Director of Public Prosecutions v Gibbs (a pseudonym)
[2021] VCC 2107
•13 December 2021
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEIGH GIBBS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 23 November 2021 | |
DATE OF SENTENCE: | 13 December 2021 | |
CASE MAY BE CITED AS: | DPP v Gibbs (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2107 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentence.
Catchwords: Sentence – aggravated burglary – intentionally cause injury – vulnerable victim – vigilantism – Verdins – major depressive disorder – out of character offending – excellent prospects of rehabilitation – family hardship – hardship to third parties.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Eade v The Queen [2012] VSCA 142; Taskiran v The Queen [2011] VSCA 358; Frost v The Queen [2020] VSCA 53; Harvey v The Queen [2021] VSCA 84; DPP v Meyers [2014] VSCA 314; R v Doran [2005] VSCA 271; Worboyes v The Queen [2021] VSCA 169; Markovic v R (2010) 30 VR 589; R v Wirth (1976) 14 SASR 291; R v Ienco [2008] VSCA 17; R v Spicer [2003] NSWCCA 108; R v Edwards (1996) 90 A Crim R 510; DPP v Keller (a pseudonym) [2021] VSCA 334; Boulton v The Queen [2014] VSCA 342.
Sentence: 28 months’ imprisonment with a non-parole period of 11 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Davison Ms D Dang | Office of Public Prosecutions of Victoria |
| For the Accused | Mr S Gardner | Warren Graham and Murphy Lawyers |
HIS HONOUR:
Preliminary
1Leigh Gibbs,[1] you are now 35 years old. You were 34 years old at the time of committing the offending that brings you before the Court today.
[1] A pseudonym.
2You have pleaded guilty to two charges under the Crimes Act 1958 (Vic). Charge one is aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment.[2] Charge two is causing injury intentionally, which carries a maximum penalty of 10 years’ imprisonment.[3]
[2] Crimes Act 1958 (Vic) s 77(2).
[3] Crimes Act 1958 (Vic) s 18.
3The victim in this matter was your uncle, Harold Clarke.[4] In late December 2020, Mr Clarke was charged with sexual offending against your daughter, which is alleged to have occurred in June 2020. Specifically, Mr Clarke was charged with sexual assault of a child under the age of 16 years. Your daughter was 4 years old at the time of this alleged offending.
[4] A pseudonym.
Circumstances of the offending
4The circumstances of your offending are contained in the prosecution opening, which was exhibited on your plea.[5] The facts as outlined in that document were not disputed by you. I will briefly summarise those facts.
[5] Exhibit 1.
5On 13 May 2021, your wife participated in a video conference with the Office of Public Prosecutions in relation to Mr Clarke’s alleged offending against your daughter. As acknowledged by both counsel during the plea hearing, what precisely was said during this conference is not overly important in the context of this sentencing exercise.
6What is important is that, at the conclusion of the conference, your wife contacted you by phone and informed you about the discussion that took place during the conference. She was upset and crying during the phone call, and the message that came across to you was that the prosecution of Mr Clarke would not be proceeding.
7That night, you arrived home from work at about 6:30 pm. You consumed about two full-strength beers before driving your father’s car to Mr Clarke’s home, some 20 minutes away. You parked around the corner from Mr Clarke’s house to avoid Mr Clarke seeing you arrive. You then rolled and smoked a cigarette before approaching Mr Clarke’s home and knocking on his front door.
8As Mr Clarke opened his door, you took hold of him and pushed him inside the unit. You accused Mr Clarke of using his disability as an excuse for sexually abusing your daughter. You said to him, ‘You don’t deserve to even breathe, you piece of shit’.
9Once inside the unit, you punched Mr Clarke repeatedly to the face and head. Mr Clarke stumbled backwards and fell onto his couch. You continued to punch him whilst he was on the couch. You said to Mr Clarke, ‘You’re lucky I don’t kill you’, and told him that the best thing that he could do would be to hang himself. You then left Mr Clarke’s unit.
10Dazed and bleeding, Mr Clarke used his phone to contact his brother. His brother and his sister-in-law then drove to Mr Clarke’s home. Police and paramedics were called and also attended Mr Clarke’s unit. Mr Clarke was treated at the scene and then transported to the local hospital.
11The following morning, the informant in this matter contacted you by phone. You attended at the police station with your wife. You were arrested and provided a detailed account of your actions during your record of interview.
Victim impact
12I have received three victim impact statements.
13Mr Clarke suffered numerous facial injuries, including comminuted depressed fractures involving the maxillary sinus walls bilaterally, fractures of the left orbital floor and right orbital wall, fractures of the zygomatic arches, and a fractured nose. A total of eight fractures were identified. He continues to experience pain and has trouble eating some kinds of food.
14Since your offending, Mr Clarke has trouble sleeping, no longer feels safe in his own home, and is anxious when out in the community. It is evident that your offending has not only caused significant physical injury to Mr Clarke, but also psychological injury.
15The impact of your offending is not limited to your immediate victim. Mr Clarke’s brother and sister-in-law have also suffered as a result of your conduct. They have experienced anxiety as a result of the incident.
Objective gravity of the offending
16Both aggravated burglary and intentionally causing injury are serious offences. This is particularly reflected in the maximum penalty of 25 years’ imprisonment for aggravated burglary. Your attack upon Mr Clarke was a sustained one. You punched him multiple times to the head and face area causing significant facial injuries.
17On your plea, your counsel made something of the fact that, in his victim impact statement, Mr Clarke noted that he had always had weak bones and had been on calcium for many years. Your counsel noted that you did not know of Mr Clarke’s bone condition prior to the offending and submitted that you did not foresee that striking a number of blows would cause the damage that it did in fact cause in this case. I have no expert medical material before me in relation to Mr Clarke’s condition which might assist me to assess the role which it may have played in the injuries suffered by Mr Clarke. All I have is the evidence from Mr Clarke.
18Nevertheless, allowing for the limitations which this causes, I would say the following about the point raised by your counsel. I accept you did not know of his condition. Had you known of his condition, you would have been more morally culpable. I also do not sentence you on the basis that you specifically intended to cause so many fractures to Mr Clarke’s face, or that you contemplated factures of that magnitude. While I will make some allowance for this when considering your culpability, the fact that you may not have foreseen the full extent of the injuries actually inflicted does not materially reduce your culpability.
19The fact is, you punched Mr Clarke multiple times to the face and head area, and you did so ‘as hard as [you] could’. In your interview, you said you punched him below his eye and to the side of the head. You intended to physically hurt him.[6] The fact that Mr Clarke suffered fractures to the face, is completely unremarkable, and was an obvious risk. The capacity of the clenched fist to inflict significant injury to the face of any person - such as fractures - should not be underestimated, and there is nothing to suggest that you failed to generally appreciate this.
[6] Record of interview, Q56, 71, 73, 85 and 95.
20You are, of course, pleading guilty to intentionally causing injury, and whilst the specific injury or injuries caused is not an element of that offence, the actual harm caused to Mr Clarke, including the significant physical injuries, is a matter that I must take into account in sentencing you under the Sentencing Act.[7]
[7] Sentencing Act 1991 (Vic) s 5(2)(daa)-(db); Eade v The Queen [2012] VSCA 142 [34].
21I turn to other matters concerning the gravity of your offending.
22This offending involved a confrontational aggravated burglary. You believed that Mr Clarke had sexually assaulted your daughter, and you were frustrated by the prospect of him – as you saw it – getting off ‘scot free’. In your police interview, you acknowledged that the purpose of assaulting Mr Clarke was, ‘just to let him know that he hasn’t got away with what he’s done.’
23You were acting upon parental instinct, out of fury for a wrong which you believed had been committed against your child. Your stress and emotional state at the time of receiving the news that the legal proceedings against Mr Clarke would be discontinued was human. It also explains why your offending was so out of character, and I will return to this. Yet, on the other hand, this explanation can in no way justify or excuse your conduct. Your offending involved vigilantism. Dissatisfied by the outcome of the legal process, you took the law into your own hands. The law recognises that it is important to deter people from taking the law into their own hands by resorting to violence to exact revenge or retribution for a perceived wrong. That is so even where the grievance is passionately and strongly held. Such behaviour is a direct threat to the rule and authority of law and cannot be tolerated.[8]
[8] Taskiran v The Queen [2011] VSCA 358 [22]; Frost v The Queen [2020] VSCA 53 [45]; Harvey v The Queen [2021] VSCA 84 [52]-[54].
24Although not overly sophisticated, your offending involved a certain level of premeditation and planning. When you got to Mr Clarke’s home after a 20-minute drive, you parked some distance away because you didn’t think Mr Clarke would open his front door if he knew that it was you. I do however accept that you only decided to attend Mr Clarke’s home and assault him shortly before getting into your car and driving there.
25As conceded by your counsel, your victim was vulnerable. He was in his own home where he is entitled to feel safe. Mr Clarke was 63 years old at the time of the aggravated burglary and has an intellectual disability.
26In short, your offending involved an intrusion into a vulnerable man’s home followed by a violent assault upon him resulting in numerous fractures.
27It is true, a number of aggravating features common to confrontational aggravated burglaries are absent from your offending. For example, your offending did not involve a weapon, it did not involve a breaking in entry, let alone late at night, and it was not committed in the company of others. There are more grave confrontational aggravated burglaries which come before the courts. However, the absence of these and other possible aggravating factors does not negate the conclusion that your conduct still constitutes serious offending.
28In DPP v Meyers, the Court of Appeal said:[9]
Put simply, Hogarth established that current sentencing practices (‘CSP’) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.[9] DPP v Meyers [2014] VSCA 314 [36].
29Further, for all of the above reasons, I consider the causing injury charge to be at least a mid‑range example of that offence and overall I regard your offending as serious.
Moral culpability and Verdins
30You have a history of depressive mood disturbance dating from an injury to your back about six years ago. You have undergone a range of surgical procedures in response to that back injury but continue to experience chronic pain on a daily basis.
31You have been prescribed the antidepressant duloxetine (Cymbalta) but your recent consultation with Mr Patrick Newton, Clinical and Forensic Psychologist, was your first consultation with a mental health professional. Mr Newton expressed the view that you meet the criteria for a major depressive disorder of moderate severity. Symptoms of your major depressive disorder include alterations to your energy levels, profound emotional depletion and sadness, and recurrent bouts of intrusive suicidal ideation.
32The law recognises that an offender’s moral culpability may be reduced if, at the time of the offending, their impairment:
·reduced their ability to exercise appropriate judgment, make calm and rational choices, think clearly, or appreciate the wrongfulness of their conduct; or
·made them disinhibited; or
·obscured the intent to commit the offence; or
·contributed causally to the commission of the offence.
33This list is not exhaustive. For the impairment to engage the moral culpability limb of Verdins, there must be a realistic connection between the condition and the offending.
34Mr Patrick Newton said the following in his report:
It is well recognised that depression has an adverse effect upon the psychological functioning of those who suffer it. In particular, depressive disorders impact adversely upon the clarity of a sufferer’s thought processes, impairing the speed of their cognitive processing, making it difficult for them to generate options and hampering their ability to sort relevant material from irrelevant or distracting factors. There is typically a tendency to overestimate the magnitude of problems, to attribute greater difficulty to any prospective solutions and to have difficulty expending necessary ‘energy’ to institute needed changes. Problems thinking through the full implications of a course of action and a tendency to reach for salient solutions are also frequently observed. Such difficulties would typically be significantly exacerbated by factors such as chronic pain. Accordingly, it is likely that Mr [Gibbs] was labouring under such effects at the time of his offending conduct. [34]
…. Mr [Gibbs’] moral reasoning is normal. He clearly understood the wrongfulness of his conduct at all relevant times. His intelligence was not formally assessed, but his educational and occupational adjustment suggest that it is likely to fall in the normal range – perhaps toward the lower end. Certainly, there is no indication to suggest that he suffers any form of intellectual impairment. [35 ]
…..
It is almost certain that Mr Gibbs was labouring under the effects of at least some level of depression at the time of his offending conduct. This would have had a range of detrimental effects upon his cognitive clarity and decision making. [48(4)]
35His evidence, including his conclusion, was unchallenged.
36Your counsel submitted that this condition had a realistic connection to your offending in that it ‘clouded’ your judgement at the time you determined to confront Mr Clarke. It was submitted your moral culpability is reduced; this in turn impacts the sentence I impose, and the weight to be given to general and specific deterrence.
37The prosecution submitted that there was no clear nexus between your major depressive disorder and your offending.
38It was submitted that you were aware that what you did was wrong and that you should not have done it. The prosecution noted relevant sections of your record of interview in support this submission, including part of the interview where you said that some part of you was happy about what you did.[10] The prosecution submitted that you were cognizant of your actions and that you are morally culpable for your offending.
[10] Depositions, page 262.
39After some anxious consideration, I have concluded that the first limb of Verdins is engaged here. Your major depressive condition lowers your moral culpability. Read as a whole, I am satisfied that Mr Newton’s unchallenged report provides an evidential foundation in support of the proposition that your major depressive condition is realistically connected to your offending.[11]
[11] See e.g. psychological report of Mr Patrick Newton dated 14 November 2021, [33] and [34].
40There is nothing about your offending itself that obviously exposes an element of clouded judgement, but I am satisfied that your decision in the first place to get in your car and to go to Mr Clarke’s house and assault him, was to some degree influenced by your depressive disorder, albeit indirectly and contextually. Your decision-making was, to some extent, compromised by the symptoms of your major depressive disorder. At the time of making this decision, you were labouring under enormous and substantial emotional stress and under the effects of your depression, and it is not possible to disentangle all these issues when examining your decision making.
41On the other hand, your offending was purposeful, and you had time to reflect upon your decision as you drove 20 kilometres to Mr Clarke’s home. As Mr Newton quite frankly recognizes, your capacity to judge the moral wrongfulness of what you were doing was not diminished.
42The effect of a mental condition on moral culpability is always a matter of degree. I have concluded that its impact upon your moral culpability is limited, towards the lower end of the scale for this limb of Verdins. While I am of the view that your depressive order should result in a reduction to your level of moral culpability, it will be relatively modest.
43In sentencing you, I have also moderated general deterrence to a modest degree. However, general deterrence remains a prominent sentencing consideration in this matter, as does just punishment and denunciation, which I will return to shortly.
44For reasons which I will come to, absent the application of Verdins, specific deterrence has little role to play in your sentence. That said, I will also moderate specific deterrence further by reason of your major depressive disorder, and overall I will take this issue into account when considering my disposition.
Plea of guilty and remorse
45There is a significant body of evidence that demonstrates your remorse. I do not hesitate to conclude that you have displayed genuine remorse.
46You attended by appointment at the police station the day after your offending, on 14 May 2021. You participated in a record of interview with police and effectively provided a complete confession.
47Your counsel submitted that the admissions you made with respect to your intention prior to entry of Mr Clarke’s premises furnished evidence against you that would otherwise have been unavailable, particularly because this was a ‘knock and wait’ scenario as opposed to a burglary involving forced entry. It was submitted that it may have been ‘next to impossible’ for the prosecution to prove the charge of aggravated burglary in the absence of your admissions.
48While I am not prepared to go as far as your counsel’s submission, I will make some allowance in my sentence for the fact that you voluntarily made admissions which assisted in strengthening the case against you.[12] This is not a case where you have furnished evidence that enables a charge to be proved that otherwise could not have been proved. Whatever might be said of the frailties attaching to Mr Clarke’s account, on the face of Mr Clarke’s statement, you assaulted him immediately upon entry. You parked the car some distance away to ensure Mr Clarke opened the door to you. There is thus evidence, in particular from Mr Clarke himself – other than your admissions – from which your intention to assault upon entry can be inferred. I do accept, however, that your admissions certainly fill in some considerable detail and remove any doubt about your intention at the time of entry and I take that into account. In addition, your cooperation and frank admissions, in any event, entitled you to benefit.
[12] R v Doran [2005] VSCA 271 [14].
49Your candid record of interview is evidence of your remorse. You said that you knew what you did was wrong and that you should not have done it. You also said that you felt bad about it afterwards. You did say that ‘some part of [you] was happy about it’, and, to some extent, this qualifies your remorse. My sense is, however, that you said this more by way of explaining your actions - namely, that you felt you could not sit back as a parent and do nothing.
50Your wife described you as being an ‘emotional wreck’ following the incident.
51The report of Mr Patrick Newton, also provides evidence of your remorse. Mr Newton said that you demonstrated your candour by freely sharing matters which might be thought to portray you in a negative light and willingly discussing your mistakes and regrets.
52You pleaded guilty at the earliest opportunity and you are entitled to a discount in sentence as a result of the utilitarian benefit of that plea.
53Your plea of guilty is particularly significant in the current pandemic environment. A plea of guilty during the COVID-19 pandemic is worth greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.[13] You will receive a substantial benefit in sentence in this regard.
[13] Worboyes v The Queen [2021] VSCA 169 [39].
54I also accept your counsel’s submission that your plea of guilty is accompanied by insight into your offending and an understanding of the factors that precipitated your loss of control.
Good character, prospects of rehabilitation, protection of the community and specific deterrence
55You do not have any prior convictions, nor do you have any subsequent or pending criminal matters. I take these matters and your prior good character into account in sentencing you.
56You have an impressive work history, primarily in the agricultural sector. You completed an apprenticeship in beef and sheep production and a Certificate III in Agriculture. You worked on properties in Tasmania and Gippsland until recently when you exacerbated a back injury and you were unable to fulfil your duties. You have now recently been employed as a delivery driver and salesman with an agricultural supplies company. This new job is compatible with your back injury and seems to have long-term potential.
57You have a supportive family. Your wife and your mother-in-law attended court in support of you. You met your wife in 2006, married in 2011 and live together with your three daughters. You have every reason to get back on your feet.
58The character references and other plea material paint a picture of a hardworking, responsible, and productive member of society, and a loving father and husband. This evidence also leads me to conclude that your offending was completely out of character. As I have said, it was entirely aberrant behaviour, which took place under a time of enormous stress, in response to a situation which is unlikely to be repeated.
59Your prospects of rehabilitation are excellent. I accept that you are highly unlikely to reoffend. The Court ordered report found you to be a ‘low risk’ of reoffending.[14] Mr Newton concluded that your risk of further violence is ‘considerably lower’ than is usual for a typical violent offender facing sentence. That is my assessment also.
[14] Community Correction Order Assessment Outcome Report, 26 November 2021.
60There is therefore not a great deal of work for specific deterrence to do in my sentence. Similarly, community protection from you is not a sentencing purpose that is really engaged to any great extent in your case.
Family hardship
61In addition to describing the hardship that imprisonment would impose on you, your counsel also submitted that your imprisonment would impose hardship upon your family.
62Hardship to third parties as a consequence of imprisonment is generally not a mitigating factor. However, a court has a discretion to mitigate sentence where such hardship can be properly considered exceptional. It has been said that such cases will be rare,[15] where, for example, it would be inhuman to not show mercy.[16]
[15] Markovic v R (2010) 30 VR 589 [77].
[16] R v Wirth (1976) 14 SASR 291, 296.
63Your counsel submitted that a constellation of factors in your case, when considered in combination, rise to the level of exceptional family hardship.
64Your wife has been unable to work since August of this year due to health reasons. An affidavit from her was tendered on the plea. She works as a Personal Care Attendant. She is recovering from a surgical procedure, including an abdominal hysterectomy, undertaken in October and was unable to work or drive at the time of the plea hearing on 23 November. During the period where your wife has been unable to work, your family’s income has been supplemented by Centrelink.
65Your counsel submitted that your daughter – who was the alleged victim of a sexual assault allegedly perpetrated by Mr Clarke – would be more severely affected by your incarceration than a typical child. It was said that your daughter has become dependent on you and your wife and is less comfortable in other environments following the alleged sexual assault.
66Your counsel said that your family has very little by way of savings and that it relies on your income to pay rent and survive. Your family is concerned about the ability of your wife to cope in the absence of your financial and general support with three young daughters given her own health problems to deal with.
67Family hardship does not need to be ‘beyond reasonable expectation or contemplation’ to be considered exceptional,[17] and exceptional hardship may be established by a combination of lesser hardships to multiple family members.[18]
[17] R v Ienco [2008] VSCA 17.
[18] R v Spicer [2003] NSWCCA 108, [74]-[75].
68Nevertheless, I am not satisfied that the circumstances of this case reach the extremely high bar required by the law, whether the circumstances are viewed alone or in combination.
69The law recognises that distress, reduced financial circumstances and deprivation of emotional support are the terrible, but unexceptional, consequences of imprisonment for a family of an offender.[19] Hardship will inevitably be caused to others, and particularly those who are dependent on the offender in some way.[20]
[19] Arie Freiberg, Fox & Freiberg’s Sentencing, State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 420 [6.150].
[20] R v Edwards (1996) 90 A Crim R 510, 515.
70In your case, your children will not be deprived of all emotional or family support. They will continue to have strong ongoing parental care, including from your wife and other family support, such as from your mother-in-law. The family unit itself is not imperilled.
71I accept the impact your absence will have in particular upon your daughter who was the subject of the sexual offence proceedings; but she will continue to have the loving support and care of her mother.
72While your wife will have health and mobility challenges, the evidence does not demonstrate that they are highly disabling or insurmountable. The evidence suggests that your wife’s health issues are temporary as she recovers from surgery. The medical practitioner’s report dated 6 December 2021, provided subsequent to the plea hearing, indicates that your wife cannot lift heavy weights for at least three more weeks and that she is likely to be able to return to light duties at work from early next year, specifically 20 January 2022 at the earliest. As I have said, the evidence does not establish that she will be unable to effectively carry out her parental duties and responsibilities.
73As this discretion involves an exercise of the mercy discretion, the ‘exceptional circumstances’ test always applies to that discretion; there is no residual discretion that may be exercised without reference to that test.[21]
[21] Markovic v R (2010) 30 VR 589 [15].
74Although the circumstances do not rise to the exceptional level, the hardship that your family is likely to encounter is intertwined with Verdins principle five, which I am about to come to. That is, knowing the difficult position that your family is in, and not being able to provide support to them, will clearly make imprisonment more burdensome for you. The comments you made to Mr Newton during your consultation support this.[22]
[22] Psychological report of Patrick Newton dated 14 November 2021 [31].
75I take the hardship that your family is likely to experience into account in this way.
Verdins principles 5 and 6
76The prosecution conceded that Verdins propositions 5 and 6 are engaged.
77I am satisfied that any sentence will weigh more heavily on you than it would on an offender who does not experience a major depressive disorder. I am satisfied that you will suffer an additional burden, including because of the concern and anxiety that you will no doubt experience towards your family’s situation.
78I am also satisfied that there is a serious risk of imprisonment having an adverse effect on your mental health, over and beyond the normal deleterious effects of imprisonment. In making this finding, I have taken into account the history of your mental condition and the unchallenged opinions expressed by Mr Newton.[23]
[23] See e.g. Psychological report of Mr Patrick Newton dated 14 November 2021, [32].
79Quite apart from the effect that your major depressive disorder will have on your experience of custody, I also recognise that the challenges brought by the COVID-19 pandemic will make prison more burdensome for you, particularly because this will be your first experience of custody.[24]
[24] DPP v Keller (a pseudonym) [2021] VSCA 334 [94].
Denunciation, just punishment and general deterrence
80As conceded by your counsel, the objective seriousness of the offending coupled with the element of taking the law into your own hands means that just punishment, denunciation and general deterrence are important sentencing principles in this case, notwithstanding the adjustments which I will make as a result of the Verdins considerations.
81As I have emphasised throughout these reasons, there is no escaping that your offending was serious. The sentence I impose must reflect the denunciation of such behaviour and must deter others from resorting to confrontation and violence.
Submissions as to sentencing disposition
82Your counsel submitted that the imposition of a Community Correction Order (‘CCO’) could meet the sentencing purposes in this case. That disposition was said to be both ‘proportionate and suitable’.
83An alternative submission was put that, if imprisonment was required, the appropriate disposition would be a combination sentence with a ‘short and sharp’ imprisonment component.
84Reliance was placed upon the Victorian Court of Appeal decision in Boulton, where it was said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.[25]
[25] Boulton v The Queen [2014] VSCA 342 [131]. The Court in that decision gave examples of offences including aggravated burglary and intentional causing serious injury.
85The prosecution submitted that a term of imprisonment with a non-parole period is required to reflect the seriousness of your offending. It was said that a combination sentence was not within the range.
86At the plea hearing I ordered that you be assessed for a CCO, with the qualification that I had not then decided upon the sentence. You were found to be suitable for the imposition of a CCO.
87This is an unusual case. Your offending is, for the reasons I have stated, properly viewed as serious, which raises considerations such as denunciation and general deterrence. Yet, on the other hand, somewhat exceptionally for someone of your age being sentenced for such offending, you have an unblemished character, with no history of violence, and with exceptional prospects of never re-offending.
88When all factors are weighed in the balance, I have concluded that an immediate term of imprisonment of the length which involves the setting of a non-parole period is required.
89I will, however, moderate each component of the sentence in recognition of the constellation of the mitigating factors present in your case. In particular, I intend to set a relatively low non-parole period in recognition of the aberrant nature of your conduct and your excellent prospects of rehabilitation. You will become eligible to apply for parole at a relatively early point in time in your sentence.
Totality and double punishment
90In sentencing you for these two offences, and in making orders for culmination, I must be careful not to subject you to double punishment. I am conscious that the offence of aggravated burglary is complete upon entry. The sentence on that charge cannot involve any element of punishment for offending which occurs after entry.
91I must also be careful to apply the principle of totality. That is, I must ensure that the total effective sentence that I impose is a just and appropriate measure of the total criminality involved.
Sentence
92Mr Gibbs, please stand.
93On Charge 1 – aggravated burglary – I sentence you to 24 months’ imprisonment. This is the base sentence.
94On Charge 2 – intentionally causing injury – I sentence you to 18 months’ imprisonment.
95I order that 4 months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1.
96The total effective head sentence is therefore 28 months’ imprisonment, and I set a non-parole period of 11 months. You may sit down, Mr Gibbs.
Section 6AAA statement
97Finally, I declare under s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have imposed a total effective head sentence of four years’ four months imprisonment with a non-parole period of two years and four months.
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