Director of Public Prosecutions v Gibbs
[2016] VCC 1932
•7 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-15-02196
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID LEE GIBBS |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 November 2016 |
| DATE OF SENTENCE: | 7 December 2016 |
| CASE MAY BE CITED AS: | DPP v Gibbs |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1932 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – false imprisonment –failure to stop vehicle – deprivation of liberty– limited involvement in offending – short period of offending – state of knowledge regarding prior offending – member of a motorcycle club - plea of guilty – sentencing principles - s89A application -
Legislation Cited: Sentencing Act 1991, s48, s464ZF; Crimes Act 1958
Sentence:Convicted and ordered to serve a Community Correction Order for a period of 24 months with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Duckett | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M McGrath | Slades & Parsons Solicitors |
HIS HONOUR:
1David Lee Gibbs, you have pleaded guilty that on 7 March 2015, you unlawfully imprisoned Bradley Noel Ingram and detained him against his will contrary to the common law.
2The Prosecution Opening is extensive and incorporated background facts which do not have much to do with your unlawful imprisonment of Ingram; however, those facts give some context to your offending.
3You were a member of the Vigilantes Motorcycle Club, and a number of the persons who are referred to in the Summary of the Prosecution Opening are current members. Ingram is not a member of the Club. He describes himself as being a friend of the Club. He has been associated with members of the Club for about 15 years.
4Phillip John Maynard is a member of the Club. On 2 November 2014, at about 10.30pm, he went to Ingram’s home with another member of the Club. Maynard was armed with a shotgun. He confronted Ingram for the express purpose of stealing his Harley Davidson motorcycle.
5Ingram contacted members of the Club in the hope that they would intervene and have Maynard return the motorcycle. Maynard and some of his associates must have discovered that Ingram had made that contact because of what next occurred.
6On 7 March 2015, and at about 1.00am, Maynard arrived at Ingram’s home. He threw a removalist trolley through a front window and then gained entry to the house. After a confrontation with Ingram in the house, he dragged him to a black Toyota Prado four-wheel drive belonging to Peter Riddle. He was placed in the front driver’s seat. Maynard and another man were in the rear passenger seats.
7Riddle drove his vehicle to the Deer Park exit of the Western Ring Road where you had parked your yellow Hyundai Getz motor vehicle. Riddle arrived at that point at about 1.45am. Ingram got out of Riddle’s motor vehicle, as did Maynard. He walked to your vehicle, with Maynard following behind him. Maynard forced Ingram into the back seat of your vehicle and then sat beside him.
8You commenced driving your vehicle until Ingram was observed to be dry retching. He told Maynard that he was going to be sick. You stopped your motor vehicle. Ingram got out of it, and as soon as he did, he escaped. During that journey, you observed Maynard to repeatedly strike Ingram to the head while asking him who he had spoken to at the Club. He spoke to Ingram threateningly. None of that could have gone unnoticed by you.
9Your counsel submitted that I should accept the following facts regarding your offending:
·Between the time Ingram entered your motor vehicle to the time he escaped, you drove your motor vehicle about 1.8 kilometres, and it is probable that Ingram was in your motor vehicle for a maximum of five minutes.
·You had no knowledge of what had occurred earlier in the evening when Maynard and the other persons in his company, went to Ingram’s home.
·The false imprisonment comprises your failure to stop your motor vehicle and allow Ingram to get out of it.
10There was some level of disagreement between your counsel and the prosecutor about your state of knowledge of what had occurred earlier. I was referred to a telephone log which shows that telephone calls were made by you to other persons who were involved in what occurred that night.
11What I can reasonably infer is that an arrangement was made for you to meet Maynard and the others in your motor vehicle at the appointed place. Whether you knew that Ingram had been kidnapped by Maynard or not, it must have been apparent to you that Maynard had Ingram under his control when he forced Ingram into your vehicle, began assaulting him, threatening him and asking him who he had spoken to at the Club.
12Otherwise I accept that your involvement in what occurred that night has the limitations in terms of distance travelled and time elapsed as submitted by your counsel.
Your plea
13You are 37 years of age. You are an only child. Your father was apparently a violent man. His violence was mostly directed towards your mother. Your mother and father separated when you were 13 years of age. Your father lives in Queensland and your mother lives in Victoria.
14You have limited education. You left school at the end of Year 9. You have worked in labouring and factory work throughout your adult life. You presently work as a fencer.
15You commenced a relationship in 1998. You have two daughters who were born of that relationship, who are now 16 and 14 years of age. They live with their mother in Queensland. You lived in Queensland, but after your relationship came to an end, you moved back to Victoria. You have contact with your daughters as regularly as the distance between you permits.
16You are presently in a relationship. Your partner has two children by her previous relationship, who are both under four years of age. Your partner provided a reference in which she describes your relationship with her; the developmental difficulty that one of her children labours under; your pursuit of further education; your difficulties with your own psychological state and your continued relationship with your own children.
17Darren Seers provided a reference. He is your cousin. He has known you all of your life, and it would appear that he is very close to you. He speaks of the assistance you gave him when his partner passed away recently. You lived with him and helped him run his household and helped him care for his two children. He also refers to your pursuit of further education; your difficulties with your own psychological state, and the remorse you have expressed for your relevant offending.
18You are just short of completing a Certificate III in Civil Construction through a training institution in Bendigo, and you are halfway through a Certificate III in Captive Animals. I assume you have pursued those courses to improve your educational base and your prospects of future employment.
19You became a member of the Club in 2011. Since you were charged with this offence, you have resigned your membership and handed your Club colours back to the Club.
20Your counsel went to some effort to persuade me that the Club is not an outlaw motorcycle club and that members do not wear a “1%” badge. He described the Club premises as having a liquor licence and being open to the public on Friday nights. Additionally, that most of the members are over 50 years of age. It was through that Club that you obtained a certificate relevant to responsible service of alcohol.
21I will make it clear now that I am not sentencing you in any respect at all because you were a member of the Club. That fact is part of the background facts, and occupies no more importance than that.
22You have a criminal history. The only prior convictions that are of some relevance is when you were dealt with by a court for intentionally causing injury on 4 February 2013. You were sentenced to 133 days’ imprisonment that you had been held in pre-sentence custody. You were also dealt with on that day for the possession of a firearm. Your counsel informed me that the firearm was an air rifle. The seriousness of that charge is reflected by the fact that you were convicted and fined $300. You have one other prior conviction in 1996 for theft of a motor vehicle which I do not consider to be so relevant.
23Your counsel informed me that in August 2015, you were dealt with for a breach of an intervention order and exceeding the prescribed blood alcohol concentration of .05%. You were released on a Community Correction Order (“CCO”) for 12 months. You completed the CCO, complying with its conditions and you did not commit any offences during the period of the CCO.
Sentencing principles
24Depriving another person of their liberty is a serious offence. It strikes at the very heart of every individuals’ right to freedom of movement. It is an offence, in your case, which calls for the sentence to contain an expression of general deterrence, denunciation, protection of the community and just punishment. Specific deterrence is not so relevant in your circumstances.
25Your counsel, in a very well structured and persuasive plea, submitted that there are a number of factors which must be weighed into consideration in determining the sentence I must impose on you. I will describe these as follows.
26Your offending was of short duration which brings it into the lower end of gravity for offending of this kind.
27There are no aggravating circumstances associated with your offending; for example you were not involved in what occurred earlier in the night, and you did not engage in assaulting or threatening Ingram while he was in your motor vehicle. It would appear that what you were engaged to do was to drive him to another point.
28You pleaded guilty to this offence on 19 September 2016. Your plea of guilty followed negotiations with the prosecution. On one view it is a late plea of guilty, but nonetheless there is a utilitarian benefit in your entry of a plea of guilty because it has saved the witnesses the trauma of a trial, and the state the cost of a trial.
29Your criminal history and your post offending are troubling, but nonetheless I consider that your prospects of rehabilitation are reasonable. The fact that you have resigned your membership with the Club and have distanced yourself from your co-offenders, are in a stable relationship, are in employment and are pursuing education to better yourself persuade me of those prospects.
30I accept the submissions made by your counsel are valid, and are matters which I will factor into the sentence I must impose on you.
31I am obliged to determine whether the relevant sentencing purposes can be fulfilled by the imposition of a non-custodial sentence. In the circumstances, I have come to that view. Furthermore, the prosecutor submitted that releasing you on a community correction order is within the sentencing range for your offending given the level of your offending and all of the other matters which I have set out already.
32I have paid due regard to the plea made on your behalf by your counsel and to factors which I consider relevant to sentencing you. The sentence I now impose on you is proportionate to the gravity of your offending in the light of the objective circumstances of its occurrence.
33I would now ask you to stand please.
34On the count of false imprisonment, you are convicted, and released on a Community Correction Order for a period of twenty-four (24) months with the following Conditions pursuant to the following provisions of the Sentencing Act 1991:
(a)Supervision by the Secretary of the Department as provided for by s48E.
(b)Treatment and rehabilitation regarding your mental health as provided for by s48D(3)(e).
(c)You must attend programs to reduce the prospects of your re-offending as provided for by s48D(3)(f).
(d)You must undertake 100 hours of unpaid community work as provided for by s48C.
35You can now take a seat.
36The prosecution has made an application pursuant to s464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure. The offence with which you have been charged comes within the definition of a “forensic sample offence”.
37Subsection (8) refers to a number of considerations which I must have regard to when considering whether to make such an order or not. Essentially, I must take into account the seriousness of the circumstances of the forensic sample offence, and I must be satisfied that, in all of the circumstances, the making of such an order is justified.
38Although I have sentenced you to be released on a Community Correction Order, that does not mean that the objective seriousness of the offence of false imprisonment, and the seriousness of the circumstances of your offending are diminished. I consider the offence to be a middle range offence of seriousness when regard is had to offences for which a person can be committed for trial, and offences which attract a term of imprisonment.
39It is for these reasons that I consider it is appropriate to make the Order. I will sign the Order and give you a warning of what the taking of a forensic sample involves or may involve.
40What I will first do, Mr Gibbs, is give you a warning relevant to the Community Correction Order which I have sentenced you to. I am sure you have heard this before, but I am obligated to give you this warning and I will do so now.
41In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all community correction orders. These are:
(a)You must not commit any other offences during the two-year period the Order is in force – being any offence for which you could be imprisoned, even if the Court would not choose to impose imprisonment.
(b)You must report to and receive visits from a Community Corrections officer.
(c)You must report to the Community Corrections Centre at South Morang within two (2) clear working days of today.
(d)You must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections Office of any change of address, where you live or work, within 48 hours of that occurring.
(e)Finally, you must obey all lawful instructions from and directions of Community Corrections officers.
42Do you understand the conditions I have imposed and the general terms that apply?
43ACCUSED: Yes, I do.
44HIS HONOUR: You can take a seat. Before you consent to the making of such an Order, you must understand that the contravention of any condition attached to the Community Corrections Order, except for a contravention of a direction by the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a community correction order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offences. Do you consent in those circumstances to the imposition of such an order?
45ACCUSED: Yes, I do.
46HIS HONOUR: You can take a seat.
47In relation to the forensic sample, I give you this warning.
48Application was made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth or a blood sample. Having regard to the seriousness of the circumstances of the offending, I find that the granting of the Order is in the public interest. I will make the Order and sign it shortly.
49I am required to warn you that if at any time you are requested to supply a sample of your DNA by a scraping from the inside of your mouth under supervision by an authorised member of the police force, then the sample will be taken in that way. But if, when requested by the officer to provide the sample in that way you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample and to use reasonable force to obtain the blood sample.
50Firstly, from you, Ms Duckett, anything else?
51MS DUCKETT: Your Honour, there was the application for an order pursuant to s89A in regard to Mr Gibbs’ drivers licence for the use of his motor vehicle in committing the offence. As I understand the situation, ordinarily there is a default provision within the legislation, that would be a period of three months, but that’s just in relation to whether the car is actually a stolen car. So, it really is a matter for the Court’s discretion as to whether or not it’s an appropriate vehicle that such an order be made, and then, secondly, as to the period of time.
52Ultimately, the prosecution would be submitting that, of course, given Mr Gibbs’ obligations insofar as his Community Correction Order and his various educational and family responsibilities, that it shouldn't be for an unduly extensive period of time, that there should be some period of time ordered with respect to his licence.
53HIS HONOUR: But I don’t have to make that order, do I?
54MS DUCKETT: You don’t. It’s a discretionary order. There’s nothing mandatory. It only becomes mandatory of course in cases of serious driving offences and in cases where the car itself is a stolen vehicle under s89, and the application would be under s89A, which is referrable to any offence that’s committed and a motor vehicle is used during the course of that offending.
55HIS HONOUR: Before I ask Mr McGrath to make any response to that, firstly, it is an oversight on my part that I should have dealt with it in a more particular way in my sentencing remarks. I have sentenced him to what I consider to be a significant Community Correction Order with significant conditions.
56MS DUCKETT: Yes.
57HIS HONOUR: This man needs to get to work and this man needs to have the means of transport to comply with this Order. It seems to me that nothing is to be gained by an additional penalty, by cancelling his licence and disqualifying him for even a minimum period of time, and I would be seriously disinclined to make that Order.
58I have articulated my response to your submission as an invitation for you to say anything else if there is anything else that comes to mind that you want to submit to me.
59MS DUCKETT: No, Your Honour, really it is a matter of completeness, that is an ordinary application that would take place and it really is used by the prosecution ordinarily to illustrate that our community of course won't tolerate people using their motor vehicles in the commission of crimes, but I won't take the matter any further, having acknowledged that Mr Gibbs of course has responsibilities of not just family or children, he also has a community correction order and work obligations.
60HIS HONOUR: Can I just add this? I have released a number of individuals on community correction orders where the very application you are making has been made, but not in mandatory circumstances. Here is the difficulty; a failure to have a drivers licence to get to a place to comply with reporting conditions and undertake community work is almost an invitation for non-compliance and breach.
61It is of concern to me, despite the fact this was an oversight on my part which I should have dealt with in a different way, I am not persuaded that I should make that order in this case.
62MS DUCKETT: The prosecutor will resume her seat, Your Honour.
63HIS HONOUR: I take it you are not going to argue against that proposition,
Mr McGrath?64MR McGRATH: No, Your Honour.
65HIS HONOUR: I think I have dealt with that as fully as I need to. Is there anything from you, Mr McGrath?
66MR McGRATH: No, Your Honour, I don’t know if it’s Your Honour’s practice to have Your Honour’s associate attend on Mr Gibbs to sign the document or if you wish that I do that?
67HIS HONOUR: Both of you.
68MR McGRATH: That’s a good idea.
69Your Honour, Mr Gibbs has signed that Community Corrections Order. The only other matter, Your Honour, is the 464 order and as I understand it, a copy will be provided to Mr Gibbs and I think it’s fairly self-explanatory about when he’s to present to the police station for the provision of that sample. He has to wait I think four weeks from today before he attends.
70HIS HONOUR: Unfortunately, Mr McGrath, none of that is anything I need to convince myself about.
71MR McGRATH: Yes, Your Honour.
72HIS HONOUR: Can I just say that the prosecution case in this plea was very well presented and likewise your plea, Mr McGrath, and it was of great assistance to me in understanding what the facts were in order to capably understand how I should sentence this man except for my acknowledged plea of guilty to an oversight.
73I will now adjourn the Court.
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