Director of Public Prosecutions v Gebbie
[2018] VCC 808
•1 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
CR-17-02027
Indictment No. G13394065
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAN GEBBIE |
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| JUDGE: | HER HONOUR JUDGE CONDON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 March 2018 and 21 May 2018 |
| DATE OF SENTENCE: | 1 June 2018 |
| CASE MAY BE CITED AS: | DPP v Gebbie |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 808 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – arson –plea of guilty – hardship – exceptional circumstances
Legislation Cited: Crimes Act 1958 (Vic), s197(1) and s197(6); Sentencing Act 1991 (Vic), s6AAA, s80, s86 and s18(4)
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Boulton v R (2014) 46 VR 308
Sentence:Total effective sentence of eleven days’ imprisonment with a Community Correction Order of three years.
Section 6AAA declaration: four years’ imprisonment, with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C Grant | Solicitor for the Office of Public Prosecutions Victoria |
| For the Accused | Ms O Thompson | Law and Advocacy Centre for Women (LACW) |
P
age
s 1 - 9
HER HONOUR:
1Jan Gebbie, you have pleaded guilty before me to one count of arson. The maximum penalty for the offence of arson is 15 years’ imprisonment. Received by me on the plea was exhibit A, the Summary of Prosecution Opening, which sets out in detail the facts and circumstances related to your offending. However, I will briefly summarise the offending that gave rise to this charge.
2At the time of this offence, you and your son Liam were living at Unit 3/17 William Street, Cranbourne. The victims, Travis Luxford and his mother Vicky, were living at Unit 1/21 William Street. Their unit was 50 metres from your property. On 7 December 2016, in the early hours of the morning, you attended at the front of Mr Luxford’s unit. You were wearing a disguise of sorts. You set a curtain alight behind a broken window with a cigarette lighter and walked away. Thankfully, neither Mr Luxford, nor his mother, were home at the time. The CFA and the police attended at that unit and extinguished the fire. However, by the time they attended, extensive damage to the unit and the property therein had been sustained, as a result of your actions. Repair of the damage to the unit was estimated to be $105,817. Mr Luxford estimated the damage to his property to be $20,000. He was not insured.
3You and Mr Luxford had been in a relationship from about mid-2014 until early 2016. In the lead-up to this offending, in June 2016, an intervention order was issued against him, with you and your son Liam being the affected parties. Subsequent to your offending in this matter, in January of 2017, an intervention order was issued against you, with Mr Luxford being the affected person.
4At 8.30am, on the day of the fire, police attended at your unit and arrested you. You were later interviewed by the police and said, at the time of the offence, you did not know what was going on in your head and that you had had enough. You told them that you snapped from the stress Mr Luxford had put you under, you were on medication and that you went to Mr Luxford’s unit at 6.00 or 6.30am, intending to burn it.
5It is also salient to note that, prior to your actions in starting the fire at the unit, you could not see anyone at home and you listened to see if you could hear anything inside. You gave the police a full and frank account and expressed remorse, indicating that you were very sorry for what you had done.
6On 9 October 2017, you entered a plea of guilty to the charge of arson. In the circumstances, I find that you have pleaded guilty at the earliest available opportunity and that your plea of guilty is consistent with an acceptance of responsibility for your conduct and with a desire to facilitate the administration of justice.
7Vicky Luxford, one of the tenants in the unit destroyed by the fire, provided a victim impact statement. She said that her life was destroyed that day and while many items can be replaced, there are many that cannot be replaced. She feels that she has to start all over again and save to replace what she can. Her son Travis also provided a victim impact statement. He states that all his memories have been lost. He is plagued by nightmares, wherein he is in the house whilst it is on fire. He feels angry, depressed and each day feels the impact of having had his possessions taken from him.
8As you articulated to the police, this offence was the consequence of you having snapped. This is a reference to the perceived torment that you were experiencing at the hands of your ex-partner, Mr Luxford. You told the police that Mr Luxford had breached the intervention order multiple times. Indeed, I was informed that Mr Luxford had been charged at least twice with breaches of the intervention order. You also told the police that you were terrified every time you walked out of your unit, as you felt that Mr Luxford was watching you.
9Furthermore, in the weeks leading up to this offending, you were admitted to hospital on 16 November 2016, after having suffered a stroke. Upon your discharge from hospital, you found out that your partner was dead in your unit. As it later transpired, he had taken his own life. On 18 November 2016, when you returned to your unit, you found that it had been robbed and ransacked and your son Liam’s toys had been taken. You reported this to the police. Whilst they came and took photographs, you never heard back from them.
10You are 46 years of age and you have never been in trouble with the police. In the circumstances, I find that your offending is largely reactionary. It was not the result of careful and considered planning. Whilst you did have the foresight to deploy some disguise, by wearing the wig when approaching Mr Luxford’s unit, the items used in aid of your disguise and to execute the arson were all at your disposal in your house.
11The offence of arson is a serious one. However, the lead-up to your offending provides some clues as to the motive for your conduct. Your mental health in the lead up to the offences was extremely precarious. The explanation you gave to the police in which you described yourself as having snapped, gives me some insight into your imperilled mental state at the time of the commission of the offence.
12I make these comments, not as diluting your moral culpability for the offending behaviour, but more as providing relevant context as to why you offended in the manner in which you did. This is highly significant, given that you are 46 years of age and, as I have already stated, have no prior criminal history.
13Given your conduct was a reaction to a discrete set of circumstances, I find it most unlikely that you will offend again in the same manner. Furthermore, you have been on bail since the offence and your conduct has been impeccable. Given this, the sentencing principle of specific deterrence has limited application in your case. This augurs very well, in my view, for your prospects of rehabilitation.
14Received in evidence on your behalf was a report from Carla Lechner, clinical psychologist. You told Ms Lechner that at the time of the offence, you were in an extremely distressed state on account of your partner’s death and the alleged ongoing harassment from your former partner, Mr Luxford. You expressed profound remorse to Ms Lechner, telling her that you have ruined your life; ruined your son’s life. You also made it clear that you knew what you had done was wrong and you expressed regret about having committed the arson against Mr Luxford’s unit.
15Not surprisingly, you also expressed to Ms Lechner your concern about the impact of a custodial sentence on your son Liam. At the time of the plea in mitigation, you and Liam were living with your mother and father. Your mother is unwell and requires constant care from your father. Liam has an intellectual disability and attends Marnebek Special School. I received a letter from Marnebek Special School on the plea. In the course of that letter, it was suggested that your son Liam would suffer emotionally should you be incarcerated as a result of this charge.
16Your counsel made the submission that the imposition of a gaol term would trigger the operation of the sentencing principle of hardship. Given your 13‑year-old son suffers from an intellectual disability and thus has special needs, I accept that the sentencing principle of hardship is enlivened and I have taken that into account in imposing sentence upon you.
17Your counsel submitted that the fifth limb of the principles espoused in The Queen v Verdins & Ors[1] were also enlivened here. She made that submission based upon the addendum to Carla Lechner’s report provided on 15 May of this year. In the course of that report, Ms Lechner said this.
“… in view of her mental health problems, she is likely to find her time in custody more difficult. I would expect a further deterioration in her mood state with limited access to therapeutic resources. Being imprisoned and not being able to care for her son is likely to reinforce that negative self-perception. … .”[2]
[1]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
[2]Exhibit 7
18The prosecution accepted the proper application of the relevant limb in Verdins and family hardship in your case.
19You have had a long history of depression and you are currently prescribed the antidepressant Cymbalta. You were also diagnosed with lupus at 27 years of age, but you do not take medication for that condition. You have, in the past, been referred to a psychologist under a mental health plan. Material was tendered on the plea to that effect, which indicates that subsequent to you finding your partner, who suicided at your residence, there was a worsening of your depression. A letter from your general practitioner, Dr Clifford Morrison, dated 24 November 2016, indicates that you have indeed suffered from depression for many years. At the time of the referral to the psychologist, you were in receipt of the anti-depressant Lexapro, which I take to be a reference to the medication you nominated when speaking to the police about the arson on 7 December 2016.
20Your counsel submitted that I should deal with this matter by way of a community correction order. In support of this submission, she relied upon the impact of your incarceration on your son Liam and the inevitable hardship that would ensue. She submitted that this factor alone amounted to exceptional circumstances which would justify moderation of any sentence imposed upon you.
21In the alternative, she relied upon a combination of factors that would enable the imposition of an entirely non-custodial disposition. Emphasising the punitive nature of a community correction order, she also relied on the Court of Appeal authority of Boulton v The Queen.[3] In this vein, I have also had regard to that decision. In particular, paragraph 131, wherein the Court observed as follows:
“It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.”[4]
[3]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen (2014) 46 VR 308
[4]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen (supra) at paragraph [131]
22Whilst, as I have already noted, hardship is a relevant sentencing consideration in your case, I am of the view that this alone cannot meet the hurdle of establishing exceptional circumstances. The authorities make clear that a sentence of immediate imprisonment is regarded as appropriate for offences of arson, except in a case where exceptional circumstances are enlivened. Furthermore, the courts have made clear that circumstances which justify other than an immediate custodial sentence for the offence of arson will be rare.
23In your case, there are, however, a number of significant mitigating factors which I have taken into account in formulating my sentence. These are your absence of any prior convictions and your precarious mental health in the lead-up to and at the time of the commission of the offence. Furthermore, I have taken account of your remorse as expressed by your plea of guilty and to Ms Carla Lechner. Finally, I have also accounted for the additional burden of imprisonment in your case, by dint of your fragile mental health and the fact that you will be unable to care for your son with special needs whilst in custody. There is inevitable hardship that flows to your family as a consequence of your incarceration.
24When viewed cumulatively, I am of the view that the test of exceptional circumstances has been met. I have given anxious consideration as to how the sentencing principles of general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community are best served in your case. Ultimately, I am of the view that, on balance, these principles can be reflected in a sentence that does not involve any further loss of your liberty.
25I turn now to your personal history. You were born in Scotland, moving to Australia at three years of age. Not long after moving here, you were involved in a serious accident, as a result of which you were hospitalised for three months. Your family first lived in Box Hill and then moved to Springvale. You had no social or behavioural problems throughout your education and you successfully completed Year 11.
26After leaving school, you worked in administration with the local council in the Parks and Gardens Department. You were retrenched during an amalgamation, and from the age of 27 years, worked at the Crown Casino, where you remained for about seven years. Whilst working at Crown Casino, you suffered a workplace injury and you stopped working after falling pregnant with your son Liam. His father, Gary, has not featured in any meaningful way in his life. Thus you have effectively raised him on your own.
27Your first serious relationship was with a man who was many years your senior and who had links with an outlaw motorcycle club. As a consequence of that union, you were subject to the trauma of home invasion. That relationship dissolved after the death of his son by suicide.
28Your next serious relationship was with Mr Luxford, the victim in this matter, who you assert introduced you to the drug ice. You also told Ms Lechner that he was abusive towards you and, as already stated, he breached the intervention order on at least two occasions after the conclusion of the relationship. Your next partner, Freddy, committed suicide in the weeks leading up to your offending.
29Since the offence, you and your son Liam have been living with your father and mother, who both remain supportive of you. As already noted, the chances of you reoffending in a like manner are extremely slim, if not non-existent. I take account of this fact in imposing my ultimate sentence upon you.
30Please stand, Ms Gebbie.
31In relation to the single count of arson, I sentence you to eleven (11) days’ imprisonment. I also order that you undergo a three (3) year Community Correction Order. I impose the following conditions upon that order:
(a)I order that you be subject to supervision;
(b)that you perform 300 hours of community work;
(c)that you be subject to mental health treatment; and
(d)that you undergo, as directed, any offending behaviour programs as determined by Corrections Victoria.
32I also order that completion of treatment and program hours be counted as community work.
33Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare that 11 days be reckoned as served under the sentence and I cause that declaration to be noted in the records of the Court.
34For the purposes of s6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of four years’ imprisonment, with a non-parole period of two years.
35Application was made before me by Mr Travis Luxford, pursuant to s86 of the Sentencing Act, for a compensation order in the amount of $20,000. This was opposed by your counsel. After hearing submissions on the question of capacity to pay, I decline to grant the order in the terms sought. I do so on the basis that you have no meaningful source of income, thus no real capacity to pay.
36You may be seated Ms Gebbie.
37I make the disposal order in the terms sought by the prosecution.
38Now, Ms Gebbie, you may remain seated while I address you. I have imposed a three-year Community Correction Order upon you and I am obliged to speak to you about that order before you sign it. Firstly, do you consent to that order?
39OFFENDER: Yes.
40HER HONOUR: Secondly, you must understand that if you were to breach that order in the three-year duration, that you could be brought back before me for resentencing on these offences. You understand that and in the circumstances you are still content to consent to the order being made against you? All right. Well, I will sign the order. I will get Ms Thompson to approach the dock and get you to sign the order as well. All right, now, I think I have signed the disposal order as well. So you have that, Mr Grant.
41MR GRANT: Thank you, your Honour. I’m instructed to make application for a forensic sample order as well.
42HER HONOUR: Yes, I decline that application.
43MR GRANT: Yes your Honour. Thank you.
44HER HONOUR: All right. Yes, we will adjourn until 10.30. Thank you.
45MR GRACE: As the Court pleases.
46MS THOMPSON: As the Court pleases.
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