Director of Public Prosecutions v Gazzard

[2019] VCC 2099

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02033
CR-19-00103

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOBBY GAZZARD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2019 and 3 December 2019
DATE OF SENTENCE:	11 December 2019
CASE MAY BE CITED AS:	DPP v Gazzard
MEDIUM NEUTRAL CITATION:	[2019] VCC 2099

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot	Office of Public Prosecutions
For the Accused	Mr L. Slater	Slater and King Lawyers

HIS HONOUR: 

1Bobby Malcolm Gazzard, on indictment ending 909A you have pleaded guilty to one charge of aggravated carjacking with an offensive weapon.  On indictment ending 909B you have pleaded guilty to seven charges of damaging property and three charges of exposing emergency worker to risk.  Both those crimes carry a maximum penalty of 10 years.

2So far as the first indictment is concerned, that carries a maximum penalty of 25 years.  It is a situation where in the normal course of events these days there is a statutory minimum term.  In this particular set of circumstances, pursuant to the appropriate legislation, the Crown have conceded that special circumstances exist and accordingly that minimum term does not apply.  The concession, and I agree entirely with it, is because of the low level of the actual carjacking. It is not in many respects what that legislation is aimed at, and I take that matter obviously into account.

3The offending all took place in around about one hour.  On 22 July in 2018 you, who were clearly drug-affected and in an very unwell state, driving a motor vehicle with your girlfriend seated in the front passenger seat.  At about 6.30 in the afternoon you commenced your effectively rampage of driving into various buildings and motor vehicles.  Again, in this situation I do not need to go through each and every one of them.  It went on for about an hour and there were seven occasions of you either driving into buildings or throwing things or driving into cars, causing quite a considerable amount of damage. This all occurred in Shepparton.

4The reason that you apparently proffered for that was that the organisations, being mainly media organisations, had not done sufficient for suicide prevention in the area, so that your motivation is quite laudable, if indeed in these circumstances somewhat bizarre.

5What is of more concern is the circumstances when police endeavoured to arrest you.  You were stationary in a service lane when two police left their vehicle and approached you.  Your partner at that time was told to get out of the passenger seat, which she then did.  You then, as the police came closer to the car, accelerated heavily and put police officers Kitching and Williams in danger.  This related to Charges 8 and 9.  You then left the service lane and turned your vehicle towards a Sergeant Billing, who was standing near her police vehicle.  You drove across the dividing line, directly towards her but at a slow speed.  She was afraid that she would be struck by your vehicle and indeed drew her firearm and pointed it at you, telling you to stop.  You stopped in a service lane and she moved forward to speak to you through the window.

6As she was closing in on the vehicle you again drove off recklessly, creating the same sort of endangerment as you had to the other two police officers.  You again exited the service lane, driving north on the road.  What I will do is I will make sure that the opening is annexed to my sentencing remarks.  Those offences against the police occurred shortly after the criminal damages occurred and also at the same time you committed the offence, in that same time frame, you committed the offence on indictment No.909A.

7What occurred there was that on that evening at around 7 o'clock or 7.20 pm, a Mr Grasso was pulled over on the edge of the south-bound lane of the Goulburn Valley Highway and he stopped to check a load that he was carrying in his Holden Colorado single cab utility.  You pulled up in front of his vehicle and got out of your car.  He was outside his own vehicle when you approached.  You were standing at his vehicle's driver's door, he observed that you were holding what he believed to be a double-barrel shotgun.  The fact of the matter that you were not in possession of a shotgun so we do not have to work out what your actual motives were but certainly whatever they were, they put fear into that man.  He was in fear he may be shot and moved away from the vehicle.

8You were talking loudly and according to your partner somewhat incoherently at around about this time and Mr Grasso could not even make out what you were saying.  You then got in the utility seat, you drove a very short distance before you actually returned to your own vehicle and I presume that is with Ms Duggan who was present as well.  You entered the driver's side of your own car and drove off.  Mr Grasso recovered his vehicle, discovered a pipe and a jumper in the vehicle that you had used to imitate a firearm and later that evening you were apprehended by police and it was later on that he reported this matter to police.  So the totality of the offending all occurs in a short period of time.

9As I have indicated during the course of the plea insofar as armed robbery is concerned, I think it is at the lower end and indeed it is one of the special circumstances as is conceded by the Crown.  A custodial sentence is in my view still inevitable for it and a custodial sentence is also inevitable for the damaging property in these circumstances and certainly inevitable in my view for the exposing the police officers to the danger that you did.

10You are now 32 years of age.  You pleaded guilty at a reasonably early opportunity.  You have expressed remorse in somewhat uncertain terms, but I will give you the benefit of the doubt about that.  Clearly, you must get the utilitarian benefit of that plea of guilty.

11Firstly, so far as the endangerment charges are concerned, there is a minimum two years loss of licence, and accordingly your licence is cancelled and you are disqualified from obtaining one for a period of two years.  I make that aggregate on those three charges.

12There are also four summary matters which I will deal with now.  They were one of unlicensed driving, one of failing to stop a vehicle on police direction, one of used unregistered motor vehicle and one of driving a vehicle whilst exceeding PCD.  In those matters what I will do is, because I am going to give you a community corrections order after your gaol sentence finishes, I will simply impose a fine of $1000 aggregate and you can work that off as community service hours after your prison sentence finishes.  Also on the charge of drive whilst exceeding PCD any licence is cancelled and you are disqualified for a period of six months concurrent with the aggregate on the indictment.

13That, in very brief terms, is a summary of the offending.  Your victim obviously in these circumstances received a very severe fright and indeed thought you were going to shoot him.  I am not satisfied to the requisite degree that that was your intention to make him think that, but he certainly did, and accordingly it has to be regarded as serious, as indeed armed robbery almost inherently is, but as I have said, clearly this is at the lower end.

14It calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  You do have prior convictions dating back some period of time, though on my calculations this is the first time that you have actually been in extended custody and you have now been in custody for 507 days, which is a significant period of time indeed.

15I have had you assessed for a community corrections order and they have found you to be suitable.  I think in this particular situation that is the appropriate disposition.  Because of the time that you have served and in effect the Court of Appeal has held I am not bound by the 12 months that applies to combination sentences, accordingly I will be giving you a sentence in excess of 12 months but it will be brought within the legislation because of the declaration of time served that I then make.

16I then look to matters personal to you, and your counsel urged upon me that this is your first time in prison.  You have used your time well, which is unusual I might say in this sort of offending.  There are histories in a report that has been tendered from a psychologist.  Effectively that says that you denied that at the time this all occurred you were hearing voices or experiencing psychosis, but I have grave doubts about that.  It is a situation where the matter was originally adjourned because of my concerns about your mental state at that period of time as to whether there might have even been a defence open to you. 

17It was clear in the end that Verdins is not enlivened in these circumstances but it is also clear to me that at the time this occurred, although it can be said in a bizarre way there were laudable motives for what you did, you were certainly not thinking rationally.  That calls for some degree of moderation but certainly not a very significant one in terms of the sentencing process.

18The history is fairly clear in the report that has been filed.  Your parents broke up when you were young, your father was mainly absent.  Your father was a very abusive man and you have memories of him attacking your mother with a gun and being tackled by police.  You had a poor relationship with him as an adult and he indeed passed away in 2010.  That unresolved grief has caused you difficulties over the years.

19Your mother met your stepfather when you were a teenager and even though you had ups and downs with him, that has been a much better relationship.  You did not really suffer abuse as a child in that sense that is so often found here, but you found school difficult.  You had conduct issues at school and as you self-describe you 'always suffered lack of interest or indifference'.  You did however apparently complete Year 12.  To your credit, since leaving school you have worked as a cleaner in a butcher's shop, you worked in retail for a couple of years, and you completed an apprenticeship in painting.  You have worked in that area on occasion, and indeed as I understand it from the materials before me, that sort of work is available to you on your ultimate release with your stepfather.  When things are bad you struggle and you are then in those situations generally unemployed.

20You have been in a relationship now for a significant period of time, and again that relationship is still available to you so upon your ultimate release you will have work available, you will have a supportive relationship and as I understand it you will have stable accommodation.

21Your drug use commenced when you were around about 17 and was social up until around about 2014.  As is so often the case in these sorts of matters, you started using amphetamine or ice in around about 2014 and it is clear that that has been partially as a result of dealing with grief and loss issues.  You have used daily for a  significant period of time after that.  You also drank alcohol and would on occasions binge drink.

22You do not appear to have previously engaged in mental health treatment and the situation here is that the community corrections people want you to do so and that will be obviously a part of the community corrections order that I impose if you agree.  You have been diagnosed with post-traumatic stress disorder but I am not sure that that is the correct diagnosis and neither is the psychologist.  Your drug use increases in response to life's stressors, particularly grief and loss.

23The first occurrence in this situation was in relation to the suicide of a close friend who left a suicide note for you.  You felt partially responsible for his death, stating that you did not do enough to emotionally support that friend prior to his death.  Two days following that death another of your close friends was killed in a drink-driving motor vehicle accident and three months after that another of your close friends committed suicide.  Those matters all played a very powerful role in your mental state, and indeed as I understand it, that set of circumstances over that period of time is the basis of the bizarre motivation that caused you to commit the bulk of these offences.

24The psychologist said that you have poor acclimation to change or stressors and says you have an adjustment disorder with mixed anxiety and depressed mood.  I accept that that would not assist whilst you are in gaol, but I will come to what you have done in gaol in a moment.  You clearly suffer from depression and anxiety.  The role that it is said by the psychologist your mental health played was mainly linked to your reliance on substances to medicate your emotions, which I accept is true.  That, of course, does not enliven the principles of Verdins and it is clear that as a result of that ice use in that situation of unresolved grief and other difficulties you became unpredictable and aggressive and impulsive.

25The psychologist goes on to say that he is unclear about the symptoms of psychosis at the time of the offending and the diagnosis. On what your partner had to say about what you were talking about, it is pretty clear to me that you may well have been.  You seem to have formed a view that she was not actually listening to you, she was listening to the radio, which tends to support my original views of it all.

26They are the circumstances in which I have to sentence you.  You have never been to gaol before and now been there for 507 days.  I think the carjacking is definitely at the lower end.  The criminal damages are obviously serious but you claim that you were targeting premise where there was nobody there and that you also targeted a real estate agent in the course of all that because you did not like Shepparton or something.  I cannot remember quite what that was all about, but in any event it is pretty bizarre behaviour.

27The situation is that you have done very well in gaol.  You have done a large number of courses, you have applied yourself well.  You have done Change Programs, you have done courses on endeavouring to avoid ice, you have clean urine samples and you have done a number of matters with the Kangan Institute.  I have references before me which are exhibited which indicate that the ice use is what really sent you off the rails from around about 2014 although you had offended prior to that.

28This has been a real chance for you to dry out and endeavour to get your life back together.  You do not enjoy gaol, but again you have endeavoured to do the best you can.  I do not think I need to go into those any further, simply to say this.  That upon your release you will have support.  As I have indicated, your partner will still support you, work will be available, you will have accommodation.  You have now been straight as I have said for something in the order of 17 months.  You will be under the supervision of the people at Corrections for a period of two years if you agree after this sentence concludes, and you will have available to you mental health programs and programs to endeavour to reduce reoffending, as well as programs to endeavour to assist you to remain free of ice.

29The prospects of your rehabilitation are probably as good as they have ever been, I suspect.  The risk of you reoffending I have concerns about, but I think that is probably low if you do not use ice because that is really what it is going to come down to.  However, in this situation as I indicated, all these indictable charges do call for a custodial sentence in my view and accordingly you are sentenced as followed, and after that there will be a CCO if you agree to sign it, which will have the conditions that I have mentioned, but I probably should put them on transcript, they being treatment and rehabilitation for drugs, treatment and rehabilitation for mental health, and treatment and rehabilitation for any other purposes as they see, as well as supervision.

30I will not be putting any work hours on that because I am gaoling you for a significant period of time.  The fines that I have imposed can be cut out by way of doing work hours and you have been on a corrections order and according to the people at Corrections you did very well.  Accordingly, I am trusting that you can do the same this time and no longer be a menace to the good people of that town.

31In any event, on the indictment of carjacking, 15 months.  On the other indictment, the criminal damage charges, an aggregate of six months.  On the endangerment of the police officers, an aggregate of 12 months.  I direct that six months of the 15 months on the first indictment be served cumulatively on the sentence on the second indictment, which gives a sentence of 21 months.

32If you agree you are then to be placed on a community corrections order. It will be for a period of two years, it will be with conviction and will be with the conditions that I have already outlined. 

33Sorry, three months of the six months imposed on the criminal damage is to be served cumulatively upon the reckless endangerment charges, which gives 15 months effectively on each indictment.  Then six months of the carjacking indictment is to be served cumulatively on the total effective sentence on the criminal damage/reckless endangerment indictment.  That is where I get 21 months from.  Does that make sense, Madam Prosecutor?

34MS FOOT:  Yes, Your Honour

35HIS HONOUR:  Yes, thank you.  I will just get you to sign this, if you want to.

36MS FOOT:  Yes, Your Honour, the CCO, is that on both indictments?

37HIS HONOUR:  It is a very difficult thing to do, I would have to have two CCOs if I did that, so what I am going to do in this particular situation, because of the other matters, I will be just making the CCO on the reckless endangerment indictment.

38MS FOOT:  Yes, Your Honour.

39HIS HONOUR:  As indicated during the course of the plea, I regard those in many respects as the most concerning of all this offending.

40MS FOOT:  Yes, Your Honour.

41HIS HONOUR:  I will explain that to him in a moment.  All right, that order is made, and I will simply say 6AAA in these situations becomes quite bizarre because there are two indictments, but I will simply say this.  But for the plea of guilty I would have sentenced you to be imprisoned for a period of four years with a minimum term of three, and that incorporates both indictments.

42All right, Mr Gazzard, what is going to happen, you have got a few months to go.  Once you are out you are on the CCO.  What you have to understand is if you get brought back, I will act on the driving at the coppers and the criminal damage, all right, you can understand it.  Breach that CCO and get brought back and you are going to get more.  Clear enough?

43OFFENDER:  Yeah.

44HIS HONOUR:  All right.  The pre-sentence detention is 507 days.

45MS FOOT:  Your Honour, there are two ancillary orders, disposal and forfeiture, which were not opposed.

46HIS HONOUR:  They are done.

47MS FOOT:  Thank you, Your Honour.

48HIS HONOUR:  You understand all that, Mr Slater?

49MR SLATER:  Thank you.  Just for Mr Gazzard, he's probably thinking what date he's going to be released.

50HIS HONOUR:  I am going to leave the Bench so you can talk to him.

51MR SLATER:  Thank you.

52HIS HONOUR:  Just keep him here so his barrister can talk to him.  Just hang on for a second.  I am going to leave the Bench so your barrister can talk to you, all right?

53OFFENDER:  Yeah.

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