Director of Public Prosecutions v Gibson
[2022] VCC 132
•15 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-01177
CR-21-01866
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL GIBSON |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 January 2022 |
DATE OF SENTENCE: | 15 February 2022 |
CASE MAY BE CITED AS: | DPP v Gibson |
MEDIUM NEUTRAL CITATION: | [2022] VCC 132 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Causing injury intentionally - conduct endangering persons - assaulting an emergency worker on duty - attempt to pervert the course of justice - persistent contravention of a family violence intervention order
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Wade [2018] VCC 1779
Sentence: 41 months' imprisonment, 30 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
For the Accused | Mr M. Stanton | Bowler, Man & Co Lawyers |
HIS HONOUR:
1Daniel Gibson, you have pleaded guilty to offences on two indictments. The first set of offences chronologically is on the indictment bearing the court reference CR-21-01177 and I will refer to that as the first indictment. The second set of offences is on the indictment bearing the court reference CR-21-01866 and I will refer to that as the second indictment.
2The offences on the first indictment are two offences of causing injury intentionally, for each of which the maximum sentence is imprisonment for 10 years, one offence of conduct endangering persons and one offence of assaulting an emergency worker on duty, for each of which the maximum sentence is imprisonment for five years.
3The offences on the second indictment are two offences of attempting to pervert the course of justice, for each of which the maximum sentence is imprisonment for 25 years, and three offences of persistent contravention of a family violence intervention order, for each of which the maximum penalty is imprisonment for five years or a fine of 600 penalty units or both.
4In addition, you have pleaded guilty to two related summary offences of contravention of a family violence intervention order, for each of which the maximum penalty is imprisonment for two years or a fine of 240 penalty units or both. You have consented to my hearing those matters.
5You have also admitted a prior criminal history involving many court appearances, commencing in 1993. Some of your prior convictions involve offences of violence, others involve contraventions of family violence intervention orders against another former partner.
6The prosecution tendered and read to the court two summaries of facts describing your offending. Those summaries are respectively Exhibit A and Exhibit C. They are not disputed. The prosecution also tendered as Exhibit B photographs of the injuries arising from the offending the subject of the first indictment. I do not propose to repeat the detailed descriptions of your offending set out in those documents, but your offending can be summarised briefly as follows.
7On 16 August 2020, you were 44 years of age, almost 45, and living at an address in Mooroolbark. Your victim was 20 years of age. You had been in an 'on and off again' relationship with her which had terminated. From that date she stayed over at your house for the next three days because you were looking after one of her puppies. During that time both of you used illicit drugs, including methamphetamine and GHB.
8The offending charged in the first indictment can be summarised as follows.
9The offending the subject of Charge 1 is based on the following conduct on your part.
10On 19 August 2020, your victim remonstrated with you about your going through her mobile phone without her consent while she slept. You became aggressive and began yelling at her. You then grabbed her mouth with such force that her teeth cut the inside of her gums and you struck her repeatedly about the face and head with open hands. That caused bruises to her face, which are displayed in the photographs in Exhibit B. They are consistent with a severe and sustained beating of the kind she described.
11You effectively prevented your victim from leaving your house that day by repeatedly emptying her personal possessions from her handbag. When she woke the following day, she again attempted to leave your house. Again, you prevented her from doing so, initially by depriving her of her mobile phones and then, when she regained possession of one of her phones and approached the street, you ran after her and physically tackled her to the ground. You then wrestled her phone from her, ran back inside the house and locked the front door. She entered by the back door and, despite your efforts to prevent her doing so, she was able to retrieve her phone.
12The offending the subject of Charge 2 occurred soon afterwards. Your victim was on the floor of the bedroom with you on top of her, strangling her with both hands around her neck. She described how the force of your grip caused her eyes to bulge and to prevent her breathing. On occasions when you loosened your grip she asked you what you were doing to her.
13The offending the subject of Charge 3 also occurred in the bedroom whilst your victim was on her front, trying to get up. You angled her head against the bed base and put your right knee against the back of her neck. You then began repeatedly pulling her head back and forth by the hair. You told your victim, 'I'm trying to snap your fucking neck'. You only let her go when you had again taken her mobile phone from her pocket. When your victim left the bedroom crying and tried to retrieve her puppy from a locked room on the ground floor, you came downstairs and headbutted the door until it broke. That enabled you to remove the puppy and take it back upstairs.
14Your victim finally took the opportunity to leave your house at about 11.45 am on 21 August 2020. She was assisted by a member of the public who helped her to obtain first aid for her injuries and took her to the Mooroolbark police station where she reported the offending to police. She was taken to hospital by ambulance. Her injuries included:
·scattered abrasions and bruising to her head and neck,
·a black left eye,
·tenderness of the eye socket,
·scattered bruising on both upper and lower limbs, and
·fingermarks to her neck and both arms.
15Expert medical opinion is that the compressions and manipulation of the neck described by your victim had the potential to be life-threatening.
16In the afternoon of 21 August 2020, you were arrested by police. You assaulted the arresting officer by striking him in the face and attempting to grab his genitals.
17You were taken to the police station but were deemed to be too aggressive and drug-affected to be interviewed. You have been in custody since that date.
18The offending charged in the second indictment can be summarised as follows.
19On 10 September 2020, the Ringwood Magistrates' Court granted a family violence intervention order intended to protect your victim from any contact or communication from you or from others on your behalf.
20The offence of attempting to pervert the course of justice in Charge 1 arises from repeated attempts during the charged period to contact your victim, either directly or through intermediaries, for the purpose of persuading your victim to withdraw or alter her statement to police to exonerate you in relation to the offending the subject of Charges 1 to 3 on the first indictment. You succeeded on at least two occasions in speaking on the phone directly to your victim.
21During those calls you tried to persuade her to visit a lawyer to make an affidavit claiming her injuries were caused in a fight with another woman. At various stages you suggested to intermediaries that she be bribed to do so with the offer variously to supply her with drinks, drugs or money.
22Charges 2 to 4 inclusive reflect your persistent breaches of the family violence intervention order arising from your numerous contacts with your victim, either directly or indirectly, during the charged periods as described in detail in Exhibit C.
23Charge 5 concerns your conduct during the charged period in organising through intermediaries, for an acquaintance of yours to provide false information to the Magistrates' Court in support of your application for bail made on 3 December 2020. In the event bail was refused, but the false information had been provided to your lawyers for use in that court hearing.
24The two related summary offences concern specific contraventions of the family violence intervention order as particularised in the charges.
25Turning to the matters personal to you, your counsel tendered a carefully drawn written outline of submissions with a detailed and helpful chronology, which is Exhibit 1. He tendered a certificate of completion and an accompanying letter, both dated 13 December 2020, of a rehabilitative course that you had undertaken whilst in custody - that is Exhibit 2. He also tendered urine screening notifications for various dates between March and September 2021, each showing negative results for the presence of illicit drugs - that is Exhibit 3.
26You were born in September 1975 and are therefore 46 years of age. You never knew your biological father, who was of Aboriginal heritage. As an infant you were sent to live with your maternal grandmother in Ireland until you were aged about three and a half. After forming a new relationship, your mother brought you back to Melbourne in about 1978. You became physically scared of your stepfather and ran away from home several times. At age 15 years you went to live with an uncle in Townsville who not only physically abused you but sent you out to do burglaries and introduced you to amphetamine use. When you returned to Melbourne after about six months you attempted unsuccessfully to complete year 11 at school. Your prior court appearances commenced in 1993 when you were aged 17 years.
27For most of your adult life you have been in work, until 2015. Since then you have not worked.
28In about 2001 you moved to Northern Ireland to assist your maternal grandmother. You stayed with her for about three years. After moving out to live with a friend you became involved in an incident which resulted in you being charged with murder. You were remanded in custody for about two years in a prison in Ireland until you were acquitted on the basis of self-defence. I understand the conditions of your incarceration were particularly severe.
29In about 2005 you returned to Australia. You rekindled a relationship with a former partner and spent the next decade with her. During that time you worked as a forklift driver. A daughter was born to you and your partner in 2009. That period represented a relatively stable time in your life. You were promoted by your employer to team leader.
30Unfortunately, in 2015 you were retrenched. You separated from your partner and daughter and you have never worked since. There is still a family violence intervention order preventing you from access to your daughter.
31In the same year, that is 2015, you commenced abusing methamphetamine. I infer your drug abuse dominated your life from then until you were remanded in custody for these offences.
32I note that between 2005 and the end of 2014 the number and nature of your court appearances was generally less frequent and for less serious offending than before or since that time of relative stability in your life.
33I give you full credit for your pleas of guilty, particularly in these COVID times, recognising and taking into account the substantially harsher than usual conditions of incarceration both on remand and for the period of your sentence. I am not persuaded that I should find that you are remorseful beyond the inferences available from your pleas of guilty and some of your utterances during telephone conversations whilst you have been on remand; indeed, attempting whilst in custody to persuade your victim to lie on your behalf to save you from the consequences of the violence, intimidation and control you exercised over her in the offending charged in the first indictment does not suggest genuine remorse.
34I accept that you were seriously under the influence of drugs during the offending in the first indictment but, as your counsel concedes, that neither mitigates nor aggravates your offending.
35I commend you for completing the ATLAS program whilst in custody and for your clean urine screens last year. I accept that your conduct during the period between 2005 and late 2014 suggests that you have some hope of rehabilitation, but your criminal and work record as a whole does not persuade me that you have reasonable prospects of rehabilitation. Your descent into drug abuse between 2015 and 2020 when you went into custody suggests that at best your prospects are borne more of hope than expectation. However, I do propose to order a non-parole period which would allow you a reasonable chance to obtain useful transitional and rehabilitative assistance.
36I accept that the conduct charged in the first indictment requires a significant degree of concurrency. I also agree that there is significant overlap between Charge 1 on the one hand and Charges 2, 3 and 4 on the second indictment, requiring significant concurrency. I am conscious of the need to avoid double punishment. I have been considerably assisted by the submissions of both counsel in relation to current sentencing practice and to the references to authority and to the reasons for sentence in the case of DPP v Wade [2018] VCC 1779.
37I regard your treatment of your victim in both indictments as utterly deplorable. You treated your much younger victim with callous contempt. In relation to your conduct towards her charged on the second indictment, you do not have the excuse of being drug-affected whilst you were in custody committing those offences. That conduct showed you were prepared to override the best interests of your victim in desperate attempts to regain your freedom. It also demonstrated a serious contempt for the administration of justice and for court orders. There is no dispute that the offending reflected in both indictments is very serious.
38Domestic violence in all its forms is to be condemned in strong terms. Episodes of violence against a defenceless, drug-affected young woman require denunciation and stern punishment by the courts. You are very fortunate that your assaults did not inflict greater physical injury upon your victim justifying even more serious charges. The principle of general deterrence must be given proper value.
39The separate attempts to pervert the course of justice in Charges 1 and 5 of the second indictment also require sentences that deter others, as well as denunciation and a significant degree of cumulation of sentences. Charges 2, 3 and 4 in the second indictment are serious offences in themselves but substantially overlap the offending in Charge 1. In my opinion though, there is still a requirement for some measure of cumulation to reflect the separate and persistent criminality charged throughout the period of that offending.
40Daniel Gibson, I shall now proceed to sentence you.
41Dealing first with the first indictment:
§ On Charge 1 you are convicted and sentenced to imprisonment for 16 months.
§ On Charge 2 you are convicted and sentenced to imprisonment for 12 months.
§ On Charge 3 you are convicted and sentenced to imprisonment for eight months.
§ On Charge 4 you are convicted and sentenced to imprisonment for three months.
42The sentence on Charge 1 is the base sentence in relation to that indictment.
43I direct that four months of the sentence on Charge 2, two months of the sentence on Charge 3 and one month of the sentence on Charge 4 be served cumulatively upon one another and upon the sentence of 16 months on Charge 1.
44The total effective sentence on the first indictment is therefore imprisonment for one year and 11 months.
45As to the second indictment:
§ On Charge 1 you are convicted and sentenced to imprisonment for 12 months.
§ On Charge 2 you are convicted and sentenced for six months.
§ On Charge 3 you are convicted and sentenced to imprisonment for six months.
§ On Charge 4 you are convicted and sentenced to imprisonment for six months.
§ On Charge 5 you are convicted and sentenced to imprisonment for nine months.
46The sentence on Charge 1 is the base sentence on that indictment.
47I direct that one month of the sentences on each of Charges 2, 3 and 4 and six months of the sentence on Charge 5 be served cumulatively upon one another and upon the sentence of 12 months on Charge 1 on that indictment.
48The total effective sentence on the second indictment is therefore imprisonment for one year and nine months.
49I further direct that 18 months of the total effective sentence on the second indictment be served cumulatively upon the total effective sentence of one year and 11 months on the first indictment.
50The overall total effective sentence over both indictments is therefore imprisonment for three years and five months.
51I fix a non-parole period of two years and six months.
52For the related summary offence, Charge 5, you are convicted and sentenced to imprisonment for one month and on the related summary offence, Charge 7, you are convicted and sentenced to imprisonment for one month.
53Pursuant to s6AAA of the Sentencing Act 1991 I declare that, but for your pleas of guilty, I would have sentenced you to imprisonment for 66 months, that is five years and six months, with a non-parole period of 48 months, that is four years.
54I declare 543 days pre-sentence detention as time to be reckoned as served on that sentence and to be deducted from it administratively.
55Mr Pickering, what is the position with the disposal order?
56MR PICKERING: Yes, Your Honour. The disposal order is correct. It's some document relating to the attempt to pervert. It's the documents that were sent to and from Mr Gibson so I would seek that that disposal order be made.
57HIS HONOUR: Yes.
58MR PICKERING: Could I also clarify, Your Honour - I was writing down that very quickly. The orders that were made with regard to the related summary offences, were they concurrent as well?
59HIS HONOUR: They are concurrent, yes. I made no order for cumulation so the presumption of concurrency prevails there.
60MR PICKERING: Thank you, Your Honour. The final matter, if I may, is that as Your Honour is aware, there are two co-offenders that are due to be sentenced over the next month or so, Holt and Hofer. It may assist counsel for those matters if there was, in addition to your sentencing remarks for this matter, also a transcript made of the plea itself. If I could seek that that be ordered as well.
61HIS HONOUR: Yes, I think that is not unreasonable. I will make that order.
62MR PICKERING: If Your Honour pleases.
63HIS HONOUR: I will make the disposal order in the terms of the draft that I have been supplied with.
64MR STANTON: As the court pleases.
65HIS HONOUR: Are there any other matters, counsel?
66MR PICKERING: No, Your Honour.
67MR STANTON: No, Your Honour.
68HIS HONOUR: Thank you. Adjourn the court please.
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