Director of Public Prosecutions v Gilbert
[2019] VCC 330
•22 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01066
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENT GILBERT |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 26 October 2018 and 1 February 2019 | |
DATE OF SENTENCE: | 22 February 2019 | |
CASE MAY BE CITED AS: | DPP v Gilbert | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 330 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Albert | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr R Edney | Doogue George Defence Lawyers |
HIS HONOUR:
1 Brent Gilbert, you have pleaded guilty to one charge of intentionally causing serious injury, contrary to s16 of the Crimes Act 1958. The maximum penalty for this charge is 20 years’ imprisonment.
Circumstances of the offending
2 In September 2015, Rebecca Mulcahy, then aged 30, was living with her two children, Lachlan aged seven and Shelby aged five, in the Bendigo suburb of California Gully. At the time, she was in a relationship with a man named Leigh Blogg, the father of Lachlan and Shelby. Mr Blogg did not live with Ms Mulcahy, but would stay at her home several nights each week.
3 You and Mr Blogg were friends, and you also knew Ms Mulcahy. At the time of your offending, you were 34 years of age.
4 In the early hours of 11 September 2015, you stabbed and seriously injured Ms Mulcahy in her home.
5 As a result of your conduct, Ms Mulcahy received six stab injuries to her face and a further four stab injuries to her back. The back injuries resulted in air penetrating the lung spaces and a collapsed lung. Ms Mulcahy also sustained lacerations to her right arm and left thumb, which included damage to an artery, nerve and ligament. She also received compression trauma to the neck, caused by a flexible narrow object, likely string or similar.
Contested facts
6 Whilst you accepted criminal responsibility for this conduct, as reflected in your plea of guilty to the charge, and you did not dispute the nature and extent of injuries to Ms Mulcahy, this matter proceeded before me by way of a contested plea hearing. I was informed that at issue in terms of the contested plea was the conduct, demeanour and behaviour of Ms Mulcahy prior to the incident occurring, the commencement of physical contact between yourself and Ms Mulcahy, and the nature, duration and extent of physical contact between you and Ms Mulcahy. As indicated by your counsel, your position was that the victim, Ms Mulcahy, attacked you with a knife that she produced, and that you responded in defence of yourself, albeit your response was excessive.
7 In contrast, the prosecution case was that there was no provocative or aggressive conduct by Ms Mulcahy which precipitated this incident. As outlined in the summary of prosecution opening dated 4 May 2018 and tendered before me as Exhibit A, the prosecution case was that you had spent some time with Ms Mulcahy earlier in the evening on 10 September 2015, at her home, during which time you had been asking for drugs. After leaving the property, you returned later in an agitated state, asking Ms Mulcahy for Valium amongst other things. You were asked to leave by Ms Mulcahy, and as you left the property you said, "Leigh was right, you're a fucking dog", and you began stabbing Ms Mulcahy with two kitchen knives, one in each hand. You stabbed her repeatedly to the face and then body once she collapsed to the ground. You then left the property.
8 Given the clear dispute between the prosecution case and your account of the incident, the matter was listed before me for a contested plea hearing. Over the course of three days between 24 October and 26 October 2018, I heard evidence in relation to these issues in dispute. In addition to Ms Mulcahy, evidence was given by Leigh Blogg, forensic scientist Steven Fowler, Detective Stuart Poulton, and yourself.
9 In evidence before me, Ms Mulcahy essentially gave evidence in accordance with the prosecution case, in relation to the circumstances in which the incident was said to have taken place. Ms Mulcahy indicated that whilst you were at the front door and leaving her property, you had a knife in each hand and stabbed her a number of times at the front door area. She denied picking up a knife and swinging it at you and maintained that the incident had happened at the front door of the house rather than in the kitchen/dining area.
10 In evidence before me, you gave evidence in relation to the incident which was substantially different from the account provided by Ms Mulcahy. Leaving aside for a moment events from earlier in the evening to which I will later return, you said that amidst an argument between the two of you in the dining table and kitchen area of the property, Ms Mulcahy picked up a knife from the kitchen table and thrust it at you, before you managed to trip her, at which point you were both on the ground. You said that notwithstanding your efforts to hold Ms Mulcahy on the ground, she came at you again with a knife, at which point you grabbed a knife from the kitchen table and then stabbed Ms Mulcahy in the head. In the context of Ms Mulcahy slashing and thrusting at you, you continued to stab Ms Mulcahy. You said that soon after you attempted to leave but Ms Mulcahy again approached you with a knife in her hand, at which point there was wrestling near the front door. You put her in a chokehold until she passed out and then left the property.
Legal principles applicable to a contested plea
11 As indicated by Mr Albert who appeared on behalf of the Director of Public Prosecutions in his written submissions dated 6 December 2018, Ms Mulcahy’s evidence and your evidence of what occurred simply cannot be reconciled. The prosecution, relying upon the evidence of Ms Mulcahy, contends that your actions were not provoked, and you did not act in self-defence to any degree. The prosecution therefore urges me to make a factual finding which is clearly adverse to your interests.
12 In contrast, your counsel urged me to find that you responded to initial aggression by Ms Mulcahy, a finding which would clearly be favourable to your interests.
13 With respect to the standard of proof in sentencing regarding contested matters, the majority in R v Storey [1998] 1 VR 359 at [369] indicated that a sentencing judge:
“… may not take facts into account in a way that is ADVERSE to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account IN FAVOUR of the accused, it is enough if those circumstances are proved on the balance of probabilities.” [checked]
14 This principle was approved in the High Court decision of R v Olbrich (1999) 166 ALR 330 at [337].
15 As discussed with counsel on 1 February this year, in addition to each of the respective findings urged upon me by the prosecution and defence, there is a third alternative open to me in the fact finding process. As indicated in Mr Albert’s written submissions dated 6 December 2018, I might not find either the prosecution or defence contentions proven. Your counsel, Mr Edney, on the last occasion provided me with a South Australian decision of R v Saleh [2017] SASCFC 75, a decision which I have found helpful in embarking on this analysis. In that decision, Appeal Justice Stanley said as follows:
“Where there are competing possibilities, one which would be aggravating and the other mitigating, and where neither is established to the requisite standard, the judge should proceed on the basis that neither of the competing possibilities is known. The absence of proof beyond reasonable doubt of an aggravating circumstance does not equate to proof of a mitigating circumstance on the balance of probabilities.”[1] [checked]
[1]R v Saleh [2017] SASCFC 75 para [55]; see also Filippou v R (2015) 256 CLR 47 at [69] to [70], and Weininger v R (2003) 212 CLR 629 at [636] to [638]
16 In the course of submissions before me, Mr Albert referred me to reasons for sentence of her Honour Judge Hampel in DPP v Winton [2016] VCC 1390, a decision of this court from 2016, as an example of such a scenario. In that case, her Honour was not persuaded on the balance of probabilities in relation to matters favourable to the accused, nor was her Honour persuaded beyond reasonable doubt in relation to matters adverse to the accused. Her Honour indicated at paragraph 22 of that decision:
“… I am left in a position where I cannot make a finding about the circumstances in which you came to land the blow adverse to you or in your favour.” [checked]
Factual findings in relation to the offending
17 Having considered all of the evidence in this case, I find that the prosecution has not satisfied me beyond reasonable doubt that the account of Ms Mulcahy of being stabbed by you in an agitated state, unprovoked, in the entrance area of her home, in circumstances where at no stage did she pick up a knife and attempt to swing it at you or otherwise behave aggressively, is accurate or reliable. To be clear, I am unable to make a finding adverse to you, beyond reasonable doubt, that your actions in stabbing Ms Mulcahy were unprovoked or occurred in the absence of any aspect of self-defence. I have made this finding for the following reasons:
(1)The account of Ms Mulcahy is in many significant respects completely at odds with the evidence of another prosecution witness, Leigh Blogg. On the night in question, Mr Blogg said that he had gone to bed at about 9.00pm and was awoken at about 2.30 in the morning due to loud noise and music. He said in evidence that it was not until this time that he realised that you were at the property in the company with Ms Mulcahy. Mr Blogg told you to leave, at which point Ms Mulcahy said, in fact, that he (Mr Blogg) can leave, at which point Mr Blogg left the property and drove home. Mr Blogg said that he had earlier cooked dinner, and had one glass of bourbon and cola before going to bed. He said that he had an interlock device on his motor vehicle, which would have prohibited him from starting the vehicle if he had had alcohol in his system at that time. Mr Blogg also said that he only became aware of a hand drawn target on the pantry door some weeks later. He denied being involved in throwing knifes at the pantry door on the night in question. All of this is completely contradictory to the account given by Ms Mulcahy in evidence before me. Ms Mulcahy indicated that she, yourself and Mr Blogg all participated in knife throwing on the evening in question and Ms Mulcahy asserted, in contrast to the summary of prosecution opening read out on 24 October 2018 and in contrast to the evidence of Mr Blogg, that Mr Blogg was awake throughout the evening. She also disputed the account given by Mr Blogg of waking up from noise, arguing with the complainant and the complainant asking him, not you, to leave. Whilst Mr Blogg was clearly unhappy to be giving evidence in this matter, noting that he is the father of Ms Mulcahy’s children, and they have been in an on-and-off relationship for some years, in my view Mr Blogg ultimately made a conscientious effort to answer the questions asked of him. I did not make an adverse assessment of Mr Blogg in terms of either his credibility or reliability. His evidence in my view renders the accuracy of Ms Mulcahy’s account extremely problematic.
(2)When analysing the account of Ms Mulcahy, from her police statements, to the committal hearing, to her evidence before me, it is apparent that her narrative has not remained the same. By way of example, there is an absence in Ms Mulcahy’s police statements of any reference to the trip to the service station in the context of money for cannabis, there is an absence of any reference to alcohol consumption on this evening, and there is an absence of any reference to the target on the pantry door and the knife throwing. Whilst her first police statement was made in the days following the incident when Ms Mulcahy would no doubt have been in significant pain and distress, her second police statement was taken some five months later when it would be anticipated that her account of the evening would perhaps be more detailed. Both Mr Blogg and the accused gave evidence in relation to a prior incident where Ms Mulcahy was said to have stabbed Mr Blogg with a broken sauce bottle. Whilst Ms Mulcahy acknowledged this incident in evidence before me, during her evidence at the committal Ms Mulcahy denied using any implements such as a bottle in physical fights with Mr Blogg. Returning to the topic of alcohol consumption on the part of Ms Mulcahy, it was apparent that there was another difference of account. In evidence at the committal hearing in May 2016, the complainant, Ms Mulcahy, said that she was pretty sure she was not drinking that night. In evidence before me, Ms Mulcahy indicated that she would have had about three or four drinks of bourbon mixed with Coke. In cross-examination, Ms Mulcahy acknowledged the difference in her account as between the committal hearing and the contested plea hearing.
(3)As Mr Albert on behalf of the Director of Public Prosecutions asserted, this case could be described as a “word-on-word” case. Ultimately, it has fallen upon me to make an assessment as to the credibility and reliability of each of the witnesses before me, particularly Ms Mulcahy and yourself. I acknowledge that on any interpretation, Ms Mulcahy has endured an incident where she was stabbed multiple times, and sustained serious injuries. Given that, together with the passage of some years since the incident, it would be expected that Ms Mulcahy’s memory of this evening would be somewhat impaired, and that she would find recounting the details extremely challenging and traumatic. That being said, I am left somewhat troubled by some aspects of Ms Mulcahy’s evidence, for example her explanation in relation to alcohol consumption. Initially describing herself and Mr Blogg as being “drunk”, Ms Mulcahy in evidence went on to deny that she had drunk to excess on this night. In the context of being cross-examined as to the effects of excess alcohol consumption on memory, Ms Mulcahy said as follows at p.77 of the transcript: “I have two livers and three kidneys. I process alcohol a lot quicker than normal.”
(4)According to the blood spatter expert, Steven Fowler, there is evidence to suggest that part of the altercation occurred in the dining area, between the dining table and the kitchen. According to Mr Fowler, the only site in the property where there was blood spatter was in the kitchen and dining area, and there was no evidence of any blood spatter in the entrance or foyer area. In my view, the evidence of Mr Fowler is not determinative of the location where Ms Mulcahy was stabbed by you. However, in circumstances where Ms Mulcahy maintained that the stabbing occurred in the entrance area of the property and not the dining/kitchen area, and you maintained that the altercation commenced in the kitchen/dining area, and in circumstances where the diagram drawn by you when you were interviewed by police bears some similarity to the blood spatter located by Mr Fowler in his inquiries, I remain somewhat troubled by the impact of Mr Fowler’s evidence on the accuracy of Ms Mulcahy’s account. I disagree with the prosecution’s submission that Mr Fowler’s opinions can provide no assistance to the determination of the area of.
18 As the authorities make clear, the absence of proof beyond reasonable doubt of an aggravating circumstance does not equate to proof of a mitigating circumstance on the balance of probabilities.[2] See for example, Filpipou v R (2015) HCA p.29. Having analysed all of the evidence before me, I am not persuaded on the balance of probabilities that Ms Mulcahy was the original aggressor and attacked you with a knife in the kitchen/dining area. My reasons for this finding are as follows:
(1)In evidence before me, I found you to be a fairly straightforward witness, who did not give me the impression that you were being evasive, or attempting to portray yourself in an artificially positive way. However, in my view a realistic assessment of the accuracy or reliability of your account of the evening in question must take into account your likely mental health status at the time, together with the impact of drug use at that time. An analysis of the psychiatric and psychological material tendered on this plea hearing (Exhibit F and Exhibits 1, 2 and 3) indicates that in the period leading up to this incident, you were psychologically unwell. You were experiencing escalating anxiety, panic attacks, unexplained feelings of frustration and anger, and a sense of paranoia. On the backdrop of a previous history of cannabis use between the ages of 15 and 25, you relapsed into cannabis use in 2015, in the period of time leading up to this incident. You told Dr Bath (Exhibit F, paragraph 26) that your relapse into cannabis abuse contributed to the development of negative thoughts, that “something bad was going to happen.” You referred, according to Dr Barth, to an irrational fear that you would be harmed in some way. In my view, your unstable psychological state as described, is relevant to an assessment as to the accuracy of your account on this particular evening.
(2)As I indicated to your counsel in the course of submissions on 1 February 2019, I remain troubled in relation to the plausibility of some aspects of your account. Given the account given by you of essentially being attacked by Ms Mulcahy whilst she was holding a knife, struggling with her whilst both upright and on the ground, it is of note in my view that you did not sustain any injuries whatsoever. As I indicated in the course of submissions, in my view this is an implausibility which causes me considerable unease in relation to the reliability of your account of the incident. Further, according to you, Ms Mulcahy was on the ground, with her still holding a knife in her hand, and in circumstances where you were holding her hand with the knife in it, you did not take the knife from her, even allowing her to get up holding the knife. Given your account of essentially responding to aggression with an armed Ms Mulcahy, where you indicated in evidence that you responded by at least initially, stabbing her in the head, I am also troubled by the four penetrating stab wounds to the back of Ms Mulcahy. You were not asked about these injuries in evidence and I am somewhat troubled as to how they accord with your account of the incident. Finally, notwithstanding your assertions that you were concerned in relation to the children’s welfare (see for example p.226 of the transcript), on your account you left the children in the company of their clearly incapacitated mother, whom you had just stabbed and then placed in a choke hold, without any attempts to attend to their welfare.
[2]Filippou v R (2015) HCA 29 at paragraph [69]
19 In all the circumstances, in relation to the critical matters in dispute, I am left in a position where I cannot make a finding about the precise circumstances in which your stabbing of Ms Mulcahy commenced. What is clear, however, is that in the early hours of 11 September 2015, whilst you were in the home of Ms Mulcahy, you without lawful excuse stabbed her multiple times to the head and body with at least one knife causing serious injuries to her. The photos of her injuries graphically demonstrate the gravity of your actions. Ms Mulcahy’s children were home and, even on your account, present at least during the final stages of the incident, where you placed Ms Mulcahy in a choke hold and left her passed out, with her children nearby, not rendering any assistance to them. In terms of the duration of the incident, I note that Ms Mulcahy was, perhaps understandably, unable to put a timeframe on the duration. In evidence you indicated that the incident took 20 seconds (Transcript p.227). Save for these matters, I make no finding in relation to the length or duration of the incident.
Nature and gravity of offending
20 The gravity of the offence of intentionally cause serious injury is reflected in the maximum penalty of 20 years’ imprisonment. It is one of the most serious crimes in the criminal calendar.
21 As indicated in discussions with counsel on 1 February 2019, an assessment of your level of moral culpability in this instance is problematic, given that the circumstances in which the offence took place are somewhat opaque. Had I been persuaded beyond reasonable doubt that your actions were unprovoked, I would have assessed your moral culpability as being high. However, I am unable to make such an assessment in the circumstances of this case.
22 Further in relation to your moral culpability, I note that you were the subject of a psychological assessment by Dr Mathew Barth on 7 and 14 June 2018. Dr Barth’s report in relation to his assessment was tendered on the plea and marked Exhibit F. Dr Barth opines at paragraph 41 that you have been diagnosed with Autism Spectrum Disorder (“ASD”), based on your longstanding history of social deficits, particularly in relation to reciprocal social communication and your intense fixation with specific areas of interest. At paragraph 44, Dr Barth expresses the following opinion:
“In regards to the current offending, Mr Gilbert’s Autism Spectrum Disorder is likely to have contributed to him being more prone to poor decision making during a very emotionally challenging situation. Mr Gilbert would be more prone to making short sighted and impulsive decisions and his poor coping and social skills are likely to have further contributed to his limited ability to exercise appropriate judgment during an emotionally intense incident. These features of his presentation are likely to have been further compounded by his high level of anxiety and agitation at the time.” [not checked]
23 As raised with your counsel during submissions, this opinion by Dr Barth, which was unchallenged by the prosecution, brings into play the first principle pursuant to the decision of Verdins[3], in that the condition may reduce the moral culpability of your offending conduct, as distinct from your legal responsibility. I am satisfied that Autism Spectrum Disorder is an impairment to which the Verdins principles have applicability.[4] See the decision of Hladik v R [2015] VSCA 149. Whilst I am satisfied that there is a link between your deficits in relation to poor coping and social skills, reciprocal communication, acting on impulse, and your vulnerability towards rigid and concrete thinking, given the severity of the stabbing, and as I have stated the rather opaque circumstances in which it occurred, in my view only a moderate application of the first Verdins principle is appropriate, only somewhat reducing your moral culpability for your conduct.
[3]Verdins, Buckley, Vo (2007) 16 VR 269
[4]Hladik v R [2015] VSCA 149
24 In acting as you have done, you have engaged in serious criminality in relation to Ms Mulcahy. You inflicted multiple stab wounds to the face and body of a female in her home at night, whilst her children were at home and present for at least the end of the incident. You left Ms Mulcahy clearly incapacitated and seriously injured, without rendering assistance to her or her young children. In my view this is a serious example of the crime of intentionally causing serious injury and notwithstanding my earlier comments, your level of moral culpability remains significant.
Victim Impact Statements
25 Ms Mulcahy completed two Victim Impact Statements in this matter, one dated 3 November 2016, in relation to the impacts of the crime on her, tendered on the plea and marked Exhibit G, and one dated 22 November 2016, in relation to the impacts of the crime on her children, tendered on the plea and marked Exhibit H. I have carefully considered the contents of both Victim Impact Statements for the purposes of sentencing.
26 In those statements, Ms Mulcahy graphically outlines the impacts of your criminality on her emotional, physical and financial wellbeing, together with the impact on her children. Clearly, Ms Mulcahy has suffered greatly due to this crime. She was suicidal for a time afterwards, unable to return to the house, she was homeless after she was released from hospital. She expresses feelings of being responsible for this occurring in front of her children. In relation to her children, Ms Mulcahy indicates:
“It’s too hard to describe in words how this has affected my children. It’s impossible. They are not the same since that night. It’s always going to be with them.” [checked]
27 In relation to Lachy, she describes him as a totally different boy now, who now has constant flashbacks and night terrors, and sleeps beside her, thinking he has to protect her. In relation to Shelby, Ms Mulcahy refers to her daughter speaking about this incident constantly, and that Shelby tells her not to open the door for anyone during the night, and that Shelby now wets the bed from her night terrors.
28 As I have indicated, the Victim Impact Statements in combination represent a powerful and moving articulation of the devastating impacts of your criminality on Ms Mulcahy and her children.
Personal background
29 In obtaining an understanding of your personal history, I have considered all documentary material tendered during the course of the plea hearing, including the report of Dr Barth dated 8 July 2018 (Exhibit F), the report of psychologist Warren Simmons dated 30 September 2015 (Exhibit 2), the various documents authored by your parents and siblings (Exhibits 4 and 5), and the evidence on the plea hearing given by your father and mother.
30 You are currently 37 years of age, being born on 26 August 1981. At the time of the offence you were aged thirty-four. You were born in Melbourne and raised in the Bendigo area. You are the eldest of four children to your parents, Leon and Beverley.
31 Growing up, you often felt a degree of detachment from your siblings. Your parents separated when you were in Grade 6, with your parents then sharing custody of the children. You eventually lived permanently with your mother from the age of 16 years, though maintained regular contact with your father. Both of your parents subsequently re-partnered and you have had an amicable relationship with their respective partners. You lived with your mother until the age of 19, before moving out with a girlfriend and later returning to your mother’s residence when that relationship ended. You ultimately moved out from your mother’s house in your late twenties when you met your wife, Joanne.
32 It is clear that your family have been supportive of you throughout your upbringing and adulthood. I note that your family members have been present in Court throughout the hearing dates for this matter including today.
33 You have limited formal education. Having repeated Year 7, you ultimately left school halfway through Year 8, and thereafter you attended a TAFE where you have undertaken a number of courses. You reported to Dr Barth that you were a poor student during your school years, and endured ongoing social problems, feeling isolated and encountering difficulty establishing relationships with other students. You reported feeling anxious, and that you had been teased by other students due to your interpersonal difficulties and learning problems as you described them.
34 After leaving school, you gained employment as a kitchen hand, then on an orchid farm, then some sporadic work in gardening. You reported difficulty with the demands of undertaking paid employment. You were subsequently placed on a disability support pension due to your anxiety in 2003 and you reported to Dr Barth being unemployed since that time.
35 As I earlier indicated, you met your wife, Joanne, at the age of 27, and married approximately 12 months later. Notwithstanding the strain that your legal predicament has placed on your relationship, this relationship remained intact until as I am told, late last year. You have a daughter together, Hayley, aged six. Joanne also has a 10 year old son from a previous relationship, Ashley. You reported to Dr Barth a very strong and somewhat dependent bond with Joanne. In your father’s testimonial, tendered on the plea hearing, he described you playing a primary care giving role in relation to your daughter, Hayley, from the time of her birth. He described you as being “totally dedicated to Hayley”, and that your close bond with her had continued notwithstanding your time in custody. According to your father, “the separation from Hayley has been devastating and felt deeply by Brent.”
36
You have reported a substance abuse history of some relevance. You commenced using cannabis at the age of 15, reporting to Dr Barth that it calmed down your anxiety. This drug use escalated during your teenage years, where you became increasingly reliant on cannabis to the extent that you were a daily cannabis user at the age of eighteen. According to Dr Barth, this heavy pattern of drug use continued until approximately the age of twenty-five. I note that there appears to have been what could be described as a psychotic episode around this time, involving the attendance of the local CAT team and an assessment at the John Bomford Centre in Bendigo, around which time you were prescribed Olanzapine and Diazepam. You found the Olanzapine particularly to be helpful, and continued taking that medication until you met your wife at the age of twenty-seven. You reported to Dr Barth ceasing your use of cannabis around the time of the psychotic episode at the age of
twenty-five.
37
Perhaps the most enduring aspect of your personal history is your longstanding history of anxiety. You reported to Dr Barth that your anxiety had mainly been in relation to social situations, and that you had felt inadequate and incompetent in a range of social contexts and had experienced feelings of
self-conscientiousness. I note that you also reported your long history of anxiety to psychologist Warren Simmons, as evidenced in his report dated 30 September 2015 (at page 4).
38 I have already made mention of your degrading mental health in the period leading up to the offending incident. Your difficulties in that regard are best highlighted in the report of consultant psychiatrist Dr Mona Hassaballa, dated 7 September 2015, just four days prior to the offence. Dr Hassaballa indicates that you attended on her four days prior to the offence, complaining that you were feeling anxious all the time, feeling frustrated and angry without a particular trigger, and you reported being physically unwell with headaches. You reported always feeling anxious, with hourly panic attacks. While you reported a drug use history to Dr Hassaballa, I note that you did not disclose the fact that around this time, due to your anxiety, you had relapsed into fortnightly cannabis use. Importantly, Dr Hassaballa at this time indicated a likely diagnosis of Autism Spectrum Disorder (“ASD”). According to Dr Hassaballa:
“His anxiety symptoms and his difficulties controlling his temper appear to be directly linked to the underlying condition rather than a separate comorbidity. A further assessment is required to establish this diagnosis.”
39 When Dr Hassaballa explained to you that further explorations were required in relation to your anxiety before any change to your medication, you became disappointed, frustrated, and threatened to behave in a way that would necessitate an immediate intervention from mental health services unless Olanzapine was prescribed to you (noting that you had previously received Olanzapine, and reported a favourable outcome from that medication). When the rationale behind Dr Hassaballa’s case management plan was explained to you, you managed to calm down.
40
In my view, this attendance on Dr Hassaballa is of some significance. It would appear that this was the first time that a provisional diagnosis of Autism Spectrum Disorder was mentioned. Notwithstanding the complication of your undisclosed cannabis relapse, it appears clear that in the days preceding your offending behaviour, you were psychologically unwell, suffering from considerable anxiety, which is causally linked to the underlying
neuro-developmental disorder of Autism Spectrum Disorder. According to Dr Barth at paragraph 30 of his report:
“Mr Gilbert told me that the offending occurred during a period of his life when he was feeling increasingly anxious, agitated and had relapsed into using cannabis on approximately a fortnightly basis. He recalled that his sleep was disturbed and ‘I just wasn’t coping. I was crying out to go to the psych hospital.’”
41 As I earlier indicated, at paragraph 44 of his report, Dr Barth indicates that your Autism Spectrum Disorder compromised your judgment during what he described as “an emotionally intense incident”.
Progress in custody
42
In terms of your progress in custody. You presented yourself to the Bendigo Police Station at approximately 8.30pm on 11 September 2015, and you have been in custody since that time. I note that due to a range of matters, you have experienced a particularly protracted legal process to this point. You were originally charged with attempted murder. The matter proceeded to a committal hearing on 3 and 4 May 2016, where you were committed to stand trial in the Supreme Court on that charge. The matter subsequently resolved to a plea of guilty to the charge of intentionally causing serious injury and the matter was remitted to the County Court. You entered your plea of guilty to this charge on 12 August 2016 in the County Court. On 9 December 2016, following a plea hearing, you were sentenced to a term of imprisonment of 10 years with a
non-parole period of 7 years by her Honour Judge Lawson. That matter was the subject of an appeal, and on 5 March 2018, that appeal against sentence was allowed. The sentence imposed in the County Court on 9 December 2016 was set aside and the matter was remitted for hearing in this court.
43 You reported to Dr Barth an “intense emotional reaction in the aftermath of being remanded into custody” (paragraph 28). You reported to Dr Barth feelings of intrusive suicidal ideation, and that you found the process of adjusting to the custodial environment to be very difficult and isolating. As at the assessment dates by Dr Barth (7 and 14 June 2018), you presented in a state of noteworthy emotional distress. You reported to Dr Barth variance in your moods, predominantly due to the difficulties associated with separation from your wife and children, together with your ongoing legal predicament. You reported that your mental state had improved to a degree with the assistance of being prescribed Olanzapine again.
44 According to the report of Ming-Yun Hsieh, dated 22 August 2016, you were assessed on various occasions throughout 2016, for the purposes of identifying your level of cognitive functioning, and to clarify the suspected diagnosis of Autism Spectrum Disorder. The report from Ming-Yun Hsieh was tendered on the plea hearing and marked Exhibit 3. At the time of this assessment, your medications included Olanzapine and Paroxetine, in relation to your suspected psychotic symptoms. According to the author of this report, you had presented with significant levels of anxiety since coming into custody, and had been noted by health staff as having an odd presentation. Your mental health symptoms had apparently settled in custody by the time of this assessment. According to this report:
“The overall assessment findings indicate that Mr Gilbert would meet the DSM-5 diagnostic criteria for Autism Spectrum Disorder, without accompanying intellectual impairment.”
45 This is significant in my view, as it is apparent that the diagnosis of Autism Spectrum Disorder was only confirmed in August 2016, notwithstanding your longstanding difficulties.
46 According to your father, Leon, your difficulties associated with Autism Spectrum Disorder have compounded your difficulties in prison. You have struggled to understand the prison culture and “language” which has seen you virtually in self-imposed isolation, only leaving your cell when necessary. According to Leon Gilbert, transport to and from Court or to hospital causes severe panic attacks, particularly in vans where prisoners are seated in very small environments. The concerns of your father were amplified in his evidence before me.
47 Nevertheless, it would appear thankfully that your mental health at least has stabilised in the prison environment. You have finally been diagnosed with Autism Spectrum Disorder, and it would seem that you are now appropriately medicated. You have maintained regular contact with your family and partner, until separation, which has clearly been of great benefit to you. It is clear to me that in combination with the documentary and oral evidence presented before me, you enjoy the strong love and support of your family. I note that since you and Joanne separated some six months ago, your daughter Hayley has been living with your mother, Beverley, following intervention by the Department of Health and Human Services, and you have regular contact with your daughter. I understand from your mother’s evidence that when you are eventually released from prison, you plan to live with your mother in Dromana, where hopefully you can continue your positive relationship with your daughter.
48 In terms of your difficulties in custody, I note according to Dr Barth, at paragraph 55, that:
“Mr Gilbert is likely to remain an especially vulnerable prisoner, particularly when considering his disability, his poor social skills, his limited coping skills for his emotional distress and his significant interpersonal dependencies.”
Factors in mitigation
49 In determining the appropriate sentence in your case, I have taken into account the following mitigatory factors:
(1)You came before this Court at age 37 with no prior criminal history. At the time of this incident, you were aged 34 and married with children. I accept that your criminal behaviour, though very serious, was completely out of character.
(2)Given that you were initially charged with attempted murder, I accept that you entered your plea of guilty to the charge of intentionally causing serious injury at a reasonably early stage in proceedings. You are entitled to the discount applicable by virtue of the utilitarian benefit of your plea of guilty. Furthermore, notwithstanding the complicating factor of the factual contest, I am satisfied that you are remorseful for your conduct. According to Dr Barth at paragraph 35 of his report, you expressed remorse and shame for your behaviour, stating:
“I understand that I picked the wrong method (of coping with the situation). It is very serious. I wish I never did it. I do care that I hurt someone like that. I really hurt someone. I'm horrified at the level of violence that happened.”
In evidence before me, when asked what you thought about what you had done, you stated, p.199 of the transcript:
“I still can’t get over why I chose that method. Um, I'm terribly upset about, um, her – her injuries and what I had done. Um, it’s, um – you know, it’s quite traumatic what I had done to defend myself, um, and I don’t feel very good about it at all. It makes me sick.” [not checked]
As the authorities make clear, a plea of guilty that evidences remorse warrants a significant sentencing discount, and I have taken this into account in fixing an appropriate sentence.
(3)There has been a considerable delay between the date of the offence, 11 September 2015, and the final disposition of this matter. You have now been in custody for 1,259 days. Given the procedural chronology that I have outlined in this matter, I accept that this matter has been hanging over your head for a significant period of time, whilst you have been in custody, and I have taken this matter into account in fixing an appropriate sentence.
(4)As I have earlier stated, your offending must be viewed as a serious example of intentionally causing serious injury. I am satisfied, however, that there is the need for some moderation of your moral culpability pursuant to the first Verdins principle, for the reasons previously outlined. Furthermore, because of your “mental impairment” at the time of the offending behaviour, I am satisfied that there is the need for, albeit modest, for some moderation of the applicability of general and specific deterrence in your case, pursuant to the third and fourth Verdins principles.
(5)Whilst, as submitted by the prosecution, your progress in custody has not been all bad, I am satisfied that your Autism Spectrum Disorder and associated difficulties have made, and will continue to make, any sentence of imprisonment upon you more burdensome than a prisoner in good health. Your disorder is essentially one which impairs your social communication. I accept that this will necessarily make the conditions within which you serve your sentence of imprisonment challenging. Pursuant to the fifth Verdins principle, some moderation of your sentence is accordingly warranted. On a more general note, I accept that your time in custody has been particularly difficult due to the separation from your young daughter. Of course, any term of imprisonment served by an individual necessarily involves separation from loved ones.
(6)In all the circumstances of this case, I am satisfied that you have reasonably good prospects of rehabilitation. You have no prior convictions. You clearly have the ongoing love and support of your family. I have been particularly impressed by the documentary and oral evidence adduced in that regard. Clearly the ongoing support of your family will be integral to your ultimate reintegration into the community and your rehabilitation. Importantly, you have now been diagnosed with Autism Spectrum Disorder, and it appears you are being appropriately medicated and managed in custody. Notwithstanding your obvious difficulties, I am satisfied that you have been utilising your time in custody productively, and in that regard I refer to the matters outlined by your father in his testimonial tendered in evidence before me. Dr Barth conducted a violence risk assessment of you. According to Dr Barth at paragraph 55:
“The lack of violence in his history, the absence of any entrenched antisocial behaviour or traits associated with psychopathy and his strong family support are all positive prognostic factors. Thus, provided that Mr Gilbert is able to access the treatment he requires to address the relevant historical and clinical factors of concern, his risk of further violence is likely to fall more towards the lower rather than the higher range for recidivism.”
Dr Barth concludes at paragraph 56:
“Provided that Mr Gilbert participates actively in the recommended treatment, his positive family support, the absence of any antisocial personality pathology and the deterrent aspects of sentencing indicate that some degree of optimism is warranted in his case.”
50 I am satisfied that all of these matters in combination bode well for your prospects of rehabilitation, provided you continue to be appropriately managed by health care professionals upon your release, and provided you undertake the lengthy period of intensive substance abuse treatment recommended by Dr Barth in his report.
Sentencing purposes
51 Section 5(1) of the Sentencing Act provides that the only purposes for which a sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation. In addition to the matters to which I have already referred, your serious criminality must be denounced, and any sentence I impose must appropriately reflect the principle of just punishment.
Current sentencing practices
52 Pursuant to s5(2B) of the Sentencing Act, in sentencing you I must have regard to current sentencing practices. In this case, neither counsel provided me with any decisions which were said to be factually similar. In particular, Mr Albert on behalf of the Director of Public Prosecutions indicated that such decisions may be of limited utility in the context of the contested facts in this matter. Nevertheless, I have had regard to the sentencing overview for intentionally causing serious injury cases contained in the Judicial College of Victoria Sentencing Manual (and the cases referred therein), and to the relevant sentencing statistics provided by the Sentencing Advisory Council for the offence of causing serious injury intentionally. I have also considered the High Court decision of R v Kilic (2016) 259 CLR 256, a relatively recent decision of the High Court which dealt with sentencing for intentionally cause serious injury (there by fire) and contained a discussion regarding the role of current sentencing practices. It is clear that there is a broad spectrum of offending captured by the crime of intentionally causing serious injury. I also acknowledge pursuant to the High Court decision of Dalgleish, that current sentencing practices are but one of many sentencing factors to be taken into account in sentencing, and should not predominate.
Sentence to be imposed
53 Mr Gilbert, could you please stand. Given the gravity of your criminal conduct, it is my view that a significant term of imprisonment is the only appropriate disposition in this case. However, in light of your underlying psychological difficulties, and your good prospects of rehabilitation, I am satisfied that this sentence should incorporate a significant parole eligibility component, to facilitate your ultimate reintegration into the community in a manner which protects the community.
54 On the charge of intentionally causing serious injury, you are convicted and sentenced to a term of imprisonment of 8 years. I order that you serve a minimum of 5 years before becoming eligible for parole.
55 Pursuant to s18 of the Sentencing Act, I declare 1,259 days pre‑sentence detention, and direct this to be entered into the records of the Court.
56 Pursuant s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a term of imprisonment of 10 years, with a non-parole component of 7 years. You can take a seat, Mr Gilbert.
57 MR EDNEY: As Your Honour pleases.
Ancillary orders
58 In relation to the ancillary orders, I noting that they are not opposed, Mr Edney, is that the case?
59 MR EDNEY: No, they are not, Your Honour.
60 HIS HONOUR: I will make the disposal order sought in relation to the two black-handled knives and that order will be signed in due course.
61 I will also make the forensic sample order pursuant to s464ZF of the Crimes Act. That order will also be signed in due course. Mr Gilbert, could you please just stand again, whilst I explain this to you. Mr Albert, will it be a sample of saliva or blood or either?
62 MR ALBERT: Saliva, Your Honour.
63 HIS HONOUR: Yes. I am making an order for the taking of a forensic sample which will be a scraping from the mouth, to obtain saliva, as I understand it to be kept on the records of police for the purposes of future investigation. I am making that order on the basis that it is not opposed and in view of the seriousness of the circumstances of the offending and in my view, the granting of the order is in the public interest. I must inform you that if at the time of the request, you do not consent to the taking of the mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
64 ACCUSED: Yes.
65 HIS HONOUR: Yes. Take a seat, thank you. Are there any other matters, counsel?
66 MR EDNEY: No, Your Honour.
67 MR ALBERT: Just one query, Your Honour.
68 HIS HONOUR: Yes.
69 MR ALBERT: In relation to Your Honour's sentencing remarks - - -
70 HIS HONOUR: Yes.
71 MR ALBERT: Is there any way they can be expedited to get on the website?
72 HIS HONOUR: Yes.
73 MR ALBERT: Or, I am not sure if Your Honour has any role in that?
74 HIS HONOUR: Yes. Yes, indeed. Once they are revised, that will be done as soon as possible. The reasons will be published so you will have access to them quickly.
75 MR ALBERT: A timeframe, Your Honour?
76 HIS HONOUR: I cannot tell. I cannot give you one, Mr Albert.
77 MR ALBERT: Thank you.
78 HIS HONOUR: Yes. All right, thank you. Any other matters?
79 MR EDNEY: No, Your Honour.
80 MR ALBERT: No, Your Honour.
81 HIS HONOUR: Thank you.
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