Director of Public Prosecutions v Gittens
[2021] VCC 498
•30 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01735
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN GITTENS |
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JUDGE: | Cahill | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 April 2021 | |
DATE OF SENTENCE: | 30 April 2021 | |
CASE MAY BE CITED AS: | DPP v Gittens | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 498 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Aggravated home invasion; theft; possessing a firearm whilst prohibited
Legislation Cited: Firearms Act 1996 (Vic); Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic)
Cases Cited:Postiglione v The Queen (1987) 145 ALR 408; R v Renzella (1997) 2 VR 88; Peter Thurlow [2021] VSCA 71; Wol [2019] VSCA 268; DPP v O’Brien (2019) 280 A Crim R 1; Nicholas Dean [2020] VSCA 100
Sentence: 6 years’ and 2 months imprisonment with a non-parole period of 3 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Caruso | Office of Public Prosecutions |
| For the Accused | Ms G. Connelly | Ann Valos Criminal Law |
HIS HONOUR:
1On 19 April 2021, you pleaded guilty to:
(a) one charge of aggravated home invasion;
(b) three charges of theft; and
(c) one charge of possessing a firearm whilst prohibited.
Circumstances of offending
2The circumstances of your offending are set out in the Prosecution Opening for Plea, dated 22 March 2021, which was Exhibit A. Its contents are agreed facts.
3Liam Jacobs (‘Jacobs’) lived with his partner, Rylee Park (‘Park’), at Gisborne.
4On 15 January 2020 at 3:00PM, you sent a text message to an alleged co-offender, Turnbull, reminding him to get duct tape, garbage bags, gloves, a Stanley knife and cable ties.
5You, somehow, had come to believe there was a cannabis crop at Jacobs’ home.
6Later, on the same day, a third alleged offender, Spiteri, sent a message to another person telling him property, including a ute, were ready.
7Early the next morning, around 2:00AM, you, allegedly with Turnbull and Spiteri, went to Jacobs’ home.
8You, with two other offenders, entered Jacobs’ home. You were each wearing face coverings and carrying firearms; a handgun, a revolver and a sawn-off rifle. One of you kicked open the front door and went inside. The other two, followed.
9Jacobs was home with Park.
10Jacobs heard the noise and went to the rear yard where the three of you confronted him. The offender armed with the handgun used it to strike Jacobs to the head and said “Where is the crop?”.
11There was no crop. The offender with the handgun then grabbed Jacobs’ left shoulder, demanded his car keys and money, and directed him inside the house at gunpoint. (charge one – aggravated home invasion)
12One of you took Jacobs’ wallet and cards (charge three – theft) and his car keys. And, one of you took Park’s car keys (charge four – theft).
13Park was in the garage. One of you pointed your firearm at her. While she was held at bay, one of you kissed her on the head and said “Sorry, this is nothing to do with you”. She was told, apologetically, that her boyfriend and her dog would be okay.
14One of you tried unsuccessfully to start Jacobs’ ute. Jacobs was told to start the car. He explained how to start it and one of you started it and drove away (charge two – theft of a motor car). When leaving, one of you said to Jacobs, “Don’t even think about calling the cops, we’ll come back.”
15Park called 000.
16After Spiteri, on the prosecution case, had sold Jacobs’ ute, he told you that Turnbull and you would each get a thousand dollars and drugs.
17Some of the episode was captured on CCTV cameras at Jacob’s home.
18It shows the three offenders enter the premises, one after the other. By your guilty plea, you admit that you were one of them.
19It also shows the stolen utility parked outside the garage. Eventually, one of you starts it and drives away. About three minutes elapses between the time the first of you entered the property and the last of you left.
20In the course of their investigation, police found the ute’s registration plates at Spiteri’s home. They found Jacobs’ cards at Turnbull’s address.
21Under the Firearms Act 1996 (Vic), you were prohibited from carrying a firearm.
22Police arrested you on 20 April 2020. You were later charged on summons.
23You surrendered yourself into in custody on 8 December 2020 when, before the committal hearing stage, you pleaded guilty to the charges which are now on the indictment.
24Spiteri and Turnbull have elected to stand trial.
Victim impact statements
25Both Jacobs and Park made victim impact statements.[1]
[1] Exhibits B and C.
26Jacobs described three masked intruders. One of you pistol-whipped him. He was seen by a paramedic and later a doctor for treatment for a laceration to his ear. He became anxious, paranoid and could not sleep. It affected his work. Counselling and medication have helped him try to get on with his life.
27He and Park moved out the property because of the memories of your frightening invasion of their home.
28Park wrote she was “angry, hurt, paranoid, confused and scared”. Your crimes caused conflict between her partner and her. She was prescribed medication for anxiety and depression and has had ongoing psychological counselling. She is unable to trust people anymore and she feels isolated from her partner, family and friends.
Criminal record
29You have admitted a criminal record.
30On 11 April 2011, you were convicted of recklessly cause injury and fined $1,500.
31Between 17 July 2012 and 9 April 2018, you were summarily convicted of more than 50 offences, predominantly for dishonesty.
32On 24 March 2015, you were convicted of drug and dishonesty offences and recklessly cause injury and ordered to complete a 15 month Community Correction Order.
33On 9 December 2015 and 9 April 2018, largely for dishonesty offences, you were sentenced to terms of imprisonment of 16 months and 18 months respectively.
Personal circumstances
34You were born on 25 May 1990 and were aged 29 years when you offended. You will turn 31 next month.
35Your personal circumstances are set out in the psychological report of Alison Mynard who assessed you in March this year.[2]
[2] Exhibit 2.
36You had a traumatic childhood. Your father was a gambler and an alcoholic. He was violent to your mother and you. When you were six years old, an uncle, who lived with you, started sexually abusing you. When you told your mother, she was dismissive and moved you to live with your grandmother. You felt rejected by your parents. You have never had any close relationship with them.
37You went to local schools where you struggled with literacy. At the end of Year 10, you started a carpentry apprenticeship. You were bullied at trade school because of your reading problems. Special arrangements were made for you to complete the course without attending school.
38You lived with your grandparents until you were 19 years old when your grandfather died. You were close to both your grandparents and you mourned his loss. Shortly after your most recent release from prison, your grandmother died. You were glad to at least have seen her in her last days.
39You have worked as a carpenter intermittently. At times, your employment has been interrupted by drug use and gaol terms. You did manage to work continuously for around three to four years. You hope to eventually get back into carpentry work.
40You have smoked cannabis from the age of 15, and when your grandfather died, you started smoking methamphetamine to numb your grief. You became addicted and developed a daily habit. You have also abused GHB.
41You were released from prison on 3 January 2020 after completing your sentence.
42Without supervision, you relapsed into ice use and, within two weeks, you reoffended.
43You told Ms Mynard someone told you there was cannabis at the house and you thought you could make money from stealing it. In the context of ice and GHB use, you said you did “not care so much” about the consequences and were prepared to take the risk. You said you had “freaked out” when you saw someone inside the house and you “apologised” to the girl and said, “it was nothing to do with her”.
44You expressed remorse and said, “I hope they are okay” and “I wouldn’t like it to happen to my friends”. You acknowledged the likely psychological damage your crimes will have caused them.
45For more than 10 years, you have abused methamphetamine and GHB. You reported one extended period of abstinence when you were 24 years old.
46You reported to Ms Mynard past symptoms of drug-induced psychosis including visual and auditory hallucinations and paranoia.
47You also reported symptoms of complex post-traumatic stress disorder (‘PTSD’), including low mood, isolation, irritability and anger, following your father’s physical abuse and your uncle’s sexual abuse, of you.
48You told Ms Mynard you feel unsafe and vulnerable in gaol. It appears to be a trigger from the trauma of your childhood sexual abuse.
49In Ms Mynard’s opinion, you suffer from complex PTSD, possibly attention deficit hyperactivity disorder (‘ADHD’), panic, anxiety and depressive symptoms.
50She believes, in addition to learning relapse prevention strategies, you need to address your underlying mental health issues. She said you “present as being engageable and open to understanding [yourself] and [are] a good candidate for therapy.”[3]
[3] Exhibit 2, p.9.
51I accept her opinions which were not challenged.
Defence submissions
52Ms Connolly, who appeared on your behalf, acknowledged that your offending was serious.
53She submitted, though planned, albeit poorly, in her submission, your offending was motivated by addiction rather than greed and the episode was brief.
54She submitted, while accepting that you are to be sentenced on the basis that you were complicit in all charged offending, I cannot be satisfied that you struck Jacobs and made the demand on him; nor can I be satisfied, on entry, you intended to steal the car, in addition to the cannabis you believed to be at the house. She also submitted that I could not be satisfied that you knew someone would be home but, by your guilty plea, you admit that you were reckless as to that fact.
55As I said earlier, you have limited literacy. Ms Connelly told me, when Park’s Victim Impact Statement was read to you, you said you were sorry for your offending, you wished you had not done it, you would take it back if you could, and she has nothing to fear from you.
56Ms Connolly relied on the following factors in mitigation of penalty:
(a) firstly, your guilty plea for its utilitarian value, your acceptance of responsibility for your actions and willingness to facilitate the course of justice, and as a demonstration of remorse;
(b) secondly, your remorse expressed during your offending, to Ms Mynard and the Court;
(c) thirdly, Renzella or ‘dead’ time you have spent in custody amounting to one month; and
(d) fourthly, because of your diagnosed PTSD, prison will weigh more heavily upon you than a person in normal health (the fifth limb of the Verdins principle).
57In relation to sentencing practices for the offences of aggravated home invasion and a prohibited person possessing firearm, she helpfully referred me to several appellate decisions.
Prosecution submissions
58Ms Caruso, who appeared for the prosecution, submitted that the objective gravity of your aggravated home invasion is medium to high considering:
(a) there was a degree of planning between the offenders;
(b) Jacobs was targeted to steal his ute and what was believed to be a cannabis crop;
(c) the offending occurred at 2:00AM;
(d) all offenders were all disguised;
(e) the home entry was violent – the offenders kicked in a door;
(f) the offenders pointed their firearms at Jacobs and Park;
(g) Jacobs was assaulted;
(h) Park was kept at bay while others searched for various items; and
(i) the episode was not fleeting.
59In her submission, the court must also take into account the profound and ongoing impact of your crimes on Jacobs and Park.
60She submitted that general deterrence, just punishment and denunciation are important sentencing factors.
61Ms Caruso accepted that the intention to steal, the entry in company and the possession of the firearm are all elements of the aggravated home invasion offence. They cannot be regarded as aggravating factors additional to the offence.
62She submitted that the objective gravity of your possession of a firearm is also high. She acknowledged that, considering the possession of the firearm is an element of the aggravated home invasion offence, care must be taken to avoid double punishment.
63She also submitted that the theft of the motorcar was a serious offence, considering the car was valuable and its theft was premeditated.
64She submitted your overall moral culpability is high.
65She acknowledged that you have demonstrated some insight into your offending and remorse for it.
66She also acknowledged that you have one month of imprisonment available as “dead’ time.
67She submitted, considering your prior convictions for burglary, violence and theft of a motor vehicle and that you reoffended only 13 days after release from prison, I should be cautious about your prospects of rehabilitation.
68She accepted your diagnosis of complex trauma engages the fifth limb of the Verdins principle to a limited degree.
69She referred to the cases Wol [2019] VSCA 268 as a comparator and DPP v O’Brien (2019) 280 A Crim R 1 and Nicholas Dean [2020] VSCA 100 for additional sentencing guidance.
Consideration
70The seriousness of the offence of aggravated home invasion is reflected in the maximum penalty of 25 years’ imprisonment.
Objective criminality
71In your case:
(a) The victim’s home was deliberately targeted in order to steal cannabis and a utility. You were part of a plan to steal cannabis; whether or not, on entry to Jacobs home you intended to steal his ute, I cannot decide.
(b) When you entered with two other offenders, you were at least reckless as to whether there was someone home.
(c) You and the other offenders were in disguise and each carried firearm with you throughout the time you there.
(d) The home was entered in a violent manner, in the dead of night, when one of you broke down the front door.
(e) Jacobs was struck with a handgun.
(f) Park was confronted with a firearm.
(g) Although your presence at the home was brief, it was not fleeting.
72I am unable to decide which of the offenders you were but, with the others, you were involved in a joint criminal enterprise.
73Your offending is a serious example of the offence.
74You were part of a plan to target Jacobs’ home for theft, you were actively involved when the home was invaded and you shared in the proceeds of sale of a valuable stolen car.
75Your moral culpability, in my view, is high.
76Your intention to steal, your entry in company with 2 co-offenders, your possession a firearm and your state of mind regarding the presence of the victims are elements of the offence. As such, they are not aggravating factors that are additional to the offence.
77Denunciation, protection of the community and general deterrence are paramount sentencing considerations.
78I must also consider your rehabilitation. If you are not to reoffend, you must learn relapse prevention strategies and addressing mental health issues. You impressed Ms Mynard as a “good candidate for therapy”.[4]
[4] Exhibit 2, p.9.a
79I accept:
· your guilty plea has high utilitarian value; and
· by it, you have accepted responsibility for your actions and shown a willingness to facilitate the course of justice.
80I also accept:
· you are remorseful; and
· the fifth limb of the Verdins principle is enlivened in your case; that is, because you suffer PTSD related to childhood abuse, prison will be harder for you than a person in normal health.
81And, taking all these factors into account, I have moderated the sentence I would otherwise impose.
82Because you are to be sentenced for a number of offences I have had regard to the principle of totality to ensure your aggregate sentence is “a just and appropriate measure of the total criminality involved”.[5]
[5] See Postiglione v The Queen (1987) 145 ALR 408,416-417, 442-43.
83And, because of the overlap between the aggravated home invasion offence and the firearm possession offence, I have made no order for cumulation to avoid double punishment.
84I have also made allowance for the one month you have spent in custody which does not constitute pre-sentence detention.[6]
[6] See R v Renzella (1997) 2 VR 88, 96 and Peter Thurlow [2021] VSCA 71, [42].
85Aggravated home invasion as a category one offence under the Sentencing Act 1991 (Vic).
86Accordingly, I must impose a term of imprisonment for the offence of aggravated home invasion and fix non-parole period of not less than three years unless a special reason exists. Ms Connolly did not argue that any special reason existed.
Conclusion
87In sentencing you, I have had regard to the factors set out in s 5(2) of the Sentencing Act 1991 (Vic) insofar as they are relevant to you.
88By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
89On charge 1 – aggravated home invasion, you are convicted and sentenced to 5 years’ and 11 months’ imprisonment.
90On charge 2 – theft of Jacobs’ motor car, you are convicted and sentenced to 12 months’ imprisonment.
91On charge 3 – theft of Jacobs’ wallet and cards, you are convicted and sentenced to one month’s imprisonment.
92On charge 4 – theft of Park’s keys, you are convicted and sentenced to one month’s imprisonment.
93On charge 5 – possessing a firearm while prohibited, you are convicted and sentenced to 12 months’ imprisonment.
94The sentence of 5 years’ and 11 months’ imprisonment is your base sentence. I direct that 3 months of the sentence imposed on charge 2 be served cumulatively on your base sentence.
95I direct the sentences imposed on charges 3, 4 and 5 be served concurrently with your base sentence and each other.
96Your total effective sentence is 6 years and 2 months and I direct that you serve a minimum period of 3 years and 9 months before being eligible for parole.
97I declare you have already served 143 days of your sentence by way of pre-sentence detention.
98I also declare, but for your plea of guilty, I would have sentenced you to 8 years’ and 5 months’ imprisonment and imposed a minimum non-parole period of 5 years and 8 months.
99Pursuant to s 89(4) of the Sentencing Act 1991 (Vic), I order all licenses and permits held by you under the Road Safety Act 1986 (Vic) be cancelled and you are disqualified for a period of 2 years, from today’s date, from obtaining any further license or permit.
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