Director of Public Prosecutions v Gibson
[2021] VCC 100
•10 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00986
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAGE GIBSON |
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JUDGE: | HIS HONOUR JUDGE McINERNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2020 |
DATE OF SENTENCE: | 10 February 2021 |
CASE MAY BE CITED AS: | DPP v Gibson |
MEDIUM NEUTRAL CITATION: | [2020] VCC 100 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – make threat to kill – kidnapping – contravene family violence intervention order – recklessly cause injury – intentionally damage property – Alcoholic stimulant cannabis disorder - Combined order not appropriate - imprisonment – non parole period
Legislation Cited: s. 18, s. 20, s. 197(1) Crimes Act 1958 – s. 123A(2) Family Violence Protection Act 2008
Cases Cited:Mercer v The Queen [2015] VSCA 257 - Byrnes v R [2015] VSCA 341 - DPP v Natoli [2016] VSCA 35 - DPP v Palise [2017] VCC 1379 - Veen No.2 [1988] 164 CLR 465
Sentence:Total effective sentence of 2 years/s and 6 months/s imprisonment with a non-parole period of 20 month/s imprisonment. Further declare pre-sentence detention of 420 days.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Sprague | Office of Public Prosecutions |
For the Accused | Mr D. Carolan | James Dowsley and Associates |
HIS HONOUR:
Mr Gibson comes before the Court aged 29. He was 28 at the time of these offences, having been born on 19 April 1991. He is a carpenter. In this plea, Mr Andrew Sprague appeared on behalf of the Director; Mr David Carolan appeared on behalf of Mr Gibson.
I record that these proceedings have been conducted by way of Webex. I thank everyone involved. Due to the crisis that this community has been enduring there has been no other way to finalise legal proceedings. With the aid of technology and, in particular the Webex system, we have been able to finalise this plea. It has, unfortunately, meant that people have not been present in Court, which is clearly the preferred manner in which a sentence of this importance should take place. However, we all have to cope with that.
Mr Gibson pleaded guilty to the five charges in Indictment No.K13237614.
The plea took place on 11 December 2020, and 10 February 2021.
Exhibit A, was accepted by Mr Carolan, on your behalf, as disclosing the facts upon which I am to sentence you.
The victim as to Charges 1 and 4 had been in a relationship with Mr Gibson for 10 months. Pursuant to a family violence intervention order granted on 4 November against Mr Gibson, the victim was a protected person.
Charge 1 occurred on 16 December 2019 and was a threat to kill made to the victim, being 'I am going to kill you'. Such is a breach of s.20 of the Crimes Act, which carries a maximum penalty of 10 years. It arose after an argument at the victim's aunt's house, in Camberwell. Mr Gibson had been denied re-entry and was seeking to enter when he made the threat.
Charge 5, damage property, involved Mr Gibson breaking two windows of the aunt's house while seeking re-entry on 16 December, and later the next morning on 17 February, breaking a window at the house. Such is a breach of s.197(1), which carries a maximum sentence of 10 years' imprisonment.
Charge 2 occurred on 17 December 2019 after Mr Gibson gained entry at approximately 1:40 am to the house. He located the victim under a bed, dragged her into the hallway and then out on to the road, at all times against the will of the victim. Kidnapping is an offence against the Common Law and to s.320 of the Crimes Act 1958 and carries a maximum penalty of 25 years' imprisonment. Pursuant to s.3(1) of the Sentencing Act such is a Category 2 offence, and hence pursuant to s.5(2H)(a), imprisonment must be imposed.
10It must be said that despite the above and its inherent seriousness given the maximum sentence and the Category 2 status, such was a low degree of criminality, given the very short period involved, relationship, lack of usual motivation, nor was it aggravated by additional events, that is severe violence usually accompanying kidnappings.
11However, pursuant to s.3(1) of the Sentencing Act this charge is a Category 2 offence as I have already said, and pursuant to s.5(2H) a sentence of imprisonment must be imposed, unless under s.5(2H)(e) there are substantial and compelling reasons for not doing so.
12The Prosecution argues that as no such reason has been submitted the s.44 order sought by the defence cannot apply to this charge.
13Charge 4: Recklessly cause injury is a rolled up charge which encompasses two occasions. Firstly, on 16 December 2019 at approximately 9:00 pm when, at the aunt's house, an argument occurred with the victim and she refused to accompany Mr Gibson as he desired, Mr Gibson grabbed her in the bedroom and pulled her into the hallway where he punched her to the throat, whereby she fell to the ground with breathing difficulties.
14The second occasion is after gaining entry early the next morning to the home. Mr Gibson dragged the victim by the legs from under the bed where she was hiding, kidnapping the victim from the house on to the road, then pulling her by the hair while on the road. Mr Gibson then punched her nose and further punched and kicked her while she was on ground outside. When the victim sought assistance from a passing car, Mr Gibson chased her, then squeezed her neck with both hands resulting in her unconsciousness and collapse to the ground. Such offence pursuant to s.18 carries with it a maximum sentence of five years' imprisonment.
15Charge 3: Given the assault and choking of the victim on 16 December 2019, Mr Gibson clearly intentionally breached the family violence intervention order intending physical and mental harm to the victim, an offence which under s.123A(2) of the Family Violence Protection Act 2008 carries a maximum penalty of five years' imprisonment.
16Apparently, the victim was willingly in the company of Mr Gibson that day, in breach of his obligation under the family violence intervention order, prior to the time of the argument and the first assault as detailed in Charge 4.
17The prosecution also tendered on the plea:
a.Exhibit B: Eleven photographs of the victim showing superficial bruises, and scratches. There is no victim impact statement filed and there would appear to be no ongoing physical injuries. Tendered as Exhibit C was the Box Hill Hospital report which confirms [32] to [34] of Exhibit A;
b.Exhibit D: Family Violence Protection Order of 4 November 2019;
c.Exhibit E: Four summaries as to the offences involving Mr Gibson's mother, in fact, now that should be five summaries because we have added in today the additional summary plus the ‘Remand bail application report', as to the offences involving Mr Gibson's mother and a prior partner of which he was convicted at Ringwood Magistrates' Court on the 7 January 2015, and two summaries as to offences of breaches of family violence intervention order involving Mr Gibson's mother of which he was convicted at Ringwood Magistrates' Court on 21 August 2017. I sought clarity of these matters and as indicated, a further summary of Informant King was tendered today as was the summary of Informant Sheppard and the remand bail application report;
d.Exhibit F: Prosecution Submission as to sentence;
e.Exhibit G: The Community Correction Report which was ordered. Such report was dated 20 January 2021; and
f.Exhibit H: Mental Health CCS Screening Report.
18There is no victim impact statement. The injuries are photographed, Exhibit B, being mainly bruises and abrasions, and there was tendered the medical report of Box Hill Hospital, Exhibit C. In the victim's statement in the depositions, she states that when assaulted and strangled 'I thought I was going to die'. Fortunately, it is agreed the victim was left with no ongoing physical injury.
19I come then to an analysis of the prior offences of Mr Gibson.
Priors
20While extensive, Mr Gibson has only served one actual gaol sentence imposed in August 2017 of 15 months' imprisonment for intentionally cause injury, Informant King Exhibit E, and in December 2017 of six months' imprisonment for unlawful assault and breach of family violence intervention orders, albeit he had been given previous suspended sentences for assault charges in 2017 and 2015 and a community correction order for assault in 2013. Each of the family violence matters involve Mr Gibson's mother. Mr Gibson has also assaulted a prior partner in 2015 by punching her, see Informant Wright summary as part of Exhibit E. Up until September 2013, all convictions were dishonesty matters. I was advised that from August 2017 Mr Gibson served 22 weeks and was released in March 2018, hence these offences were committed 21 months later.
21In the case of Veen No.2 [1988] 164 CLR 465 the High Court said as to relevant priors, at p.477 the following:
'That the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.'
22On that page the Court went on to say that such priors are relevant to show:
'Whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.'
Submissions of the Prosecution
23I then come to the submissions of the prosecution. The prosecutor tendered written submissions, Exhibit F, and spoke to them. He submitted that a s.44 order is not possible for Charge 2, and that in all the circumstances, on all charges, the only appropriate order was actual imprisonment with a non-parole period.
24The prosecutor referred the Court to Pasinis v The Queen [2014] VSCA 97, [53] and [57] where the Court of Appeal stated that 'general deterrence is of fundamental importance in cases of domestic violence', and further explained:
'The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.'
25In regard to the importance of both specific and general deterrence in cases of violent offending in a context of domestic violence, it was also said in Pasinis as follows:
'Historically perpetrators of family violence are rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately, criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or a de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.'
26The prosecutor also referred to Marrah v The Queen [2014] VSCA 119 where it was stated that sentences for violent offending in a domestic context at paragraph 25:
'Must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.'
27Clearly, on any view Mr Gibson has been provided with many opportunities by the Courts hoping for his reformation.
Plea on behalf of Mr Gage Gibson
28Coming then to the plea of Mr Carolan, his written submissions, Exhibit 1, were tendered on the plea.
29Also tendered was Exhibit 2, which is eight negative urine screens from 25 April 2020 to November 2020.
30Exhibit 3 was details of four TAFE units undertaken by Mr Gibson whilst in gaol.
31Exhibit 4 was a psychological report of Ms Carla Lechner of 29 August 2020 where she found a high level of risk of violent offending upon a background of extended family neglect, sibling violence and parental drug abuse. Ms Lechner says at p.7:
'Hence unsurprisingly he began abusing cannabis and alcohol from an especially young age, this no doubt adversely affecting his neurocognitive development and contributing to poor social emotional and vocational development.'
32Ms Lechner diagnosed an alcoholic stimulant cannabis disorder, albeit in abeyance whilst in gaol, Exhibit 4. Such is consistent with Mr Gibson's statement that he was in an alcoholic haze at the time of offending. Ms Lechner expressed concern as to his ability to manage same out of prison.
33Mr Gibson expressed empathy for the victim and accepted that the experience would have been terrifying and she probably thought she was going to die. In his letter to the Court, Exhibit 5, again Mr Gibson expresses his regret for his actions and empathy for the victim.
34Ms Lechner considers that Mr Gibson needs considerable help to assist in pursuing the drug reduction undertaken in gaol and intense intervention to overcome issues underlying his impulse control, anger management, interpersonal trust, emotional regulation, aggressive behaviour when substance affected. Again, something recognised by Mr Gibson himself. I should add to that that Exhibit H, the mental health CCS screening noted insofar as that opinion of Ms Lechner on p.10 of the report the following:
'The Forensicare clinician is in agreement with clinical psychologist Ms Carla Lechner's recommendation that Mr Gibson would benefit from psychological treatment to address his grief, loss, and resentment as well as develop emotional regulation strategies.'
35Mr Gibson has ongoing family support, and confirmation of the severe social disorientation he endured as a child. See the letters from Mr Gibson's brother and mother being Exhibit 6.
36I accept that the principles exposed in Bugmy v The Queen [2013] HCA 37, [44] apply here. However doing as best as I can to understand the impact of such deprivation on Mr Gibson's life and taking such into account by way of mitigation, I still have to balance such with the principles I have referred to in Veen and of course the need to protect the community, which is apparent from the opinion of Ms Lechner and Mr Gibson's ambivalence or capacity to change his substance issues in the community. See [3] on p.7 of Ms Lechner's report. In saying that, I have not underestimated Mr Gibson's intentions expressed in his letter, or the progress demonstrated by the negative screens and the courses undertaken in prison.
37Mr Carolan also stressed that the whole remand to date has been served under COVID-19 restrictions involving half-day lockdowns, no visitors, restricted services and of course living with the risk of infection.
38Mr Carolan also raised the issue of the plea, that it was an early plea in the circumstances, was utilitarian both in assisting the attainment of justice, and also referred to the fact that this plea is taking place during particularly difficult time for the Courts when listing pleas is very difficult and Court time is difficult to organise, the impact on delaying trial dates caused by COVID-19 and the circumstances as reported and taking into account, in Bourke [2020] VSC 130 were relied upon. For all of those matters I provide an appropriate discount.
39I also accept that any period in gaol, not only on remand to date but in the short term, one would hope, is going to be impacted by the effects of COVID-19. There are currently lockdowns required which I understand, as I have said, is half a day at all of the Correction institutions. There are restrictions of programs, total restriction of visitors and indeed ongoing risk of COVID being passed within the prison. I should say that risk is obviously very low given the excellent way the Corrections department has attacked this problem and with there being no evidence to date of any prisoner having been infected in prison.
40Mr Carolan sought a s.44 combined order. He submitted that there was a need for therapeutic assistance for his client, which he had not attained in the past. It must be noted that when given a community correction order in 2015 Mr Gibson breached it. Insofar as that submission was concerned, I note that I called for a community corrections report, Exhibit G, and also the Mental Health CCS screening, Exhibit H, which has been provided with such report.
41Mr Carolan referred to the cases provided to the Court by the prosecution being Mercer v The Queen [2015] VSCA 257, Byrnes v R [2015] VSCA 341, DPP v Natoli [2016] VSCA 35 and DPP v Palise [2017] VCC 1379 and submitted that the facts in Charge 2 more closely resemble false imprisonment, with which I agree. Such cases provide a yardstick for the Court, see Nguyen v The Queen [2016] [VSCA] 198, [71] to [72]. In this particular instance, I found analysis of those cases instructive, to the extent that they assisted the Court, despite taking into account all of the mitigating factors put to me, to conclude that this criminal behaviour in totality upon the facts is such that a sentence encompassing a combined order is not possible. Mr Carolan, having made that determination, do you wish to say anything at this stage given that I have now announced that a combined order would be inappropriate given the circumstances?
42MR CAROLAN: Your Honour, all I would say, the only remaining sentencing option, Your Honour, would then be giving a head sentence and a non-parole period. I would refer Your Honour to the findings of Ms Lechner and the other material which suggests that Mr Gibson is a man that needs intervention and supports upon his release from custody. And on that basis, I would urge Your Honour to impose a lower non-parole period such that the Court can be satisfied that Mr Gibson receives a period of supervision by Corrections and appropriate supports as tailored to his particular circumstances.
43HIS HONOUR: Thank you. Yes, having made such determination, I provided to Mr Carolan the opportunity for further submissions which he made, indicating to the Court that given the only alternative sentence available in all the circumstances, especially given the evidence of Ms Lechner and as confirmed by the Mental Health CCS screening, I should, given the recommendations as to the need for treatment for his client of a psychological nature, pass a sentence which provides a longer than usual non-parole period. I take that submission into account.
44In forming that conclusion in regard to the totality of the criminal behaviour, I accept that each sentence must be accorded an individual sentence based on the facts relevant to such offence, which I have of course endeavoured to do. See DPP v Dalgliesh [2017] VSCA 360.
45Insofar as I have referred to the facts which led me to conclude that the criminal behaviour in totality was such that a combined order could not be granted, I want to indicate what those facts are:
a.This criminality took place in the victim's aunt's residence where the victim was that night. She was entitled to feel safe there from attack, assault and being forcibly removed;
b.Such criminality occurred six weeks after a family violence intervention order was made by the Ringwood Magistrates' Court to protect the victim from Mr Gibson, see Exhibit 2;
c.Mr Gibson had a history on three occasions of being convicted for breaches of family violence intervention orders, and associated offences involving his mother and a prior partner. In August 2017 and December 2017, Mr Gibson had been gaoled for same, as well as for assault charges;
d.The criminality was sustained, firstly, following an argument on 16 December Mr Gibson assaulted the victim, subsequently threatening to kill her when she did not let him back into the house, then one and a half hours later on 17 December at approximately 1.40 am, Mr Gibson smashed his way into the house, kidnapped the victim and forced her out onto the road, again assaulting her by punching and kicking her, and then upon her trying to escape, squeezing her neck with both hands till she lost consciousness, thereafter he still chased her as she sought assistance from the police.
e.This criminality was an outrageous interference with the victim's right to freedom of movement and liberty.
46Given such factors the words of Priest JA in Hutchinson are apposite, [2015] VSCA 115 at [17], which are as follows:
'Acknowledging that a CCO might be appropriate "even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment", it should not be thought that Boulton offers a "Get Out of Gaol Free" card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, "to punish the offender to an extent and in a manner which is just in all of the circumstances". There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just. At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.'
47Hence the sentencing here must effect general deterrence, specific deterrence, denunciation, punishment and protection of the community, which must all be balanced with the factors of mitigation identified by Mr Carolan and the legislative factors detailed in s.5, and specifically, given Mr Carolan's submission, s.5(4C). I also accept that Mr Gibson had a positive community correction report tendered as Exhibit G.
48I accept that the principle of totality is important here, and is to be effected by appropriate orders as to concurrency.
Sentence
49Mr Gibson, I would normally ask you to stand. That is not necessary. I will move to your sentencing.
50Having taken account of all of the factors put to me, you will be convicted on all charges.
51On Charge 1 - the threat, I sentence you to six months' imprisonment.
52On Charge 2 - the kidnapping, 12 months' imprisonment.
53On Charge 3 - the contravention of the family violence order, 12 months' imprisonment.
54And on Charge 4 - the rolled up charge of causing injury recklessly, 24 months' imprisonment.
55On Charge 5 - the damage charge, two months' imprisonment.
56The base sentence will be the 24 months passed on Charge 4. I order that one month of the sentence on Charge 1, two months of the sentence on Charge 2 and three months of the sentence on Charge 3 be served cumulatively upon the base sentence and upon each other. Hence, the total effective sentence will be two and a half years.
57Having taken into account the further submission today of Mr Carolan, I order that the period you must serve prior to being eligible for parole is 20 months.
58Pursuant to s.18 insofar as the sentence imposed on you, Mr Gibson, I declare that the 420 days you have served by way of pre-sentence detention be deemed as service of this sentence and the declaration to that effect be recorded in the records of this Court.
59In regard to s.6AAA of the Sentencing Act, Mr Gibson, can I tell you, and it is probably after having heard the sentence I have just passed on you, not something that is significant. But I am required to tell you what the benefit to you of your plea has been. Insofar as the sentence passed upon you, you know I have given you a total effective sentence of two and a half years. Can I indicate as required by Parliament what you would have received had you not pleaded guilty to all charges. Can I also indicate how difficult this is, because your plea of guilty is only one of the multitude of factors that I have had to take into account; however, doing as best I can to comply with Parliament, can I indicate to you that had you not pleaded guilty the sentence that would have been imposed upon you is not one of two and a half years with a minimum of twenty months, but I would have imposed a sentence of 40 months, with a non‑parole period of 30 months.
60I have signed the forfeiture and disposal orders as consented to by Mr Carolan.
61Do either counsel want to make any comments, or seek any clarification?
62COUNSEL: No, Your Honour.
63HIS HONOUR: Thank you. And I thank counsel for their assistance which was most helpful in this case. And I thank everyone for their assistance. Mr Gibson, if you just remain there, what I will do is now adjourn the court and Mr Carolan, you want to take the opportunity to talk to your client?
64MR CAROLAN: Yes please, Your Honour.
65HIS HONOUR: Can I indicate as best I understand the matter, Mr Carolan, that these discussions you will put out - no, we are all put out into the lobby and I am told that there is no reporting of these discussions at all. But I cannot hundred per cent guarantee that but that is what I am told. All right? Which you would imagine would be - - -
66MR CAROLAN: Thank you, Your Honour.
67HIS HONOUR: Which you would imagine given the need for integrity between barrister and client but all I can tell you is I am assured that it is not recorded. Yes. Thank you.
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