Director of Public Prosecutions v Gordon

[2023] VCC 1202

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

CR 22-02137

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER GORDON

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2023
DATE OF SENTENCE:	17 July 2023
CASE MAY BE CITED AS:	DPP v Gordon
MEDIUM NEUTRAL CITATION:	[2023] VCC 1202

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  SENTENCE – Armed robbery – Bugmy principles applicable – family and health support available to offender – immediate remorse shown by offender

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991

Cases Cited:            Bugmy v The Queen (2013) 249 CLR 71

Sentence:Convicted and sentenced to 473 days’ imprisonment (declared as time served under this sentence), a community corrections order for a period of 6 months with conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mx J. Van Dyk	Office of Public Prosecutions
For the Accused	Mr L. Richter	Sullivan Braham Barristers & Solicitors

HIS HONOUR:

1Mr Gordon, you have pleaded guilty to one charge of armed robbery contrary to s75A of the Crimes Act.  The prosecution filed a Summary of Prosecution Opening for Plea on 30 June 2023, which the parties have agreed can be treated as a statement of agreed facts for the purposes of sentencing you.

2On 21 March 2022 you attended a residential property at Traralgon.  You attended that property with two others.  Your victim was residing at the property at this time with his partner, their infant daughter and his teenager younger brother.  Initially the victim did not answer the door.  However, after repeated knocking he answered.  You walked into the kitchen of the house and said words to the effect of, 'What have you got here?'  The victim responded, 'I don't have anything?  What do you want?'.  You pulled out an imitation firearm and pointed it at the victim.  The victim then stated that the only money he had was in his room.  You told him to get it.  The victim walked into the master bedroom where his daughter and partner were sleeping and handed you a money box containing approximately $500 to $800.

3He tried to close the door behind him.  However, you followed him in, causing his daughter to wake up and make a crying noise.  Your demeanour changed and you immediately left with the others.  The night after the offending, you attended the Legend Sporting Club in Sale at approximately 11pm.  You saw the victim and approached him, stating words to the effect of, 'Sorry, mate. 
I didn't know that there was kids there or your partner.  All I got told is that you had weed there and some cash.  Look, Carl is the one that arranged it to happen'.  You and the victim sat near each other, playing on the slot machines while you intermittently handed the victim money, totalling approximately $150 to $200.  This lasted for approximately 25 minutes and when the venue closed at midnight you asked the victim for a lift home, who eventually agreed to this.

4You were arrested on 31 March 2022 and you participated in a police record of interview, admitting to attending the property on the night of the offending and you admitted to taking the money box from the house.  You told the police that the robbery had been arranged by the victim through a third party and you denied that you were responsible for arranging it.  After a committal you were indicted on numerous charges.  The matter resolved at a case assessment hearing early this year on a plea on the above count.  It is accepted that while this is not a plea at the earliest time it is an early plea and entitles you to a reduction in sentence.  You have been on remand since 31 March 2022 and have served 473 days pre-sentence detention as of 17 July 2023.

5You were born in September 1987.  Your mother was Aboriginal and your father was Caucasian.  You identify as an Aboriginal man and are accepted as belonging to the Gunaikurnai people.  Your father left your mother when you were very young and you have been raised by your maternal grandparents.  You were sexually assaulted as a young man by a family friend.  You were expelled from school at a young age for fighting.  You joined a gang on the streets and more fighting ensued.  You developed a significant alcohol addiction.  You used marijuana frequently.  You worked intermittently in hotels, unloading boats, in abattoirs and as a fishing hand.  While in that role you became involved in a fight and were hit on the head.  You have experienced seizures since this time.  It has been suggested that you have an acquired brain injury.  This has not been formally investigated and there is no evidence in front of me diagnosing you with an acquired brain injury.  It is accepted that by reason of your background that the principles in Bugmy v The Queen apply.

6You have had a long-term partner.  From that relationship you believe that you had two children.  Recently your former partner died.  At that time, you discovered that your daughter was not biologically your child.  You have been upset and distraught by this.  Your son is now a teenager and lives with your grandmother.  It is submitted on your behalf that the discovery of the parentage of your daughter led to a worsening of your alcohol abuse and increased your methamphetamine use.  These destabilising factors, it is submitted, have played a role in your offending.  You developed pancreatitis early on in life and this continues to require management.  You became addicted to pain medication and subsequently have been weaned from that and onto methadone.

Prior Criminal History

7You have admitted your criminal history.  While it is extensive it has not resulted in overly significant periods of time in gaol.  It is marked by being on CCOs, some of which you have complied with at times and others which you have breached.

8Turning to disposition.  I have mentioned above that you were entitled to a discount by reason of your early plea.  You are also entitled to a discount by reason of being incarcerated during periods of the COVID pandemic.  You have chosen to have this plea hearing heard in the County Koori Court sitting in the Latrobe Valley.  Your willingness to participate in Koori Court and undergo questioning by your elders in an open and honest way indicates to me your willingness to take responsibility for your actions and to begin on the path of rehabilitation.

9You were remorseful for your actions, as demonstrated by your actions at the Legends Sporting Club on the day after your offending.  I consider that your work and actions toward the victim demonstrate a level of immediate remorse.  These matters entitle you to a favourable consideration when it comes to sentence.  At the time of the Koori Court plea hearing, you had been on remand for 459 days.  I heard evidence of your participation in a variety of gaol programs, painting for The Torch and your willingness to assist other prisoners, particularly younger Aboriginal men.  This all stands to your credit.

10At the conclusion of the plea, I referred you for assessment for a CCO.  That was conducted on 3 July 2023.  You were considered to be a high risk of reoffending but were otherwise considered suitable for a CCO.  The psychiatric material in this case is now of limited use given how old it is.  I have been told that you will reside with your grandmother and your son.  A large number of members of your community and family were in Court.  Some of them spoke.  Your family members mentioned their willingness to connect you with specific services, including health and counselling services.  I formed the view that there are many people working with you who endeavour to ensure that you will receive the support, treatment and help you need.  I would remind you of the strong words of Uncle Lloyd, and he reminded you of the path that you will proceed down if you do not get the support, treatment and help you need. 
I urge you, Mr Gordon, to heed that advice.

11Your family mentioned their willingness to connect you with specific services, including the Lakes Entrance Aboriginal Health Association in Bairnsdale. 
This demonstrates the support you have available to you and if you were to take up such supports this would greatly improve your prospects for rehabilitation.

12I am mindful, however, of the objective seriousness of the offending.  While there is no victim impact statement it can be accepted that the act perpetrated on the victim would have left him feeling unsafe and in danger, particularly so when his partner and child were in the house.  Armed robbery is an objectively serious offence carrying a maximum term of imprisonment of 25 years. 
Your offending is an example of this, ordinarily reflected by a custodial sentence with a non-parole period.  However, in your case I consider rehabilitation and treatment to be very important considerations in your matter.

13Balancing all of these factors I will sentence you to a term of imprisonment of no more than the time you have already served, 473 days.  I will impose  a CCO of six months.  I do not propose to impose an unpaid community work condition.  The CCO was prepared by Mr Collier of Correctional Services.  The report is very useful in identifying local Koori services that can assist in fulfilling the above conditions.  He is to be commended for the detail contained in his report.

14Mr Gordon, on the charge of armed robbery you are convicted and sentenced to imprisonment for 473 days, together with a CCO for a period of six months from today.

15I am now going to ask for your permission and consent to enter the Community Corrections order.  I will let you know what the sentence is and then I will ask you whether you accept the terms of that order.  You are convicted and sentenced to a community corrections order for a period of six months from today.  You will be required to report to Bairnsdale Community Correctional Services by 4 pm on Wednesday, 19 July 2023.

16I impose this CCO on the following terms pursuant to the Sentencing Act.  I will impose a treatment and rehabilitation condition, including drug testing and alcohol testing, pursuant to s48B(3)(e).  Similarly, I will impose a mental health assessment and treatment program condition, pursuant to s48D(3)(f).  I will impose an offending behaviour program condition.  Pursuant to s48E I will impose a supervision condition, and pursuant to s48K I propose to impose a judicial monitoring condition.  As to this I propose, and I will hear from parties in a moment, that I will conduct supervision via video link once per month during the course of the CCO.  The first will occur on 17 August 2023.

17Having heard those terms, Mr Gordon, do you consent to a Community Corrections Order on those terms?

18OFFENDER:  Yes, I do, Your Honour.

19HIS HONOUR:  Thank you.  I formally declare that pre-sentence detention is 473 days and I direct that that declaration be entered into the records of the Court.  I order that you be released as soon as practicable.

20In accordance with s6AAA of the Sentencing Act I declare that but for the plea of guilty I would have sentenced you to 700 days' imprisonment with a minimum, non-parole period of 473 days.

21Mx Van Dyk, are there any matters you wish to raise?

22MX VAN DYK:  No, Your Honour, thank you.

23HIS HONOUR:  Mr Richter?

24MR RICHTER:  No, Your Honour.  That covers everything.

25HIS HONOUR:  All right.  Before I formally end this plea, I received notification from ABC Gippsland that they seek release of the following material: 
the indictment; the Summary of Prosecution Opening for Plea; and the summary of defence submissions for plea.  Does any party have any submissions they wish to make in respect of the release of that material?

26MX VAN DYK:  I understand there may have been some sensitive information about Mr Gordon in the defence sentencing submissions.  I am happy to forward those onto my learned friend just if that is easier for him to access.

27MR RICHTER:  No, I have those.  Generally speaking, I am not familiar with submissions from either party generally being made available to the press. 
For that reason, but also because of - even matters that are not necessarily sensitive, there are matters that are obviously deeply personal that are reflected in them.  I can see some appeal in having them released as a matter of balance to the prosecution opening but I am sure good attention was paid to the matters that Your Honour expounded in Court.  So on that basis I would have to oppose the release of the sentencing submissions I think, at the very least.

28HIS HONOUR:  Just to be clear, Mr Richter, are you making a submission only in respect of defence submissions on plea?  Do you say anything about the prosecution opening?

29MR RICHTER:  I am a little uncomfortable with the opening being released as well, I have to say.  I just - I have not had this application come at this stage before so I am just contemplating it at the moment.  I am not particularly enamoured with the idea of releasing either, but I can understand how the opening is a factual document rather than one that contains opinion in that way.  I wonder if Mx Van Dyk has a view on the release of the opening.

30MX VAN DYK:  I cannot see any grounds where we could refuse it.  I am somewhat comforted by the fact that I have included in there the conversation he had at the sporting club where he was apologetic.  However, I also understand what my learned friend has submitted in terms of - due to - yes, there are some sensitive items in the defence submissions.  However, also what submissions Mr Richter said about them, sort of explaining personal circumstances.  I wonder if we might stand it down and perhaps even go through some matters that could be redacted.  I am comforted by the fact that it is ABC and not the Herald Sun.

31HIS HONOUR:  No, probably (indistinct).  That might be going beyond the bounds, Mx Van Dyk.  I must admit when I looked at it, and I have quoted extensively from the prosecution opening, I considered it to be quite a balanced document and certainly the factual recounting of what transpired on the night,
I would have thought that is something that, you know, I have quoted from, it is going to be released as part of the sentencing remarks, I would have thought nearly all of the prosecution opening is taken up with that, and it does not really delve into any of the sensitive material on personal background or the more recent matters surrounding, you would have heard me mention the parentage of the children, does not deal with any of that. 

32So my initial reading would be that the prosecution opening should be made available but I have very grave concerns about defence submissions and the reason why I have grave concerns about that is because it draws extensively on the psychological report from many years ago, and on one view that makes that material irrelevant, but it makes it impossible to read the submissions without having regard to that.  That earlier document contains a great deal of personal information which is in many ways of no real relevance to this particular plea.  So you cannot read the submissions without knowing what is in that earlier report, and certainly I will be saying that earlier report I would not make available.  So in some ways given that, I would not - I am not minded to release the defence submissions.  Of course, I will hear from the ABC. 
I understand I have just seen your hand go up, but that is my initial view.  The indictment and the Prosecution Opening for Plea.  I am more than happy to give you five minutes if you want that, but I think we should hear from the ABC first.

33MX VAN DYK:  Sorry, just before we hear from the ABC, sorry, just to be frank, my concern is just with - there is a lot of negative reporting at the moment around - with the yes and the no campaign.  I am just very concerned
about - hence why I said I am comforted by the fact that it is the ABC and
I would expect more fair reporting.  I just wanted to make that submission before we heard from her, sorry.

34HIS HONOUR:  Yes.  Look, I must say I have heard that.  That is not a matter which I will take into account.  I would assume that once it is released the material can be used by the media.  So I am not going to make a distinction between which media organisation it is.

35MX VAN DYK:  No, of course not, Your Honour, yes.

36HIS HONOUR:  I will come to the ABC.  Just one moment.  Last thing,
Mr Richter, before we throw to the ABC - - -

37MR RICHTER:  Yes.  Look, my initial reaction was very much along the lines that Your Honour indicated, which is that, as I said, the prosecution document is a fairly neutral document, the opening, that is, to say a factual, neutral one, and my inclination was that the defence submissions should not go and neither should the prosecution submissions on sentence as opposed to the factual opening.  I was merely toying with the idea and I suppose I probably ought not to have toyed with it out loud in the way that I did, I was merely toying with the idea of whether there is an advantage in balancing the prosecution opening with some of the matters in the defence submissions, but I think it has been made clear, even in the course of Your Honour's sentencing, the sorts of matters that are relevant, and no doubt note has been taken of them and I do not think that further details should be given.  So my position currently where I think I am comfortable is that I do not think that I can oppose the release of the prosecution opening, but I do oppose the release of either of the sets of submissions or any of the other extrinsic material.

38HIS HONOUR:  Yes.  At the moment, all right.  I will just ask the ABC for comment.  Now, I am sorry, I do not know your name, so if you can just introduce yourself, please.

39MS SIMMONS:  Your Honour, sorry.  I am Rebecca Simmons.  I am from
ABC Gippsland.

40HIS HONOUR:  Yes.

41MS SIMMONS:  Look, that is absolutely fine.  I am happy just to go off what was said today and to just have the charge sheets.  The charge sheets are the most important thing for me.  So do not worry about the openings, if that please.

42HIS HONOUR:  Yes.  Well, certainly I think there is no problem whatsoever in giving you the indictment.

43MS SIMMONS:  Yes, that would be great, thanks.

44MR RICHTER:  I agree with that, with respect, for what it is worth, Your Honour, and I am grateful to the journalist from the ABC for being circumspect and respectful about it.

45MS SIMMONS:  And just to be clear, I would never - this is most likely for radio news and I would never publish the biological state of the kids and that type of thing as well.

46HIS HONOUR:  Yes, all right.  Well, certainly the audio of this hearing is available and it has been open Court today, so anyone could have heard what I have just said.  So with all that said, the last thing really is to say to you,
Mr Gordon, that the County Koori Court plea in your case was very confronting but also very hopeful and I really look forward to seeing you in one month with Corrections to make sure that you are linked in with those services and that your family is around you and supporting you, you are back living with your son and your grandmother, and that things are trending in the right direction.  So,
I will be seeing you once every month for the next six months to try to make sure that, you know, everything is going in the right direction.

47OFFENDER:  Thank you so much, Your Honour.  I appreciate it.

48HIS HONOUR:  All right, well, with that said, Mx Van Dyk, thank you for your attendance this morning and, Mr Richter, thank you for your attendance, and Ms Simmons also thank you for your submissions.  With that said,
Madam Associate, please adjourn the Court until 10 am tomorrow morning.

49OFFENDER:  Thank you, Your Honour.

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