Director of Public Prosecutions v Gibbs (a pseudonym)
[2024] VCC 905
•18 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMBER GIBBS (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE CAHILL | |||
| WHERE HELD: | Melbourne | |||
| DATE OF HEARING: | 14 June 2024, 18 June 2024 | |||
| DATE OF SENTENCE: | 18 June 2024 | |||
CASE MAY BE CITED AS: | DPP v Gibbs (a pseudonym) | |||
MEDIUM NEUTRAL CITATION: | [2024] VCC 905 | |||
SENTENCE
Subject:Home Invasion
Catchwords: Guilty Plea – home invasion - intent to assault – persons present
Legislation Cited: Sentencing Act 1991 (Vic), section 5(3); section 5(2H)(c )(ii).
Cases Cited:DPP v Meyers (2014) 44 VR 486; Bugmy v the Queen (2013) 249 CLR
571; DPP v O’Brien [2019] VSCA 254; DPP v Wol Wol [2019] VSCA
268; Hogarth v R (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486;
R v Piacentino (2007) 15 VR 501; Boulton (2014) 46 VR 308, [124]Sentence:2 year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K Farrell | Victoria Legal Aid |
| For the Accused | Ms J Hotchkin | Office of Public Prosecutions |
HIS HONOUR:
1Amber Gibbs,[1] you have pleaded guilty to:
(a) one charge of home invasion;
(b) one charge of theft; and
(c) a related summary offence of unlawful assault (of Rita Vo).[2]
[1] A pseudonym.
[2] A pseudonym.
Alleged circumstances of offending
2Your offending occurred on 9 April 2023 at Noble Park. [3]
[3] The circumstances set out in the prosecution opening, exhibit A. They are agreed facts.
3You were staying with Percy Guzman,[4] who was then your boyfriend, at his apartment at Lightwood Road.
[4] A pseudonym.
4Around 6:30 AM, Guzman smashed the window of a car, parked in Lightwood Road, near his apartment and stole a wallet, some clothing and shoes. You were with him but not involved. You walked away when he smashed the car window.
5About 15-30 minutes later, you went with Guzman to the home of another neighbour, Luke Tran.[5] There was some history of conflict between Guzman and Tran.
[5] A pseudonym.
6Tran, 46 years old, his wife, Rita Vo, 55 years old, and their two children were sleeping inside their home.
7Around 7 AM, Tran woke when he heard banging at the front door. When Tran opened the front door Guzman punched him to the face several times and entered the home with you following (Charge 1 - Home Invasion – intent to assault – in company).
8Tran’s wife heard the noise and got up. When she walked into the lounge room she saw the two of you and asked you to leave. Fearing one of you might use a pair of scissors, which were in the room, she picked them up. You told her to get into the bedroom and grabbed the scissors from her, striking her arm. It caused a small cut (Summary Charge - Unlawful Assault). She locked herself in the bedroom with her children, then jumped out of the window and went to a neighbour’s house for help.
9Guzman told Tran “You stay here, I take all your stuff”.
10He took the keys to Tran’s car, his phone and TV. Guzman carried the TV from the house. You helped him, by carrying Tran’s phone with you. Guzman and you put those items in Tran’s car and got into it. Guzman drove off (Charge three - theft – TV, iPhone, car keys, Toyota RAV4 car).
11Tran recognised Guzman from an earlier incident when Guzman smashed a window at their home. He knew where Guzman lived.
12At 7:25 AM, police arrived. Tran gave descriptions of Guzman and you and told police where Guzman lived.
13About 8.18 AM, they found Tran’s car parked outside Guzman’s home.
14Guzman came outside. Police arrested him. He had the car keys in a pocket of his clothes.
15You also came outside and police arrested you.
16The stolen television was in the lounge room.
17You gave police the pass code to your phone.
18Around 7 PM, you went to Tran’s home and returned his phone. You told him to tell his wife you were sorry.
19When Tran checked his phone, he found the Sim card had been removed.
20When police questioned you, you denied any involvement in the home invasion. You said you had been home in bed.
21Police spoke to you again on 26 May 2023, after Tran had identified you, from a photo board, as one of the intruders. You repeated you had been in bed throughout the home invasion.
22The home invasion was captured on CCTV footage.
23In your phone, there were images of Guzman and you wearing clothing similar to the clothing worn by the intruders.
24Biological material sampled from the scissors, which the female cut Vo with, was DNA profiled. The analysis provided extremely strong support for the proposition you were a contributor to that DNA.
25By your guilty plea to the offence of home invasion, you admit you entered Mr Tran’s home while he was home, as a trespasser, in company with Guzman, knowing his purpose was to assault Mr Tran.
26By your guilty plea to the theft, you admit you were involved in stealing Mr Tran’s television, phone, car keys and car. [6]
[6] You deny you got into the car with your co-offender.
Victim Impact Statement
27I read Mr Tran’s victim impact statement. [7]
[7] Exhibit B: Victim Impact Statement of [Luke Tran].
28He suffered nasal injuries. Guzman and you invaded his home on a public holiday, so he was unable to consult a doctor. He went to a chemist for assistance. Fortunately, he has made a good physical recovery.
29The psychological impact has been greater; for him, his wife and his children. As innocent people, they have suffered real, and lasting, harm. They are scared; scared to leave their home, scared to go out to the shops. The children are scared of the dark. Before your crime, they took themselves to school by bus. Now their father has to take them, because they are scared.
Chronology of proceedings
30On 26 May 2023, you were charged with a number of offences and admitted to bail.
31On 23 October 2023, after a contested committal hearing, you entered a not guilty plea.
32On 14 June 2024, you made an application for a sentence indication.
33The maximum penalty for home invasion is 25 years imprisonment.
34It is a category two offence. Unless a statutory exception applies, the court must sentence an offender to a sentence of imprisonment (other than a combination sentence of imprisonment and a community correction order).
35At the sentence indication hearing, I made a finding, under sub-paragraph 5(2H)(c)(ii), it is likely you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. [8]
[8] In commendably fair submissions, the prosecution conceded the finding was open.
36And, I indicated, in the event you pleaded guilty to the charges now before the court, I would not imprison you.
37On 18 June 2024, you entered your guilty pleas.
Criminal record
38You have admitted a criminal record.
39On 12 September 2018, at Melbourne Children’s Court, you were released on a good behaviour bond, without conviction, for aggravated burglary, intentionally cause injury, burglary and shop stealing.
Personal Circumstances
40You were born in June 2000 in New Zealand. You were 22 years old when you offended. You are 24 now.
41Your personal circumstances are set out in the psychological report of Gina Cidoni, who assessed you on 31 May 2024.
42You grew up in New Zealand. Your childhood was turbulent. You were exposed to violence and drug use. Your mother had three children with different partners; your father has had many children.
43Your parents separated when you were 10 years old. You resented your father because he had abused your mother and your brothers, and you regard your mother as distant, nevertheless, you struggled with the family breakup.
44In 2010, your mother re-partnered. You described your stepfather as supportive and positive. You have a five-year-old stepsister.
45In March 2020, your half-brother died tragically. He was 24 years old. He had argued with you the night before his death, then apologised before killing himself. Your mother and you found him hanging in a room at your home.
46From late 2022, you were in an on and off relationship with Jeremy Mendez.[9] In April 2022, you dated one of his friends, Percy, your co-offender. Percy was controlling; he would not allow you to go home when you stayed with him.
[9] A pseudonym.
47Your relationship with Jeremy was tumultuous. He was also controlling. In March this year you miscarried with his unborn child. You were hospitalised for treatment. Following your release, when he assaulted you and forced you to have sex with him, you ended the relationship. You are currently single and live with your mother and stepfather.
48You struggled at school. You were bullied due to your weight and you had behavioural issues with teachers.
49When you left school, at the end of year nine, you worked in your grandmother’s cleaning business on the Gold Coast for a short time period. You then worked at a Queen Victoria Market Café and then a bread factory at Tullamarine. Your last job, in 2023, was at a toy store. You are currently looking for work.
50Despite your difficulties at school, you have completed certificates in make-up, skincare and hairdressing.
51You have a history of misuse of alcohol and illicit drugs. Your father had used methyl amphetamine in your presence when you were a child.
52You were drug affected when you committed these crimes.
53You have mental health problems.
54You reported intense depression and anxiety related to the trauma of your childhood and past relationships and the loss of your brother.
55On 11 October 2023, you were admitted to Werribee Mercy Hospital after a suicide attempt.
56Psychological testing (Millon Clinical Multiaxial Inventory-IV) revealed generalised anxiety, somatic symptoms, bipolar spectrum, persistent depression, alcohol use, drug use and post-traumatic stress symptoms.
57Ms Cidoni diagnosed bipolar disorder, borderline personality traits, PTSD and substance use disorder.
58In her opinion, there is “a significant connection between [your] adverse childhood experiences and the development of [your] substance use and mental illnesses”.
59She believes, your psychological conditions, together with drug intoxication, will have severely affected your capacity to make rational decisions and, accordingly, contributed to your offending behaviour.
60She recommends mental health treatment, counselling and trauma focused therapy to reduce your risk of reoffending.
61She also believes imprisonment is likely to be particularly burdensome for you due to your fragile mental state. She also believes incarceration could worsen your PTSD symptoms.
Applicants’ submissions
62Ms Hotchkin, who appeared for you, in comprehensive written [10] and oral submissions, acknowledged the seriousness of the home invasion offence.
[10] Exhibit 1.
63She submitted, considering your lesser role in the invasion and the theft and Ms Vo suffered a minor cut in the struggle with you, the objective gravity of your offending is less serious than many cases.
64In mitigation of penalty, she relied on:
(a) your guilty plea;
(b) your expressions of remorse;
(c) your childhood trauma; [11] and
(d) your mental health.
[11] Bugmy v the Queen (2013) 249 CLR 571.
Respondent’s submissions
65Ms Farrell, who appeared for the prosecution, in helpful and conspicuously fair submissions, accepted you have a mental impairment which likely will make the burden and risks of prison substantially and materially greater for you. [12]
[12] Sentencing Act 1991 (Vic), section 5(2H)(c)(ii).
66She submitted there was insufficient material before the court to establish a nexus between your offending and your mental health.
67She accepted your guilty plea has utilitarian value.
68She submitted your expressions of remorse are qualified by your decision to contest the charges at committal hearing when the victims of your crimes were cross-examined.
69She also submitted your prior appearance for aggravated burglary, the predecessor to home invasion, is “extremely relevant”.
70She submitted your offending was serious. In her submission, you played an important and active role in the home invasion.
71She submitted, that Ms Vo locked herself and her children in a bedroom, shows her heightened fear. She also submitted the presence of Mr Tran’s children aggravates your offending.
72She submitted, your sentence requires a custodial component to meet the needs of general deterrence, denunciation and punishment.
73She submitted, in all the circumstances, a composite sentence is within sentencing range.
Consideration
74in DPP v O’Brien,[13] the Court of Appeal described home invasion as “very nasty” and “egregious”.[14] The maximum penalty demonstrates home invasion is a serious offence. Imprisonment is the legislated norm.
[13] [2019] VSCA 254 [5], [37].
[14] See also DPP v Wol Wol [2019] VSCA 268, [69]; Hogarth v R (2012) 37 VR 658, [1]; DPP v Meyers (2014) 44 VR 486.
75You went to Mr Tran’s home with your boyfriend whose purpose was to assault Tran, at a time when you expected they were sleeping. You were with your boyfriend when he assaulted Tran, you followed him into the house where you assaulted his wife and you helped him steal items from their home and their car.
76The presence of Mr Tran’s children is an aggravating feature.
77The episode will have been terrifying for Mr Tran and his family who were entitled to feel safe in their home. The trauma has left them scared and vulnerable.
78As you told an assessing Community Corrections Officer “they possibly think someone will come in again, they probably can’t sleep or eat. I’ve never traumatised people like this before. I saw them in court, they looked terrified of me. Nobody deserves to feel like that”.
79Neither your boyfriend nor you were carrying a weapon.
80Your boyfriend was the leader; were a follower. You stood back when he assaulted Mr Tran. You didn’t say or do anything to Mr Tran.
81Your assault of Ms Vo was reactive to her picking up the scissors. You cut her in a brief struggle for the scissors. Her injury was minor.
82Considering your lesser role in an otherwise very serious offence, I assess the objective of your offending to fall below midrange.
83I accept your boyfriend was a controlling and aggressive person who likely influenced you to help him.
84You were affected by a mixture of excessive alcohol and prescription medication which was a contributing factor. [15]
[15] Exhibit 2: Psychological report, [84].
85Your mental health was another. [16]
[16] Ibid, [83].
86Your chaotic and traumatic background likely contributed to your susceptibility to your boyfriend’s influence.
87Accordingly, your moral culpability is reduced.
88I accept your expressions of remorse, on the night of your offending and most recently when you were assessed for CCO suitability are genuine.
89Your guilty plea is further evidence of remorse and acceptance of responsibility for your actions.
90You have a limited criminal history. While an appearance for the crime of aggravated burglary is directly relevant, the low level disposition indicates to me the gravity of your offending was relatively low.
91You have not reoffended since your arrest.
92Because you are a relatively young offender, your rehabilitation is important.
93I formed an impression, from your demeanour in court, the prosecution of these offences has taught you a salutary lesson.
94You have a strong support network of family and friends. [17]
[17] Various of them supported you with their presence at court.
95Provided you address your mental health and substance abuse problems, which were the underlying causes of your offending, I view your prospects of rehabilitation is favourable.
96Because you are to be sentenced for several offences, I have had regard to the principles of totality and proportionality to ensure your sentence is an appropriate measure of your overall criminality.
97I have also had regard to the need to impose the least severe sentence necessary to achieve the purposes of sentencing. [18]
[18] Sentencing Act 1991 (Vic), section 5(3); R v Piacentino (2007) 15 VR 501, [47].
98Because the offences arose out of a single episode, I will impose an aggregate sentence.
99Overall, I am satisfied a lengthy CCO, which is punitive, [19] and appropriate for some serious offending, [20] can meet all sentencing purposes in your case.
[19] Boulton (2014) 46 VR 308, [124]
[20] Ibid, [131].
100By the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
101Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of home invasion, theft and unlawful assault you are convicted and sentenced to a Community Correction Order.
102The duration of the order will be two years.
103The standard conditions of a CCO are:
(a) You must not commit any offence that is punishable by imprisonment during the term of your order. If you do, you will be liable to imprisonment for contravention of the order and resentencing for the current offences.
(b) You must report to the community correction service stated on your order within two working days of today.
(c) You are required to advise your community correction supervisor of any change of address where you are living or working and you must do so within two clear working days.
(d) You must submit to visits as directed and comply with all instructions and directions of a community correction officer. You cannot leave the state of Victoria without their permission.
104I will also impose the following special conditions to your order, namely:
(a) supervision;
(b) drug rehabilitation and treatment;
(c) mental health rehabilitation and treatment; and
(d) judicial monitoring.
105Your first monitoring session will occur on 19 September 2024 at 9:30 AM.
106While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 21 months imprisonment and fixed a minimum non-parole period of 12 months.
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