Director of Public Prosecutions v Gandon
[2016] VCC 805
•14 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWARD GANDON (A PSEUDONYM) |
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JUDGE: | Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2016 and 25 May 2016 | |
DATE OF SENTENCE: | 14 June 2016 | |
CASE MAY BE CITED AS: | DPP v Gandon | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 805 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Flynn | Ms M. Bossio |
| For the Accused | Mr J. Dickinson QC Mr J. Taafe | Doogue O’Brien George |
HIS HONOUR:
1 Edward Gandon[1], you have pleaded guilty to two charges of False Imprisonment, two charges of Possess unregistered general category handgun and one charge of Threat to kill. The maximum penalties for these offences are as follows:
[1] A Pseudonym
· False imprisonment- ten years' imprisonment
· Possess General Category Handgun- seven years' imprisonment
· Threat to kill- ten years' imprisonment
2 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in these proceedings.
3 Briefly, at the time of the offending you had been married to the victim, Alexandra Steere[2], for approximately 12 years and you have a son, who is 11 years old. Although you and Ms Steere had separated in late 2013 or early 2014, you both continued to live in separate rooms in the marital home. Ms Steere ran a café on the Mornington Peninsula. You would usually attend the café on a daily basis.
[2] A Pseudonym
4 On or about 19 November 2015 you attended upon Ms Steere at the Café and you were verbally aggressive towards her. Later, she collected your son from school and phoned you to tell you she would not be returning home. You became agitated and threatened to destroy her property. Over the next few days you constantly telephoned her and regularly drove past the café gesturing towards her. Ms Steere took some time off work and arranged for a friend who she had recently employed (Ms Bruxner[3]) to run the business.
[3] A Pseudonym
5 On 3 December the victim, Steere, was at the café with a male friend when you attended and approached the male. There was a heated verbal exchange. The victim’s car was parked nearby with her clothing in it. You used a spare key to enter the car and sat in the driver’s seat. The victim stood behind the car to stop you driving off. She removed her property from the car before you drove off. Police had been called but did not attend.
6 The next day, Ms Steere attended the Police Station and made a complaint. Later that afternoon you were served with a complaint and summons to commence an intervention order. You became angry and contacted the victim about the complaint.
7 At about 7.45 am on 5 December 2015, you attended the Café and you were armed. Ms Steere and the second victim, Bruxner, were setting up chairs and tables outside the café when you were seen by Ms Steere who called out that you had a gun. She and Ms Bruxner attempted to get inside the café and close the door to prevent you entering. You pushed against the door and threatened to shoot Ms Steere if she did not let you in. The victims let go of the door and you entered the premises carrying a small derringer gun. At this time the gun went off and a shot discharged into the ceiling.
8 Once inside, you locked the door and drew the blinds at the front of the café. You also asked for tape to stick the curtains to the windows. You forced both victims to the rear of the café and held them against their will.
9 You pointed the gun at the victim, Steere, and told her she was going to die. This threat was repeated many times during the following seven hours.
10 You told the victim, Steere, that you were waiting for her boyfriend to arrive and that he was dead. You grabbed her phone and smashed it to the floor. You told the victim, Bruxner, that you did not want to hurt her and that she would not be hurt if she did what you said. You produced a second gun from a bag you were carrying and loaded it with a bullet. You pointed that gun at the victim, Steere. You also reloaded the derringer that had discharged earlier.
11 The victim, Bruxner, managed to send a text message to a friend who alerted the police to what was happening. A police negotiator attended the scene at about 8.50am and tried to negotiate with you. He spoke with you during the course of the day. You indicated that you had a letter that you wanted to read to the victim, Steere, and then you would let her go. You did tell the victim, Bruxner, that she could leave but the victim, Steere, begged her to remain. In an act of great courage Ms Bruxner decided to stay with Ms Steere.
12
You removed notebooks from your bag and read from them. You told the victims that when you had finished reading your notes you would kill
Ms Steere.
13
You falsely imprisoned the victims for over seven hours. During the course of your dealings with police you indicated that you would give yourself up at 3pm. The police contacted you at that time and you let the victims leave. You were arrested and interviewed. You told the police that you had been served with the documents regarding the intervention order the previous day. They referred to Ms Steere having a boyfriend and that is what set you off. You admitted telling Ms Steere she was going to die; that you went to the shop to confront her and her boyfriend; that you had recently been assaulted and you thought Ms Steere’s boyfriend was involved; that you had purchased the guns a few years ago in a pub and that you were not licensed and the guns were not registered; that you had the firearms to show Ms Steere so that she would start telling the truth; that all you wanted was to read a letter to Ms Steere and you took the guns to frighten her. You also told the police that you were sorry and that you did not want to upset Ms Bruxner and you just wanted
Ms Steere to listen to you.
14
Mr Gandon this is serious offending. On the day after you were served with a complaint and summons for an intervention order, you attended at
Ms Steere’s café as she was setting up for business and you took her and her employee hostage. At the time you were armed with two guns, one of which was loaded. You also carried ammunition. You held the two women for over seven hours. You made sure the blinds in the café were drawn. Notwithstanding the presence of the police and their efforts to negotiate with you, you continued to hold the two women hostage. In the course of your criminal escapade one of the guns discharged. You reloaded that gun and loaded a second gun. You repeatedly told Ms Steere that she would be killed. Both victims suffered emotional harm as a result of your criminal behaviour.
15 I have read the relevant parts of the Victim Impact Statements.
16 Ms Steere has suffered emotional harm. She describes the following ongoing effects – “cautious, anxious, fearful, distraught, insomnia, nightmares, flashbacks, concern, depressed.” Clearly this was a terrifying ordeal for her.
17 Ms Bruxner suffered a physical injury to her shoulder, which meant she was unable to work for a month. She also suffered the following symptoms for one month –“sleep disturbance, very tearful, increased anxiety, nightmares, flashbacks and difficulties concentrating.” She felt like she was going to die.
18 Mr Gandon, general deterrence, denunciation and just punishment are all highly relevant sentencing considerations in this case.
19 Your counsel described your background in some detail. You were born in Tasmania in 1946. You were the youngest of four children and your mother left the family home when you were very young. In 1949, when you were three years old, Child Protection intervened and removed you and your siblings from your father’s care. You were taken from Queenstown to Hobart and placed in an orphanage. This was a shocking experience for you. During your time at the orphanage you were regularly beaten and sexually abused. You were separated from your siblings.
20 When you were aged 11 or 12 you were placed with a foster family. This was not a successful arrangement and by the age of 15 you were homeless and living on the streets. You lived an itinerant lifestyle. When you were 22 you met your first wife, and this was a turning point for you. You remained in that relationship for 32 years. You and your wife had two children together. During this time you worked hard in various different jobs.
21 It is very much to your credit that during this time you fostered two children. They are now aged 17 and 21. You also provided respite care to 30 children.
22 In 2003, when you were 58, your relationship with your wife broke down. Shortly thereafter you met Ms Steere and entered into a relationship with her. In 2004 your son, was born. I was told by your counsel that you retired about four years ago and this meant you were heavily involved in your son’s care. As I have already said, your relationship with Ms Steere broke down in late 2013 or early 2014.
23 You are now 69 years old. You have no relevant prior convictions and you have never been in prison before. You suffer from diabetes and high cholesterol.
24 Dr Cunningham, forensic psychologist, expressed the opinion that because of your childhood experiences you also suffer from Post-Traumatic Stress Disorder (PTSD). He described your condition as complex. He said in evidence that people who suffer from PTSD are at risk of violent acts. In the past you had managed to control the disorder with the support of your family, by working hard and by using alcohol. He expressed the opinion that at the time of the offending you were angry with Ms Steere and you were unable to manage your emotions. You told Dr Cunningham that you had consumed a quantity of alcohol and drugs on the evening before the commission of these offences. Dr Cunningham told the court that these substances would have had a massive disinhibiting effect on your behaviour. In his second report he said that your post-traumatic stress disorder, combined with your drug and alcohol abuse would have “impaired your judgement” with respect to your offence behaviour and its consequences. He said in evidence that although the post-traumatic stress disorder contributed to the offending, “it’s hard to really confirm whether it would have happened or not had he not consumed the alcohol and drugs because these substances disinhibited him to an extent where the symptoms of the trauma were less controlled and became more expressed.” Dr Cunningham accepted that you knew what you were doing was wrong.
25 Your counsel submitted that the existence of your post-traumatic stress disorder significantly reduced your moral culpability and required me to significantly moderate the application of the principle of general deterrence. I am unable to accept that submission. Whilst it would be appropriate to allow some modest moderation of these principles, I am not persuaded, for the reasons that follow, that the moderation should be significant.
26 You told Dr Cunningham that you had consumed drugs and alcohol on the night before this incident. He expressed the opinion that this would have had a massive disinhibiting effect on your behaviour and contributed to the commission of the offences. Thus, on his evidence, it is not solely the post-traumatic stress disorder that caused your judgement to be impaired, it was the disorder in combination with the disinhibiting effects of drugs and alcohol. It was your decision to consume the alcohol and the drugs.
27 In assessing the severity of your post-traumatic stress disorder symptoms at the time of the offending and the way in which they may have impacted on your behaviour, it is appropriate to review the evidence.
28 On the morning of the offending you acted purposefully and consistently with your subsequently stated objectives. Put simply, you planned a certain course of action and you acted on that plan. When interviewed by the police you were able to explain why you behaved in the way that you did. You said, among other things, that you had been served the day before with a complaint and summons that apparently referred to your wife having a boyfriend; that this made you angry and you rang Ms Steere to complain about her lodging the complaint; that you “snapped the next morning”; that you went to confront Ms Steere and her boyfriend; that you wanted to put her boyfriend in fear “but he didn’t turn up”; that you wanted to read material to Ms Steere and you took the guns to frighten her and to make her tell you the truth. When you spoke to the police you told them that you knew what you had done was wrong and that you were sorry.
29 Your behaviour in attending the shop at a time when Ms Steere was preparing to open her business; taking a gun that was loaded; taking ammunition for both handguns; taking notebooks to read to the victim, Steere; pulling down the blinds to protect yourself from the police; reloading one gun and loading another; reading extracts from your notebooks over the seven hour period; threatening Ms Steere repeatedly during this time; telling Ms Bruxner that she was free to leave; and agreeing to release your hostages at 3pm; was considered, purposeful and consistent with your intentions.
30 I accept that you were angry when you committed these offences. I accept that your post-traumatic stress disorder predisposes you to anger. However, you chose to consume the drugs and alcohol that had the disinhibiting effect on your behaviour. On the morning of the offending you acted deliberately and purposefully. You admitted to the police that you knew what you did was wrong. In these circumstances your post-traumatic stress disorder can only permit a modest reduction in your moral culpability. Likewise, there can only be moderate amelioration of the principle of general deterrence.
31 The evidence does not support a finding that imprisonment will have a significant adverse effect on your mental health. Dr Cunningham gave evidence about the psychological treatment you have already received whilst on remand. It was Dr Cunningham’s view that you had benefitted significantly from that treatment. Dr Cunningham said that your treatment had now concluded and he opined that you were unlikely to receive further on-going treatment. However, on this issue, he conceded that he had made no enquiries with the prison authorities.
32
I do accept that imprisonment will be onerous for you. You are 69 years old, you have no relevant prior criminal history, you have never been to prison before, you have significant health problems, and you suffer from post-traumatic stress disorder. Since December last year you have spent over
20 hours per day in lock down in the remand system. All of these matters provide grounds for moderation of sentence.
33 You entered an early plea of guilty. The plea has meant that the victims have not had to endure the trauma of giving evidence. It has, in addition, saved the community the cost and expense associated with a criminal trial. I am also satisfied that your plea of guilty is indicative of remorse. You will be given appropriate credit for all of these matters.
34 It is also to your credit that notwithstanding the harsh circumstances of your childhood and youth, you have no relevant prior convictions. It is also beneficial that your former wife, has offered to support you with accommodation once you are released from prison. Your previous good character and the support you have from family and friends would seem to provide a sound foundation for your rehabilitation. However, the evidence of Dr Cunningham does strike a note of caution in this regard. He said that with people suffering from post-traumatic stress disorder, the potential risk of violence is a long-term issue. Indeed he said that in your case, you would require long-term treatment over a number of years. Obviously, your rehabilitation would be assisted by participation in such treatment. Your prospects are also dependant on you truly accepting that your relationship with Ms Steere is at an end and that you are unlikely in the foreseeable future to play any role in your son’s life.
35 Mr Gandon, would you stand please.
36 On Charge 1, you are convicted and sentenced to two years' imprisonment.
37 On Charge 2, convicted and sentenced to two years' imprisonment.
38 On Charge 3, convicted and sentenced to six months' imprisonment.
39 On Charge 4, convicted and sentenced to six months' imprisonment.
40 On Charge 5, convicted and sentenced to two years' imprisonment.
41 I order that six months of the sentence on Charge 2 and six months of the sentence on Charge 5 be served cumulatively upon each other and on the sentence imposed on Charge 1. This makes a total effective sentence of three years' imprisonment. I fix a minimum term of 18 months before you will be eligible for release on parole. I declare 192 days served as pre-sentence detention.
42 Had you pleaded not guilty and been found guilty after a trial I would have sentenced you to a total effective sentence of four and a half years' imprisonment with a minimum term of three years.
43 I make the forfeiture order sought by the prosecution.
44 Mr Gandon, I also make an order pursuant to s.464ZF of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from your mouth. I make that order because of the seriousness of the offending, the order is not opposed and the granting of the order is in the public interest.
45 You must co-operate with the authorities in taking the scraping from your mouth. If you do not co-operate reasonable force can be used to obtain the sample and, indeed, the sample obtained may be a blood sample.
46 (Forfeiture order signed and acknowledged.)
47 (Section 464ZF order signed and acknowledged.)
48 You can remove the prisoner, thank you.
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