Director of Public Prosecutions v Gibson
[2019] VSC 328
•16 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MORWELL
CRIMINAL DIVISION
S CR 2017 0122
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN CHARLES GIBSON |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Morwell |
DATE OF HEARING: | 23 April 2018 (Plea) |
DATE OF SENTENCE: | 16 May 2019 |
CASE MAY BE CITED AS: | DPP v Gibson |
MEDIUM NEUTRAL CITATION: | [2019] VSC 328 |
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CRIMINAL LAW – Sentence – Murder – Guilty plea – Accused shot wife twice in the head and then attempted to kill himself – No prior convictions – Delay in sentence – Accused diagnosed with frontotemporal dementia – Life-expectancy of 8 years – Sentenced to 15 years’ imprisonment with a non-parole period of 10 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Hamill | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr M Woods | Tyler, Tipping & Woods |
HIS HONOUR:
Alan Gibson, on 23 February 2018, you pleaded guilty before me to the murder of your wife, Rosemary Gibson. On 14 April 2016, you had been married for 44 years.
A plea was conducted on your behalf before me on 23 April 2018. It follows that the delay in this case has been quite extraordinary. In the large part, it has been the result of your rather complex medical condition and our inability to have the correctional authorities to respond to the needs of the case. Ultimately, however, the responsibility falls on me and I apologise to you and all those who are connected to this case, or have an interest in it, for the delay.
It is important, however, that I also do have material available to me so that I can sentence you properly. The question of delay will be taken into account in the sentence which I impose, particularly as it relates to the imposition of a non-parole period.
In April 2016, you lived in Traralgon. You regarded the relationship with your wife as having broken down. You were then 65 years of age and had retired. You wanted to travel, but Rosemary was committed to looking after her parents who lived in Sale and you had the continued responsibility for your grandson. Your elderly parents were in a home at that stage in Traralgon, but an attempt to place Rosemary's parents in the same facility had failed.
On 12 April 2016, your sister, Penny, came to visit you and perhaps more particularly, your parents. She noticed tension between you and Rosemary, as you did not appear to be communicating with one another. I might interpolate at that point, from material I saw later, that was perhaps not a completely unusual circumstance.
On Wednesday 13 April 2016, Rosemary went to Sale to look after her parents. You told your sister that you resented the amount of time your wife was spending with her parents, but your sister thought that it was not unusual that you would have so complained. You often complained about something.
When your sister, Penny, returned to the home at about 7.30 pm, you and your grandson, Zac, were at the home, but Rosemary was not. You told Penny that you had done a lot of cleaning up and particularly of stuff under the billiard table and the office and that you had burnt a lot of it in the backyard.
When your wife returned at about 8 pm and you told her what you had done, she was very upset and angry about it and after asking you what you had done said, ‘that’s it, I can’t do it anymore, this is the last time.’ She told you she was going to take you to the cleaners and that she was going to take everything. You made no response.
Rosemary spoke to your sister after your sister had gone to bed to read. She told your sister that she had had enough. She had had a hard day with her parents and could not take it anymore. She said that she thought that you hated her because she was fat.
The next morning Penny woke at about 6.30 am and she heard two sounds like ‘bang, bang’ coming from the kitchen/dining area, but she did not think much of it.
At about 7.15 am she joined Zac in the kitchen and saw Rosemary sitting on a lounge chair with blanket pulled up to her chin and decided not to disturb her, before she herself went off to see her mother. Zac remembered that his grandmother had told him that she wanted to be somewhere at 8.30 am and when he tried to wake her, he noticed some blood. He tried to get you but could not raise you so he rang 000. Paramedics arrived and attempted to treat your wife but to no avail.
Zac told the paramedics that he could not raise you and they forced your bedroom door open. They found you on the bed, there was blood near your head, and there was a rifle on the floor. You were taken to hospital.
Your wife had died from two gunshot wounds to the head. You had two gunshot wounds to the base of your chin and there were bullet fragments in your jaw and cheek. You required a good deal of treatment over the succeeding period of time and probably have never fully recovered from the effects of the shooting.
Various items consistent with you having shot your wife, then yourself, were recovered from the house. You left a note on the back cover of the Traralgon & District Historical Society Bulletin which read as follows:
Now I don’t have to put up with this manipulative subbern (sic) old fucking cunt.
He told Rosemary she was not in control, she said she was in control. He needed her in control so she could be his lapdog.
In 40+ years I have never seen Rosemary in her car (she was big and fat) its always our car used so now Rosemary Taxi is finally finished for good.
Rosemary told me she would skin me of everything and I would get nothing. This has been spurred on by “her” who has first hand knowledge from the split up between Varjo and Julie (she got $1.5m) and he was a wreck. This ain’t going to happen.
No sex no life
No life no wife! Great statement
The whole family is fucked. You only have to look on Facebook and see who is putting nastiness there and who is not talking to who, the all want to be top dog.
Who’s invited to a wedding and who is not, what a total stuff up.
No more going to the pokies with sister
I TOLD HER!
You were interviewed by police in the Alfred Hospital on 4 May 2016. You admitted shooting your wife and attempting to kill yourself. You said that you wanted to travel but your wife was looking after her parents and you regarded your wife’s sisters as interfering in your life, in particular, by not doing their job in looking after their parents. You described the events of 14 April 2016 much as I have set them out and you added, in relation to it, that you 'lost it'.
It seems likely that the sounds heard by your sister were you shooting yourself and it is possible, indeed probably, that you had shot your wife some time earlier. But, in truth, nothing much turns on that.
It is accepted by the prosecution that the matters you set out in the record of interview do represent your apparent motivation for what you did. On the plea, I received a number of Victim Impact Statements. These were from:
·Sallie Gibson – your daughter-in law;
·Phillip Gibson – your son;
·Lacey Gibson – your granddaughter;
·Yvonne Ayres – your daughter;
·Brian Gibson – your son;
·Penny Gibson – your sister;
·Lynette Simic – Rosemary’s sister;
·Peter Cox – Rosemary’s brother-in-law;
·Kenneth Siacci – Rosemary’s father;
·Bronwen Siacci – Rosemary’s mother; and
·Jennifer Cox – Rosemary’s sister, who had prepared two Victim Impact Statements on behalf of her parents as their attorney. By the time the matter came on for hearing, in fact, her mother was deceased.
These events, having occurred in the family, are truly tragic and the effect and wideness of it throughout the whole family is devastating and ongoing. Those who have provided Victim Impact Statements have tried to do their best to set out the true difficulties that the family encounter as a result of these matters.
At the end of the day, the sentence that I impose in this case will be a relatively moderate one and I will go on now to explain the reasons why that comes about in the way that it does. Sometimes some people have a tendency to think that the sentence is somehow an equation between the sentence as it is and the value of the life of the person who has been murdered - it does no such thing.
It does not seek to reflect the value of the human life that has been taken. It is a completely separate process which is designed for the law to operate to impose — and I will use the word ‘widely’ — impose punishment for a crime. But it does not have any equation, and should not be equated or thought to equate, in any way with the value of the life of Rosemary Gibson, which is infinitely greater than any sentence I will ever impose.
It should be noted that the question of delay in this case falls into two categories. There were a number of investigations carried out to assess your fitness to plead and the possibility of whether you had the defence of mental impairment open to you, and relating to your mental state generally. There was also the beginning of investigations into whether or not you are suffering from dementia and, if so, what form of dementia.
Those matters were under consideration between effectively September 2016 and January 2018 but arising out of those investigations, you decided - presumably having received appropriate legal advice - to plead guilty. I will turn to how the medical evidence is to be treated shortly.
I will now cover the matters personal to you. You were born in Sale and your family moved to Traralgon when you were about 10 years old. You were educated there and completed Year 11 of the Traralgon Technical College and you went to work for your father in the family caravan business.
You met your wife, Rosemary, at the Traralgon Baptist Youth Group. You were married in about 1971 and you have four children.
As well as the caravan business, your father had started a caravan park where you worked. He sold the caravan park and even though you might have liked to have continued to work there it was not possible and you had to retrain, which you did, becoming a qualified rigger when you were about 27, working for the State Electricity Commission (‘SEC’). Eventually, because of what occurred at the SEC and what happened to your progress within the organisation, you resigned.
You set up a one-man building business which you ran with Rosemary. The work was largely work on relatively smaller jobs such as bathrooms and renovations and you had gained registration as a domestic builder.
It appears that you had suffered from depression and anxiety from your late teens and had been prescribed Valium. As you got older, your work deteriorated and you wanted to retire and travel but you had the care of grandchildren and Rosemary had the care of her parents.
Your deterioration became more noticeable from about the age of 60 and you were unable to manage the business, both in a financial and work sense. You stopped working at the age of 63 and your combined financial situation was rather difficult.
You started, as one of the things you did, to scrutinise your wife’s spending, including the cost of looking after the grandchildren and Rosemary's parents. Your mental health was observed to be deteriorating.
Both you and Rosemary made significant contributions to your local community, you particularly through Apex where you have been President, District Governor and are a life member in an association spreading over 40 years. You belonged to the Lions and Rotary, the local CFA and made a significant contribution to the local historical society.
You were very actively involved in the refurbishment and redevelopment of the Traralgon High School Camp and Rosemary was involved in a number of those activities. You were people committed to your local community. You were both ultimately citizens of the year.
I received on the plea letters from, among others, Graeme Drought and your son, Brian. Those letters have assisted me in setting out your background in the way that I have. I also received two prison fellowship letters indicating that you strive to make the most of your time in prison.
You provided a letter to me. Your letter demonstrates that your insight into your offending is still somewhat limited. Although you express remorse in that letter, you do not appear to be able to give up at least some blame of Rosemary. It is somewhat poignant that you finish that letter by saying,
I know this has effected my family so much and I am terribly sorry, I only wanted to go on holidays.
About the time of these events, you had seen at least one example of the suicide of a friend who could not face the future and you had heard discussions from others about the possibility of a suicide pact. When Rosemary said to you that she would take everything, you seemed to believe that that could happen because of your understanding of what had happened to others. Whether that was accurate or not does not matter, but it was your belief about it.
On the plea I received the following documents; I received two reports from Mr Martin Jackson (Neuropsychologist), two from Dr Danny Sullivan (Forensic Psychiatrist), a number of medical reports dealing with your physical and psychological treatment after your attempted suicide and, for completeness, the letters I have already referred to – that is, a letter from you, a letter from your son, Brian, a letter from Graeme Drought, a letter from Diane Morrison and a letter from Peter Skopilianos, both of whom are from prison fellowship.
I make it clear that I reject any notion that Rosemary Gibson can be regarded as responsible for her own death. I accept that your perception of these things is to the contrary, but I regard that perception as being through the prism of your mental illness.
The consideration of your mental health is to be looked at next. In his report of 7 October 2016, Mr Jackson, said that having looked at the circumstances of your offending and seeing your reactions, or rather, overreactions in interview, he thought that you could be in the early stages of dementia. He thought as between frontotemporal dementia or behavioural variant Alzheimer’s disease. He thought at that stage that the Alzheimer’s was more likely because of your age - that is, that the onset of the earlier matter that he had described would have thought to have happened at an earlier age.
The next report in chronological order was the one prepared by Dr Sullivan, dated 28 February 2017. Dr Sullivan did diagnose you with suffering from recurrent depressive disorder of moderate severity. He did consider dementia, but said that it required further testing, which he said, somewhat prophetically, might prove difficult. On 11 August 2017, Dr Sullivan, in an attempt to carry that through, wrote to St Vincent’s Hospital Mental Health in an attempt to follow up the testing, but it was to no avail.
Dr Sullivan had said in his report:
Nevertheless, I do consider that Mr Gibson’s mental functioning was markedly impaired by depression at the time of the alleged offence, and this was causally associated with his behaviour. His capacity to think clearly and make calm and rational choices was severely disturbed. I consider that his judgment was grossly and detrimentally affected by depression, as evident in his rambling suicide note, his tangential discussion of factors he perceived as associated with his actions, and his own suicide attempt.[1]
[1]Report of Dr Danny Sullivan dated 28 February 2017, [59].
You were further examined by Mr Jackson, who provided a second report, dated 21 November 2017. That is, there was a period of more than a year between his two reports. He considered that there had been mild but significant deterioration in some aspects of your processing speed, all aspects of your working memory, some aspects of your complex new learning skills, some executive and language skills, as well as impulse control.
Mr Jackson concluded:
I am of the opinion that the deterioration in cognition seen on the current assessment provide support for my previous concern that Mr Gibson does in fact have a neurodegenerative disorder (dementia). Given his age and presentation of his cognitive difficulties, this would most be consistent with fronto-temporal dementia - behavioural variant (bv-FTD).[2]
[2]Report of Mr Martin Jackson dated 21 November 2017, 12.
So he had come to a slightly different conclusion, having noticed the possibility of your deterioration over a period of 12 months.
The next report received was that of Adjunct Associate Professor Stephen Macfarlane, who is a Consultant Psychiatrist, Old Age. In his report of 11 December 2017, he did not regard any diagnosis of depression as being inconsistent with frontotemporal dementia. He did, however, raise the difficulty that your frontal lobe might have been damaged as a result of you shooting yourself, in part, because a number of the imaging matters that would have been done, could not be done in your case because of the presence of shrapnel in your jaw.
It is clear that for the purposes of sentencing, your mental health was a major consideration but that was not the end of the matter.
Mr Jackson and Dr Sullivan both gave evidence before me on the plea. Expressed briefly, it was important for me to know whether you suffered from frontotemporal dementia because your life expectancy was quite different depending upon the diagnosis. Even between the two kinds of dementia being discussed, the difference was between the life expectancy of eight years for frontotemporal dementia, and 15 years for Alzheimer’s related dementia. If it was a matter of damage to your frontal lobe as a result of the shooting, it would have required a quite different assessment altogether. I thought it was necessary that that issue be resolved. I thought it might have been able to be done relatively quickly. In any event, it has taken more than a year to do that, but it has been done.
Some of the members of the family will understand because they were involved, in part, in the process of the attempts that were made when the Department of Corrections was talking about who would fund what and what things were able to be done. I do not want to be too critical about the Department of Corrections because I do not want to say anything that might affect Mr Gibson’s position in the system. They cannot take it out on me and I do not want them to take it out on him, so I will say, therefore, as little as I can but it eventually emerged that there was a CT scan which, for practical purposes, would meet the needs of diagnosis in the case.
On 1 November 2018, Professor Stephen Macfarlane, by email (because of the urgency of the matter things were being done in slightly less formal way than they might usually have been done), said this:
I would be happy on clinical grounds to offer the opinion that all this likely represents a frontotemporal dementia.
In subsequent discussion with Dr Mark Ryan (Consultant Forensic Psychiatrist, Forensicare), Professor Macfarlane described it as a high level of clinical certainty. I should interpolate that Professor Macfarlane found no scarring, no signs of scarring and did, however, observe disproportionate signs of atrophy of your frontal lobes.
The material was then provided to the prosecution, who sought, appropriately, a further opinion from Dr Ryan, who on behalf of Forensicare, prepared a report. At the time of his first report, that is 4 January 2019, he was unable to reach any concluded view on the question. He thought that he should, at the least, discuss you with those who had charge of your treatment in prison and arrangements were made to do that.
But then in his report dated 8 May 2019, he said:
In terms of diagnosis, and in the absence of higher level investigations or repeat neurological testing, I would return to the expertise and opinion of Professor Stephen Mcfarlane, who stated that, ‘based on the absence of gliosis from Mr Gibson’s recent CT scan, there are “clinical grounds to offer the opinion that all this likely represents a frontotemporal dementia”’, as well as his additional view of a ‘high level clinical certainty’ about the diagnosis of frontotemporal dementia.[3]
[3]Report of Mr Mark Ryan dated 8 May 2019, [8] (emphasis in original).
As a result of receiving that report, I had the parties notified that I would proceed to sentence you on the basis that you have been diagnosed as suffering from frontotemporal dementia unless submissions were received to the contrary. I have received no such submissions.
The law operates in a way so that whether it be as a result of depression in the way described by Dr Sullivan or by frontotemporal dementia, or a combination of both, the general principles of sentencing regarding just punishment, denunciation and both general and specific deterrence are to be modified.
Your moral culpability is treated as reduced as are the need for denunciation, general and specific deterrence.
I am also satisfied that your mental condition is such that your sentence will be more onerous for you than it would be for a prisoner without your condition.
Whether or not your condition will deteriorate by virtue of your imprisonment, as against the natural progress of it does not, in a sense, particularly matter because of the other way in which I will have taken that into account.
You have no prior convictions. You have led a worthwhile and largely blameless life. Your plea of guilty is important.
I am not able to make any specific findings about your prospects of rehabilitation because of your dementia but I certainly make no findings adverse to you on that account. I am satisfied that you do have a significantly reduced life expectancy and I have taken that into account. The delay in the final resolution of the case is also taken into account.
You will be sentenced to be imprisoned for 15 years and I will fix a period of 10 years before you will be eligible for parole.
I declare that you have served 1,127 days by way of pre-sentence detention.
I indicate that had it not been for your plea of guilty but given the existence of all the other matters that exist in this case in your favour, I would have sentenced you to be imprisoned for 19 years with a non-parole period of 15 years.
I direct that the declaration in relation to pre-sentence detention and my indication of the sentence I would have imposed pursuant to s 6AAA of the Sentencing Act 1991 be entered in the records of the Court.
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