Director of Public Prosecutions v Gibbs, Andrew Daryl
[2012] VCC 1760
•5 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-12-00852
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ANDREW DARYL GIBBS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 5 November 2012 | |
DATE OF SENTENCE: | 5 November 2012 | |
CASE MAY BE CITED AS: | DPP v Gibbs, Andrew Daryl | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1760 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated burglary – make threat to inflict serious injury – young offender – non-custodial disposition.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Sampson | Craig Hyland Solicitor for the Public Prosecutions |
| For the Accused | Ms E. Ramsay | Victorian Legal Aid |
HER HONOUR:
1 Mr Gibbs, you have pleaded guilty before me to one charge of aggravated burglary and one charge of making threat to inflict serious injury.
2 Both those offences are very serious and that is evidenced by the maximum penalty that I could have imposed for aggravated burglary that is 25 years imprisonment and for making threat to inflict injury that is five years imprisonment.
3 I note this is the first time you have appeared in an adult court. Your counsel admitted your criminal record and that relates to two past appearances in the Children's Court. I note that there are no further matters pending. You have not been charged with any fresh offending.
4 I will now proceed to sentence you on the basis of the Crown opening that was read to the court this morning by Ms Sampson and that was marked as an exhibit, Exhibit 1, and I will attach that exhibit to these sentencing remarks. There was no objection taken to the opening at your plea hearing.
5 Briefly, the offending relates to an occasion when you attended a neighbour's property and that is the property of Paul Riddoch at Unit 27, 8 Coxon Parade, North Geelong. He lived there with his partner, Glenys Wood and her son, Michael Wood, who was only aged 13 at the time.
6 You had been drinking at another location in Coxon Parade that day and you were with a neighbour, Jason Clarke, who obviously had had a previous incident involving Mr Riddoch and he had an axe to grind.
7 You stated that you would help Mr Clarke “sort it out” so the pair of you took it upon yourselves to go to Mr Riddoch's unit. Initially you asked for him to allow you entry. You were yelling and banging on the door. Mr Riddoch yelled from his bedroom asking what was going on and said that you want the people next door but you and Mr Clarke both yelled at him that it was him that you wanted and you told him to come outside.
8 He walked to the front door and stood behind the locked flywire screen security door. You were yelling to him to come outside so you could punch his head in and smash him in the face. He told you he was not going to come outside and did not want any trouble. You remained there continuing to be aggressive and shouting.
9 After a few minutes he walked back up the stairs and then you punched the glass next to the front door causing it to break, reached inside, unlocking the front flywire screen security door, and then walked into the house. These facts constitute the charge of aggravated burglary.
10 After entering the house you went upstairs to Michael Wood's bedroom and at that time you saw Michael in his bedroom. You put your hand out and shook hands with him and said words similar to, "Are we all good?" Michael said that you were and you then left the room. You turned to Mr Riddoch saying, "Get out of my way, I'll punch your fucking head in" and that constitutes Charge 2, make threat to inflict serious injury.
11 You were bleeding heavily from your hands at this time and continued to verbally abuse Mr Riddoch as you walked down the stairs. You left the house and returned to your friend's unit.
12 Mr Riddoch said that he was very scared for his welfare and his family's welfare during the incident.
13 The police attended. They noted the broken glass panel. Eventually you were arrested and a taped record of interview was conducted on 25 January 2012. In that interview you were frank with the police and disclosed your offending in full. You told them the context to your offending was that you had been drinking with your former partner and Jason Clarke and he had told you about the people down the road giving him a bit of a hassle and you said you would help him “sort it out” and that is why you became involved in the offending.
14 You said you had been drinking Jim Beam Black from 5 pm with some Passion Pop and you said that you had engaged in the offending as opened by the Crown prosecutor.
15 At the time of this offending you were aged 19 and you are now 20. You are a young offender and as such your rehabilitation is a very important factor in the sentence I am about to impose.
16 Mr Gibbs, I consider your actions on this occasion were stupid, ill-considered and immature. The court just cannot condone this sort of behaviour.
17 I note that your co-accused, Mr Clarke, was dealt with in the Magistrates' Court at Geelong on 27 August 2012 in relation to the threat to inflict serious injury charge, an intentionally destroy property and theft charge relating to an earlier occasion, that is, the last two charges relating to an earlier occasion involving Mr Riddoch.
18 He was convicted and placed on a Community Corrections Order for 12 months and required to undergo 80 hours community work with special conditions in relation to assessment for drug and alcohol problems.
19 He is a man who does have a prior criminal history mainly related to driving related offences. There was also in the past a recklessly threaten serious injury charge and other charges of a more minor nature.
20 Mr Clarke, is a lot older than you; he is aged 32. I consider that your roles are similar, but the difference in the penalty to be imposed can be justified having regard to the fact that you do not have any recorded criminal convictions in the past, and also your age differential is of such a nature as to warrant the imposition of a different disposition to reflect the need to emphasise rehabilitation in your case.
21 I note that you had consumed a considerable amount of alcohol before you became involved in this offending. Your conduct, in my view, shows that you were disinhibited on the night but that in no way excuses your behaviour. No proper functioning community can accept the use of such aggressive behaviour as a means of resolving personal disputes.
22 I consider that you now show insight into your behaviour and it is the case that you are now thinking a little bit more about your behaviour and hopefully in the future, Mr Gibbs, if you are ever placed in a similar situation such as this, that you will be a bit more mature and deal with it a lot better.
23 There were many powerful mitigating circumstances in your case. I have had regard to the early plea of guilty entered at committal mention and the fact that you were fully co-operative with the investigating police officer.
24 The fact that you pleaded guilty is of great benefit to the community. It is an important policy consideration in the administration of justice that defendants, not only receive appropriate credit for pleas of guilty, but that they appear to receive credit for such pleas. I refer to the unreported decision of the Victorian Supreme Court, Court of Appeal, R v Ly [2004] VSCA 45 at paragraph [22].
25 Overall I have had regard to the nature of the offending. I consider it is at the lower end of the scale of seriousness for this very serious crime of aggravated burglary. There were no weapons used, there was no physical violence and when you realised the seriousness of your actions you did leave the premises.
26 Further, I note that you did offer an apology to the victim and I have a letter signed by Paul Riddoch dated 23 September 2012 that confirms that he has accepted your apology and he considers that you did not mean to let things go that far. His expressed his view that he thinks you have learnt from this and he does not believe that you deserve to go to gaol for what you did. I have taken that into consideration.
27 I have already expressed the view that you are a young offender, and as you are a first offender, your rehabilitation is of primary consideration.
28 I have also noted that yours is the sort of case that is not appropriate for you to be incarcerated where you would be exposed to the negative influences that that would bring. I consider you to be a vulnerable young man, and in the context of a gaol setting, that would have a negative impact on you in terms of exposing you to a bad peer group.
29 I consider that it is in the community's best interest that you be rehabilitated. I consider in your case that represents the best hope for the community that is, to continue to have you in the community to enable you to continue the counselling and other efforts that you have made in order to try and reduce the prospect of further offending in the future.
30 I do consider you have good prospects of rehabilitation and that is reflected in the fact that you were fully co-operative and made full admissions to the police and took full responsibility for what you did.
31 You also have been seeing Colin Bray, a counsellor, as part of the Mental Health Treatment Plan for your drug use disorder and he is working on strategies with you for anger management and behaviour changes. That is all important in the context of a person such as you who has in the past had real problems with drugs.
32 Further, I consider that you are making efforts to try and get work. I have a letter from Scott Williams who says that he has known you for about 18 months in a professional capacity. He says that you are a client of his through Job Services Australia and he has got to know you very well. He has had many meetings with you and he said that he has successfully found you paid employment on several occasions. Most of those roles were casual but you always kept your enthusiasm high, you were reliable and remained willing and committed to the employers.
33 More recently you have been talking to Mr Williams about a genuine full time career opportunity with a large civil construction company that is a valued employer of his and he is simply awaiting the outcome of your hearing before finalising placement with this company.
34 He considers you to be a standout in terms of the sorts of clients that he sees. It is not usual for a court to see a reference of this nature so obviously you have made a really positive impact on him and that all is good for the future. He thinks that you have all the potential to become a very decent citizen, a great family member, both partner and father. He considers that it is important that you be allowed to move your life forward without severe restrictions and penalties and he is prepared to help you in any way regardless of the outcome of the court case. He has a firm belief in your high levels of character, decency and morality.
35 I hope, Mr Gibbs, that you live up to his expressed views and also that you, for the sake of yourself and the community, comply with the order that I am about to impose because I do consider that you have very real prospects of rehabilitation that can be enhanced by you undertaking your punishment in the community with supervision. It will be hard. It will at times be very frustrating for you to comply with these orders but the alternative would be that you would be given a gaol term. Do you understand that?
36 PRISONER: Yes.
37 HER HONOUR: It is really a matter for you now. Fortunately for you I have formed a very positive and favourable view about you and your expressed desire to make amends for the wrongful conduct that you undertook on this occasion. As I was saying before, I think there are very many powerful mitigating circumstances in your case that do warrant the court in releasing you on a Community Corrections Order.
38 There is no doubt it would have been a very difficult situation for Mr Riddoch and his family members who were present on that particular occasion and it must be clear to you that no repeat of conduct of that nature will be tolerated. Do you understand that?
39 PRISONER: Yes.
40 HER HONOUR: I have indicated all the positives from your situation and I consider that you have really facilitated justice in the circumstances such as this where we have avoided a trial and witnesses have been spared the opportunity of not having to come to court to give evidence on your trial.
41 In all the circumstances, having balanced all the factors that I must, I consider that this incident was an act of impulsive stupidity on your behalf and I consider that it is offending at the lower end of the range for this sort of offending.
42 On balance, I am satisfied the experience has been one from which you have drawn great lessons and from which you have made significant life changes. I consider you are now in a position to utilise opportunities for the future. You must understand that this behaviour is not at all acceptable.
43 I propose to impose a sentence that is designed to keep you on track and that will contribute to you being a law abiding citizen in the future that is in the best interests for both yourself, your family and also for the community and it offers the best protection for the community.
44 In sentencing you I must have regard to the need to emphasise both general and specific deterrence, that is, deterring others and yourself from engaging in this sort of behaviour. In the future you must not act in this way.
45 Having considered all the objects of s.5 of the Sentencing Act I do consider that those objects can best be served here through a Community Corrections Order that enables your supported release into the community with appropriate programs to assist you for your future and ongoing rehabilitation.
46 In considering the appropriate sentence I have had regard to the report from Mr Lester Walton and I do not propose to set out in detail all the history. It is recorded in the report and that is exhibited.
47 He notes your history of drinking at age 14, cannabis taking from age 16, amphetamine use from your 18th birthday and also the difficulties that you had from the past in terms of your personal situation at home.
48 I note that you have been in the past in a relationship. That had broken down, but I am told today by your counsel, that you are reconciled and that you are now taking responsibility for the upbringing of your three and a half year old son. That you are currently living at your father's home and that things seem to be going well in that regard.
49 He does not consider that you have any diagnosis of mental illness or personality disorder. He does say you are a substance dependent person. He noted your self initiated drug detoxification. He counsels you against using any drugs or alcohol in the future and he recommends alcohol and drug rehabilitation.
50 Importantly, he says, that you have acknowledged that your actions were unacceptable and that you now appear to be genuinely remorseful. He notes, too, some risk of an immediate term of imprisonment and he does not take it any further. He urges a disposition that contains an element encouraging you to continue with rehabilitation for alcohol and drugs.
51 That is why, having regard to his report and all the other factors that I have mentioned, I consider, in all the circumstances, a Community Corrections Order is warranted.
52 I will now formally record my sentencing orders and I will ask you to stand. In respect to the two charges, aggravated burglary and making threat to inflict serious injury, you will be convicted and placed on a Community Corrections Order for 12 months the special conditions of which are that you do 60 hours unpaid community work, undergo assessment and treatment for alcohol and drug addiction, submit to assessments and treatment as directed by the Regional Manger and attend any education, treatment or other programs as directed.
53 It is important that you adhere to all those conditions. It does run from 12 months from today. You will have to report to the Geelong Community Corrections Office and their address is set out in the order.
54 I note that I have had the discussion with you whereby you acknowledge and understand the nature of the Community Corrections Order, the effect of the conditions that you must adhere to and also, importantly, what happens in the event that you were to breach those conditions.
55 Finally, s.6AAA declaration, I am required to declare what you would have been given had you not pleaded guilty. But for your plea of guilty I would have imposed a gaol term of two years with a non-parole period of nine months.
56 In respect to the application pursuant to s.464ZF(2) under the Crimes Act for the taking of a forensic sample I will make that order having regard to the fact of the order not being imposed and the granting of the order is in the public interest.
57 What that means, Mr Gibbs, is there is an order of the court that says that the police are entitled to ask from you for a sample and they will give you a cotton bud to enable you to take a scraping of your saliva from your mouth. As long as you do that you are comply with the order. I do have to tell you, that if you do not comply with the order, the police can use reasonable force to enable the forensic procedure to be taken. That can be done next door at the police station. Again, the orders set out in full what is required and I will ask Ms Ramsay to explain that to you before she leaves today. All right?
58 PRISONER: Yes.
59 HER HONOUR: You can take a seat while I am finishing off signing these orders. I think I have covered everything. Ms Sampson?
60 MS SAMPSON: Yes, Your Honour.
61 (Orders signed.)
62 HER HONOUR: I have just signed the Community Corrections order, Mr Gibbs, and what that says is that the County Court at Geelong on today's date convicted you of aggravated burglary and threat to inflict serious injury. The order will last for one year. It commences at today's date and ends on 4 November 2013.
63 You must attend Geelong Community Corrections Service at Level 5, 30A Little Malop Street, Geelong within two clear working days after the commencement of the order.
64 There are mandatory terms that are applied to all Community Corrections Orders and they are, you must not commit another offence for which you could be imprisoned during the time the order is in force.
65 You must comply with any obligation or requirement under Regulation 17 of the Sentencing Regulations 2011.
66 You must report to and receive visits from the Secretary or his delegate, that is, somebody from Community Corrections.
67 You must report to the Community Corrections Centre within two clear working days of today's date and you must let a Community Corrections Officer know within two clear working days of changing your address or job,.
68 You must not leave Victoria without first getting permission to do so from the Secretary or delegate an you must obey all lawful instructions from and directions of the Secretary or delegate.
69 In addition you have got to do the 60 hours unpaid community work over the year as directed. You must be under the supervision of Community Corrections for one year.
70 In relation to treatment and rehabilitation you must undergo any assessment and treatment for drug and alcohol dependency and also undergo any programs that they recommend that will address your underlying offending behaviours. That is not limited to but can include employment, educational, cultural and personal development programs as directed by the Regional Manager. It may be that they can assist you in helping you to find employment as well.
71 That order has been signed by me. I will ask my Associate to accompany you and Ms Ramsay so that you can read that through and sign that. Once you do that you will be free to go. My Associate will give a copy of your order to you.
72 (Order signed and acknowledged.)
73 The rest is up to you, Mr Gibbs, all right. I think I have signed everything. I can adjourn.
74 (Prisoner removed.)
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