Director of Public Prosecutions v Gill

[2020] VCC 1206

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01275

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE GILL

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2020
DATE OF SENTENCE:	6 August 2020
CASE MAY BE CITED AS:	DPP v GILL
MEDIUM NEUTRAL CITATION:	[2020] VCC 1206

REASONS FOR SENTENCE
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Subject:Criminal law.

Catchwords:                 Contravention of community based order.

Legislation Cited:        Sentencing Act 1991;

Cases Cited:

Sentence:Community Corrections Order (12 months duration, supervision, mental health treatment, judicial monitoring).

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison	Office of Public Prosecutions
The Offender was not represented

HER HONOUR:

1Jesse Gill, on 14 March 2018 you pleaded guilty on indictment, after a sentence indication, to charges of make threat to kill, aggravated burglary, two charges of common law assault and one charge of damaging property.  All of those offences occurred at the premises of your older brother, Sonny, on 25 January 2016.

2The circumstances of that offending were set out in a document which I have before me, entitled “Summary of Prosecution Opening” dated
26 November 2017.  At that time, the contents of the document were not disputed.  They are now a matter of record and that document represented your acceptance at that time that the elements of the offences were made out and the facts on which I had to sentence you.  I am not going to go over all of those again.

3The most serious charge was that charge of aggravated burglary and that carries a maximum of 25 years imprisonment.  The allegations that related to that charge essentially involved you trying to open the security door at your brother's premises.  He says you had a Taser.  He picked up a cricket bat that was leaning against a wall.  You opened the security door, breaking the handle, and entered the premises and went towards your brother holding the Taser at chest height, comprising the charge of aggravated burglary.  At that point, he hit you with the cricket bat.

4No person was physically hurt as a result of what you did.  You, however, had to go to Casey Hospital and were treated with seven stiches to your head, three stitches to your left hand ring finger, as a direct result of being hit with the cricket bat.

5In sentencing you in March of 2018 there was a range of things I had to take into account.  I have had a look at my Reasons for Sentence.  They were included in the materials that you have received, and the factors that I took into account in March of 2018 included the fact that the charge of aggravated burglary was towards what I call the lower end of the range.  When I have got 25 years to work with, you were not at the top end.  I accepted that your offending was spontaneous, your entry to the premises was relatively limited, in terms of how long you were in there and how far you went in.  The offence occurred in the early evening and no one, apart from you, was physically hurt.  I also accepted then, as I still do, that the offending occurred in the context of a dispute between you and your brother, which did not excuse what you did, but provided a reason for why it happened, which we call context.

6I took into account the fact that you pleaded guilty.  I take that into account in relation to today's proceedings.  I took into account your difficult upbringing. 
I took into account the fact that you had a pretty good work history, and that towards the end of 2015 you began to suffer anxiety and depression, and then you managed to seek assistance for those conditions.  Right?

7OFFENDER:  Yes, Your Honour.

8HER HONOUR:  I took into account that you had responsibilities as a husband and a father of three.  You have certainly still got the responsibilities as a father, and at that particular time you had the full-time care of your kids.  I also took into account your lack of prior history.  There were no prior matters alleged and at that time there was no suggestion you had been involved in any other offending.  That was particularly relevant, as it indicated to me that your offending in January 2016 was likely to be a “one-off”; it could be described as being out of character, and it also pointed to your positive prospects for rehabilitation, given you were willing to seek assistance for your mental health problems.

9I was not concerned in March of 2018 that I needed to give weight to what we call specific deterrence, that is, putting you off offending again, let alone offending in that way again.  I was not concerned that I needed to protect the community from you.  I imposed an aggregate sentence which placed you on a community corrections order for a period of 20 months, during which time you were to submit for treatment for your mental health, be supervised by the Office of Corrections and be assessed for other programs to reduce your risk of re-offending. I ordered you to complete 300 hours of community work and ordered that 75 hours of treatment were to come off that community work component.  Of course, punishment comes in the duration of the order hanging over your head and the requirement to do community work; the rest was focused on helping you focus on your rehabilitation.

10You are now in breach of that order and I have had access to the “Contravention of Community Correction Order by Conditions” report dated 13 December 2019.  I note that the Office of Corrections was effectively in a position to breach you by mid-2018, but the charge and summons was not issued until 6 January 2020, with the corrections order itself having expired on 14 November 2019.

11I accept that this delay was likely to be designed to give you further opportunity to engage in the order - indeed it appears to me that the Office of Corrections bent over backwards - but it is unfortunate that proceedings were not initiated until after the order had actually expired. 

12In terms of what we call the particulars of your contravention, they are that you failed to perform unpaid community work on three occasions.  You in fact completed 29 of the 300 hours of community work that I ordered.  You have now pleaded guilty to contravening the order that I imposed and, accordingly, I do find the contravention proven.

13It is not alleged that during the operational period of the order that you have
re-offended.  Whilst the report prepared by the Office of Corrections obviously refers to your lack of compliance with the order I made, it also points to a number of personal difficulties which you faced.  These included a car accident in mid-2018.  A medical certificate was provided, which deemed you unfit for work from 2 August 2018 to 5 September 2018.  You also separated from your wife.  In early 2019, you had a period where you were the full-time carer of your daughter and at that time, not surprisingly, you reported feeling both overwhelmed and stressed.

14On 5 August 2019, you provided the Office of Corrections with a medical certificate indicating that you were not fit for community service until further notice due to ongoing health issues as a result of your car accident.  In late October 2019, you advised the Office of Corrections that you were unable to complete the order due to your mental health concerns.  You provided medical documentation advising you were unfit for Corrections services from
7 November 2019 to 6 December 2019.  You provided further medical documentation, stating that you were unfit for Corrections services for the period between 7 December 2019 and 20 December 2019.  You were discussing with your case manager that your mental health was not stable.  You were frank about that being an ongoing problem.  You even disclosed having suicidal ideation.

15By December 2019, you advised the Office of Corrections that you were living in your car.  When you appeared before me on 4 August of this year, and again today, to deal with the contravention proceedings you again appeared from your car, arrangements having been made during the COVID-19 pandemic for you to be appear remotely via your phone.

16I do take the delay in finalising this matter into account in terms of the additional stress upon you and the further opportunity it gives me to assess your prospects for rehabilitation.  Given your lack of re-offending, your prospects have to remain high. 

17With that in mind, my original sentencing reasons, and the contribution your personal circumstances made to your lack of compliance with the order I made, it would simply not be appropriate to sentence you to a term of imprisonment for either the original offending or for the charge of contravening the community corrections order.  I am satisfied that aspects of punishment also now have less weight, and aspects of specific deterrence and protection of the community, also carry even less weight than they did in March of 2018 at the time of my original sentence.

18I have had you assessed as to your suitability for a further order.  In an assessment outcome report dated 5 August 2020 you were assessed as being unsuitable for an order.  It appears the assessor was particularly concerned about your ability to comply with a further order, given you are currently homeless.  It has not limited your ability to comply with your need to appear here on two separate days.  He also refers to your lack of insight in relation to your offending and lack of motivation to engage in any order.  He refers to your failure to provide the Office of Corrections with medical confirmation and psychological confirmation as to your abilities.  This would appear to be somewhat unfair, given what I have already read out.  The same report, however, refers to you agreeing to comply with treatment and supervision, and I note your clear indication to me today that you are prepared to comply with a further order.

19There is also a certain reality to this breach hearing before me in terms of the current COVID-19 pandemic.  We are currently in stage four restrictions, which means people are extremely limited in their movements in the general community.  I am told that should the order continue in any way, supervision would be converted to telephone reporting and there would be difficulties in completing any community work requirements from a practical point of view.  However, a case manager would be prepared to liaise with your general practitioner and to assist you to organise psychological help.  In my view, this is important and a matter of some urgency.  This is also likely to have its limits in terms of availability, and likely to be conducted remotely.

20Given the matters that you faced during the operation of the order, this really was a matter that should have been returned to me to consider a variation.  It is apparent from the contents of the contravention report that this was a matter canvassed with you on a number of occasions.  You were apparently unwilling to do so, in circumstances where you describe severe anxiety, which at that time prevented you from leaving your house.  You now describe the same level of anxiety and inability to leave your car and to seek assistance in relation to your mental health, homelessness, and even accessing welfare support.

21You have been reluctant to engage in any legal assistance and been reluctant to engage in what I accept to be a genuine need for psychological assistance.  I see your self-reported conditions as having been a barrier to you seeking this assistance, but also detect there is a glimmer of pride; you must be careful to control your pride before your pride controls you.  You will have to find a way to embrace the order that I am about to make.  This will be contingent on how you navigate your own behaviours from hereon and, hopefully, your ability to locate accommodation, which will give you greater stability. 

22Accordingly, I cancel the community corrections order made by me on 15 March 2018 and again sentence you as an aggregate on the original offending to a community corrections order for a period of 12 months, during which you are to undergo supervision from the Office of Corrections and submit for psychological treatment.  As indicated, I also intend to impose judicial monitoring to ensure that the interventions I have ordered actually take place.

23You would be familiar, Mr Gill, that in addition to the conditions that I have imposed, there are again what are called standard conditions.  Given your history with the Office of Corrections, and you are familiar with them, the first and foremost is that you must not commit any other offences during the
12 month period which could be punished by imprisonment.  You have to report to the Office of Corrections, your nearest office, within two days and you are required to tell them of any change of address where you are living or working, and must also do that within two working days.  You have got to submit for visits as directed and you must abide by instructions and directions of your Community Corrections officer.  You cannot leave Victoria without their permission.

24In making the order that I have made, I have taken into account quite simply that you have been through some extremely difficult circumstances yet have not resorted to offending behaviour.  I want to make sure that stays the case, so put in adequate supports. 

25In terms of the actual charge of contravening the order, which is a separate offence, given my assessment that it is at the lower end, I will simply fine you $200 for that charge.

26OFFENDER:  Yes, Your Honour.

27HER HONOUR:  But I can only put you on that corrections order if you consent.  Are you willing to consent?

28OFFENDER:  I am, Your Honour.

29HER HONOUR:  All right.  Now, there are documents to sign.  I have got your consent over the video screen and that will be reflected on the orders and that is sufficient.

30OFFENDER:  Yes.

31HER HONOUR:  But out of an abundance of caution, I will get the orders that I have made sent through to the Office of Corrections Pakenham and they will be there at the time of your first appointment for signing.

32OFFENDER:  Yes, Your Honour.

33HER HONOUR:  All right, we have spoken to Pakenham.  They will let you attend for those purposes.

34OFFENDER:  Yes, Your Honour.

35HER HONOUR:  So, only conditions:  supervised by the Office of Corrections, mental health treatment, coming and seeing me.

36OFFENDER:  Yes, Your Honour.

37HER HONOUR:  All right.  So, we are going to pick a date for that.  I might not set that too far away because I want to make sure things are happening.  But I will give time for things to happen as well.  So I might ask for a date in say six to eight weeks.  All right, 21 September.  Now, what will happen is there will be a report prepared by the Office of Corrections to update me.

38OFFENDER:  Yes, Your Honour.

39HER HONOUR:  I will make sure you get a copy of that.  They will probably make sure if you are at least showing up, or at least on your phone, all right.  We will have a chat next time about how things are going.

40OFFENDER:  We will.

41HER HONOUR:  All right.  Now Mr Davison, is there anything I missed?

42MR DAVISON:  No, Your Honour.

43HER HONOUR:  All right.  Ms Luttgens, anything that I have said that causes you panic or distress or ‑ ‑ ‑

44MS LUTTGENS:  No, Your Honour.  All good.

45HER HONOUR:  Now, Mr Gill, this time I am picking - you heard my comments about pride.  They may have been unfair, but I am sensing from you, as I always have, that you want things to be different.

46OFFENDER:  Yeah, I do.

47HER HONOUR:  Unfortunately, despite the difficulties you face, the only person that can start to make that difference is you.

48OFFENDER:  Is myself.

49HER HONOUR:  All right.

50OFFENDER:  Yep, I understand that, Your Honour.

51HER HONOUR:  All right.  So I want to read something good in six weeks time, all right?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  You do not have to perform miracles.  But if I could see a glimmer of one, I would be grateful.  Because I do not want to bring you back for breaching this again, I do not want to go through all of this again, and I am pretty sure you do not either.

54OFFENDER:  No, Your Honour.

55HER HONOUR:  Now, did you have any questions?

56OFFENDER:  No, I don't, Your Honour.

57HER HONOUR:  All right.  Well, those documents will go through to the Office of Corrections.  Ms Luttgens, are you likely to be his ‑ ‑ ‑

58MS LUTTGENS:  No, Your Honour.  I am based at the Cranbourne office.

59HER HONOUR:  All right.

60MS LUTTGENS:  But I can liaise with Jesse about who his new worker is going to be and ‑ ‑ ‑

61HER HONOUR:  I just thought there might be some utility in setting up the appointment.

62MS LUTTGENS:  I believe he would be required to report by 2 pm on the phone either probably tomorrow or Monday.  Probably preferably tomorrow.  So, he can just call and that is how the induction would be facilitated.

63HER HONOUR:  All right.  Well, we will have a copy of the order emailed through to you as well, Mr Gill, so you have got the details about where you need to go.  Hopefully, they also have the phone number.  So, ring them first.

64OFFENDER:  Yeah, I will, Your Honour.  I appreciate it.

65HER HONOUR:  All right.  Well, thank you.  As I said, I will see you in six weeks.

66OFFENDER:  All right, thank you.

67HER HONOUR:  All right.  Thank you, Mr Davison, thank you very much for your assistance, very much appreciated, may I say.  Ms Luttgens, thank you very much for yours.  All right, I will close the court until 10.30 on Monday.  Thank you.

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