Director of Public Prosecutions v Gunn

[2014] VCC 1157

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02071
CR 13-02070

DIRECTOR OF PUBLIC PROSECUTIONS

v

CORAL GUNN
JEMMA JACKSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 July 2014
CASE MAY BE CITED AS:	DPP v Gunn
MEDIUM NEUTRAL CITATION:	[2014] VCC 1157

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan
For Offender GUNN	Ms N. Kaddeche
For Offender JACKSON	Ms J. Munster

HER HONOUR:

1Coral Gunn, you have pleaded guilty before me to one charge of aggravated burglary.  Jemma Noraine Jackson, you have pleaded guilty before me to one charge of aggravated burglary and one charge of making threats to kill.

2The offending occurred on 22 April 2012 after the two of you had been together, at which time you, Ms Jackson, were drinking and drank a large amount of alcohol, being spirits and mixed drinks.  The victim in this matter is Leah Watts who is known to each of you; was a neighbour to you, Ms Gunn, and was known to you, Ms Jackson, through your family.

3At about 11 pm you, Ms Jackson, went to Ms Watts' apartment and knocked on her door and had a conversation with Ms Watts when she answered the door and you stood on the veranda.  You were trying to go inside, but Ms Watts was reluctant to let you in.  She then saw you, Coral Gunn, standing further up the driveway.  Prior to this incident there had been some threatening from you, Ms Gunn, yelling to Ms Watts that you were going to "gut her like a fat pig" which had made Ms Watts anxious and afraid to leave her unit.  When she saw you, she told you, Ms Jackson, that she was not allowed to have anything to do with Coral, and shut the door.  She then heard the two of you yelling out abuse and was sitting on her couch when she heard banging on a window in the lounge and saw the window break.

4You, Ms Jackson, then entered the property through the broken window armed with a knife.  Your actions in doing this underlie Charge 1 on the indictment; aggravated burglary.  You pointed the knife at Ms Watts and her dogs and threated to cut her.  You also said to her, "I'm going to kill you, you fucking dog, getting my kids taken off me."  These actions underlie Charge 2 on the indictment, a charge to which you alone, Ms Jackson, pleaded guilty, a charge of making a threat to kill.

5Ms Watts asked you to leave the house at which state you, Coral Gunn entered the property through the broken window.  You were unaware that Ms Jackson was armed with a knife.  However, you grabbed a speaker, swung it at Ms Watts, who ran into the bedroom and then you hit the door frame with the speaker.  At this stage Ms Watts rang police.  While she was in her bedroom she could hear the two of you yelling abuse and things being smashed around the house.  Other residents in the unit saw the two of you yelling abuse, kicking in windows and entering the unit and were placed in fear.

6Police arrived at the scene and arrested the two of you.   You told police, Ms Gunn, that you had not left your home, and you, Ms Jackson, at interview denied any involvement in offending.

7The maximum penalty for aggravated burglary is 25 years' imprisonment and the maximum penalty for making a threat to kill is Level 5 imprisonment.

8In her victim impact statement, Ms Watts said that as a result of the offending she was now suffering badly from anxiety, had suicidal thoughts, had constant flashbacks to the incident and did not sleep properly.

9I now turn to the personal circumstances of each of you, beginning with you, Coral Gunn.  You are 44 years of age.  You grew up in the Kimberleys in a large family.  Your mother was Aboriginal.  You told Mental Health Nurse, Peter Trallore, whose report dated 11 July 2014 was tendered on the plea that you were placed in State care as a child and removed from your family spending substantial periods of time in an orphanage.  You told Mr Trallore that when you were growing up you were abused whilst you were in care and you ran away.  You have two sons who remain in your country.

10The difficulty for you in particular has been that you were operated upon in 2000 for a brain tumour.  Following that operation it became clear that you had suffered a brain injury as a result.  Neuropsychological testing has shown that you have suffered a number of difficulties since.  You suffer focal seizures; you suffer from delusional psychosis; you have been described as suffering from mood disorder which is akin to bipolar affective disorder, and you suffer from anxiety.  You have also over the years abused drugs, primarily speed, cocaine and cannabis, although this is not something you have engaged in for some time. 

11You have also, according to reports, done well in your life prior to the surgery.  You finished Year 12, you joined the Police Force for three years, you worked as a secretary to the New South Wales Police Commissioner.  So life has proved difficult for you, if I can put it that way, because of the brain injuries you suffered due to the surgery in 2001.

12You have been settled in Ballarat for a number of years, and you have been the patient of various mental health services in the area.  I have a report dated 15 July 2014 from Dr Praveen Thottappilil, a consultant psychiatrist with the Australian Mental Health Services.  She said that she saw you - and this is a very important observation because it happened two days before this offending - on April 19, 2012 when you were reporting an increase of symptoms that you had suffered due to substance abuse, that is you had had a diagnosis from the psychiatrist of psychosis and mood disorder.  She said you had had problems with anger and irritability.  And then you came again to see Dr Thottappilil in May of that year saying there had been this incident and that you had been charged by police. 

13She saw you again in October 2012 and then in February 2013 when she said you were maintaining well, were not reporting any psychotic symptoms and were taking the medication that you required.  She described you as progressing reasonably well in 2013.  You have to take some medication because of your mood symptoms, in particular, Olanzapine.  There was a review in February 2014 when you presented in an irritable state because you were stressed with this particular court case, and the doctor was a bit unsure that you were taking your medication as you should.

14I also received a report from Peter Trallore, as I said, who is a registered mental health nurse with the Ballarat and District Aboriginal Cooperative, and a social and emotional wellbeing nurse at the cooperative and who has known you since September 2012.  In that time he has assisted you with ongoing mental health support and sees you on a weekly basis.

15He said that his observations are that because of your acquired brain injury you have difficulty processing information quickly, and can be overwhelmed easily with stress.  Your finances are managed by the State Trustee.  Mr Trallore said he had not witnessed any aggressive behaviour by you towards himself or others.  He said you can become verbally loud when you are under a lot of stress or you feel that you are threated.  He said that there has been a significant change in your behaviour since you have been complying with your medication, and said that you regularly participate in activities arranged by BADAC and is willing to share your cultural knowledge, which you possess a great deal of, and this was evident in the conversation that we had around the table with other people.  Mr Trallore said you had been accepted into the Aboriginal community in Ballarat and enjoy spending time with the community.  He believes that you are a vulnerable person because of your acquired brain injury. 

16He says that since there has been better management of your mental health issues and compliance with your medication there has been a big improvement in your mental state and you have not exhibited any aggressive or threatening behaviour that he is aware of.  He described you as a valued community member of the Ballarat Aboriginal community. Of importance to the court is the fact that there has been no further offending by you since this incident. 

17You have got some prior criminal history going back to 1993 and 1995, and then again in 2001 after you had been operated on.  I do not regard any of that prior criminal history as having particular relevance to the sentencing exercise before me, although I do note in October 2001 you were convicted of an assault occasioning actual bodily harm. 

18In all the circumstances, particularly because of the lack of offending over a number of years, and after the conversation with you around the table, Ms Gunn, where you were very forthcoming, very cooperative and impressive, it is my view that I do not need to deal with you by way of a sentence of imprisonment to be immediately served.  This was of course urged upon me by the prosecution.  You heard, Ms Gunn, here the prosecutor say that it was felt that you should go to gaol for this.  However, it is also accepted that your difficulty in making proper decisions arising from your acquired brain injury had a real part to play in this offending, and I accept that this is so.  I accept that you are remorseful for what you have done.  You have indicated that both by your plea of guilty and by the big efforts you have made to ensure you did not get into trouble subsequently. I have therefore had you assessed for suitability for placement on a Community Corrections Order.

19I make it very clear, Ms Gunn, that what you did was unacceptable, that you should not enter other persons' premises against their will and in violent conditions, but I am also satisfied that this was offending that you have not engaged in for many, many years, that is criminal offending, you have not offended since, you are compliant with your medication, you seek appropriate mental health treatment, you do not present a danger to the community, and so I am going to place you on a Community Corrections Order for which you have been found suitable.

20Now, I can only place you on a Community Corrections Order if you agree to be placed on it, and I need to tell you what the basic conditions are.  They are, firstly, that whilst you are on the order you do not commit any offence for which you could be imprisoned either inside or outside Victoria.  Whilst you are on the order you must accept visits from the Community Corrections Office.  You must also report to the Community Corrections Office as directed.  You  must inform the Community Corrections Office of any change of address or employment within 48 hours of that change.  You must report to the Community Corrections Office within two working days of receiving this order, that is by Wednesday.  Whilst you are on the order you must not leave Victoria without permission of the Community Corrections Office, and you must also obey all lawful directions of the Community Corrections Office.

21I am going to add a special condition that you undergo assessment and treatment for, as directed, mental health difficulties.  Basically what I expect will happen, Ms Gunn, is that whilst you are on this order you will simply continue attending the mental health services that you have, and that will be overseen by the Community Corrections Office.

22Are you prepared to be placed on a Community Corrections Order.

23OFFENDER GUNN: Yes, m'am.

24HER HONOUR:  Thank you.  I will have that order prepared.  In the meantime I will turn back to my sentencing remarks in relation to Ms Jackson.  You can have a seat.

25OFFENDER GUNN:  Thank you, Your Honour.

26HER HONOUR:  The order will last for 18 months.  Thank you.

27Now, turning to you, Ms Jackson.  You are now 27 years of age, and a very difficult childhood and adolescence was described to me in your case.  You were fostered out at the age of two days, and you lived for many, many years through your childhood and adolescence with your foster mother and her partner.  It would seem that you had an extremely difficult childhood.  Your stepfather was very abusive to you, emotionally, physically and sexually.

28You were born and raised in Victoria, in Melbourne.  You have never met your biological parents.  You have a number of stepbrothers and stepsisters.  There were notifications made to the Department of Human Services on a number of occasions when you were growing up about suspected sexual abuse.  You understandably displayed a lot of dysfunctional and difficult behaviour.  You suffered for many years from bed wetting, you engaged in fire lighting, and all the children, your stepsiblings and yourself were removed from your parents' care in 2001.  Your stepmother finally left your stepfather and moved to Bundaberg in that year when you were 14 or 15.  She returned to get her children, but you remained separated from your family, your stepsisters and stepbrothers until you engaged in serious self-harming and ran away from the Department of Human Services placement and you were reunited with your mother and moved to Queensland in 2002.

29You lived in Queensland from the ages of 14 until 18.  You were no longer subject to child protection orders and you returned back to Melbourne with your mother and siblings.  You fell pregnant and gave birth to your son, Jaylen, who is now seven.  You have a daughter, Kiarni, now aged four.  Their father has no involvement with your children, and was abusive to you.

30Around the time of this offending the suspicion was raised that Ms Watts' partner had sexually abused your son Jaylen who was then aged only five and suffers from severe autism.  There were a number of arguments between yourself and Ms Watts over this issue.  You did not believe the accusation was taken seriously. 

31You, yourself, unsurprisingly, because of the difficulties you had had in your life, had fallen into cannabis use, but mostly the problem was alcohol. You had subsequently formed relationships with two women and both relationships were marked by violence and alcohol abuse.  As a result of the concerns about Jaylen and also because of the concerns about the alcohol abuse, the violence between yourself and your partner, your children were removed from you around the time of this offending, and you were in great distress over this.

32Shortly after this offending you discovered that you were again pregnant; it was simply a one-night stand, and the father to that pregnancy, which eventuated in the birth of your son Elija, who is now two, has had very little to do with you.  Elija was born eight weeks premature, and just before his first birthday, again because you were in a difficult relationship which involved drug and alcohol abuse and violence, Elija was removed from your care.  Elija is with your stepsister and your two elder children Jaylen and Kiarni reside with your mother; your stepmother, if I can put it this way, but effectively your mother. 

33After Elija was removed from your care it appears you hit rock bottom.  You lost hope.  You not only kept drinking to excess but you started using the incredibly destructive drug, ice.  You got involved in a little bit of offending, that was some driving offending, and you stole a Christmas tree in the hope that you would be able to have your children home for Christmas Day in 2013, and you were fined for this.

34It seems you almost got to the point where you scared yourself, I think, Ms Jackson, and it was then that you decided that you needed help, and you sought the assistance of the Ballarat and District Aboriginal Cooperative, and I received a reference or a report dated 15 September - I beg your pardon, I don't know what the date is on it - a report from Geoffrey Kewl who is the alcohol and other drug coordinator at Ballarat and District Aboriginal Cooperative.  He said known you both as a client and as a community member since 2008.  You are a Yorta Yorta woman.  He notes that of recent times you had engaged with him for counselling and support in order to address your substance abuse issues, cannabis and alcohol consumption and indeed ice use.  He said that you had had 57 contacts with BADAC for this, and also attended appointments with their general practitioners and social and emotional wellbeing workers. 

35You had been assessed for detoxification and the Women's Rehab Program both at DASWest in Footscray.  You attended the detox unit for several days and have interviews in person and via telephone with the intake department at the Women's Rehab Program.  He described you as being sincere in your attempts to reduce consumption of substances to the point where you would become drug free.  He described you as frank and forthcoming over many issues about your upbringing and use of illicit drugs and alcohol. 

36He stated:  "I believe that with continued engagement with services and a strong resolve she may be successful in achieving sobriety."

37It was incredibly helpful talking to you around the table, Ms Jackson.  I gained the impression that you are, as I said to you, actually a very strong person despite all the difficulties you have faced.  To reach a point where you decided - and you made the decision yourself - you need help with your drug use, with your alcohol use, that you have got to set out on a path - and it is a very hard path - to overcome these so you can have your children back seems to me to be the decision of a very strong person and a very determined person. 

38We had what I regarded as a very fruitful discussion about your strengths. You are a very talented sportswoman; you are a very good footballer, you play basketball.  There was a discussion also at the table about the fact that it is hard for you, you live in Wendouree.  Most of the people you know who are your friends still use drugs, still drink too much, and a person like you who decides they are not going to do that any more can threaten those former friends and associates, and they can turn around and abuse you for what you are doing; for being standoffish, for being a snob, for being a person who is not participating in those activities any more, but I am very much of the view that you mean to do what you say.  You talked about wanting to go back to school, about getting Year 10, perhaps 11, perhaps Year 12, going on to study.  You are a young woman who has got an enormous amount to offer her community and the community generally.

39It was urged upon me by the prosecution to take into account that what you did was very serious.  It is extraordinarily serious to break into someone's house with a knife.  I accept that at the time you were, if I can put it this way, horribly drunk.  I accept that you are remorseful for your actions, but what you did was extremely wrong, extremely serious, and I have got no doubt you now know that if you do that sort of thing again, you are going to end up in gaol, and the awful thing about that is it would set back your campaign to get your kids home again many, many years, and I know that is the last thing that you want.

40I also note that you are no longer in a relationship, and whilst that might be difficult for you, it seems to me that is a very good thing, because you have got a lot to attend to, and you do not need a troublesome relationship as well, and it does seem to me that, unsurprisingly given your background, you have always ended up in relationships where there is abuse and violence, and you need to look after yourself.  You have had enough damage and enough trouble in your life, and it is to be very much hoped that you can keep on this road that you are on at the moment.

41In any event, it is my view that you are remorseful for your offending.  I think you have taken very positive steps to address the issues in your life, and so that you have got - and I say this a bit guardedly, but at the same time I say it although it might seem to be saying the opposite - with a fair degree of confidence that you have got good prospects of rehabilitation.  You struck me as an intelligent young woman, as I said with a great deal to offer both her children and the community at large.  It is just a matter of beating your demons; the main ones at the moment being the drugs and the alcohol, and the next one being the demons from your past, which as you said, you use these substances to mask.

42So it does seem to me that if I place you in gaol the progress you have made in your drug use, which I find directly underlay your offending, would be horribly interrupted and set you back, and it would not be to the benefit of the community generally, that you be kept from the rehabilitative path that you are on at the moment.  So I have therefore had you assessed for a Community Corrections Order as well.  You were also found suitable, and I propose with your permission to place you on this order.

43I need to explain to you again the core conditions, the basic conditions, which are that whilst you are on the order - and I am going to make an order lasting for two years for you, okay - that whilst you are on that order, no offending either here or in any other State in Victoria.  You must report to the Office of Corrections within two days, that is by Wednesday.  Whilst you are on the order you must make visits to and receive visits from the Office of Corrections as they organise.  You must obey all lawful directions of the Community Corrections Office.  You must inform the Office of any change of address or employment within 48 hours of that change.  You may not leave Victoria without the permission of the Office of Corrections.  I am going to order that you undertake 100 hours of unpaid community work.  I am going to order that you undergo assessment and treatment for drug and alcohol use, and I am going to order that you undergo assessment and treatment for mental health difficulties.

44Are you prepared to be placed on that order?

45OFFENDER JACKSON: Yes, Your Honour.

46HER HONOUR:  I have also ordered that there be an exploration of educational programs for you.  It would be good to get you back to study.  I am sure you can do it.  I think it would make a lot of difference to you; all right?  And it is something else for you to be able to keep your mind on whilst you are going through the process of getting your children home; okay?  Thank you.  You have a seat.   All right.  We will just have the orders set out.

47Pursuant to s.6AAA, I declare that had you not pleaded guilty, Ms Gunn, I would have sentenced you to a term of imprisonment of six months and suspended that sentence for a period of 18 months.  I still would have had the option of suspended?  Not for aggravated burglary any more?

48COUNSEL:  I don't think so, Your Honour.

49I very much enjoyed talking with you both around the table, and I thank you very much for your participation.  That is not easy to sit down and have to talk the way you did, and as I said, I found it really, really helpful in deciding that there was no point in my proceeding to sentence of imprisonment which after all must be a sentence of last resort. 

50All right.  Ms Gunn, I might get you to sign this.  Look, I think the other thing I might order with you, Ms Jackson, because I just think it would be a help, I am going to order judicial monitoring.  So every six months you and I are going to see each other again; okay?  That is not to give you a hard time, I just want to know how you are going; all right?

51OFFENDER JACKSON: Yes, Your Honour.

52HER HONOUR:  Do you think we could manage that?

53OFFENDER JACKSON:  Yes.

54HER HONOUR:  I want to find out if you've given away basketball and taken up netball.  All right?  I can't see it happening, but anyway.  Is there a sort of Collingwood version that you can play for?  No.

55OFFENDER JACKSON:  Maybe Richmond.

56HER HONOUR:  Have a seat, Ms Jackson, we're not talking any more, we're done.  At least you didn't say Hawthorn; my Tippy, I'll never hear the end of it.

57MS HOGAN:  There are also the ancillary orders.

58HER HONOUR:  Yes, thank you, Ms Hogan.

59MS HOGAN:  I'll hand those up now.

60HER HONOUR: It's a retention, is that right?

61MS HOGAN:  Yes, samples were taken (indistinct).

62HER HONOUR:  Thank you.  Now, here we are.  We'll just get you to sign those, thank you, ladies, and then we're out of here.  Thank you very much.  Can we just give these, please, to Ms Hogan, thank you.

63MS HOGAN:  Just in relation to the fail to answer bail for Ms Gunn, Your Honour, is that being remitted - - -

64HER HONOUR:  Yes, that's remitted back to the Magistrates' Court.  I thank counsel very much for their assistance as well.  All right.  So Ms Jackson in particular, I want you to use this CCO, like I told you, it's a resource, okay.

65OFFENDER JACKSON:  Yes.

66HER HONOUR:  You do need to do some therapy.  Anybody who's been through what you've been through does, all right?  And you are certainly not alone with that.  So try and use it as a resource, and the educational part as well.  All right?  And it comes down in the form of a punishment, but in fact it is not.  What you'll have to do is you'll have to go to your GP, and you'll have to get what's called a mental health plan, and that will entitle you to a number - I think it's about 12 sessions - with a therapist.  But the other thing you can do through the Cooperative, and it might be a better way of doing it, see if you can get a counsellor, because that will not require that ongoing thing, but you need to have someone to talk to about this; all right, because you know, life sounds like it's pretty difficult, and you really need a backup, you need to be able to talk to someone, work out how you handle stuff, work out how you stop hitting yourself over the head for failing at this and failing at that, which many parents do when they get involved with DHS, all right?  Just be good to keep positive about what you can do with your life and where you can go, and hopefully when I see you in six months' time, it will be a bit of a good news story, all right, and that you're a bit of the way down the track.  But I'm sure Ms Munster will - - -

67MS MUNSTER:   I will explain all that, Your Honour.  Was Your Honour minded to set a date now in six months' time, or - - -

68HER HONOUR:  Yes, probably not a bad idea.  Now, I don't want you to stress over the judicial monitoring, okay?  It's not dragging you back.  We've set a date.  It's on your CCO order.  So don't stress about it, but it's just good to know that you're going to see me anyway, so if there's a temptation to think, "Beauty, I'm going to write myself off tonight," okay, you've got to come and see me in six months' time, you're not going to want to talk to me about that; all right?  But I do want to see how you're going.  Okay?   All right.  I have already signed - did I give you back the retention order?  So I don't need to do these?  This is for Ms Gunn, I beg your pardon, I haven't signed those.  There we go.  I thank everyone for their assistance in this matter.

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