Director of Public Prosecutions v Gersbeck

[2015] VCC 1712

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-01134
CR 15-01653

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW GERSBECK

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	26 November 2015
DATE OF SENTENCE:	27 November 2015
CASE MAY BE CITED AS:	DPP v Gersbeck
MEDIUM NEUTRAL CITATION:	[2015] VCC 1712

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Guesdon
For the Accused	Mr R. Backwell

HIS HONOUR: 

1Matthew Gersbeck, you have pleaded guilty to charges on two separate indictments and two separate related summary charges on 26 November 2015.  The first indictment was Indictment C1610376 and the charges are as follows. 

2Charge 1, making a threat to kill.  This charge has a maximum penalty of ten years' imprisonment.

3Charge 2, attempted theft.  This charge has a maximum penalty of five years' imprisonment. 

4Charge 3, theft.  This charge has a maximum penalty of ten years' imprisonment. 

5Charge 4, contravention of an order made under the Family Violence Protection Act 2008. This charge has a maximum penalty of five years' imprisonment.

6You have also pleaded guilty to four related summary charges transferred to this court, pursuant to s.145 of the Criminal Procedure Act.  Charge 1, fail to answer bail.  That has a maximum penalty of 12 months' imprisonment.  Charge 2, possession of controlled weapon.  That charge has a maximum penalty of 12 months' imprisonment.  Charge 5, unlawful assault.  A maximum penalty of three months' imprisonment.  Charge 6, failing to answer bail.  Maximum penalty of 12 months' imprisonment.

7The circumstances of this offending are set out in the prosecution opening, which became Exhibit A on the plea.  It was dated 16 November 2015.  I will recount the offending in these reasons for sentence to give a perspective to these offences on your penalty.

8Charge 1, making a threat to kill.  Leslie Anderson has known you for a number of years.  He allowed you and Chantelle Hollis, your de facto, and your baby to live at his house for about two years. He bought you a Holden Commodore, which you, Mr Gersbeck, were going to pay off in instalments.  You paid him $250 and there was a further $250 owing when you had left the premises.  The car remained at Anderson's address.  Eventually the car was sold and in early November 2013, you came to the house with two other males.  You said that you wanted the car back, you became aggressive and you pushed Mr Anderson over.  That is summary Charge 5, unlawful assault.  On 18 November 2013, Mr Anderson found an old baby seat on the windscreen on the daughter's car, he contacted police.

9On 24 November 2013, you entered Bunyip police station and spoke to Leading Senior Constable Peter Bell.  You said that your car had been stolen.  You said, "I've tried to do this the right way, now I'm going to do it my way.  I'm going to get some bikie mates and Les is fucked.  I'll take back what's mine and when he winds up dead, it will be your fault."  That is the making of threat to kill. Charge 1 on the Indictment.

10You were yelling abuse and threats as you ran out of the police station.  Leading Senior Constable Bell followed you.  You continued yelling and you were arrested, you were searched and a lock down knife was found in your pocket.  That is summary Charge 2, possession of a controlled weapon.

11On 23 April 2014, you failed to appear at the Dandenong Magistrates' Court.  The undertaking of bail was entered on 24 November 2013.  That is the basis for summary Charge 6, failure to answer bail.

12Charge 2 on the indictment is the attempted theft.  On 12 June 2014, at about 2.30 pm, you and an unknown male went to the Aldi store at Fountain Gate Shopping Centre.  Both of you took a bottle vodka from the shelf, you went to leave without paying.  You were stopped by the store manager, Debbie Holden, who took the bottle from you.  The other male ran from the shop with the bottle of vodka.

13Charge 3, which is a theft, is 12 June 2014.  At about 5.15 pm, you went to the FoodWorks store at Bunyip with the same unknown male in Charge 2.  You placed a bottle of vodka down your tracksuit pants.  Your co-accused placed a bottle of vodka in a green bag.  You walked through the store and the bottle of vodka dropped from your pants and smashed on the floor.  Both men grabbed a bottle of V soft drink and left the store without paying.

14You were interviewed by police on 16 June 2014 and made full admissions to Charges 2 and 3.  They are the charges of attempted theft and theft.

15Charge 4 on the indictment was contravention of an order intending to cause harm and fear.  Christopher Blanche is your stepfather.  Blanche was born on 30 March 1961, at the time of the offence, he was 53 years old.  In a telephone message on 11 August 2014, you threatened to cause Mr Blanche some harm.  This was in contravention of an order granted at the Dandenong Magistrates' Court on 10 February 2014.  On 12 August 2014, you were interviewed by police and you made full admissions about this charge.

16On 8 December 2014, you failed to appear at Dandenong Magistrates' Court.  The undertaking of bail had been entered into on 27 October 2014.  That was summary charge 1 of failing to answer bail.

17Shortly prior to your offending on Charge 4 on this indictment, you committed the offences set out in Indictment E12604993 and the related summary charges.  At the time of the hearing, you pleaded guilty to the following charges on Indictment E12604993.  They were;

18Charge 1, aggravated burglary.  This offence has a maximum penalty of 25 years' imprisonment. 

19Charge 2, intentionally cause injury.  This charge has a maximum penalty of ten years' imprisonment. 

20Charge 3, criminal damage.  This charge has a maximum penalty of ten years' imprisonment. 

21Charge 4, theft.  This charge has a maximum penalty of ten years' imprisonment.

22You also pleaded guilty to two related summary offences.  Summary Offence 4, committing an indictable offence whilst on bail.  This has a penalty of 30 penalty units or three months' imprisonment.  Summary Charge 8, which is fail to appear on bail.  This has a maximum penalty of 12 months' imprisonment.

23The circumstances of the offending on the second indictment are as follows.  On 2 August 2014, you and co-offender, Michael Camilleri, travelled by train to Bunyip Railway Station.  You walked from the station and arrived a short time later at Anderson Street in Bunyip.  You entered the front veranda and started banging on the closed sliding glass door of the house.  Mr Jeffrey was present in the house.  After hearing noises from the front of his house, he went to investigate and found you and the co-accused standing inside the house.  Mr Jeffrey described the males in the house as Male 1, one guy had a red hoody.  The summary said that that was Mr Camilleri.  Male 2 is the other guy in a hi-vis yellow shirt, that was you.  

24Camilleri has said to Jeffrey, "That bitch who lives here got Sandra's kids taken off her because she phoned the police."  Mr Camilleri has punched Jeffrey to the face with a clenched fist.  Whilst Camilleri and Jeffrey were grappling, it is said that you struck Jeffrey over the head.  Camilleri pulled Jeffrey's jumper over his head and it came off.  Camilleri had a rock in his hand and was trying to hit Jeffrey with it.

25During the course of this assault, the co-accused was saying to Jeffrey, "You're a dead cunt."  In fear of his life, Jeffrey managed to free himself and ran from the house via the rear door leaving yourself and Camilleri inside the house.  Jeffrey climbed over the back fence and ran to the nearby Bunyip Gippsland Hotel.  Margaret Varden saw that he had no shirt on and there was blood on his face.  She called 000.  These facts are the charge of aggravated burglary and intentionally cause injury.

26After he had fled, Camilleri removed Jeffrey's wallet from inside the house and left via the front glass sliding door.  You and Camilleri walked up Anderson Street.  There was nothing of value in the wallet, so you dumped it in the storm drain.  That is the charge of theft.  You then returned to the Bunyip Railway Station and boarded the train.  Mr Jeffrey did not know you or Camilleri before that day.

27The police investigated this offending, photographed the scene and secured the scene.  On the morning of 3 August 2014, police, when they attended at Anderson Street, Bunyip and examined the scene. During the examination, it was observed that there was a smashed pot plant on the veranda of the premises and a nearby window had been broken.  That is the charge of criminal damage.

28Inside the premises, it was observed that the items on the hall stand were out of place and a broken plate on the kitchen bench suggesting perhaps a struggle of sorts had occurred.  A rock from the nearby railway line was also found in the kitchen area of the premises.  DNA was taken from the scene, it turned out to be yours.

29Leading Constable Neyland attended at 7 Anderson Street to liaise with the victim.  A further statement was taken and a photo board was produced by Neyland and was shown to the victim, Mr Jeffrey.  The photo board contained images of Camilleri.  Jeffrey identified Camilleri, your co-accused.

30Camilleri was arrested and interviewed on 3 August 2014.  He made no admissions.  You were arrested and interviewed on 4 August 2014 and you made no admissions.  In a later interview on 26 September 2014, you substantially admitted the offences, but denied smashing the plate over the head of Mr Jeffrey.

31You pleaded guilty to these charges at the committal case conference and the matter has now been listed before me as a plea of guilty.

32The aggravating features of your offending are, it was a home invasion.  You continued your burglary after being confronted by the occupier, Jeffrey.  You were part of the assault on Mr Jeffrey.  You damaged property whilst you were there.  You, along with Camilleri, stole his wallet. You were on bail at the time of the offences.  These offences strike at the heart of the concept that a home is a person's castle.  The principal offence is the aggravated burglary charge.  The main offender was Camilleri, but your role of support person is still serious offending.

33I turn to the impact on your victim, Michael Jeffrey.  After these events, he attended upon a medical practitioner, Dr Daleev Singh Dylan who provided a report in relation to his examination at Longwarry Medical Centre.  The doctor described Mr Jeffery as having a tender right infraorbital margin, a tender suborbital bone and tender nostril upon his examination at the practice.  The doctor found Mr Jeffery required follow up treatment with a specialist and referred Mr Jeffery to the Warrigal Hospital Emergency Department for diagnostic imaging.  There was no further reporting from the medical practitioners about these injuries.  There was no victim impact statement from Mr Jeffrey and there were no victim impact statements in relation to the matters on Indictment C1610376.

34I turn to your personal circumstances.  You are now 26 years old.  At the time of your offences, you were 24.  These matters have been hanging over your head for some 14 months.  The theft and the threat to kill charges have been brought on with the most recent offending to ensure a totality of sentence is considered at the one point by the one sentencing judicial officer.

35On your behalf, a forensic psychologist report prepared by David Bruce dated 26 September 2015 was tendered.  It was Exhibit 1 on the plea.  Your parents separated when you were young.  The separation was followed by acrimonious and lengthy Family Court proceedings.  In the course of this time, you were placed in foster care for a period of two years through DHS.

36You completed Year 9 at school.  Initially you commenced an apprenticeship as a chef, but gave it away because you did not like the nature of the work.  To your credit, you obtained another apprenticeship as a roof tiler.  You worked in that area for some three years.  You moved to Gippsland in order to get away from the family violence in Cranbourne.  Your only ongoing contact with members of your family is your half-brother Michael Camilleri, your co-accused in the aggravated burglary in this proceeding.

37In the past five years, you have lived on and off with your partner, Chantelle.  The two of you have a four year old girl, Isabelle, and your partner is currently pregnant.  You are currently unemployed.  You have used cannabis and methylamphetamine since your teens.  In very recent times, you have consulted Dr John O'Donoghue, a specialist in addiction medicine in Gippsland.

38Dr O'Donoghue prepared a report dated 3 October 2014.  It simply states, "Mr Gersbeck is currently on Suboxone maintenance program."  This report was Exhibit 2 on the plea.  There is no current report from Dr O'Donoghue as to your progress with your rehabilitation in respect to drugs.

39Mr Bruce notes that, in his report, that you are prescribe Suboxone, Saphris and Pristiq by Dr O'Donoghue at the present time.

40The Connections report which was also tendered on your behalf, dated 22 October 2014, states that you had been on a Methadone program for your ice addiction in 2014.  You had been subjected to urine screening prior to being accepted back by Chantelle and Isabelle into the family home at Drouin.

41You have admitted four prior court appearances.  Each of the court appearance involve either violence or property offending or both.  In 2009, you were given a suspended sentence for violent offending.  You have not served a term of imprisonment.  It was submitted on your behalf that hardship would result for you if you were incarcerated because you would not be with your family, and more particularly not present at the birth of your second child.  Serving a term of imprisonment is always hard on members of the family, but this hardship is not exceptional in your case.  Imprisonment by its nature is hard on the inmates.  It is part of the just punishment for offending.

42I will turn to sentencing considerations.  The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both general and specific, rehabilitation, and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them, your personal circumstances and those of the victims.

43I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society.

44As part of the governing principles to be considered in sentencing you, I must take into account current sentencing practice.  That enquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.

45I am mindful also of the provisions in the Sentencing Act and in particular s.5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is imposed.  I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case and in part, I am satisfied that that is so.  However, the offending in this case is so serious that it also calls for a term of imprisonment.

46You have pleaded guilty at an early stage in these proceedings.  As I have said, the plea in relation to the aggravated burglary was at the committal case conference stage.  Your plea has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certain outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal process set up to protect the community and you have, by your plea, relieved victims of your offending from giving evidence against you.

47It facilitates some closure for them as victims of your offending.  Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea recognises you are willing to facilitate the course of justice in the community.  I accept that your plea of guilty to these charges indicates and demonstrates your remorse.

48I have considered the appropriate amount of cumulation to be applied to these offences to arrive at a sentence that does not breach the principles of totality.  The offences on Indictment E12604993 occur in the one place over a short period of time, so less cumulation is called for to properly reflect the totality of the offending on that day.  That also applies to the other charges here.

49Your co-accused, Camilleri, in the charge of aggravated burglary and related charges is standing trial in June 2016.  I do not have to consider the issue of parity when determining your sentence on the basis that he has not yet been convicted.

50The prosecution submitted that totality of your offending calls for imprisonment.  It did not oppose the submission that you should be assessed for a community corrections order.  I have previously referred to the maximum penalty set out for each of the offences by parliament.  The considerations of general and specific deterrence and denunciation ought to be accorded full weight given the circumstances of this particular case.  I accept that the considerations of specific and general deterrence combined with the denunciation of these offences are very significant in sentencing you to imprisonment.  The assault was brutal and in the setting of a home invasion on a person unknown to you.

51Your counsel submitted that the appropriate sentence was a community corrections order.  I consider your prospects of rehabilitation as guarded.  But you are a relatively young man who has not previously served a term of imprisonment.  Whilst you have been on bail since August 2014, you have not committed further offences.  That is some good indicator of rehabilitation in the future.

52I have had you assessed for a community corrections order.  You have been assessed as suitable, but you have also been assessed by them as a high risk of reoffending.  The appropriate just punishment and denunciation of your conduct combined with rehabilitation lead me to the conclusion that a combination of imprisonment and a community corrections order is appropriate as the total sentencing outcome for you.  I have imposed fines for less significant offences.

53On Indictment C1610376, Charge 1 and Charge 4, they are making a threat to kill and contravening a family violence final intervention order, you are convicted and placed on a community corrections order for two years with the following conditions, (a) 200 hours of unpaid community work; (b) supervision; (c) assessment and treatment for drugs, alcohol, mental health and offender behaviour programs.  The treatment hours are not to be deducted from the unpaid community work hours.

54On Charge 2 on the indictment, you are convicted and fined $1,000.  On Charge 3 on the indictment, you are convicted and fined $1,000.  On the related summary offences, Charge 1, you are convicted and sentenced to one month imprisonment.  Charge 2, you are convicted and fined $500.  Charge 5, you are convicted and fined $1,000.  Charge 6, you are convicted and sentenced to one month imprisonment.  I order that the sentence in summary Charge 1, that is one month imprisonment and summary Charge 6, also one month imprisonment, to be served cumulatively on one another and cumulatively on the total effective sentence on Indictment E12604993.

55On Indictment E12604993, on Charge 1, you are convicted and sentenced to 18 months' imprisonment.  On Charges 2, 3, 4, you are convicted and placed on a community corrections order for two years with the following conditions, a) 200 hours unpaid community work, b) supervision, c) assessment and treatment for drugs, alcohol, mental health and offender behaviour programs.  The treatment hours are not to be deducted from the unpaid community work hours.

56I just note here that this community corrections order is to be served at the same as the other community corrections order that I had ordered in the previous indictment.

57The related summary charges to this one, on Charge 4, you are convicted and sentenced to one month imprisonment and Charge 8, you are convicted and sentenced to one month imprisonment.  I order that the sentences in Charge 1 on the indictment and the sentence of summary Charges 4 and 8 be served cumulatively on one another.  That is for this indictment and their related charges a total of 20 months.  I further order that the two month sentence ordered in summary Charges 1 and 6 that were attached to Indictment C1610376 be served cumulatively on the total effective sentence of this indictment.  That is a total effective sentence of 22 months.  I fix a 16 month non-parole period.

58I declare that you have served three days' pre-sentence detention.

59MS GUESDON:  Your Honour, I think my learned friend and I are in agreement that Your Honour cannot have a non-parole period as well as a community corrections order.

60HIS HONOUR:  Is that right?  In that case, no parole period.  I thought it could.

61MS GUESDON:  No.  It is either or.  I can try and find the exact section.

62HIS HONOUR:  I will tell you why I say that.  When there is an order for two years with a CCO, because you can order two years.  When there is an order for two years, you have to give a non-parole period.

63MS GUESDON:  It might be because it is on separate charges.  The wording of the corrections order is for it to begin upon release, but upon release, he would be then serving his parole period as well.

64HIS HONOUR:  Yes, if he gets it.  He has parole and CCO together.

65MS GUESDON:  My friend has an iPad, he might be able to look that up.  Sorry, I think I was wrong, Your Honour.  There is a section there that seems to say a community corrections order will begin once any parole period is completed.  So he will have to do - say if he is granted parole, he would need to finish that parole.  The section is s.44 and sub-s.3.

66HIS HONOUR:  Yes.  So it is at the end of his time on parole.  So what happens is he gets 22 months, then if he gets parole, his earliest time will get at 16 months and he has a period of parole if that is what happens, and then he has a CCO commence.

67MS GUESDON:  It appears that way.

68HIS HONOUR:  Yes.

69MS GUESDON:  I apologise for that, Your Honour.

70HIS HONOUR:  The s.6AAA, this relates to Indictment E12604993, but for his plea of guilty, I would have sentenced him to four years with a two and a half minimum.  That is the total sentence for that.  Section 6AAA for Indictment C1610376, would have been a sentence of one year.

71Was there a compensation order sought?  Because it was mentioned yesterday.

72MS GUESDON:  We are not pursuing that, Your Honour, but I think we handed up a forfeiture of the knife.

73HIS HONOUR:  Yes, sorry, thank you.  I make the order for forfeiture of the prohibited weapon which is the lock blade knife.

74MS GUESDON:  I can indicate just for confirmation a forensic sample was taken in interview and that will be automatically retained, which is the reason there is no application.

75HIS HONOUR:  Yes.  Thank you.  Yes, these are the two corrections orders.  My understanding of the legislation is that I have made a note during the course of my sentence that they be served at the same time.

76MS GUESDON:  Yes.

77HIS HONOUR:  They relate to the same period of time, exactly the same conditions.  That is correct, is it not?

78MS GUESDON:  Yes.  I think that is the default position as well, and Your Honour having ordered it to be served concurrently, that should be enough.

79HIS HONOUR:  Yes.  Thank you.  Mr Backwell, if you need to go and speak to your client about that, thank you.

80MR BACKWELL:  Yes.

81HIS HONOUR:  Yes, you can remove the prisoner, thank you.

82(Prisoner removed.)

‑ ‑ ‑