Director of Public Prosecutions v Gatt

[2021] VCC 2104

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-21-02101

Indictment No. L12324393

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL CHRISTOPHER GATT

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	22 November 2021
DATE OF SENTENCE:	13 December 2021
CASE MAY BE CITED AS:	DPP v Gatt
MEDIUM NEUTRAL CITATION:	[2021] VCC 2104

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Causing by explosive substance an explosion likely to cause serious injury to property (one charge) – unlicensed person fail to store ammunition in secure manner (one charge) – possession of a drug of dependence (3 charges) – plea of guilty

Legislation Cited:      Crimes Act 1958, s317(2); Firearms Act 1996, s129A; Drugs, Poisons and Controlled Substances Act 1981, s73; Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v R [2021] VSCA 169; Bolton v R [2014] 46 VR 308; DPP v Tokava [2006] VSCA 156; R v Merrett & Ors [2007] 14 VCR 392

Sentence:                  Convicted and ordered to serve a Community Correction Order for a period of two years.  Fine in the sum of $5,500.   Fine in the sum of $330.44.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Moore	Abby Hogan Acting Solicitor for Public Prosecutions
For the Accused	Mr J Lavery (plea) Mr M Evans (sentence)	Sullivan Braham Pty Ltd

HIS HONOUR:

1Mr Gatt came before this Court on 22 November 2021. He was born on the 19th day of June 2020 and he is now aged 46. He was 45 at the time of the commission of these crimes. Mr Moore appeared for the Director at the hearing and today. Mr Lavery appeared on behalf of Mr Gatt and Mr Evans appears today. Of the three charges in the indictment Mr Gatt pleaded guilty to, the most serious charge is one of cause an explosion which is likely to cause serious injury to property. That is an offence against s317(2) of the Crimes Act 1958, for which the maximum sentence is 15 years.

2The second charge was unlicensed person failing to secure ammunition, in this regard two bullets, an offence against s129A of the Firearms Act 1996, for which the maximum penalty imposed by Parliament is one of four years’ gaol.

3The third charge was possession of a drug of dependence which was cannabis. It was a non-trafficable quantity, pursuant to the provisions of s73 of Drugs, Poisons and Controlled Substances Act 1981; the maximum penalty imposed is one of five penalty units.

4Mr Lavery accepted the opening, Exhibit A, provided by the prosecution in this matter as the facts upon which I am to sentence, Mr Gatt. 

5The prosecution tendered as Exhibit B the sentence pronounced by Judge Riddell of this Court upon the co-accused, Scott, on the 20th day of July 2021.  Scott was given a community correction order.  He has limited priors and the major factor that went in his favour was the significant assistance to authorities, albeit that he did have one related prior for threatening to kill.  It was in the totality of those circumstances that her Honour decided that it was appropriate to impose a community correction order.  The circumstances of your plea, Mr Gatt, are different to Mr Scott.  However, it is accepted it was Scott who had a beef against the victim and, indeed, had been convicted of offences against her by way of threat beforehand. 

6On 19 June 2020, each of you placed the explosive next to the car, Scott having carried it to the scene.  Scott, in fact, filmed the explosion on his mobile.  When the police investigated, it was the victim who nominated Scott as the person who had the beef against her and, indeed, she refers to the threats against her in the victim impact statement, Exhibit E.  She also, of course, refers to you and her disappointment, Mr Gatt, that you would have behaved this away. 

7It was, indeed, from the warrant that issued in regard to Scott and the obtaining of Scott’s phone that the information against you was obtained.  As a result thereof, there was a warrant executed at your home on 25 June and, indeed, the items in regard to Charge 2 and Charge 3 were found.  In your record of interview made that day, you denied any involvement in the explosion.  You mentioned that Rankin, that is the victim, had previously, you thought, been involved in robbing your house or organising your house to be burgled.

8The prosecution put the case as far as Exhibit A was concerned, as a combined effort.  That is, that you are both equally liable for this crime.  In those circumstances, it is difficult for this Court to differentiate the objective offending.  Mr Scott was sentenced by Judge Riddell on the basis that he was a follower of yours.  That is not the manner in which the case is presented to me.  Coming to the offence itself.  Of course, Charge 1 is a very concerning offence.  Albeit that there is no evidence that you intended to harm any person; that is, Ms Rankin was not at home.  However, albeit that you are not charged with anything to do with risk to a person, clearly, any explosion is a risk.  But of course, that is not the charge. 

9It seems an incongruous charge.  In fact, I do not see how you injure property, especially given the only definition of property that I can find in the Crimes Act in s15.  But at any rate, that is the charge, risk of injuring property.  In the opening, the forensic officer, Mr Xydis, accepts it was a very unsophisticated device.  It was made essentially wirth a sprinkler as a wick, a small soft drink can, and into that was placed various firework components.  The expert said that this device was capable of moderate to severe damage to property.  That is clearly evident from Exhibit C, where we see the pictures of the damage to the car, and the estimate made as to the value of the car at the time of $1,000.

10It would appear from the evidence of the forensic officer, the greatest damage or risk of damage to humans comes about from the device exploding in the hands of persons who are setting it.  As I said, this crime is concerning and serious for the following reasons:

(a)   Firstly, as I have indicated, this offence carries with it a penalty of 15 years prescribed by Parliament which is indicative of its seriousness; 

(b)   Secondly, it involves deliberate actions by the both of you to damage the property of Ms Rankin, both of whom had some form of animus; 

(c)   It seems to me a far graver animus was held by Scott, but you both were equally involved; 

(d)   Thirdly, this is a public order offence; and

(e)   You damaged and set fire to this vehicle when it was located in a public street. 

11As Judge Riddell found in her judgment, this is not a high-end example of this offending, albeit, its seriousness.  Indeed, Mr Gatt, when considering these circumstances, given that you were 45 at the time, given your obligations to your family, I struggle to understand how you could have been so foolish and reckless to be involved in such a serious crime.  As I say, especially with you coming before the Court telling the Court how concerned you are as to being gaoled for the impact that would have upon your partner and, in particular, her children, given her mental condition and the condition of her son.  However, clearly, that shows the impact of alcohol upon you, that you could be so stupid to be involved.  Indeed, no wonder it was that you told the psychologist, Mr Smith, in Exhibit 2, that you are bewildered at your actions.  The only explanation can seem to be, albeit it was your birthday, you chose to drink so much that you lost capacity to keep your head under control and you let the feelings of revenge overwhelm you, given you blame her for this alleged burglary on your house and, in particular, the damage to photographs of your family which were, unfortunately, irreplaceable. 

12Given those matters, the prosecution submitted to the Court that where you have a criminal offence such as this, committed with rage and deliberately, it exacerbates its seriousness.  I have had difficulty in trying to assess the issue of parity, given the manner in which the case had been presented to me.  It was not in that manner that Mr Scott was so sentenced.  Also in regard to parity, Mr Lavery submitted that not only, unlike you, did Mr Scott have priors, but, in particular, had priors in the May of the year of this offending for two charges of threaten to kill the victim in this matter. 

13You have a good employment history.  Mr Lavery relied upon the fact of your plea of guilty, albeit that you waited “til the cross-examination of Scott was overcome”.  However, the fact is that it was a plea of guilty which saved the State the risks of a trial and the state and witnesses the cost of a trial.  Mr Lavery also relied upon the principle sets out in Worboyes v R [2021] VSCA 169, [39] which, given the utilitarian value of a plea in these COVID times, increases the amelioration for a plea that is available in the circumstances. The report, as I have said, that was received for a community correct order was positive. You were deemed to be suitable with conditions given your age and no priors.

14Having given the matter close consideration, despite its seriousness, the issue of parity really means that for me to conclude not to grant you a CCO would not be just.  The principles of Boulton v R [2014] 46 VR 308, it seems to me, are appropriate and show the necessity for a community correction order to be imposed in the interests of rehabilitation, even where the Court is dealing with serious offences. Given your age, without any prior offences, such is also positive for rehabilitation to be affected. I also go to Exhibit 2 and the report of Deborah Smith who is a psychologist. The report being dated 18 November 2021. Firstly, if I read from paragraph 15 on p5 it says this about you:

“Mr Gatt is a simple man who’s made a bad decision, in the context of alcohol use … .”

15As to your rehabilitation, she said this: 

“• [He] Gatt poses no threat to the community and will not engage in this type of behavior again. He is remorseful and ashamed of his behavior, and understands that while he was intoxicated, and justifiably angry about the burglary, these factors in no way excuse his behavior.

• Mr Gatt is not likely to engage in alcohol consumption to any extent in the future.

• Any term of incarceration would be extremely difficult for Mr Gatt and his family, and likely result in financial hardship if he was unable to maintain his employment, and homelessness for his family if he was not providing the income for the rent as he is the sole financial support for himself, his partner and his stepson.”

16Mr Gatt, it boggles the mind how you were so stupid to commit these crimes.  In considering the issue of rehabilitation, given the seriousness, in particular, of Charge 1, Mr Gatt, the consideration has been exquisite, especially considering the submission of the prosecution.  I quote in regard to rehabilitation the comments of the President made at [21] of DPP v Tokava [2006] VSCA 156, where his Honour said this:

“A sentencing judge should be astute to investigate whether a non‑custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that course.  … .”

17I also refer to the President’s comments in a case of R v Merrett & Ors [2007] 14 VCR 392, in particular, at [49] where His Honour said:

“As I said in The Queen v Tiburcy, the sentencing court looks to the future as well as to the past.  There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided.  It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support … judges [and] reinforce in the public mind the very considerable public interest in the rehabilitation of offenders.  The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.”

18I said, Mr Gatt, the issue as to you has been, given the seriousness of this matter, exquisite.  However, I have determined in the end to accept the submission put by your counsel.  If you would stand up, please.  You will be convicted on all charges.  In regard to the first charge, you will be sentenced to a community correction order for a period of two years.  The conditions are that you be subject to treatment and rehabilitation in regard to drugs; treatment and rehabilitation in regard to alcohol; treatment and rehabilitation in regard to your mental health; treatment and rehabilitation in regard to programs to reduce reoffending.  I also order under 48E that you be subject to supervision by the Community Correction Department.

19In addition to that community correction order, given the seriousness of this crime, I intend to impose a fine in the sum of $5,000 upon you. 

20As to Charge 2, you will be fined $500. 

21As to Charge 3, I intend to impose a fine of two penalty units.  The appropriate penalty unit then was $165.22 making a total fine for the drug matter of $330.44. 

22I will also sign the forfeiture and disposal order that has been sought.  Mr Evans, I am prepared to grant a stay on all the fines of 12 months.  That is the $5,000 imposed for the first charge, the $500 in the second and the $330.44.  However, I make it clear that any additional time sought must be an application made to me personally and also if any time was to be given, I would want to make what will be assured that in that year very considerable efforts have been made to pay the figure. 

23Mr Gatt, I want to stress to you that you came very close in this instance to going to gaol.  It is clear, as was said to the Court, you are not a person who can handle grog and it is very important that you do not get involved.  If you came back to this Court after the leniency that has been given to you, you know what you will get.  You bring your toothbrush. 

24I am required to tell you the benefit of a plea of guilty.  I must say it is very difficult in this case, given the problems that the Court has to make a comparison to the sentence that Mr Scott got.  Indeed, I find it of such difficulty that it is impossible for me to make a declaration under s6AAA based simply on a plea of guilty.  But clearly, what is obvious is, you would not have got a community correction order.

25Any matters that I need to attend to Mr Prosecutor?

26MR MOORE:  No.  That completes the matter, Your Honour.

27HIS HONOUR  All right.  Thank you.  Mr Evans?

28MR EVANS:  No, Your Honour.

29HIS HONOUR:  Right.  Well, we will prepare that document. 

30We have been besieged with technical problems no, IT problems down here and we have got another one of them.  We are having a problem printing.  I might stand down until we have got over that problem. 

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