Director of Public Prosecutions v Gilbert

[2015] VCC 1962

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01044

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYSON GILBERT

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2015
DATE OF SENTENCE:	14 December 2015
CASE MAY BE CITED AS:	DPP v Gilbert
MEDIUM NEUTRAL CITATION:	[2015] VCC 1962

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes
For the Accused	Ms J. Hardy

HIS HONOUR: 

1Tyson Gilbert, you have pleaded guilty to one charge of recklessly causing serious injury.  That crime carries a maximum penalty of 15 years' imprisonment.  You are still only 21 years of age and were 20 years of age at the time of the offending.  Obviously you are to be sentenced as a young offender and whatever can be done about your rehabilitation should be done.

2Despite evidence to the contrary, I accept what you said to the psychologist that you do have remorse for what you did to this man, bearing in mind his injuries and you must, of course get the utilitarian benefit of that plea of guilty. 

3There has been, for a 20 year old a relatively significant delay of a year but nothing out of the ordinary.  You do have a number of matters pending and there are matters obviously for another court and not for me. 

4Firstly pursuant to s.464 ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide a sample, police may use reasonable force to take it from you. That order is made and handed down.

5You, unfortunately have a significant list of prior criminal matters, the bulk of which appear to have been in the Children's Court.  You have a number for assault, you have damage, thieving and clearly have had a lot of trouble in the past.

6The offending here is certainly concerning.  The victim in the matter, a Mr Relic was at the Continental Hotel in Sorrento on the evening of 4 October 2014.  You got into an altercation with another person in that hotel and were ultimately as I understand it asked to leave.  You loitered outside the hotel for a period of time as revealed by CCTV watching people leaving. 

7At around about 2 or 3 o'clock in the morning a Mr Relic exited the hotel with five male friends.  He was not the person that you had been in an altercation with earlier.  His group walked along the laneway.  You walked in an arch around behind them and then walked up behind him, and struck him to the head with a clenched fist.  He fell to the ground unconscious. 

8You had considered this, and as I understand what you told the police, thought that you would only get one punch in.  So you having purported to identify your previous combatant, hit him.  When he fell to the ground his head hit the concrete and he didn't move for some time.  You stayed for a period of time and then ran off towards the beach. 

9As a result of the assault, Mr Relic was taken to the Frankston hospital where he was admitted with a suspected fractured jaw which turned out not to be fractured.  He did however have head injuries in the sense of having ongoing headaches, memory loss and impaired cognitive function. 

10He was admitted to the Caulfield rehabilitation hospital some five days later for additional treatment.  His victim impact statement outlines the ongoing difficulties he has had because of all this, tiredness, confusion, all those sort of things.  I am told and accept from the Bar table that it would appear that his injuries will ultimately resolve and that I take into account.

11The plea on your behalf sought a custodial sentence with a Community Corrections Order to follow.  You have been assessed by community corrections, who, having read the report very understandably regard you as unsuitable.  Your attitude towards Corrections on previous occasions has been appalling and I see no reason why it would be any different now. 

12In your situation, gaol is inevitable and I propose to give you a longer than what otherwise might be the case opportunity for parole. 

13Your background is outlined in the report of Ms Lechner a psychologist.  She points out that your parents separated when you were around about eight or nine from what I can work out.  You had a very violent father.  You were then "yo‑yoed", well the expression she used between here and New South Wales, staying with your father, staying with your mother.  Your father continued to be violent towards you and it clearly has had a very long lasting and significant effect upon you. 

14You got about halfway through Year 10 in school and I am told were identified as having ADHD during that time.  You were placed on Ritalin from what I can gather.  Since you were certainly in your teens, you have resorted to violence on many occasions and it is to be only hoped that at such a young age that a custodial sentence will cause you to rethink the way you go about these matters. 

15You told Ms Lechner that you at least had an understanding of the link between drinking and violence and were endeavouring to deal with that.  You have a number of problems, anger management being the first of them and drug and alcohol difficulties.  They are going to have to be addressed.  You are assessed by her as moderate to high risk of re‑offending and assessed by Corrections as a high risk of re‑offending.

16Your prospects for rehabilitation at 21 should be good, however past history with you has indicated that you may not be as keen on rehabilitating as others of a similar age.  In any event in the end it simply becomes a matter for you, Mr Gilbert.  I have got no choice but to give you a sentence of imprisonment.  I have reduced it significantly because of your age though it has got to be understood that attacking someone in that way just won't be tolerated in the community.

17Accordingly take all those matters into account, on the charge of recklessly causing serious injury, you are sentenced to imprisonment for a period of two years. 

18I direct that you serve a period of one year before becoming eligible for parole and I direct that three days be reckoned as having been served under this sentence.  All right.

19MS HOLMES:  6AAA Your Honour, just‑ ‑ ‑

20HIS HONOUR:  Yes, through the two.

21MS HOLMES:  Thank you.

22HIS HONOUR:  All right.

23MS HARDY:  As the court pleases.

24HIS HONOUR:  Thank you ladies.

‑ ‑ ‑