Director of Public Prosecutions v Gibson
[2011] VSC 624
•9 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 71 of 2011
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JYE WILLIAM GIBSON |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 22 August, 21 November 2011 | |
DATE OF SENTENCE: | 9 December 2011 | |
CASE MAY BE CITED AS: | DPP v Gibson | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 624 | |
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CRIMINAL LAW – Sentence – Reckless conduct endangering a person - Intentionally causing serious injury – Guilty plea – Youthful offender – Spontaneous acts – Co-operation with police – Insight and remorse – Significant provocation – Causal link between mental state and offending – R v Mills [1984] 4 VR 253 – R v Verdins [2007] VSCA 102.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D McGlone | The Office of Public Prosecutions (Geelong) |
| For the Crown | Mr Tim Hoare | |
| For the Accused | Mr Avi Furstenberg | Lewenberg & Lewenberg |
HER HONOUR:
Jye William Gibson, you have pleaded guilty to one count of reckless conduct placing another person in danger of serious injury, contrary to s 23 of the Crimes Act 1958, and one count of intentionally causing serious injury in contravention of s 16 of that act. I must now sentence you in relation to those offences.
The maximum penalty for reckless conduct placing another in danger of serious injury is five years’ imprisonment whilst that for intentionally causing serious injury is imprisonment for 20 years.
Background
I am going to refer to the circumstances of your offences in the context of your background.
Your mother gave evidence in the plea and you provided more detail through a tendered 24 October 2011 psychological report from the forensic psychologist, Elizabeth Warren. Although there are some inconsistencies between your history to Ms Warren and your mother’s evidence, nothing turns on those differences.
You were born on 8 June 1990, the second of four children. You are 21 years old. Your 23 year old sister lives in Perth and works full-time whilst also studying at university. Your younger brother is unemployed and has just finished secondary school and the youngest boy in your family is 16 and in year 11 at school. Your mother lives in Kangaroo Flat, she has been a cleaner and security guard and is presently unemployed, having a break from work.
Your parents separated when you were six. Your father moved to Kalgoorlie where he worked as a fitter and turner. You next saw him when your mother sent you to him at the age of 9 (or 11 or 12, according to your mother). Your father kept you for six months (or three, as your mother says) before returning you, unexpectedly, early one morning. He left with promises to come back for you which were not fulfilled.
Your mother thinks that your father’s behaviour affected you badly and that you became withdrawn. You, however, told Ms Warren that, despite your intense disappointment, you do not think that it had any lingering effects. Your father now lives in the USA.
You told Ms Warren that you and your brother had both been diagnosed with ADHD and you recalled taking Dexamphetamine, Ritalin and Prozac, at the ages of eight or nine. You refused to take any more drugs at the age of 11. According to your mother, doctors consulted did not know whether you had the condition.
You smoked cigarettes, drank alcohol and abused drugs from your early teenage years. At 13, you started with cannabis, at 14, dexamphetamine, and assorted other drugs including ecstasy and speed by the age of 15.
You were at Kangaroo Flat High School, spending three days of the school week at a community house receiving assistance with maths and English. You were engaged in a ‘Future Connections’ program in year 10 for six months, but did not attend much before leaving half way through the year.
You also left home at the age of about 16. St Luke’s, a Bendigo family support organisation, provided accommodation. You had some bricklaying, paving and carpentry work, but cannabis use and resulting oversleeping caused you to miss work.
You met Jessie-Lee Davies at about the age of 17 and your mother found you much happier and a little more mature after you started a relationship with her. Nevertheless, I note that you had three appearances in the Children’s Court in April and August 2007 and June 2008 on minor charges relating to dishonesty, criminal damage and assault offences.
Then, on 26 July 2008, you committed a relevant prior offence of intentionally causing injury. Your victim, Kade Norden, was, like Mr Goss, also a rival for Ms Davies’ affections. Mr Norden had been charged with aggravated burglary in relation to an incident during the previous week in which three males had allegedly forcibly entered your premises and assaulted you with metal bars and chains. You attempted to make contact with Ms Davies, who was at Mr Norden’s home. Mr Norden, armed with a metal baseball bat, refused you entry. There was a struggle, during which you stabbed him with a small kitchen knife you had behind your belt buckle. He sustained numerous minor superficial wounds to his legs and body. You also apparently sustained minor injury. You told police that you had ‘lost it’. You pleaded guilty and were made the subject of a six month Intensive Corrections Order.
You told Ms Warren that you stopped using all drugs when Ms Davies became pregnant with your child. You also said to her that you subsequently resumed substance abuse which included alcohol abuse.
At some point, you started work as an apprentice landscape gardener. You had no driver’s licence and your mother drove you to jobs around Bendigo whilst working herself. It all became too much for her and the job ‘fizzled out’.
By 26 December 2010, you and Ms Davies had a 14 month old daughter, Montana, who lived with Ms Davies. Although you were separated, you had access to Montana about three times a week. Without doubt you are a devoted father.
By 26 December 2010, Ms Davies had been involved in a relationship with your victim, Dale Goss, for about seven months. This upset you, particularly when you saw media reports that he had been charged with sexual offences against a 12 year old girl. You became gravely concerned for Montana’s welfare and unsuccessfully sought help from the Child Protection Service of the Department of Human Services. You had been living back with your mother in Kangaroo Flat after separating from Ms Davies, but that ended when you used rental money to take Ms Davies and Montana on an outing. For about two weeks before 26 December 2010, you had been living out of your car, sometimes in bushland and sometimes in car parks.
On 24 December 2010, after being at Ms Davies’ house for dinner, you left notes in her diary to the effect that you were contemplating suicide. You wrote : ‘… Montana makes me happy her eyes are windows of what could have been other times I think I should kill the one who took them from me …’. You drew pictures of a bloodied knife, a person lying in a pool of blood and a figure behind bars in a prison cell. (The Crown relies upon this as evidence of your hostile intent towards Mr Goss.) You returned to collect tools later on Christmas Day and fixed a rope with a noose to a ceiling beam.
This was the background to your offences on Boxing Day 2010.
Circumstances of offences
On 26 December 2010, you were driving your Commodore sedan along Symonds Street, Golden Square when you saw Mr Goss sitting in the gutter outside the corner milk bar. You drove directly at him, intending to hit him. Fortunately, he saw your car and jumped out of the way, narrowly avoiding being run over. The Commodore continued on, through the front wall of the milk bar into the shop which, very fortunately, was closed. The tendered photographs and security camera footage showing the damage demonstrate the force of the impact. These are the facts constituting the offence of conduct endangering Mr Goss.
You got out of the car, leaving the engine running, and sprinted after Mr Goss, with a knife approximately 20 cms long in your hand. He saw you and was scared. He threw a rock, but it missed you. He fell over on the road and you caught up. You jumped on top of him and started stabbing him with the knife to the top of the head, the nose, arm and abdomen. He was able to get the knife away from you and get to his feet, before staggering to a nearby house for assistance.
You ran further up Symonds Street to outside of Ms Davies’ unit. There you sat on a chair and waited for police to arrive.
Mr Goss’ injuries
Mr Goss’ injuries included a five centimetre deep stab wound, to his upper right chest; multiple stab wounds to the left forearm; a scalp laceration which required staples; a laceration near his nose, and a grazed right hip. You both were fortunate that he managed to fend you off.
In his short victim impact statement, Mr Goss complains of a loss of feeling in the fingers on his left hand and in his left arm. He describes himself as emotionally scarred, indicating that he feels depressed and suffers from nightmares. He says that your attack has also had negative affects on his mother and girlfriend.
Your statement to police
In an interview with police later that day, you expressed your strong dislike for Mr Goss. You said that had been driving along Symonds Street after having obtained cigarettes for Ms Davies. You were intending to do a u-turn at the milk bar and return to her address. Whilst doing that u-turn, you noticed Mr Goss seated in the gutter. You put your foot on the accelerator and sped up towards him. You were only intending to do him some harm, not actually to kill him. You admitted getting out of your vehicle, armed with a knife and chasing Mr Goss before catching up with him. You admitted jumping on top of him and stabbing him a number of times. You stated you only wanted to hurt not to kill him.
Ms Warren’s report
Ms Warren found that your IQ score was at the 88th percentile and you had no intellectual deficits to explain your behaviour. She thought that a wide range of further education and many different careers are open, if you have the opportunity or interest to pursue them.
Your drug use contributed to disinhibited and aberrant behaviour when you were in an agitated state, but neither it nor your ‘mild’ depression was your primary problem. You had had a couple of past acute episodes of serious depression which were time limited, but you had a sound sense of self and self-esteem.
You felt guilt about some of the crimes you had committed and not being near your daughter to protect her. You explained your assault on Mr Goss as primarily motivated by your anger and feelings of helplessness to protect your daughter. You had since developed some insight and determined that you could not blame or judge Mr Goss and it was not your place to injure him. You considered that your actions were very silly and could not believe that you had done them. The incident felt like a dream.
Ms Warren characterised yours as a vivid account of a ‘dissociated state’ in which you acted on intense feelings rather than any premeditated plan of action even though you had articulated thoughts that you wanted to hurt Mr Goss. You felt some jealousy of Mr Goss, but that was not a significant motivation. You were increasingly worried about Montana’s safety.
You were seeing a psychologist about every six weeks in remand, but it was not helpful.
Ms Warren concluded that, when seen, you were suffering from a ‘DSM-IV- TR (Diagnostic and Statistical Manual of Mental Disorders, 2000) diagnosis of Generalised Anxiety Disorder with essential features of excessive anxiety and worry (apprehensive expectation), occurring more days than not for a period of at least six months, about a number of events or activities’. You were finding it impossible to control your worry and felt constantly close to panic. You were experiencing ‘an exacerbation of a chronic over-arousal, probably present since childhood, given the ADHD diagnosis, where anxiety is often a prominent component’.
Ms Warren summarised your situation in this way:
Clinical interview and observations, documentation and information available at the time, self-reported and other sources of historical information, plus current psychological testing and results, combined to show a youth of very sound intellectual ability notwithstanding difficulty with formal learning during secondary school, followed by early leaving.
He has a long history of some fluctuating mental health as suggested by childhood ADHD, then early substance abuse.
In around the 12 months preceding the offence of 26/12/2010 he was faced with increased challenges to his mental health stability as the relationship with the mother of his child had deteriorated to [the] point of separation. The final challenge was her re-partnering with a man who Mr Gibson feared might pose a risk to his daughter in regards to sexual assault. When his formal efforts to remove the man via reporting to DHS and so forth failed, he became increasingly agitated. He believes he suffered a drug induced psychotic episode 3 days after he ceased all drug use some weeks before the incident of 26/12/2010 and the psychosis occurred as a withdrawal effect. When he felt he had failed in his efforts to protect his daughter he considered suicide, and when he saw the man sitting in a gutter in a public place he acted on immediate impulse, but preceded by months of agitation and concern. His levels of anxiety, specific concern and agitation created a mental state where he was overwhelmed and attending to negative feelings and thoughts, rather than calm reasoning.
Notwithstanding the concern for his daughter, he does not think he had any right to act as he did. The sight of blood created a sick feeling that was his regret for what he had done. It was a somatic reaction to his moral reasoning that “…2 wrongs don’t make a right”.
It will be important for this young man to learn ways to manage his very high anxiety which is heightened in the present by a continuing reaction to the fact that he stabbed the man, plus his worry over sentencing, and still worry over for [sic] the welfare of his daughter. But his anxiety has become automatic and self generating and he needs to learn somatic and cognitive methods of reduction.
I am satisfied by Ms Warren’s evidence that there was a causal connection between your mental state, as she describes it, and the offences you committed on Boxing Day 2010.
Ms McGrath’s evidence
Ms Eileen Mc Grath has known you for 15 years and feels that she takes a grandmotherly role with you. You always treated her with respect and there was a mutual love between you. You met through a group called ‘Al-Anon’ which is for people affected by alcohol. She speaks highly of your potential and your very good basic principles. She said that you attended ‘Alateen’, a group for children affected by alcohol, for approximately three and a half years.
After you were returned by your father, Ms McGrath saw many changes in you. She thought that your father’s rejection deeply affected your self image. Although she had not seen a lot of you while you were living out of home from the age of 16, she said that you love Montana, you are a very good father and are much happier in that role. She sees good in you and has great hopes and dreams for you.
Submissions
Your youth, the spontaneity of your acts, your immediate surrender to police and cooperation and your frank account of events to them and your early guilty plea are all matters relied upon on your behalf. Your counsel emphasises your youth and the background of your concerns about the risk Mr Goss might pose to Montana and the lack of any planning of the offences. He submits that you have squarely accepted the consequence of your action and shown insight and responsibility and ultimately a degree of remorse.
Counsel points to your developing maturity as a father, against a difficult background. He notes your mother’s support and the motivation for rehabilitation provided by your little daughter. He urges the Court to promote that rehabilitation by giving you the opportunity of a longer than usual period on parole.
Counsel for the Crown describes your offending as serious and notes the need for general deterrence in relation to the settlement of domestic disputes by violence.
The Crown submits that the appropriate total effective head sentence for your two offences should fall within the range of five and six and a half years imprisonment. This range takes account of the fact that you are a youthful offender. Counsel appearing on your behalf does not resist the Crown’s submissions as to the head sentence. Rather, he focuses on the minimum term and argues for a longer than usual period on parole on account of your youth and prospects of rehabilitation.
Conclusions
Your offences were serious and, indeed, fortunately for all concerned, your conduct did not have had much more serious consequences. You drove straight at Mr Goss fast enough to cause significant damage to the shop behind him which, luckily, was empty. You also went on to stab Mr Goss not once but a number of times with a knife before he was able to escape your attack.
I take it into account in mitigation[1] that you were subjected to significant provocation by the presence of Mr Goss, as a suspected paedophile, in the same house as your much loved baby daughter. I also find in your favour that you acted spontaneously, rather than in a pre-planned way, when you drove at him as he sat in the gutter.
[1]SeeDow v R [2010] VSCA 274 [15] (Ashley JA, Weinberg JA agreeing).
You are a youthful offender and that must be a primary consideration when sentencing you. As a consequence, I consider that your rehabilitation is a more important factor than the need for general deterrence or the denunciation of your behaviour.[2] Whilst people generally need to be deterred from such behaviour and it should be denounced, those factors are much less significant in a case such as yours.[3]
[2]R v Mills [1998] 4 VR 235, 241 (Batt JA, Phillips and Charles JHA agreeing).
[3]See: R v Verdins [2007] VSCA 102, [32] (Maxwell P, Buchanan and Vincent JJ).
Further, you were in a depressed and anxious state at the time of your offending and I am satisfied by Ms Warren’s analysis that there was a causal connection between your mental state as she describes it and your offending behaviour. This reduces your moral culpability.
Nevertheless, the effects of your anxious and depressed state were not such as to eliminate consideration of specific deterrence. Your prior conviction suggests that you do need to be deterred from losing control and spontaneously resorting to violence and using a dangerous weapon when dealing with domestic problems and provocation.
I also consider that your mental health is such that you are likely to find imprisonment more of a burden than would a person enjoying normal mental health.[4] Ms Warren reports that your mental health has deteriorated whilst you have been in custody. When she saw you in the Metropolitan Remand Prison, she assessed your anxiety levels as ‘within the “extremely severe” category’. Although she identified ‘worry over sentencing’ as a factor contributing to this heightened state of anxiety, I am not satisfied that your anxiety levels will fall after your sentence. As Ms Warren notes, your anxiety ‘has become automatic and self generating’.
[4]See: R v Verdins [2007] VSCA 102, [28] (Maxwell P, Buchanan and Vincent JJ).
Your remorse is demonstrated by your realistic assessment of your behaviour when talking to Ms Warren, your willingness to make admissions to the police immediately and your early plea of guilty.
I have taken into account the submissions in the plea and the matters I have discussed in arriving at each of your head sentences, your total effective sentence and the non parole period. I will sentence you to one year and six months’ imprisonment for your reckless conduct endangering Mr Goss and four years and six months’ imprisonment for the offence of intentionally causing serious injury to Mr Goss.
I agree with counsel for the Crown that some cumulation should be ordered, because your offending behaviour occurred in separate stages (albeit within a short period). I will order that six months of the sentence for your first offence be served cumulatively upon that imposed for your second. That means that your total effective sentence will be five years’ imprisonment. I will fix a non-parole period of two years and nine months to maximise your chances of rehabilitation under supervision.
I declare for the purpose of s 6AAA of the Sentencing Act 1991 that, had you not pleaded guilty, I would have imposed a sentence of six years’ imprisonment and fixed a non-parole period of four years.
I declare that the period of 349 days during which you have been in custody, including today, be reckoned as a period of imprisonment already served under the sentence imposed under s 18(1) of the Sentencing Act 1991. I order this declaration to be noted in the records of the Court.
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