Director of Public Prosecutions v Gapes
[2023] VCC 858
•24 May 2023
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCE LIST |
Case No. CR-22-02215
Indictment No. N10032303
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK GAPES |
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JUDGE: | Her Honour Judge HASSAN | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 22 May 2023 | |
DATE OF SENTENCE: | 24 May 2023 | |
CASE MAY BE CITED AS: | DPP v Gapes | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 858 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – false imprisonment (1 charge); make threat to damage property
(1 charge).
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of three years and nine months.
Non parole period of two years and three months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F Martin | Office of Public Prosecutions |
| For the Accused | Ms A Patterson | Gallant Law Pty Ltd |
HER HONOUR:
1Jack Gapes, you have pleaded guilty to one charge of false imprisonment for which the maximum penalty is a term of imprisonment of 10 years. One charge of making a threat to damage property for which the maximum penalty is five years’ imprisonment and two charges of conduct endangering a person for which the maximum penalty is five years’ imprisonment.
2The victim of your offending is Madeline Doherty[1]. You were in a short intimate relationship with Ms Doherty between October and December 2021. When she ended the relationship, you responded with violence.
[1] A pseudonym.
3You have a relevant and disturbing history of perpetrating family violence on your intimate partners, and you were on two Community Correction Orders related to your past conduct when you committed the present offending for which you now fall to be sentenced.
4In brief the facts and circumstances of your offending are as follows.
5On 20 December 2021, Ms Doherty had her former partner and the father of her two-year-old son at her home. The next day, Ms Doherty’s former partner messaged her. This seems to have enraged you. You became belligerent and on 21 December 2021, Ms Doherty ended the relationship and blocked you on her social media applications.
6You continued to telephone her and attend her home uninvited.
7On 22 December 2021, you turned up twice at Ms Doherty’s home uninvited. Her housemate dealt with you, and you left on each occasion.
8At 3.00pm, you again called and begged to speak with her, and she agreed to speak with you for five minutes and then you were to leave her alone.
9She left her house and got into your ute which was waiting outside. As soon as she got into the ute you drove off. Ms Doherty did not have her mobile phone with her. She told you to stop and to take her home, but you did not listen, insisting you needed to talk and repeatedly demanding to know why she had ended the relationship. You were belligerent, loud and angry and kept accusing Ms Doherty of sleeping with someone else. You were driving very fast.
10You went to your parents’ home in Winslow, and you stopped there briefly. Ms Doherty was crying and asking to go home. You drove back to Warrnambool telling Ms Doherty ‘We’re going to be together’.
11You took a back road to Panmure. You were yelling and screaming. You threatened to do a run through of Ms Doherty’s house and destroy her property. That is Charge 2, threat to damage property. All the conduct of keeping Ms Doherty in the car is the basis of Charge 1, the false imprisonment charge.
12You continued to drive aimlessly around. Ms Doherty threatened to call police to which you responded you would kill yourself if she did so. Ms Doherty lay down in the foetal position.
13Your erratic behaviour continued. You threatened to run off the road. A despondent Ms Doherty told you to do it.
14You immediately swerved onto the opposite side of the road. There was no oncoming traffic at the time. You were driving at a fast speed. Ms Doherty was petrified. After a short time, she saw a car driving towards you in the distance. She told you to stop. You slowed a little and you drove back onto the correct side of the road. That is Charge 3 which is one of the reckless conduct endangering serious injury.
15You were making threats against Ms Doherty’s housemate and her young daughter so Ms Doherty agreed to go to your home to keep you away from them.
16You drove Ms Doherty to her home where she got her phone and some belongings and then you went to the home you shared with your parents and your then two-year-old daughter. You, Ms Doherty and your daughter went to a unit at the property.
17You continued to be angry and aggressive demanding the password for Ms Doherty’s phone. When she would not tell you, you grabbed a broom and pushed her in the neck with the broom handle horizontal, forcing her head back onto the bench. She panicked and told you she could not breathe. You took it off her neck and pulled her into a separate room in the unit. This is the first incident of Charge 4 which is a charge of reckless conduct endangering serious injury and is a rolled-up charge.
18You seemed to have calmed down after this but later in the evening you had another angry outburst and continued to obsessively question Ms Doherty about whether she had slept with anyone else. Ms Doherty attempted to escape by running out of the unit and getting into your car. You got her out of your car and walked her back to the unit holding her by the hair.
19You continued to talk about continuing your relationship and you made further threats against her housemate and her housemate’s daughter. Ms Doherty became increasingly upset and said words to the effect, ‘What if the guy was one of your friends?’.
20This prompted yet another outburst of rage on your part. You grabbed her by the throat and squeezed her by the neck when she was lying on the bed. Ms Doherty scratched your arms, back and face to get you off her. Eventually you released your grip. You made Ms Doherty swear on her son’s life that she had not slept with anyone else, that she was sorry, before you grabbed her by the throat again, this time with your two hands. You lifted her up so she was forced to stand on the tips of her toes, continuing to ask her over and over if it was a friend of yours that she had slept with. She was scratching at your hands to try and free herself. You eventually slammed her down on the bed. Ms Doherty was coughing uncontrollably for some time. This is the second incident which is the basis of Charge 4.
21You then went to sleep.
22Sometime after 9.00am the next day, you drove Ms Doherty home after you had forced her to tell you that she had not slept with anyone else, she loved you and she would not tell anyone what had happened.
23Ms Doherty went to police. You continued to harass her attending at the police station and sending her numerous messages. She began responding to you. You asked her to ‘drop her statement’. You eventually went to her home at her invitation, and you went together to another house in Warrnambool where you had sex. The next day you and Ms Doherty had sex again. She has described her feelings as conflicted at this time.
24A search warrant was executed on 23 December 2021 at your parents’ home. You were not at your parents’ home. You actively evaded police until your arrest on 5 January 2022. You were contacting Ms Doherty during this time.
25You made a no comment record of interview.
26Ms Doherty has made a victim impact statement. She says that she has become paranoid and fearful for her own safety and that of her young son. She says she suffers diminished mental health and requires medication to sleep. She says her young son is also exhibiting anxiety. She says she sometimes thinks about why she went to the police and put herself through all this, by which she means the criminal justice system, but she concludes that she does not want another person who has a relationship with you to experience what she has.
27Ms Doherty should know that she has made the right decision. You have convictions for family violence against intimate partners dating back to 2019.
28In July 2019 you were sentenced in the Warrnambool Magistrates’ Court for making a threat to kill and persistent contravention of a family violence order. You were sentenced to a 12-month Community Correction Order with rehabilitation and treatment conditions including mental health assessment and offending behaviour programs.
29It appears you completed this order but on 9 April 2021 you were sentenced in Warrnambool Magistrates’ Court to a further 12 months’ Community Correction Order with similar conditions for offences of unlawful damage of property, unlawful assault, committing an indictable offence while on bail and persistent contravention of a family violence order.
30You committed further offences in breach of this order and on 16 July 2021 again in the Warrnambool Magistrates’ Court you were sentenced again for persistent contravention of a family violence order and contravention of an interim family violence order as well as being resentenced for the April 2021 offences and the breach of the Community Correction Order then imposed.
31On 16 July 2021 you were sentenced to 58 days’ imprisonment which was time served in combination with an 18-month Community Correction Order with treatment and rehabilitation conditions as well as a direction to attend a men’s behavioural program or individual counselling to address your offending behaviour.
32Your criminal record therefore discloses that you have a serious and entrenched history of intimate partner violence which has been impervious to treatment. You also have a blatant disregard for court orders whether they be family violence orders, bail conditions or correction orders. Specific deterrence and community protection loom large in this sentencing exercise.
33Your offending against Ms Doherty is yet another serious example of family violence on your part. Your offending against Ms Doherty, as set out above, involved dangerous, coercive, erratic and violent behaviour on your part.
34You simply refused to accept she had ended your brief relationship. You threatened to damage her property. You threatened her friend, and you threatened her friend’s child. You harassed and bullied her when she spoke to police. You took her from her home against her will. You terrorised her by your driving and your anger and most significantly you put her at risk of serious injury, first by driving on the wrong side of the road and secondly by two very serious acts of choking.
35As I have stated you were on two Community Correction Orders at the time of your offending, and this aggravates your conduct.
36You conduct is a very serious example of family violence and your moral culpability is high.
37I turn now to matters raised at your plea in mitigation of sentence and I begin with your plea of guilty.
38You pleaded guilty on 18 April 2023. This was after a committal hearing at which the victim gave evidence. You were facing even more serious charges than the charges for which you now fall to be sentenced and those more serious charges were withdrawn. On this basis, Ms Patterson, who appeared on your behalf, submitted that the committal hearing was both beneficial and necessary. Ms Martin, for the prosecution, did not dispute this submission and I accept this submission.
39Your plea in these circumstances is an early plea which has significant utilitarian value in the context of the ongoing delays in the administration of criminal justice in this state caused by the COVID-19 pandemic. I take your early plea of guilty into account in sentencing you, and I give it the full mitigatory weight which attaches to it as discussed in the case of Worboyes v The Queen.[2]
[2][2021] VSCA 169
40You were born in September 1996 and you are presently 26 years old.
41You were raised in a stable and loving family home on a farm outside Warrnambool. You have the continued support of your parents, and your mother wrote a reference on your behalf to this effect.
42You completed your Year 12 at school and your VCAL despite your dyslexia. You experienced some bullying at school because of your dyslexia and because you were overweight.
43You have a steady employment record having worked on the family farm until it was sold and then working in various jobs in driving, forestry and maintenance and metalwork. A letter was tendered from Houston Engineering offering you a full or part-time position with the company upon your release from custody.
44In custody you have been working in the kitchen and have moved up to the maintenance team where you are performing work including welding and gardening. Ms Patterson submitted you have been a model prisoner.
45You began using cannabis at 12. You began smoking daily at around 14 and 15 and you continued to use cannabis regularly until the time of your arrest.
46At 17, you began using MOMA and amphetamine and then methamphetamine. Your drug use, especially your use of methamphetamine, became problematic in around 2020/2021. Your drug use is presently in remission in the context of your incarceration.
47You were psychologically assessed by Marlese Bovenkerk, forensic psychologist, on 17 and 24 April of this year. In her report Ms Bovenkerk says you downplayed and minimised your offending behaviour.
48Ms Bovenkerk, on the basis of her interactions with you and the testing she performed, was of the opinion that you met the diagnoses of general anxiety disorder and stimulant (amphetamine) and cannabis use disorder, both in remission in a custodial environment. She thought you had symptoms suggestive of possible ADHD and that this issue should be explored in the future.
49She gave the opinion that you are a ‘psychiatrically complex individual’ who developed an anxious disposition in childhood associated with your dyslexia and experiences of bullying. She opines that as an adult your anxious attachment style has persisted, and you are an overly dependent person seeking frequent reassurance and approval. She regards these personality traits as likely to have contributed to your dysfunctional intimate relationships, as did your drug use.
50There was no submission made to me that Verdins[3] principles were engaged to reduce your moral culpability on the basis of Ms Bovenkerk’s report. Properly so. However, Ms Bovenkerk did give the opinion that time in custody would likely weigh more heavily on you than a prisoner in robust mental health given your anxiety and personality structure and furthermore the volatile nature of prison may worsen your symptoms.
[3]R v Verdins & Ors (2007) 16 VR 269 (“Verdins”)
51On this basis your counsel submitted that there was some engagement of Verdins principles 5 and 6. Ms Martin disputed this and took me to parts of Ms Bovenkerk’s report that described your good progress and stabilisation of mood in custody and to defence submissions about your good progress in the custodial environment. Ms Martin submitted that Ms Bovenkerk’s conclusions on this topic were, in fact, not supported by the evidence.
52Ms Patterson submitted that your prospects for rehabilitation were reasonable given your family support, your good work history and an offer of work, the fact that you have a young child and that you are developing insight into your offending behaviour and do not have antisocial or criminal tendencies other than in the context of intimate relationships. There was a letter tendered from Ontrack Counselling Services which states that you engaged with that service in October and November 2022 for assistance with your drug use.
53Ms Patterson submitted that a combination sentence was open to me.
54Ms Martin submitted that given the gravity of your offending, your criminal history and what she submitted were your guarded prospects of rehabilitation, a custodial sentence consisting of a head sentence and a non-parole period was the only appropriate disposition.
Conclusions
55As the courts have said time and time again, male violence directed at women is intolerable and those who commit such crimes will receive stern punishment. The sentencing principles of general deterrence and denunciation are paramount and, in your case, given your criminal history and breach of court orders specific deterrence and community protection are also relevant sentencing consideration.
56I take into account your plea of guilty and its utilitarian value. I do not consider that Verdins principles 5 and 6 are engaged on the evidence. I agree with the prosecution submission that Ms Bovenkerk’s conclusions are not supported by the evidence.
57However, that being said, I accept that prison is and will be a difficult place for you due a combination of factors. Namely, your anxiety which I take into account in a general sense, the restrictions necessitated by the COVID-19 pandemic and although this is not your first time in custody, it is the first time that you will serve a significant term of imprisonment and you are still a relatively young man.
58I consider your prospects of rehabilitation to be guarded at best, given your criminal history and that as recently as April this year you were still downplaying your offending in your discussions with Ms Bovenkerk. I do not find that you have demonstrated any full or insightful remorse. However, you are still a young man and any sentence I impose must at least try to foster your rehabilitation.
59Having said that, I declined to have you assessed for a community correction order. Your offending is simply too serious and taking into account all the matters under the Sentencing Act and matters personal to you, and the principle of parsimony, I have concluded that a sentence of imprisonment consisting of a head sentence and a non-parole period is the only appropriate sentence in your case.
60Mr Gapes, you do not have to stand in the circumstances, but I now intend to sentence you.
61On Charge 1, false imprisonment, you are convicted and sentenced to a term of imprisonment of two years.
62On Charge 2, make a threat to damage property, you are convicted and sentenced to a term of imprisonment of three months.
63On Charge 3, reckless conduct endangering serious injury, you are convicted and sentenced to a sentence of 18 months.
64On Charge 4, reckless conduct endangering serious injury, you are convicted and sentenced to a sentence of two years and nine months’ imprisonment.
65Charge 4 is the base charge and I direct that one year of the sentence on Charge 1 be served cumulatively.
66That makes a total effective sentence of three years and nine months. I direct that you serve a minimum term of two years and three months before you are eligible for parole.
67I declare that you have served 504 days of pre-sentence detention and I direct that be entered into the records of the court.
68But for your plea of guilty I would have sentenced you to a term of imprisonment of five years and six months with a non-parole period of four years.
69I make an order cancelling your licence for 12 months effective from today. Given the non-parole period that will have no practical effect but as I discussed with counsel, I do not consider it useful to make orders on a person’s licence upon their release from custody when it is hoped that they will rehabilitate and lead a productive life in the community.
70Are there any further matters, Ms Martin?
71MS MARTIN: No, nothing from me, Your Honour.
72HER HONOUR: Any further matters, Ms Patterson?
73MS PATTERSON: No, Your Honour.
74HER HONOUR: All right. Thank you both for your assistance. We will stand down now until 10.30.
75MS MARTIN: If Your Honour pleases.
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