Director of Public Prosecutions v Gane
[2021] VCC 181
•26 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-02133
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER GANE |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 February 2021 |
DATE OF SENTENCE: | 26 February 2021 |
CASE MAY BE CITED AS: | DPP v Gane |
MEDIUM NEUTRAL CITATION: | [2021] VCC 181 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | Office of Public Prosecutions |
For the Accused | Mr J. Portelli | Slades & Parsons |
HIS HONOUR:
1Christopher Gane on 11 February 2021, I favourably granted to you an indication that should you plead guilty to three charges on an indictment, together with three summary offences, that I would not impose any further imprisonment. It turns out, you pleaded guilty to those offences before me this afternoon. They are most seriously a charge of aggravated burglary and an intentionally cause injury, together with an attempted theft. The summary offences are an unlawful assault, which is concerning, but also failing to stop after an accident causing damage and unlicensed driving.
2As I indicated, following a plea of guilty, if you did plead guilty, I would not impose any further imprisonment. You have served thus far 411 days on remand before being granted bail. The circumstances of your behaviour in committing these crimes commenced in the afternoon of 6 March 2019. At that time, you drove to the victim's house in Sebastopol You knew the victim and, at his house, it seems that you and he were on good terms. You left your car there and went with the victim's daughter who was going to visit her uncle. At the uncle's house you acted normally, but at some point, for no discernible reason, you became angry and assaulted the uncle. This violent behaviour was charged as an unlawful assault and does you no credit at all. He was an older man.
3You then went back to the principal victim's house where your car was parked. You did not simply get in your car and leave, rather, you went inside the victim's house. The victim was asleep. You took the opportunity to go into his bedroom and into his wardrobe, with an intent to steal. You were taking or had his wallet before the victim awoke and confronted you. You responded to this by punching him multiple times, causing the facial fractures and the loss of a tooth. The victim was an older man, but more importantly, he was vulnerable, requiring care and support in the community. You were aware of his vulnerabilities, which makes your offending that much more serious. His victim impact statement outlines just what he has gone through. I have taken the victim impact statement into account. The conduct that I have just described was charged as an aggravated burglary, with an intent to steal and intentionally causing injury.
4You then left after causing the injury to the victim. You then left his house and in the course of driving away, you were involved in a motor vehicle accident. You did not remain at the scene as the law requires, given that there was property damage. That was the commission of the summary offences being not remaining at the scene of the crime or leaving it and unlicensed driving. Later in the early hours of the next morning, you approached another man and attempted to steal his car. Shortly after, you were arrested and charged and remanded.
5The most serious offences that you committed were the attack on the principal victim, after your entry into his house with an intent to steal. Your counsel
Mr Portelli contended that your conduct just plainly concerning ought to be categorised at the lower end in terms of its gravity. He referred to the Court of Appeal decision in the DPP v Meyer[1], where general criterial were listed by the Court of Appeal to aid sentencing Judges in assessing the gravity of aggravated burglaries. The prosecution did not accept your counsel's categorisation and indicated that categorisation in this case was not especially helpful as opposed to simply analysing the facts of the case.[1] Meyers [2014] VSCA 314
6Given that conduct in coming back into the house, with a spontaneous intent to steal and then your spontaneous violence upon being confronted, there was some merit in the analysis provided by your counsel. Though, at all points, I do not overlook the seriousness of the offence given the vulnerability of the victim. However, beyond the aggravated burglary offence, the truly concerning conduct was your violent attack on the older victim, once he awoke and confronted you about what you were up to. That attack caused facial injury. The victim was entitled to consider his home to be safe. He was entitled to trust that you, any time that you came across him, would not take advantage of him and hurt him. But as mentioned, the seriousness of what occurred, that is the attack on the older victim that caused fractures, they rise to me considering that a gaol sentence was just and appropriate, that the time that you had served in prison was sufficient. I gave that indication early in February.
7You do, Mr Gane, have a long and relevant criminal history. You had concluded an almost 12 month sentence of imprisonment in September 2018 for crimes of violence. You have other prior priors for violence, including causing serious injury as it was then defined. There are mitigatory matters of some considerable weight. First, your chaotic upbringing permits mitigation on the basis of the principles outlined by the High Court in Bugmy[2], and now Court of Appeal in Marrah[3]. The mitigatory weight of your chaotic upbringing remains, despite your recidivism. The violence and conflict that you witnessed and suffered from as you grew up, did not give you any solid basis to develop motivation and capacity to live a productive lawful drug free adult life. Second, you have an identified enduring impaired mental functioning being a bipolar disorder.
[2] Bugmy [2013] HCA 37
[3] Marrah [2014] VSCA 119
8While you remain uncertain of the diagnosis, the recent very helpful report from Forensicare makes it clear that you are motivated to restart on psychological counselling. This is a positive development. In terms of sentencing, your impaired mental functioning means that to a limited degree, general deterrence will be moderated, but it nonetheless still remains a weighty consideration.
9So too is deterrence to you, given your history and the need to protect the community. As to any moderation to your moral culpability, this is a more difficult or problematic matter. Your behaviour after these serious crimes was in my view bizarre, bespeaking of a manic episode. Also, you had formed the view that the victim, that is your victim, had sexually abused you as a young child and you brought this up during the attack. Bipolar disorder is a serious mental illness. You do not help yourself of course by using drugs. There is an element of a vicious cycle involved between your impaired mental functioning and the use of drugs. That was the case earlier with alcohol as well, but you have put alcohol behind you, much to your credit.
10Applying the requirements of the cases as to the role of an impaired mental functioning, I am of the view that while the impaired mental functioning is likely to a degree to be a reason for your behaviour, its value or weight in reducing moral culpability is moderate. Other mitigatory factors that arise are the value of your plea of guilty. It relieves a vulnerable victim of the added trauma of giving evidence on a trial.
11A trial would be still some time off, given the restrictions to jury trials in the state. A resolution in these circumstances, is a very weighty matter. The criminal justice system is under significant strain. A plea of guilty, as I see, carries considerable benefit that must be palpable to the accused and the community. That means that sentences of a different kind, not just sentences that are less in terms of imprisonment or length of a community corrections order, rather pleas of guilty at this point can give rise to consideration of community corrections orders, when perhaps in other times, a sentence of imprisonment might have been considered. I do not over emphasise the impact of Covid, but it is a matter, that is your plea of guilty at this point, brings this matter for the victim to an end. It also reveals that you are on a pathway to rehabilitation and motivated to continue.
12I do also take into account the restrictive nature of imprisonment at this particular time due to the Covid restrictions. Your time in custody, that is 411 days was significant time more onerous than it might otherwise have been. As has been emphasised by your counsel this afternoon, and in the course of these reasons, you have taken solid steps to rehabilitate since your release on bail, now over 10 months ago.
13You have moved to Traralgon and are settled. Of real significance is that you have secured employment and remained there with a supportive employer. Employment of that kind is a significant protection against the risk of further offending. In other words, if you were idle, and probably tempted to take on cannabis in greater amounts than you should or at all, you would likely fall back into strained mental illness and also into offending. Having employment is an important matter and I take it into account that a sentence of imprisonment would bring that to an end. These rehabilitative steps must be recognised and in applying the principles set out in Bolton[4] and the statutory mandate in the Sentencing Act, I must establish, as far as I can, conditions to facilitate rehabilitation. It seemed to me, when I gave the indication, it still does, perhaps to a greater extent, that this is a moment to seize.
[4] Boulton [2014] VSCA 342
14I had you assessed for your suitability for a community corrections order. The Forensicare report that I have referred to, dated 11 February 2021, was extremely helpful. The community corrections assessment was not, and I will get to that in due course. In the Forensicare report, there was detailed analysis of your past and the progress of your mental health issues and there were solid vigorous insightful recommendations as to what was needed to assist in ensuring that you are less of a risk to reoffend.
15The pithy summary in the report bears quoting. It reads:
'Mr Christopher Gane is a 33 year old single male living alone in Traralgon and working as a labourer. Disrupted childhood from parental separation conflict with step-mother and physical punishment by father. Behavioural problems at school, along with drug and alcohol abuse. Nil contact with psychiatric services, but his mood and anxiety problems have resulted in deliberate self-harm and suicidal behaviour in the past. Longstanding difficulties with mood fluctuation, emotional regulation, anxiety, interpersonal difficulties and problems maintaining positive relationship with family, partners and peers, all complicated by polysubstance use disorder, which is now in partial remission. Involved in the justice system since his late teens. Back in prosocial support network and activities. Their insight into mental health and substance use problems, help seeking and willing to engage with alcohol and drug support and see a GP to request a mental health care plan with referral to a psychologist'.
16It went on that the conclusions and recommendations that followed were that you have a mild to moderate mental health problem or difficulty and would benefit from mental health treatment, which may prevent reoffending. It was recommended that if you were placed on a corrections order, that there would be a mental health treatment and review condition. It was pointed out that you may need some assistance in securing that in your new location. It was also said in the opinion of the writer, your mental health needs would not impede your ability to engage in a community corrections order.
17The community corrections report focused on the past and in some instances, now dated unsuccessful community corrections orders that have been imposed upon you and breached. The report writer seemed disconcerted that you provided minimal commentary on the offences. This seems to me to be limited understanding from the report writer of the background that you have, that you have a belief that the victim was involved in your sexual abuse as a child and all that went along with that.
18The report writer wrote that you said that you were recently assessed or had been recently assessed for community corrections orders, but those assessments, the report writer could not find them. The Forensicare report finally sets out that you had a pre-sentence report prepared on 7 June 2018, and a further assessment for a community corrections order as to whether you were suitable on 1 October 2018. These matters were obviously easily found by the Forensicare report writer. The report detailed that you provided full information about your current positive situation. It was set out in these terms.
‘Mr Gane expressed motivation to undergo a community corrections order to avoid a term of imprisonment and to move on with his life. Mr Gane further expressed a community corrections order would provide a positive structure and seeks to better equip himself with harm minimisation strategies specifically with mental health.’
19However, immediately after those statements that I have quoted, the writer says:
'The integrity of the order is of utmost importance to this service and considering Mr Gane's CCS history, he cannot be recommended as suitable for the order'.
20I cannot understand what is meant by the integrity and its importance to 'this service'. Neither party, that is neither the prosecution or defence counsel, sought for the report writer to be called and that in my view, in the end was appropriate. But I am left none the wiser about the conclusion about integrity and its importance to this service. If what is meant is that it is important for those that community corrections are to supervise and assist in rehabilitation do not complete their orders, then I can well understand it.
21However, if someone, such as you Mr Gane, does not complete the order, you will come back before me and the importance will be to the criminal justice system, that is, you breached a court order and you are highly likely to be returned to prison. So, what I intend to do is just put that recommendation of the community corrections officer to one side, on the basis that its conclusions are not based on anything other than the blunt fact that in previous community corrections orders and other like orders, there was breaches.
22I consider that the purposes of sentencing, including my duty to consider establishing conditions that facilitate rehabilitation, together with all the other sentencing principles and the guiding matters set out in Bolton, all those are properly met by the imposition of a community corrections order which I expect Corrections will do all they can, to aid you to complete.
23With that said Mr Gane, I emphasise it is your responsibility to do the order, every aspect of it, without fail or fault. If you do not, then as I have just said, you are highly likely to come back before me and highly likely to go back to gaol. Doing the best I can in respect of all these matters, I intend to impose an aggregate sentence for the aggravated burglary and the intentionally cause injury to be a combined sentence of gaol, together with a community corrections order. The period of gaol is 390 days, expressed best - understood as 13 months.
24The attempted theft, you will be sentenced to 30 days imprisonment, which will be concurrent with the sentence that I have just announced. For the unlawful assault, the summary matter, you are sentenced to 21 days imprisonment, which is cumulative upon the gaol sentence that I imposed on Charges 1 and 2. In respect of the fail to stop and the unlicensed driving, they will all be punished by the community corrections order, a single community corrections order that I will now announce.
25Just to be clear, the term of imprisonment is 411 days and pursuant to the provisions of the Sentencing Act, a figure of 411 days imprisonment has been reckoned and I declare that each of these days is part of the sentence I have just imposed. In fact, the period of time you will spend in custody is every part of, every day of, a whole of the sentence that I have just imposed. I will ensure that this declaration is entered into the records of the court and I explain it in that fulsome way, so everyone is clear, the authorities are clear, you have done each and every one of the days of imprisonment that I have just imposed.
26The community corrections order that you will have to do will go for 18 months. The conditions that apply to it, that are particular to you, there is ordinary conditions, but the conditions that apply to you is that you must be under supervision, you must be assessed and treated for mental health problems. You must be treated and assessed for drug problems and you must do programs that you will be directed to do that will reduce your risk of further offending. Those are the particular conditions. There are other conditions that apply to every corrections order. I will run through those shortly. I add finally that had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of two years and six months, with a non-parole period of 20 months. Now in respect of the community corrections order, I will just outline to you, because we cannot put a document in front of you for you to read and sign, but I will run through the conditions.
27Now the first of these is the most important to you I think, you must not commit an offence that is punishable by imprisonment during that 18 months, all right? Do you understand that?
28OFFENDER: Yep.
29HIS HONOUR: Yes.
30OFFENDER: Yeah.
31HIS HONOUR: Any offence you can think of is likely to be punishable by imprisonment, even if a magistrate just gives you a fine or something. It will breach this order and back you come to me and I will - you have heard what I have said about the likelihood of you going to prison.
32OFFENDER: Yep.
33HIS HONOUR: The rest of it is really about cooperation. So you must report to the Community Corrections office. I think it is in ‑ ‑ ‑
34OFFENDER: Morwell.
35HIS HONOUR: ‑ ‑ ‑ Morwell. Yes, in Morwell, within two clear working days.
36OFFENDER: Yep.
37HIS HONOUR: That will be done by telephone and you have just got to do it.
38OFFENDER: M'hmm.
39HIS HONOUR: You have to receive visits from the Office of Corrections. You must tell them if you change your address. You must tell them in advance, two days in advance at least. You must tell them in advance if any change of employment. You must not leave Victoria without getting permission. You just cannot go over the border fishing or something like that. You have got to get permission. It most likely be granted, but you cannot just leave the state or the like. I think that is, just from memory, all the core conditions. If there is anything else, my staff will remind me.
40Now what would normally happen is that that will all be set out together with the program conditions which I will quickly repeat. You have to be under supervision, treatment and assessment for mental health problems, treatment and assessment of drug problems and you must do programs that will reduce the risk of reoffending. All right, now normally you would see all those things, you might even talk to your barrister and you will be asked to sign it. In this forum, what I ask you to do is do you understand what the conditions are?
41OFFENDER: Yes.
42HIS HONOUR: All right. Do you consent to doing - to this order being imposed upon you?
43OFFENDER: Yep.
44HIS HONOUR: All right.
45OFFENDER: Yes.
46HIS HONOUR: So in place of where your signature will be, I will just put that you orally consented in this virtual hearing. All right.
47OFFENDER: Yep (indistinct).
48HIS HONOUR: Thank you. Is there any other orders Ms Dickens? I probably - there might be other ones that I've missed.
49MS DICKENS: I'll just confirm, but I don't believe so, Your Honour.
50HIS HONOUR: Right. Usually I miss, you know a forfeiture order or a forensic sample or something.
51MS DICKENS: No. No further orders are sought, Your Honour.
52HIS HONOUR: All right, thank you. Mr Portelli, is there anything further? No he has gone offline. Mr Portelli, is there anything further?
53MR PORTELLI: I'm back. No, Your Honour.
54HIS HONOUR: All right.
55MR PORTELLI: As the court pleases.
56HIS HONOUR: All right thank you very much for your considerable assistance, that of you Ms Dickens, you have been a great help. Mr Gane I will just emphasise, I do not want to see you again. You have been ‑ ‑ ‑
57OFFENDER: Yep.
58HIS HONOUR: ‑ ‑ ‑ before the courts before, been to gaol. You are getting a bit older. It is time - I do not know if this is the language - it used to be back when I visited people in the prison and tried to represent them. It is time to pull up.
59OFFENDER: Yep.
60HIS HONOUR: Stay with your job, that is where you get the money from. Do not spend it on cannabis. Get healthy and stay out of trouble, you will not go back to prison and get help with your mental health problems. You cannot do it on your own, all right?
61OFFENDER: Yes.
62HIS HONOUR: All right. I will leave the meeting. You can have a chat to
Mr Gane if you wish to. The - we can also call him on the phone, so do not take up too much time. Thank you.63MR PORTELLI: Yes.
64HIS HONOUR: Thank you very much.
65MR PORTELLI: Thank you sir.
66MS DICKENS: Your Honour pleases.
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