Director of Public Prosecutions v Gribble
[2022] VCC 1549
•12 September 2022
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT SITTING IN Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02429
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA GRIBBLE |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2022 | |
DATE OF SENTENCE: | 12 September 2022 | |
CASE MAY BE CITED AS: | DPP v Gribble | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1549 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Aggravated burglary, common assault, causing injury intentionally.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Myers [2014] 44 VR 486, Worboyes v The Queen [2021] VSCA 169, Bugmy v The Queen [2013] HCA 37, R v Verdins & Ors [2007] 16 VR 269.
Sentence: Three years imprisonment with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
| For the Accused | Mr L. Barker | Emma Turnbull Lawyers |
HER HONOUR:
1Joshua Gribble, you have pleaded guilty on indictment to single charges of aggravated burglary, common assault and causing injury intentionally.
2In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:
·Aggravated burglary, 25 years imprisonment;
·Common assault, five years imprisonment; and,
·Causing injury intentionally, 10 years imprisonment.
3These maximum penalties reflect the seriousness with which Parliament regards these offences.
4The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 24 May 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
5I will not repeat the entire summary as it has just been read and it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred on the evening of 20 March 2021, at which time you were 25 years of age.
6The direct victims of your offending are Mischa Thomas[1], Timothy Bridges[2] and Mike Thomas[3]. Mischa lived in Redan, together with other family members.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
The Offending
7
At approximately 9.45pm on 20 March 2021, Mischa Thomas, Timothy Bridges,
Mike Thomas and six other Thomas family members or associates,
Tiffany[4], Alysia[5], Lucas[6], Dominic[7], Drew[8], and Bethany[9] were at Mischa’s residence. Timothy and Alysia Thomas were in the kitchen whilst Mischa, Mike, and Drew Ison were in the lounge room.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
[9] A pseudonym.
8I am using first names in these sentencing reasons to avoid confusion, given the number of persons present, many of whom have the same surname.
9Mischa, Timothy and Mike heard a loud banging on the front door. Mischa began to approach the door when you entered the residence without invitation and stood at the entrance of the lounge room. You began yelling and asking where Garry[10] was. Mischa continuously asked you to leave her residence. You were wearing shorts and a high-vis top and holding an empty beer bottle in your hand. You were known to the victims through your association with Mischa’s brother Garry, from whom you say you used to purchase drugs and intended to do so that evening. You also have distinctive facial tattoos.
[10] A pseudonym.
10Approximately two minutes later, two other unknown males, who were wearing masks as disguise, entered the same residence. One of the unknown males was in possession of a metal cylinder. The prosecution relies upon this only as context, as it cannot be proven beyond reasonable doubt that the two unidentified offenders entered in company with you. You in fact asked Timothy, 'Who are they?' in relation to the two unknown males.
11You then hit Mischa in the face with your hand and pushed her, before attempting to strike her with the beer bottle you were carrying.
12You proceeded into the kitchen area where you smashed the beer bottle, causing it to become jagged. You threatened Alysia with the broken beer bottle, at which time Timothy picked up a baseball bat and attempted to defend Alysia.
13You lunged towards Timothy with the broken beer bottle and stabbed Timothy on the left side of his neck, forming the basis for charge 3, intentionally cause injury.
14Timothy fell to the ground and, unrelated to your offending, was struck on the ground with a bar/bat on multiple occasions by one of the other offenders. When Timothy began to scream that he had been stabbed, you and the two unknown males ran from the residence.
15Timothy was taken to Ballarat Base Hospital. He had a three centimetre wound in the neck area which extended through the deep fascia showing muscle belly. He also had a two centimetre superficial abrasion over his left forearm for which you are less likely to be responsible. Timothy required surgery to explore and manage the wound to his neck. He was discharged from hospital later that night of his own volition.
Interview and arrest
16You were arrested in Shepparton on 2 April 2021. When interviewed by police, you replied 'no comment’, as is your right. You were charged and remanded into custody where you have remained.
Offence gravity
17In terms of the offence gravity, your offending is obviously serious.
18The offence of aggravated burglary is complete on entry but informed by what occurs once entry has been gained. In your case, that involved violence against Mischa Thomas and Timothy Bridges, each the subject of the separate charge.
19
In terms of the charge of aggravated burglary, I am assisted by the decision of
DPP v Meyers[2014] 44 VR 486 which included a non-exhaustive range of factors to be considered in assessing the objective gravity of an aggravated burglary. The factors referred to there include:
(a) the offender's intent at the point of entry;
(b) the mode of entry, such as by forcing a door or breaking a window;
(c) whether the offender was carrying a weapon;
(d) whether the offender was alone or in company;
(e) the time of day at which the burglary took place;
(f) what the offender knew or believed about who would be inside and/or about the person(s), where they would be; and
(g) whether the offender was someone of whom the victim was particularly frightened.
20In your case, you entered the premises alone via an unlocked door with an intention to assault. You would have been aware that people were inside the premises. You had with you an empty beer bottle which was ultimately used by you as a weapon. It is not at the higher end for an offence of its particular type.
21Whilst the assault on Mischa Thomas was relatively low level - a hit to her face with your hand, a push and an attempt to hit her with the beer bottle - it would undoubtedly have been frightening for her and it appears entirely gratuitous.
22The offence against Timothy Bridges was obviously more serious and involved the use of the beer bottle which you had made more dangerous by breaking it before threatening Alysia. The stab was to the neck area which I accept is an inherently dangerous point for attack. It is clearly more by good fortune than good management that the injuries to Timothy Bridges were not more serious. Your intent to injure, however, was plain. Photos of his injuries were tendered in the course of your plea.
23Your offending occurred in the presence of others, including children, who were unfortunate to witness the violence which unfolded.
24I do accept that your offending was without premeditation, you were known to the occupants and you were always going to be identified. It was relatively short-lived, but clearly, not without its consequences. It occurred whilst you were heavily drug and alcohol affected and when you were trying to score drugs. This, of course, does not excuse your offending.
Victim Impact Statement
25A Victim Impact Statement authored by Mischa Thomas, dated 15 August 2022, was also tendered by the prosecution at your plea hearing.
26The purpose of a Victim Impact Statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
27Mischa Thomas has prepared a Victim Impact Statement on behalf of herself, as well as Lucas, Tiffany and Alysia in which she details the physical, emotional and psychological impacts on all of those that had the misfortune to either be your direct victim or present during your offending.
28I have had regard to the admissible portions of her Victim Impact Statement.
Plea of guilty
29The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea.
30Your matter resolved through the case conference process which is part of the court's response to the COVID-19 pandemic and the resultant backlog of trials. Case conferences are designed to discuss pathways to resolution, where possible, or to narrow the issues prior to listing any trial. In your case, this process saw an adjustment to the indictment in your favour and to the facts relied on by the Crown.
31There is clear value in saving the victims the need to give evidence and relive distressing events and in the utilitarian value in saving the community the expense of a protracted criminal proceeding.
32Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates still remain as yet unfixed.
33
In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph 39
the Court of Appeal said that:
A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.
34Whilst remorse is harder to discern, through your plea you have certainly accepted responsibility for your offending.
35These factors will all be taken into account in your favour.
Personal Circumstances
36
In terms of your personal circumstances, tendered on your plea was a psychological assessment report authored by Dr Gina Cidoni, psychologist, dated
21 June 2022. In that report, Ms Cidoni helpfully sets out much of your personal background, as did Mr Barker in helpful written submissions.
37Your counsel also tendered over 4000 pages of your file subpoenaed from the then Department of Human Services.
38You are now 27 years of age and, as already outlined, were 25 at the time of the offending which, I accept, is an age which still allows for some limited weight to attach to the principles relating to youthful offenders, those principles having their focus on rehabilitation.
39You are an Aboriginal man of the Yorta Yorta people. You were born in Wangaratta and raised in Shepparton and Ballarat by your mother. You have an older and younger sister. A brother died in childbirth.
40Your father was always in and out of prison and was a violent drug user and an alcoholic. You were assaulted by your father on numerous occasions. Your mother was also a drug addict and physically abusive towards you.
41You lived in Shepparton with your mother until age 10 years and left home at age 11 and were placed in residential care in Warrnambool and Geelong. You briefly stayed with your maternal grandparents before having to return to a residential care in the Geelong area. You were aged 13 when you ran back to your mother but were once again removed from her care before being returned again at age 14.
42Your time in residential care saw you exposed to drug and alcohol use, criminal behaviour and you were also sexually abused.
43
You were pulled out of school in Grade 5 and attended school on and off again. You attempted to re-enrol for Year 8 but were too old and moved into a
Year 10 class for which you were understandably ill-equipped. You found this to be challenging and received frequent assistance. Your education was formally completed halfway through Year 12 at Shepparton High School but you are unlikely to have been educated to that standard.
44You exited residential care at age 16 due to your continual absconding and criminal behaviour and once again returned to your mother.
45Without trivialising your history as contained in the tendered materials, your background was one of emotional, physical and sexual abuse. The constant change in placements meant you had little opportunity to forge friendships, settle into education or form bonds with those responsible for administrating your care. It lacked stability. Your sisters were also placed in care, further impacting on your familial relationships.
46Your background and exposure to traumatic events in your childhood has also been considered and has led you to be socially disadvantaged, impacting on you negatively during your important formative years.
47The decision of Bugmy v The Queen [2013] HCA 37 at paragraphs 43-44 is one in which the majority said that:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
48It is conceded, and I accept, that the Bugmy principles have relevance to your sentencing exercise and do reduce your moral culpability for your offending.
49You did maintain a relationship for five years and lived with your partner at your mother's residence. You did not have any children and that relationship ended.
50You briefly lived in Melbourne and Narre Warren with a friend, then moved in with your sister and her two children in Ballarat. You state that this was good for you as it did allow you to stay out of trouble.
51To your credit you obtained
a degree in Music Engineering where you appear to have particular skills. You started your own business, Purple Heart Media, where you were involved in music production and professional photography. You have also completed a concreting apprenticeship and worked as a concreter for the past
nine years at Vic Pour based in Ballarat.
52Unfortunately, blighted by your upbringing, you were a constant user of alcohol and drugs, as you were at the time of your offending before me. You were routinely drinking a slab of alcohol after work.
53In terms of drug use and alcohol use, you began drinking alcohol at age nine, copying your father's behaviour. You tried cannabis at age eight, followed by amphetamines and methamphetamine by age 12. You have also smoked heroin and used GHB, which led to you being hospitalised. You state that you nearly died on two occasions as a result of your substance use.
54You were taking prescription medication, as well as methamphetamine, GHB, and heroin prior to being jailed.
55Ms Cidoni has assessed you and found that you presented with low intellectual capacity and have significant challenges in terms of thinking clearly and rationally, exercising good judgement, problem-solving and considering the consequences of your actions. She also concluded that you struggle to plan ahead, take longer to grasp things and struggle to adapt to situations, causing you high degrees of stress.
56You have previously been diagnosed with depression, anxiety and post-traumatic stress disorder. You are currently taking anti-depressants. Ms Cidoni opines that you have a substance use disorder and post-traumatic stress disorder - which stems from your childhood trauma and being sexually assaulted twice by the same perpetrator in Geelong, whilst in the care of Child Protection. Your conditions of substance use disorder and post-traumatic stress disorder were existent at the time of your offending but your offending otherwise appears to be highly related to your use of drugs and alcohol at the time.
57Overall, Ms Cidoni found that your risk of reoffending is high as static risk factors like priors, history of drug use, mental instability and trauma background, unstable family history, homelessness, and interpersonal problems are present. However, she also said the risk will reduce if you remain abstinent from drugs and alcohol and live in stable housing with treatment and supports in place. She recommends you explore assistance from the National Disability Insurance Scheme.
58Ms Cidoni does express concern that prison is capable of triggering your earlier trauma and experiences of abuse and adds to increase symptoms, rumination, distress and potentially major depressive episodes and self-harm.
59It is conceded that limb 5 of the decision in R vVerdins & Ors [2007] 16 VR 269 apply. That is, your diagnosed condition would increase the hardship experienced by you in prison as you suffer from a mental impairment at the time of sentencing. I agree that it has application.
60I do not accept that the other limbs of Verdins apply but I do accept overall, by combination of the Bugmy principles, your reduced intellectual capacity and the way it functions, and your diagnosed condition at the time of your offending, that there should be some moderate reduction of your moral culpability.
Criminal history
61Of course, your prior criminal history does form part of your personal circumstances.
62You do have what can only be described as an extensive criminal record. I do not intend to recite the entirety of it, but it is of relevance to sentencing exercise that there are several appearances for similar offences.
63On 20 August 2012, you appeared before the Shepparton Children's Court in relation to charges of assault with a weapon and criminal damage for which you were placed on probation for a period of eight months without conviction.
64
On 22 July 2013, you appeared at the Shepparton Children's Court in relation to
two charges of burglary, four charges of theft and two charges of attempting to commit an indictable offence for which you were placed on a
youth supervision order for a period of 12 months without conviction.
65On 2 December 2013, you appeared before the Shepparton Children's Court in relation to the charge of recklessly cause serious injury for which you were placed on a youth supervision order for a period of 12 months without conviction.
66On 4 August 2016, you appeared before the Ballarat Magistrates' Court for a range of dishonesty, violent, drug and driving offences, as well as breaches of court orders. On that occasion, you were also dealt with for three charges of aggravated burglary. You were sentenced to a total effective sentence of 18 months imprisonment, with a non-parole period of 10 months.
67Most recently on the record before me, on 13 January 2021, you appeared at the
Ballarat Magistrates' Court in relation to driving offences and a charge of recklessly cause injury and were sentenced to a period of two months imprisonment and placed on a community corrections order for 12 months.68
This would indicate that you were only recently released from prison at the time of the offending before this court. In addition, you were subject to a
community corrections order which is an aggravating feature to your offending.
69Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, denunciation and protection of the community, all of which do carry importance to your sentencing exercise. It is also relevant to the assessment as to your prospects for rehabilitation which, looking at your criminal record alone, would appear guarded.
Prospects of rehabilitation
70You have been in custody since 2 April 2021 and spent time, as I understand it, at the Metropolitan Remand Centre, Barwon Prison and Port Phillip Prison.
71
Your period on remand has been during the Corrections Victoria response to the
COVID-19 pandemic where I accept, in general terms, that prisoners have been required to be quarantined between prison movements - of which you have had a number- and there has been less access to rehabilitative, educational and job ready programs. There has been less freedom of movement within the prison and less access to personal visits with friends and family.
72In addition, the period you have served to date has been close to the longest period you have been required to serve in custody.
73Under specific circumstances and, in this case, the COVID-19 pandemic and the harsher conditions required, prisoners have had the opportunity to apply for Emergency Management Days and, if granted, may have this time deducted from their sentence. This you have experienced as follows:
(a)
Whilst the time between your remand on 2 April 2012 and today's date of
12 September 2022, represents some 528 days in custody, only 272 are directly referable to the matters on the indictment.
(b) You had a sentence of nine months imprisonment imposed on 31 August 2021 in the Magistrates' Court from which 48 Emergency Management Days were deducted.
(c) You had a term of two months imprisonment imposed on 2 March 2022 in the Magistrates' Court from which 26 Emergency Management Days were deducted. This has, as I have indicated, impacted on the pre-sentence detention available for this matter.
74The totality principle requires, where an offender is being sentenced to multiple terms or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is just and appropriate for the whole of the offending. This principle is relevant to the time you have spent in custody to date and the sentences that have been imposed upon you during that period.
75I note also, Mr Gribble, that you have written your own letter to the court. Whilst I do tend to find these documents self-serving, you have shown insight in drawing connection between your traumatic upbringing and your resort to drug use. You have also seen the benefits in accessing counselling and treatment whilst in custody and embracing the support of your sister, who has assisted you to set up a business. You do express desire for a more positive life and lifestyle and I encourage you to retain these ambitions.
76Certificates tendered on your behalf would indicate that, where able, you have tried to use your time in custody wisely. You have undergone some counselling and completed an alcohol and drug and anger management course. You have also attained a billet’s position, which is a trusted position.
77Your mother and father currently live together in Ballarat, with your father now clean and trying to finish a tattooing apprenticeship. Your mother works in a clothing shop. Your parents are both aged in their fifties. You have a younger sister and older sister living in Melbourne and Ballarat respectively.
78Your aim is to return to a working life and set up your own business. You hope to return to live with your sister.
79I have also had recourse to a reference from Anna Bianchi tendered on your behalf.
80Your efforts whilst in custody, supports upon release, and expressed insights elevate your prospects above those based on an assessment of your prospects from this offending on your prior criminal history alone. However, your future prospects would appear contingent on you avoiding any return to drug and alcohol use and treatment for your background of trauma.
81I will just check, Mr Barker and Mr O'Toole, that there is nothing arising from the comments made thus far?
82MR O'TOOLE: No, Your Honour.
83MR BARKER: Not from my perspective, Your Honour, no.
84HER HONOUR: Thank you.
Sentencing Principles
85The basic purposes for which a court may impose a sentence are; firstly, punishment; secondly, general deterrence, sending a message into the community; thirdly, specific deterrence, sending a message to an offender; rehabilitation, denunciation and protection of the community. In sentencing you,
Mr Gribble, I must have regard to a range of matters such as the seriousness of the offending, your level of culpability for it, your personal circumstance and those of your victims.86I am also required to balance the interest of the community in denouncing criminal conduct, with the interest the community clearly has in seeking to ensure where possible, that offenders are rehabilitated and safely reintegrated into society.
87I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality.
88Accordingly, Mr Gribble, I sentence as follows:
89On Charge 1, aggravated burglary, you are convicted and sentenced to two years and four months imprisonment. This is the base sentence.
90On Charge 2, common assault, you are convicted and sentenced to eight months imprisonment of which two months is cumulative on the base sentence.
91On Charge 3, causing injury intentionally, you are convicted and sentenced to
16 months imprisonment of which six months is cumulative on the base sentence and the other sentence imposed today.92Your total effective sentence, Mr Gribble, is therefore one of three years imprisonment. I fix a minimum of two years before you are eligible for parole and reckon 272 days as having already been served.
93Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. If not for your pleas of guilty, you would have been sentenced to a total effective sentence of four years with a minimum of three years before being eligible for parole.
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