Director of Public Prosecutions v Gibson
[2013] VCC 1391
•24 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01590
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CATHERINE ANNE GIBSON |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 September 2013 | |
DATE OF SENTENCE: | 24 September 2013 | |
CASE MAY BE CITED AS: | DPP v Gibson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1391 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Moore | |
| For the Accused | Mr P. Guggenheimer |
HER HONOUR:
1 Catherine Anne Gibson, you have pleaded guilty before me to one charge of incitement to commit aggravated burglary and one charge of incitement to commit common assault.
2 The facts underlying your offending are as follows.
3 You had been in a relationship with the victim in this matter, Colin Dennis, for about 2½ months, Dennis apparently ending the relationship about ten days before this offending.
4 On the evening of 12 March 2010, Dennis was with two people, Katrina Potter and her 16‑year‑old son Ricky Potter at the Kangaroo Flat Hotel. The Potters had been housed by you on their arrival in Bendigo at a friend's request. The three of them went back to Dennis's house in Lockwood Road, Kangaroo Flat, all going to bed in separate rooms.
5 In the early hours of the morning of 13 March, you went to Dennis's house and let yourself in through an unlocked door, discovering that Katrina Potter was there, and you then went to Dennis's bedroom doorway saying to him, "What are you doing with that bitch?" and he replying, "Nothing. There's nothing going on."
6 Katrina Potter then came out of her bedroom and you ran at her and grabbed her. Her son Ricky tried to intervene and you screamed at him, "What are you doing around here?" Dennis restrained you and moved you to the back door while you were screaming at Dennis, accusing him of being with Katrina Potter. You yelled, "You'll pay", and left the house after being ushered out by Dennis.
7 You returned to your home in High Street, Golden Square, and then your son, Len Clarke, and his friend, Gavin Reeves, came in at about 3 am. They had not been expected by you, had been out drinking and were drunk. They had been in Melbourne. They saw bruises on your arm which were caused when you were essentially restrained by Dennis earlier that evening and it was conceded by your counsel they were largely caused by the struggle you put up once he tried to get you out of the house. Basically you told Clarke and Reeves Dennis had assaulted you.
8 It would appear on the material that your son and his friend, who were very drunk, decided they were going to go to Dennis's house and "sort things out". In any event, there was some discussion and ultimately you drove your son and his friend to Dennis's house. Once there, one of the two young men called out, "Police here", and then smashed through the back door breaking the door frame. Your son went into Dennis's bedroom and punched him in the face while he was lying on the bed and then Dennis got up and grabbed your son who accused him of hurting you, saying, "You've hurt Mum. She's black and blue all over." Mr Dennis denied that, saying he never would have hurt you, and pushed your son out of the bedroom and out the back door.
9 There Mr Dennis saw Mr Reeves, at which time he was still trying to explain he had not hurt you. At that point in time, your son again punched him to the face. Reeves came over the top of your son and also punched Dennis to the face, causing his head to hit the tin window shelter nearby. Dennis said he then saw you and you said to him, "Don't fuck with me".
10 At this stage Mr Dennis's head was bleeding and he staggered off to a friend's house nearby, the friend then contacting police.
11 Clarke and Reeves then went back into the house and went to the bedroom where Katrina Potter was lying in bed. Clarke lent down and grabbed her face and yelled at her accusing her of hitting you. She said she didn't touch you and Clarke grabbed her by the shoulders and shook her backwards and forwards.
12 Clarke then left the room yelling, "Where's Ricky? Where's Ricky?", discovering Ricky Potter who was lying on the couch in the loungeroom. He was assaulted by Reeves until eventually being restrained by your son.
13 At this point you came into the room and said, "OK, Lenny, that's enough, let's go", and the three of you left the premises via the back door.
14 As a result of the assault, Mr Dennis suffered a 2 cm laceration requiring suturing; as well as a haematoma to the back of the head; a 1.5 cm deep laceration above the left eyebrow also requiring suturing; a centimetre superficial laceration to the left eye, plus bruising under the left eye and to the left side of the face.
15 Mr Potter also suffered injury, although this is not relevant in terms of the charges that you face.
16 You attended the Bendigo Police Station on 15 March 2010 after being contacted by police and were arrested and interviewed. You told police you had caught him, Mr Dennis, with Katrina Potter at his house on Friday night, admitted confronting Mr Dennis and Ms Potter, screaming at them and verbally abusing them before being ejected from the house; agreed you had received some bruising on your arm after being restrained by Mr Dennis from attacking Katrina Potter and that you went home and then Clarke and Reeves arrived. You said that your son went off, that you tried to talk him out of it, but your son was wild and angry and that the two of them ended up driving around there. You lied to police about the fact that you had driven the two young men there, saying in fact you had gone there about five minutes later. You denied telling Dennis, "Don't fuck with me"; you did say you had entered the house and told your son to leave; and denied that your son had caused any injuries to Mr Potter.
17 There was also some issue of items being stolen from the house, but they have no relevance to the charges that you face in this court.
18 You admitted that you didn't tell Clarke or Reeves not to go around or to hurt Dennis and admitted it was your fault that the two young men had gone to the house because you had told them what had happened and that you were very angry when you had spoken to your son at your home.
19 Ultimately, your son pleaded guilty and was sentenced by Judge Punshon on 21 November 2011 to a total effective sentence of 28 months' imprisonment with a minimum term of 14 months for aggravated burglary, recklessly causing serious injury, recklessly causing injury and criminal damage.
20 Gavin John Reeves on the same date pleaded guilty to charges of aggravated burglary, recklessly causing serious injury, recklessly causing injury and criminal damage and received a total effective sentence of 24 months' imprisonment with a 12 months' imprisonment minimum term. Mr Reeves had offered to give evidence if required in this matter. Neither Reeves nor Clarke had any prior convictions; in fact, neither do you.
21 I have received a victim impact statement from Colin Dennis which, unsurprisingly, describes an emotional reaction to this home invasion; of no longer feeling safe and secure; feeling vulnerable in his home; suffering feelings of insecurity and anxiety in public; a lack of trust of people; a wariness of strangers; a difficulty sleeping at home so that he often sleeps at friends' houses in order to have a good night sleep; still feels angry and hurt over the crime, although he says his enjoyment of life is improving due to counselling and close friends; he continues to check locks on his doors and windows before going to sleep.
22 He suffered a broken tooth which caused him some pain and some financial loss and, generally speaking, has incurred ongoing suffering, which the court often sees in cases of this kind.
23 I now turn to your personal circumstances.
24 You are 53 years of age and were born in New Zealand. Your father worked in the logging industry and you and your family moved around a great deal when you were young. Your parents separated when you were 19. However, you still have, your counsel informed me, a very good relationship with your father.
25 You have two brothers and a sister, all of whom are gainfully employed, in relationships and with children, and all live in New Zealand. You continue to have good relations with them.
26 You left school at the age of 15 and took up work as a telephonist in a post office. You then began and completed two years of a four year upholstery apprenticeship.
27 Ultimately, however, you came to Australia in 1979 at the age of 18. You spent three months in Sydney working in a canteen there and then came to Melbourne where you worked for three months delivering pamphlets.
28 In 1980 you moved to Brisbane where you sold cookware on a door‑to‑door basis, proved very competent at this and ultimately managed sales for that company in Darwin and Queensland, working overall there for about four years.
29 In 1984, at the age of 23, you moved to Bendigo where a close girlfriend was living and ultimately settled there. You became involved with your girlfriend's brother, Brian Clarke, at which time you had just ended a relationship, discovering as you did so that you were four months’ pregnant. However, Mr Clarke proved supportive and assisted you through the pregnancy. Your daughter was born in Bendigo in 1984. You married Mr Clarke in 1985 and he worked as a taxi driver. You and Mr Clarke then had a second child, your son Len, who was born in 1986 and who was a co‑offender in the matters before this court.
30 The relationship broke down in 1990. You returned to New Zealand, taking with you your two children then aged 6 and 4 to live with your family. You completed your upholstery apprenticeship and set up a business. You then met your second husband, Ross McDonald, a train driver, whom you married in 1994 and, in 1993 and 1994, gave birth to a further son and daughter. A daughter, born in 1992, died at birth.
31 The relationship with Mr McDonald broke down after some years, primarily over issues concerning his treatment of your daughter and son from your first marriage.
32 In the year 2000 you returned to Australia with your two older children, leaving the two younger children with their father.
33 You opened an upholstery business in Queensland where you lived for about five years; then in 2005 returned to New Zealand where you again opened up an upholstery business in the area where your family lived and also worked as a chef and cook in a hotel.
34 In 2008 your two older children decided to return to Bendigo where their father lived and you decided to go with them, your two younger children being somewhat older at that stage. On your return, you obtained work at a hotel in Bendigo for nine months and then your children moved out of home.
35 In 2009 you began work at the IGA bottle shop at the Kangaroo Flat Hotel, living in a three‑bedroom home. A friend asked you to help out Ms Potter and her son who had arrived in Bendigo with nowhere to live and you also then began a relationship with Colin Dennis.
36 The incident then occurred in the circumstances that I have described. Your suspicions were aroused because the relationship with Dennis took a turn where he stopped ringing you, and the Potters, who had been staying with you, were not at the house. You rang Mr Dennis who said he was at a friend's house and you drove around and saw your flatmate's car was at his home. When you went into the house, you thought you saw Ms Potter come out of Mr Dennis's bedroom. You pulled back the doona from Mr Dennis as he lay on the bed, saw that his underpants were down, according to your counsel, and became very upset and at that time felt angry and betrayed.
37 Events then unfolded in the manner described in the prosecution opening which I have repeated in my sentencing remarks. Importantly, however, at para.11 of the prosecution opening it was conceded that the incitement by you to commit the offence of aggravated burglary did not contemplate the violent mode of entry by your son and Mr Reeves nor the precise extent of the assaults that followed. I note that, in particular, you were not charged in relation to the 16‑year‑old boy, Ricky Potter, which, in my view, means that the case you face is significantly different to that faced by your son and Mr Reeves.
38 The consequences of this offending for you were quite severe. You had paid a $20,000 deposit for the purchase of a hotel business, but on being charged with these offences the Victorian Commission for Gambling and Liquor was informed and your liquor license was cancelled. You were, therefore, unable to proceed with the purchase of this business, which was a big opportunity for you and one which you had not previously undertaken. Your relationship with your son became very strained and, according to your counsel, has not recovered. Your financial situation has not been particularly good. You have only been able to undertake work as a hotel chef on a 2‑ to 3‑day basis.
39 Ultimately you obtained work in Inglewood and took up residence there in a rented flat. You have been making between $230 and $250 per week, which is not a great amount of money by any means, but an opportunity has arisen whereby you have been offered the manager role in a café in Inglewood owned by your landlord. This you have yet to take up, pending the outcome of this case.
40 The role of inciter is a serious one as reflected in the fact that you face the same maximum term for aggravated burglary as did your son and Mr Reeves. A further point of distinction, however, is that you have been charged with incitement to commit common law assault which carries a maximum term of five years only in comparison with the charge of recklessly causing serious injury faced by your son and Mr Reeves.
41 As I have already said, you face no charges in relation to Ricky Potter.
42 This, together with the concession by the prosecution as to what you expected to occur, have led me to the view that I can deal with you by way of a sentence of imprisonment to be wholly suspended that does not offend principles of parity. In addition, there has been a delay of 3½ years in this matter. The plea of guilty to these charges was entered at a late stage, but intense negotiations have taken place and you originally did face an indictment containing the same offences as those faced by your son and Mr Reeves. In that time you have not committed any further offending. Given your age and previous good history, I am satisfied that you have excellent rehabilitative prospects, and that protection of the community and issues of specific deterrence do not have application in this case. Further, a statement was later obtained by police from a friend, a Mr Raymond Carbin, on the night of the incident. The statement is dated 30 January 2012. In that statement Mr Carbin speaks of being contacted by your son on the night of this offending, asking him to drive you around to Colin Dennis's house. Mr Carbin refused. He says in his statement you then rang him, asking "if I could talk her son and his mate out of going around to Dennis's". That is fairly important evidence, in my view, in so far as your role is concerned on this night. Certainly you have pleaded guilty to incitement, but the object of that incitement in terms of what you thought would occur, it would appear, is much less than what in fact did occur. What is most important in relation to that particular evidence is that it does not seem that you were intent upon wreaking revenge upon Mr Dennis by urging your drunk son and his drunk mate to go around and beat the living daylights out of him. It would appear that your son at this stage was trying to get Mr Carbin to drive him around, saying he just wanted to talk to him. "Lenny said, 'I'm not going to hurt him at all, I am just going to speak with him'." It would seem that that may have been partly in your mind when you ultimately, and fatally, agreed to drive your son around to Mr Dennis's house. It was an extremely unfortunate and foolish and dangerous decision that you made. Ordinarily I would not hesitate to gaol you in relation to what you did and what ultimately occurred. However, it does seem that the expectation of what would occur in your mind was far less than what ultimately did occur, again an important concession by the Crown. It also seems that you were not hellbent on your son visiting Mr Dennis.
43 I received a large number of references from friends and your father who all speak of your good character, your hard‑working character, your kindness, the sort of support you are willing to offer people. That seems to be a constant theme in all of the seven or eight references that I received. I am satisfied that ordinarily you are a person of good character and that singular circumstances prevailed on that night resulting in you being charged for the first time in your more than fifty years with a criminal offence.
44 The singular circumstances of the evening, your good character, my satisfaction that you are remorseful for your actions, the consequences that you have suffered since, and the fact that I am satisfied that you are a person of otherwise extremely good character with excellent rehabilitative prospects who is most unlikely to ever come before a court again, together with the delay in this matter, have persuaded me, after consideration, that I can deal with you appropriately by imposing a sentence of imprisonment which will reflect the gravity of your actions and satisfy the aspects of general deterrence that have a part in the sentencing exercise before me, but wholly suspend that sentence for the mitigating factors that I have outlined.
45 Could you stand up, please.
46 On the charge of incitement to commit aggravated burglary, I sentence you to 18 months' imprisonment; on the charge of incitement to commit an assault, I sentence you to 9 months' imprisonment and I order that 6 months of that sentence be cumulated on the sentence I have imposed on charge 1 on the indictment, giving a total effective sentence of 24 months. I order that that sentence be suspended for a period of three years.
47 What that means, Ms Gibson, is that if you commit any offence at all punishable by imprisonment ‑ that doesn't mean you have to actually be gaoled for committing an offence; that just means that if you commit an offence for which you could theoretically be gaoled; for example, if you stole a box of matches from Woolworths, theoretically you could be gaoled for that and that would constitute an offence for the suspended sentence ‑ in the next three years, you will be brought back before me and parliament says unless there are exceptional circumstances underlying the breaching offence, I must make you serve all or part of that two years; are you quite clear?
48 OFFENDER: Yes.
49 HER HONOUR: So any offending in the next three years and you are looking at going to gaol for two years.
50 OFFENDER: There won't be any.
51 HER HONOUR: Are you quite clear on that?
52 OFFENDER: Yes.
53 HER HONOUR: Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a total effective term of 24 months and ordered you to serve a minimum term of 12 months.
54 COUNSEL: As Your Honour pleases.
HER HONOUR: Thank you. Nothing else that I need to do?
MR MOORE: Not in relation to this case, Your Honour.
HER HONOUR: Very well. I will just return the references to you, thank you. You are excused.
MR GUGGENHEIMER: Thank you, Your Honour.
HER HONOUR: Thank you for your assistance, Mr Guggenheimer. You can come out of the dock, thank you, Ms Gibson.
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