Director of Public Prosecutions v Gibson
[2024] VCC 179
•26 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01530
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KATE FELICITY GIBSON |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 February 2024 |
DATE OF SENTENCE: | 26 February 2024 |
CASE MAY BE CITED AS: | DPP v Gibson |
MEDIUM NEUTRAL CITATION: | [2024] VCC 179 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited:
Cases Cited:Verdins [2007] VSCA 102; Worboyes v R [2020] VSCA 169; DPP v Matthews and Burford [2016] VSC 783; DPP v McOrmond [2019] VSC 596
Sentence: 18 months Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions |
For the Accused | Mr D. Dann KC | Lauren Tye Legal |
HIS HONOUR:
1Kate Felicity Gibson, you have pleaded guilty to one charge of theft, one charge of assist offender contrary to s325 Crimes Act 1958 and one charge of possess methylamphetamine and a related summary charge of use firearm in a dangerous manner. The charge of theft carries a maximum penalty of 10 years' imprisonment, assist offender five years' imprisonment, possess methylamphetamine, in circumstances where I am satisfied that it was for personal use, carries a maximum penalty of one year imprisonment and use firearm in a dangerous manner carries a maximum penalty of two years' imprisonment.
Circumstances of Offending
2The Crown tendered the prosecution's opening on plea dated 22 January 2024 as Exhibit A. A brief summary of your offending is as follows.
3As at 21 March 2023, your co-offender, Mitch Dow, arranged the purchase of a firearm and you completed the transaction on his behalf. You were informed by the vendor Stevens that he (Stevens) had a 'chopped .22 rifle' available for sale for $2,000. Your mobile phone was located as pinging in Price Street, Torquay where Stevens lived and then on 21 March 2023 two videos posted on Snapchat showed you shooting the firearm towards a paddock of cows whilst driving a vehicle with one hand. The firearm was fired in the Charlemont – Armstrong Creek area. It is a summary charge.
4The charge of theft was the theft of a balaclava which you shoplifted from an Anaconda store.
5The charge of assist offender occurred on 22 March 2023 when your vehicle was observed in Freesia Court, Whittington. You were driving slowly before pulling over. Mitch Dow got out of the front passenger side of the vehicle carrying a backpack. He had previously sent you a text message saying 'Let's go see old mate. I'm in form for forced pay ID'. 'Pay ID' I think meaning payment. CCTV footage of Dow shows him pulling on a black neck scarf over his head (but not the balaclava) and he was seen walking into a premises at Freesia Court, Whittington.
6There were three occupants in the house at Whittington, two by the name of Toohey and one by the name of Moss. The occupants made a Triple 0 call stating that an offender or offenders were present with a firearm and demanding a motorbike. Some muffled voices were heard, and then other witnesses said that shots had been fired, and there were seven distinct bangs heard in the area over a two minute period. One of the shots fired by Dow penetrated the neck of one of the occupants of the house. The occupants of the house identified Dow as the offender.
7Further CCTV footage shows Dow leaving the property. He jumped a fence and hid behind a shed. It is then apparent that at around that time he made calls to you and left voicemail messages in which he said 'I don't mean to put you under pressure. I shot Toohey though and the cops pulled up over the road'. He says 'I shouldn't have shot the fucker'. In any event, you went and picked up Dow. That's the charge of assisting offender, saving him from apprehension.
8There were messages between you and a person called 'Emily Jean' where Emily Jean advised you to tell Dow to shave his head and you said in the message 'Just dropped Mitch off now. Gave him your number. He should contact you in the next few days'. You speak about the condition of the person shot. You said you read in 'The Addy' 'that he was in a non-life-threatening state' and Emily Jean said she got told he was dead. It was apparent that Mr Toohey was not dead and survived the shooting. In another series of messages, you said to Stevens who sold you the gun, 'That if I knew that was going to happen not a chance I would have helped him'.
9You were arrested by police on 9 May 2023. Prior to that you had been found by police with 6.5 grams of methylamphetamines. When you were arrested on 9 May 2023, you were interviewed and made a no comment record of interview and you were remanded in custody for a period of two days.
Objective Gravity and Moral Culpability
10I turn now to a consideration of the objective gravity of the offending and your moral culpability. First, in relation to the balaclava, although the balaclava was stolen within a few hours of Dow's principal offence being committed, there is no evidence that the balaclava was used in that offence. As such, the shoplifting/theft is of a relatively inexpensive item and that you have no prior convictions.
11On the charge of assist offender, there is no evidence that you knew that Dow was armed when he was going into the house to commit the aggravated burglary. This is borne out with your text messages with Stevens. You did however know that when you committed your offence of assisting him, that he had shot someone, and that adds to the seriousness of your offending. At this point I must always keep in mind that as serious as the principal offending may be, you are not charged with that offence and it was committed and completed before your attending and in your absence.
12The statements of the judges in the cases of Matthews and Burford[1] and McOrmond[2] and the various cases cited in the two sentencing decisions which were provided to me, underline the importance of not imbuing your offending with too much of the circumstances of the principal offence. It is for that reason that your offence carries a substantially lower maximum penalty than the principal offence. That is, yours carries a maximum of five years' imprisonment and for that reason the judges of the Supreme Court have on occasions imposed community corrections order for assisting in instances where the principal offence was homicide and on numerous occasions imposed non-immediate custodial sentences.
[1]DPP v Matthews and Burford [2016] VSC 783.
[2]DPP v McOrmond [2019] VSC 596.
13As for the offence of possess methylamphetamines, this offence is characteristic of your difficulties at the time. Your possession of 6.5 grams of methylamphetamines was for personal use because you at that time had an eight-year drug habit. Your offending, and particularly the principal offence of assist offender, must be met by principles of deterrence and denunciation. The question of your moral culpability must be assessed after considering the psychological material.
Personal Circumstances/Psychological Material
14I turn now to the consideration of your personal circumstances and the psychological material. You were born and raised in Geelong on 27 February 1990. Your mother, Lee, is now retired, previously worked as a cook. Your father, Ross, passed away suddenly in 2014 when you were 24 years of age. He had a heart attack after playing tennis. He had worked at Incitec Pivot making fertilizer. You have an older brother, Sam, who works as a builder and lives in Geelong. You were educated in Grovedale and attended Grovedale College, completing Year 12.
15After school you worked as a dental nurse in a surgery for four years and you studied Auslan in Collingwood for a couple of years. You did not complete your training in Auslan, but then worked in customer support at Target. You variously worked as a property valuer and then you were made redundant. During October 2020 you worked briefly as a disability support worker until the start of 2023. You commenced using drugs and particularly methylamphetamine after the death of your father. Your drug-use continued and intensified in the context of abusive and dysfunctional relationships.
16Your counsel described a series of traumatic events that led up to the period in which the offences were committed. You had your father die, you had a friend die at school, and you entered a number of abusive relationships where you suffered at the hands of your partner both emotional and physical abuse. Principally you had a boyfriend who was a drug-user with mental health issues. He threatened suicide. You suffered from identity theft which caused great chaos to you. You were subject to a home invasion and one of your partners put nude images of you online. For the whole time of your drug-use or the principal time of your drug-use, you withdrew substantially from family life.
17You got to know Mitch Dow during this period of chaos and homelessness. You had believed that Mitch Dow was going to on-sell the firearm that he had used in his aggravated burglary. At the time of the offending, when you were initially charged, you were initially charged with armed robbery, injury offences, and you spent, as I say, two days in custody. Since that time you have undertaken efforts at your rehabilitation, returned to your family and have their full support. Mr Dann submitted that you have removed yourself entirely from the drug world.
18After you were released on bail, bail conditions included a curfew and you lived with your mother initially on your release until 5 June when you entered a rehabilitation facility, Arrow, for 60 days. You have had no contact with Dow or Stevens since the time of your arrest. The reference from Arrow Health speaks of your attendance on the 60-day inpatient addiction program from 5 June 2023 until August 2023. The residential program is one of some rigour. For the first 30 days you are not allowed to leave the facility and then for the second 30 days you were only allowed to leave the facility for a short number of hours on a Sunday released into the care of your family.
19Within the program, you attended individual counselling sessions, recovery-based groups, group psychotherapy, education, rostered community work tasks, you had to complete homework and assignments and attend a 12-step fellowship such as NA. The groups included rehabilitation groups with your family and weekly and random supervised urine drug screening. There was physical exercise and other components. The requirements for each individual included journal writing, topic assignments such as relapse prevention, group participation, room cleanliness, cooking and cleaning, writing life story and mentoring of new residents.
20Rebecca Evans who was the senior case manager, said that you actively participated in all aspects of the program, you were open to feedback and sought support around your behaviours. You were nominated by your peers for residential co-ordinator, a responsible role to ensure that the community program ran smoothly and on time. You were elected as a senior resident which required you to work closely with staff to ensure that the therapeutic community stayed in active recovery and you were required to provide feedback to staff around issues that may arise.
21After your time at Arrow, you continued with your rehabilitation and attended Greg Riddett, a neuropsychotherapist and accredited mental health social worker. Mr Riddett provided you with psychotherapy over a 10 or 11 session period up to 2023. The report anticipated that sessions would continue into 2024. I do not know whether that occurred or not. I am told by Ms Tye that it did. Mr Riddett said that in the psychotherapy, there was psychotherapy revolving understanding addiction as a treatable behavioural issue, living a life free of drug-use, dealing importantly with your unresolved loss and grief issues relating to your father's death and your personal development.
22Mr Riddett said that you reported that you were adamant that you wished to remain permanently off drugs and to keep away from former friends who were still engaged in drug-use.
Analysis
23I received the report of Dr Carla Ferrari dated 30 October 2023. Dr Ferrari assessed you as suffering from major depressive disorder and likely PTSD now resolved. Dr Ferrari opined that at the time of the offending and currently, you met the criteria for major depressive disorder and that there was evidence that you had experienced several depressive episodes through your life, particularly after your father's unexpected death. Dr Ferrari considers it was reasonable to opine that your mental state at the time of the offending was severely decompensated having been through several traumatic events.
24I do not put any particular weight on Ms Ferrari's assessment of PTSD. The assessment was made without contemporaneous health notes and in the absence of any symptoms at the time of assessment, but it was said that your PTSD was then resolved. The major depressive disorder does however appear firstly established. Mr Dann submitted that the major depressive disorder diagnosis should attract the operation of several principles of Verdins including a decrease in your moral culpability. I am unsure how much weight I can attach to that. You were heavily involved in the drug milieu at the time and likely drug affected. It is not clear if you were using drugs or under the influence of drugs at the time of committing the offence of assist offender.
25The tie-in made by Ms Ferrari is not particularly strong. I do however take into account the principles 5 and 6 of Verdins should operate in relation to the sentence I impose. In those circumstances, I consider that your moral culpability is reasonably high. However, I do take into account that you were operating under pressured circumstances when you committed the offence of assist offender. The text message from Dow starts at the business end of things with the words 'I don't mean to put pressure on you' which is exactly what he was doing. 'I've just shot a man, come and pick me up'. It is clear that Dow was a man with a gun, had just shot a person, so it is clear that although you made a decision to pick him up, there was at least a sense of obligation at the time of the offending.
26In any event, returning to the present day. I have read the character references and the report of Dr Riddett. I am unsure what to make of the commencement of your journey to remorse for your offending. It is apparent that you made no comment to the police at the time of your offending, but it is clear that the path to drug rehabilitation commenced immediately with what I consider to be a rigorous residential rehab program. I will take into account the rehab program as the authorities allow in the fact that it was inpatient or residential and restrictive and onerous in its conditions.
27It is a factor which the courts have said, and I will take into account in the sentencing process. The character references from your mother, your brother and family friends speak of your efforts of rehabilitation and I consider your efforts of rehabilitation have been sustained and determined. You were a person of otherwise good character before your lapse into drugs and it is apparent that you had a reasonable work ethic. It is apparent that at least in the past your relationships with partners have been troubled. But it seems to be that you are and wish to remain on the path back to a full reintegration into the community.
28As I said to you on Wednesday and at the end of this part of the proceedings, you must still continue with the work you have done. That is, your psychological healing, your social integration back into prosocial groups and to maintain your awareness and vigilance of the constant danger of drug relapse. I intend to facilitate all of these factors through the structure of the CCO that I intend to impose on you. The assessment for the CCO and the mental health assessment report is positive in that you were found suitable for the CCO, but it is clear that you still do have a lot of work to do. You were assessed by the tools of the CCO as a high risk of re-offending. Now that is something that you must bear in mind. It means that the mental and social temptations to relapse back into drug use are assessed as high.
29As a consequence, I intend that in addition to unpaid community work, that you undertake assessment and treatment as Corrections' staff deem necessary for drug-use, assessment and treatment for mental health issues, that you submit to supervision and attend offender reduction programs as recommended. I will say more about that in a moment, but I will turn now to some of the submissions made on your behalf which give more justification for what it is I intend to do.
30Mr Dann submitted that the factors that I should take into account to mitigate your sentence include your early plea of guilty and the fact that it has resulted in negotiated charges; that is, you pleaded guilty to other serious charges than you initially faced. In those circumstances, I consider there is utilitarian benefit to the plea and that the plea facilitates the course of justice. I consider that there is a Worboyes aspect to your plea, that is, the plea was negotiated at a time when there was still a backlog of cases in the court resulting from the COVID pandemic. The courts have recognised that pleas negotiated during the time of the backlog and whilst the pandemic was still on foot should be recognised as carrying more weight over the period awaiting this sentencing process.
31Your prospects for rehabilitation, notwithstanding you are assessed as a high risk of re-offending, I think your prospects for your rehabilitation are very good. You have no prior convictions. Whether it was on legal advice or not, you still attended rehabilitation on your own efforts, and I am not saying it was on legal advice, but you certainly did the right things before coming before me. You attended a pretty tough rehabilitation, you continued with your work with Mr Riddett. You have good family support, that is apparent. You have got your family, you have friends and you have got a pretty good work history.
32So they are the sorts of things that are going to assist in your rehabilitation. In other words, Ms Gibson, you have a good deal of love and support around you. You have turned your back on it once. Despite the chaos, the homelessness and the abuse endured for years, you still did not necessarily return to it. It took this catastrophic event and the compulsion of the law, the threat of imprisonment, to straighten you out. So you must continue and genuinely embrace the good people around you if your rehabilitation is to continue. It is the hope of the court that it will continue.
33So, as I say, despite the assessment that you are a risk and being a high risk does not mean that you will offend. Mr Pirrie who appeared for the Crown on the plea, submitted that a CCO was in range, but a period of imprisonment in combination or independently was also in range. I have decided after reading the Arrow report again, the report of Riddett, the Ferrari report and the references and taking into account the whole of your circumstances, that no period of imprisonment is necessary to complement the CCO. Instead, what I intend to impose, and I want you to listen carefully to this because I have got to – I am sure that you agree, I know that you gave agreement for a CCO when you were assessed, but I want to hear it myself.
34The CCO that I intend to impose is a CCO for a period of 18 months. Do you understand that? Yes. I intend that you complete 100 hours of unpaid community work in that time, but I also am going to make a condition that all of the mental health, drug treatment and offender reduction programs count towards the hours. So what I am doing there is by giving you a higher number of hours, I am building in the incentive, the more mental health, drug and offender reduction programs you do, the more hours you chop out, then you will not find yourself painting fences on a Saturday morning. Okay? All right. So take that opportunity.
35The other aspect of it is, if you are still working with Riddett or other mental health practitioners or drug-abuse practitioners of your own choosing, Corrections will factor that in. If you for example, you went to your GP and got a mental health plan, Corrections will say 'Okay, we will incorporate that into our program. Okay? So that is how you can use that structure to make sure that you comply with the mental health component of the order. So 100 hours of drug, mental health, supervision, offender reduction programs. Do you understand each of these special conditions I intend to impose? All right. And do you agree to undertake the CCO with those conditions? All right.
36Now, you know that there are general conditions that attach to every CCO. They would have taken you through them. The first is that you must not commit whether in Victoria or outside Victoria during the period of the order, that is for 18 months, any offence punishable by imprisonment. Okay? Do you understand that? All right.
37You must comply with any obligation or requirement prescribed by the Corrections' regulations. Do you understand that? All right.
38Do you understand that you must report to and receive visits from the Office of Corrections during the period of the order. Yes. Okay.
39You must report to the Community Corrections centre specified in the order within two clear working days after the order comes into force. Make sure you make contact with the Office of Corrections this afternoon. Do not leave it until tomorrow or the following day.
40You must notify the Office of Corrections within two clear working days of change of address or employment. Do you understand that? Good.
41You must not leave Victoria except with the permission either generally or specifically of the Office of Corrections. Okay?
42You must comply with any direction given to you by the Office of Corrections that is necessary to ensure you comply with the order and the direction may be given either orally or in writing. Do you understand that? All right.
43With all of that, there is one other thing that I must tell you and that is that you may breach the order in one of two ways. The first is if you commit any offence punishable by imprisonment, you will be in breach of the order and you will come back before me. The second way you can breach it is by not complying with the terms and conditions of the order, not doing the work, not turning up for supervision, not turning up for the programs. If you are breached on the order, you will face two concurrent sets of criminal proceedings. The first is you will be charged with contravening the community corrections order and that carries a maximum of three months' imprisonment. Okay?
44The second is that you will come back for re-sentence on the offence of theft, assist offender, possess methamphetamines and use firearm in a dangerous manner. If you come back for sentence for breaching the order or committing further offences, or both, you are at risk of a period of imprisonment. All right. Do you understand that? All right. With the knowledge of all of those, I am asking you for the final time, do you consent to the order?
45OFFENDER: Yes.
46HIS HONOUR: Then the order will be made in the terms I have said. On the charges you are convicted and ordered to undergo a community corrections order for a period of 18 months. The special conditions are that you perform 100 hours community work unpaid, that the other conditions of the order count towards the unpaid community work, you submit to mental health assessment and treatment, drug assessment and treatment, supervision and offender reduction programs as specified by the Office of Corrections. All right, now, does Ms Gibson have to sign the order? All right. Thank you.
47But for the plea of guilty in this matter, I would have sentenced you to five months' imprisonment, all things being equal. All right, Mr Pirrie, anything else from your perspective?
48MR PIRRIE: No, Your Honour.
49HIS HONOUR: All right. Thank you, Mr Pirrie and what I did not get to say to you last week is thanks for all of your assistance on circuit too.
50MR PIRRIE: And likewise to your staff, Your Honour.
51HIS HONOUR: Thank you. Do you consent to the disposal order being made, Ms Tye?
52MS TYE: In relation to Charge (indistinct) the firearm, yes.
53HIS HONOUR: Not getting that back. All right. Anything else from your perspective.
54MR PIRRIE: No.
55HIS HONOUR: Thanks, Mr Pirrie. We will cut the link. Thank you all in this matter.
56MR PIRRIE: Thank you, Your Honour.
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