 2 July 2019, and Exhibits 4, 5, 6, 7, 8 and 9 were letters from family members and work colleagues.  Exhibit 10 was your St Vincent's Hospital discharge summary.  Exhibit 11 was a report of Joseph Szakmary, your treating psychologist, and Exhibit 12 was a report from your treating doctor, and Exhibit 13 was a letter from your older daughter.

14Your personal circumstances are set out in the history you gave Patrick Newton.  You were born in Tonga.  A couple who were working as missionaries there adopted you when you were only a few days old.  When you were four years old, they returned with you to Australia.  You grew up on a farm with your two youngest siblings outside Robinvale, Victoria.  Your father was a farmer who became a church minister.  Your mother worked in childcare.  You were well-looked after, and despite them separating when you were in your 20s, you remain close to both your parents. 

15You attended Robinvale schools, where you were racially bullied.  At 16, you ran away from home and were homeless for about a year.  You then went to live with your aunt, completed Year 10 at a local school, and then trained in commercial cooking. 

16You have worked as a chef and teacher for most of your working life.  You have a good work history and until the pandemic lockdown, when you were stood down, you were working as a chef at a microbrewery. 

17When you were 18, you married and had four children.  Two of them currently live with you.  You separated from your first wife after 14 years, and in 2010, you married your current wife.  At the time of the fire, the two of you had been living together in your home for four years.

18You have a history of mental illness.  You first saw your GP in 2012 for mood problems following an episode of self-harm.  You were referred to a psychologist for therapy and prescribed antidepressant medication for a number of years.  You had been off your medication for several years prior to your offending. 

19When you were remanded in custody, Forensicare clinicians diagnosed you with anxiety and depression and features of a borderline personality disorder.  You were prescribed olanzapine to help you sleep and venlafaxine for your depression.

20When you were released from custody, your CISP case manager referred you to Associate Professor Andrew Carroll for psychiatric assessment.  Dr Carroll confirmed your diagnosis of depression and borderline personality disorder.  You had seen a clinical psychologist, Patrick Newton, and were to commence regular behavioural therapy to address your mental health challenges. 
In Dr Carroll's opinion, you appeared to have responded well to your medical and psychological care, and he recommended both continue.

21In July 2019, your case manager wrote you had made remarkable progress in addressing the factors underlying your offending. 

22Your GP, Dr Negash, confirmed you have maintained your medication regime and you have had regular counselling with another psychologist, Joseph Szakmary, who is connected with Mr Newton's practice. 

23Mr Szakmary wrote you have participated in therapy openly.  In his opinion, your current depressive symptoms are related to your inability to be with your wife and the guilt you feel towards her.  You are also anxious about the outcome of these proceedings.  He noted features of your borderline personality disorder include low stress tolerance. 

24You told Mr Newton, and other clinicians, you were going to set fire to yourself, but spilt petrol in the house on your way outside.  You said you did not intend to harm your wife, and according to Mr Newton, you feel 'a crushing sense of responsibility for her injuries.' Mr Szakmary wrote: 'Nothing indicated during our sessions that he has an anger issue or feels any malice towards his wife.'

25In Mr Newton's opinion, when you offended, you were suffering from both depression and borderline personality disorder which will have significantly compromised your ability to reason clearly about your actions.  And, while you have responded well to treatment, your emotional state remains fragile and there is a genuine risk your mental health will deteriorate if your treatment is halted.   He concluded your mental disorders will make prison harder for you and, in prison, where it is unlikely you will receive the intensive treatment you need, your mental health will deteriorate.

26You have a broad network of strong support from family and friends.  When you were granted bail, you lived with an aunt and uncle for nine months.  During that time, your older daughter, who was living with her mother and siblings in Queensland, came to Melbourne to live with you.  You got work with a chef's agency and, late last year, your daughter and you moved into a flat together.

27This year, your younger daughter moved down from Queensland after her relationship with her mother also soured.  Your older daughter works for a government Department, and your younger is completing the VCE.  Both are happier living with you than they were when they were with their mother.

28Colleagues in the hospitality industry describe you as a talented and respected chef, and a fantastic mentor for younger chefs.

29In the fire, you suffered serious burns to your right hand, left shoulder and both legs, which required plastic surgery.  You also suffered a severe laceration to your left hand, which was surgically repaired. 

30Mr Thomas submitted your wife's serious injuries demonstrated the real danger your actions have caused.  However, as he submitted, you were not to be sentenced for the more serious offence of causing her injuries, and because the gravamen of the charge against you is creating a situation of danger, the seriousness of her injuries is not to be regarded as an aggravating feature of your offending.

31He submitted your offending was less serious than other examples of the offence, considering your conduct was short in time, not protracted, it was spontaneous rather than premeditated or planned, and your appreciation of the danger was impaired by your mental disorders. 

32He submitted that because of those disorders, all Verdins limbs are engaged, namely:  (1), your moral culpability is reduced; (2), the mental disorders bear on the kind of sentence which should be imposed; (3), general deterrence is to be moderated; (4), specific deterrence is to be moderated; (5), prison will weigh more heavily on you than an ordinary prisoner, and; (6), prison will likely adversely affect your mental health.

33He also relied on your early guilty plea and remorse, the additional punishment of your own serious injuries, the additional burden of imprisonment due to the COVID-19-driven escalation of isolation and anxiety, and the worry for the difficulties your incarceration would cause your daughters, particularly your younger daughter, who is now in your care, and your excellent prospects of rehabilitation as mitigating factors. 

34He submitted the imposition of a community correction order is appropriate in your case.

35Ms Maguire, who appeared for the prosecution, in thorough and helpful submissions, submitted your offending occurred in the context of family violence insofar as you got the petrol container and threatened to burn down the house in the course of a verbal argument with your wife.  To that extent, she submitted the gravity of your offending was heightened.

36She submitted your culpability was medium.  She accepted you are not to be sentenced for causing your wife's serious injuries, and the seriousness of her injuries is not an aggravating feature of your offending, but relevant to the assessment of the degree of danger she was exposed to by reason of your conduct.

37She accepted the relevance of your criminal record is limited, that your guilty plea was an early one, your remorse is genuine, and you have taken positive steps to reform.   She submitted your prospects of rehabilitation are promising.  She also accepted your diagnosed mental disorders engaged the Verdins principles.

38She submitted the utilitarian value of your plea is greater during the pandemic, which is causing additional stress and concern for prisoners and their families, as it is for every member of the community.  She submitted, to the extent that your mental disorders bear on the type of sentence to be imposed, a combined sentence of imprisonment with a community correction order is within range.

39She noted you have served 52 days' imprisonment by way of pre-sentence detention, which necessarily would be taken into account were I to impose a composite sentence.

40By your guilty plea, you admit by pouring petrol on the kitchen floor you recklessly engaged in conduct which placed your wife in danger of serious injury.

41There is agreement between prosecution counsel and your counsel you are not to be sentenced for causing her injuries.  The harm you caused is not to be considered an aggravating feature of your offending.  It is relevant to the assessment of the degree of danger your conduct created.

42There was substantially common ground between counsel regarding the assessment of the gravity of your offending, the applicability of the Verdins principles, the high utilitarian value of your early guilty plea, your deep remorse, the additional hardship of prison due to the public health emergency, your limited criminal record and your excellent prospects of rehabilitation.  I accept all those factors substantially moderate the sentence and the type of sentence I should impose.

43Considering you have already served 52 days in custody, the narrow point of difference is whether or not I should impose a combination sentence or a community correction order alone.

44I am satisfied a community correction order can meet all sentencing purposes in your case.  In reaching this conclusion, I have considered all the circumstances of your offending and personal circumstances.  I have had regard particularly to the fact that you have served nearly two months in custody as some punishment, and Mr Newton's opinion that if you were sent back to gaol you would 'experience a reversal of some of (your) treatment gains' and it follows, in my view, interruption to your nascent rehabilitation.

45I have had you assessed for a community correction order, and you have been found suitable.

46Mr Gaby, please stand.

47By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or a similar kind.  I must also look to your rehabilitation.  Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of recklessly engaging in conduct endangering another person, you are convicted and released on a community correction order which is to commence today.

48The duration of the order will be two years.  In addition to the core conditions which the community corrections officer explained to you, I will impose additional conditions that you complete 125 hours of community work, that you attend for treatment and rehabilitation for your mental health, and in that regard, I anticipate that you will continue under the care of your general practitioner and the psychologist, Dr Szakmary, and that you attend when required for supervision. 

49I direct that 75 hours of the program satisfactorily undertaken are to be credited as hours of unpaid community work.

50But for your plea of guilty, I would have sentenced you to a term of nine months' imprisonment.

51By consent, I make an order for payment of compensation in the sum of $1,620 to your landlord, Vivian Nguyen, and an order for the disposal of the petrol containers and clothing which police seized from your home.

52You may have a seat, Mr Gaby.  My associate, Ms Graham, will prepare the community correction order, and then I will ask Mr Thomas to check the terms of that proposed order with you, and to check that you understand the conditions and the requirements of it.  If you consent to the order being made, and it requires your consent, I will make the order.

53Ms Maguire, are there any matters arising or anything else you wish to raise at this point?

54MS MAGUIRE:  No, Your Honour.  As the court pleases.

55HIS HONOUR:  Mr Thomas?

56MR THOMAS:  No, Your Honour. 

57HIS HONOUR:  All right.  I will stand down while the order is prepared and give you the opportunity, Mr Thomas, to speak with Mr Gaby.  And I will return to the Bench when that is done.

58(Short adjournment.)

59Mr Gaby, you have signed the acknowledgement that you understand the effect and conditions of the community correction order I propose, and you consent to it being made.  Is that correct?

60OFFENDER:  Yes, Your Honour. 

61HIS HONOUR:  I will make that order, Mr Gaby, and you are now free to leave the dock.

62OFFENDER:  Thank you. 

63HIS HONOUR:  Thank you, counsel, for your assistance.  Adjourn the court, please.

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