Director of Public Prosecutions v Ibbott

[2021] VCC 968

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-00244

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAU IBBOTT

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June and 24 June 2021
DATE OF SENTENCE:	15 July 2021
CASE MAY BE CITED AS:	DPP v IBBOTT
MEDIUM NEUTRAL CITATION:	[2021] VCC 968

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Aggravated burglary – Intentionally damage property – Arson – Possess a prohibited weapon without exemption or approval

Legislation Cited: s77, s.196(1), s197(1), Crimes Act 1958

Cases Cited:Hope v The Queen [2021] VSCA 177 - Longhurst v The Queen [2021] VSCA 179 - Hogarthv The Queen [2012] VSCA 302 - DPP vMeyers [2014] VSCA 314 - Suckling v The Queen [2013] VSCA 278 - Hatzis v The Queen [2021] VSCA 43

Sentence:Total effective sentence of 5 years and 7 months with a non parole period of 4 years with 367 days declared as pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Anderson	Office of Public Prosecutions
For the Accused	Mr C. Tom	Victoria Legal Aid

HIS HONOUR: 

1In this case, Beau Ibbott comes before the Court now aged 31, having been born on the 22nd day of April 1990.  He was 30 at the time of this offending.  In the plea, Mr Ibbott was represented by Mr Tom, and at the two days of the plea, which took place on 23 June 2021 and the following day, Mr Regan appeared and Ms Anderson appears today for the Director.

2Mr Ibbott pleaded guilty to five charges on Indictment L11672080. Mr Tom on his behalf entered a plea of guilty to the summary offence, transferred to this Court pursuant to s145 of Criminal Procedure Act, that is an offence under the Control of Weapons Act s5AA. It is Charge 6, possess a flick knife, for which the maximum penalty is 240 penalty units and/or two years' gaol.

3The circumstances and facts relevant to the crimes in the indictment, which I will detail in due course, are set out by the prosecution in Exhibit A. Mr Tom indicated to the Court that he accepted those facts as the facts upon which I am to sentence his client.  The background of those facts, is a family drama which occurred on the 2nd day of July 2020.  I think I stated that it could be described as a scene out of the ‘wild west’.

4Mr Ibbott prior to this day had been staying in a caravan on a property leased by one of the victims, that is his sister Destinee's partner, Lewis Bywater.  Mr Ibbott had spent a period in isolated depression, having separated from his partner, Gidget Hart, and his two children.  During that period he had embarked upon marked drug abuse. 

5Introduced into this scene was his mother, Petra, who had recently left her husband and Mr Ibbott's father, Wayne, after some 35 years. On this particular day while Mr Beau Ibbott was off the property, his father arrived at approximately 11.30am and threatened the women of the family, that is his partner, Petra, that is Mr Ibbott's mother, and his daughter, Destinee,
Mr Ibbott's sister.  As a result of the father's actions, they called 000 and Destinee called her partner, Lewis Bywater.  When Mr Bywater arrived, he was confronted by Mr Ibbott senior and a physical altercation occurred. Mr Ibbott senior was subdued by Lewis Bywater until the police arrived at 11.45.  Ultimately, Wayne Ibbott was detained by the police and taken off for personal safety reasons.  Clearly, Mr Wayne Ibbott's actions on this day instigated all that resulted. 

6The accused arrived.  Mr Ibbott became very hostile to Lewis Bywater and very upset with the fact that his father had been restrained by the police.  To fully understand what happened thereafter it is necessary for me to refer to Exhibit A, which is detailed in its explanation.

7At paragraph 14, upon becoming aware that Bywater had earlier scuffled with his father, Beau Ibbott became hostile towards him.  Beau Ibbott was captured on police body worn camera, otherwise described as a BWC, in footage arguing with Bywater and saying:

"I'm not going to do one thing while you guys, the police, are here.  I'm fine, I'm smart"'. 

8That last statement proved to be most incorrect.

9At paragraph 15, Beau Ibbott then asked his mother who had called the police.  He was recorded again on the BWC as saying:

‘That's all I need to know.  Family members don't call police on each other.  I don't want to know anything else, I've made my mind up'. 

10At paragraph 16, Beau Ibbott and Lewis Bywater are recorded on the BWC yelling at each other, where Beau Ibbott explained:

'Wait till the police are gone'.  Bywater's response was, 'Is that a threat?  Is that a fucking threat?'

11We then move to the circumstances detailed in paragraphs 19 and 20.  Prior to police leaving, Lewis Bywater expressed his concerns about the threats made to him by Beau.  Bywater in fact asked specific questions as to whether he could defend himself with a firearm.  He was indeed captured on the footage saying:

'By the time youse get here, it'll be too late, I'm telling you.  Say you turn up tonight and I'm dead in my bed'. 

12Bywater was told not to take the law into his own hands.

13Then, after completing the family violence requirements in regard to her partner or husband, Wayne, the mother, Petra Ibbott, drove to where her son had gone in Cranbourne. Insofar as Mr Ibbott is concerned and this criminality, these facts are important.  When Mrs Petra Ibbott arrived at Cranbourne, she noticed he had bought a bottle of scotch.  Mr Ibbott had consumed some of it already, mixing it with coke.  Mr Ibbott was pacing about, he was quite agitated.  She told him he needed to calm down.  She explained to her son the situation that happened earlier had been caused by his father's actions.  Beau Ibbott remarked to his mother that Lewis Bywater must have hurt his dad because of the blood.  Mrs Ibbott told Beau that his father was in the wrong.

14In paragraph 22, Mrs Ibbott also deposed to the following: 

'It was clear that most of the upset was directed at Lewie.  I said to Beau, "You need to stop, think, and calm down"'. 

15Unfortunately, that was not what Mr Ibbott did.  Given his concerns earlier expressed, Bywater went and got a shotgun from his father.  It is noted at paragraph 29 that when Mrs Ibbott returned to the property she challenged her daughter, Destinee, about the firearm.  Mrs Ibbott said she disapproved of the gun being retrieved, to which her daughter replied:

'It's self-defence, Mum, if we have to use a gun'.

16Mrs Ibbott and Gidget Hart then left the property.  They were at a nearby Shell Service Station when they saw Mr Ibbott, that is Beau Ibbott, going towards the property.  Mrs Ibbott had earlier phoned the police expressing her concern, by using 000, as to the fact that a gun had been taken to the property.

17Having seen her son pass the service station it should be noted, and this is set out at Question 126 in the record of interview, that not only had he been consuming scotch at home, but also a bottle of Xanax tablets.  That then brings us to paragraph 37.  Beau Ibbott pulled into the driveway of the Bywater property, a property which he had been told to leave.  Mr Ibbott began revving his vehicle loudly.  Recognising that it was Beau, the occupants of the house, in particular the two victims, that is Mr Bywater and his sister, Destinee, ran around and secured all the doors to prevent him from entering the house. Beau Ibbott was outside, yelling various obscenities and threats in an aggressive manner.

18Mr Ibbott then gained access to an ‘al fresco area’ which was unlocked.  He was armed at the time of gaining that access with a homemade implement which he described as a 'mini axe sort of thing' and as set out in photograph 107 of the depositions.  While in that al fresco area he attempted to gain entry to the house proper by striking the door with the mini axe.  This was the first injury he caused to himself as a result of this criminal activity when the axe rebounded from the door, hitting him in the head and causing a laceration.

19Thereafter Mr Ibbott dropped the weapon and smashed the glass windows of the en suite with his fists at the side of the property and was seen to be reaching his arm through, trying to get in.  There was apparently some concern inside because Bywater then warned Beau Ibbott that he would shoot him if he came inside.

20After being unable to gain entry to the en suite, Mr Ibbott proceeded to the front of the property.  As he was walking past the windows of the living area, Lewis Bywater from inside the house fired a warning shot towards the window, impacting a flat panel television.  The shot did not appear to deter Beau Ibbott, who somewhat brazenly said, 'You won't fucking shoot me', while continuing to try to gain access to the house proper.

21Mr Ibbott then went to the front of the house and began smashing the glass panels at the top half of the front door.  He reached inside with his hand, attempting to gain entry.  It was at that time that Lewis Bywater fired a second shot which directly impacted Mr Ibbott.  The victims, despite their concerns as to Beau Ibbott's actions, fled the property.

Charges

22Coming to the actual charges, the first charge to which Mr Ibbott pleads guilty is the aggravated burglary which occurred on this day, the 2nd day of July 2020. It is an offence against s77 of the Crimes Act, the seriousness of which is demonstrated by Parliament prescribing the maximum penalty for this offence of 25 years.  The property, of course, is the property I have described as Grant Road, Baxter, and the victims were Lewis Bywater and his sister, Destinee.

23Mr Ibbott then went on a rampage, is probably the best way to describe it. In that rampage he committed the subsequent four offences. The first is Charge 2, an offence against s197(1) of the Crimes Act 1958, criminal damage, for which the maximum penalty prescribed by Parliament is 10 years imprisonment. Mr Ibbott attacked his sister's car with a chainsaw, causing some $8,545 damage. 

24The third charge was charge under 197(1) and 197(6) of the Crimes Act, a charge of arson, for which the maximum penalty prescribed by Parliament is one of 15 years imprisonment.  Charge 3 related to a car of a friend of Mr Bywater who had attended the property, a Mr Pegler.  Mr Ibbott attacked that Ford utility owned by Mr Pegler, firstly with the chainsaw but then with a butane torch, which is the basis of the arson charge. 

25Charge 4 is another criminal damage charge, and this is the damage of motor vehicle owned by Lewis Bywater.  That was a smashing of the windscreen of that car.  I am not quite sure how that occurred, whether it was by fist or implement.

26Finally in the indictment is Charge 5, a further charge under 197(1) which was damage of a vehicle which was a work vehicle owned by Everton Pty Ltd, apparently where Mr Bywater was employed.  That damage amounted to a cost of $3,475. 

27Mr Tom entered a plea to the summary matter.  The pre-sentence detention has this morning been agreed at 357 days.  A disposal order was sought which was not opposed, which I have signed this morning, and victim impact statements were tendered which I will come to in due course, being Exhibit C of Mr Bywater and Exhibit D of Destinee, Mr Ibbott’s sister.

28I want to concentrate primarily at this stage on the objective culpability of Charge 1, that is the charge of aggravated burglary.  There was some discussion with counsel about this.  Indeed, I advised counsel during the plea of a recent decision of the Court of Appeal, Hope v The Queen [2021] VSCA 177, delivered the day before. The next day Mr Tom provided the Court with a further decision of the Court of Appeal, being Longhurst v The Queen [2021] VSCA 179 which was in fact handed down on the first day of the plea.

29I was in addition referred to Hogarthv The Queen [2012] VSCA 302, DPP vMeyers [2014] VSCA 314, Suckling v The Queen [2013] VSCA 278, and Hatzis v The Queen [2021] VSCA 43. I have also considered Maslenv The Queen [2018] VSCA 90, [34] – [40].

30Mr Tom submitted that the sentencing here for this particular aggravated burglary should, after consideration of the authorities and the facts in this case, be not such as is contemplated by the authorities of Hogarth and Meyers, and in particular he relied upon the case of Suckling in submitting that there were appropriate facts to discriminate this from those in Hogarth.

31With respect to that submission, as detailed in Maslen [33], and made clear in Meyers, Hogarth is not to be confined to a particular subset of offending, at [37], the Court of Appeal in Maslen noted the factors ordinarily relevant to be taken into account to determine the relative seriousness of offending in aggravated burglary cases.

32The learned prosecutor submitted that the assessment by Mr Tom made at paragraph 30 of his written submission Exhibit 1, being that the aggravated burglary should be seen as a low range example of the offence, should be rejected, albeit that it should be noted that Mr Tom conceded the offending was serious and that a period of imprisonment was appropriate.  I accept the prosecutor's submission for the following reasons:

(a)   Firstly, given the penalty which I have detailed for aggravated burglary, this charge is inherently serious;

(b) Secondly, insofar as the assault element of aggravated burglary as detailed in s76 and 77 of the Crimes Act, the actions of Mr Ibbott, fuelled by alcohol  and drugs, were persistent, as detailed in Exhibit A, which demonstrates these actions were threatened when Mr Ibbott was originally at the scene.  Further, such actions were deliberated upon.  At this stage I am talking about the intent to assault element.  Such actions were deliberated upon at his friend's place, albeit that the police had warned him about this and his mother had specifically told him that the altercation, and what happened to his father, was solely as a result of his father's actions.

(c)   Thirdly, Mr Ibbott returned to the victims' home to effect his misplaced revenge, albeit being told by his mother that the incident was his father's fault.  He returned to carry out his threat made to assault the victim in this matter, knowing that he had been asked to leave the property.

(d)   Fourthly, the victims, now armed, saw him return and secured all the doors.

(e) Fifthly, Mr Ibbott was then armed, being the first element of s77, with a mini axe. Having gained access to an al fresco area of the home by way of an unlocked door, which is a part of the trespass element, he continued to try to enter the house proper. In the circumstances, I see this as a valuable plea. The requirement as to trespass is that a person must enter a building or a part of a building. Given the above, this particular aspect could have been fought upon the facts, and I see this as a valuable plea in those circumstances.

(f)    Having got into the ‘al fresco’ area he continued to try to enter the house proper by:

(i)striking the north-facing door with a mini axe, as I have said, at paragraph 39 of Exhibit A;

(ii)he then smashed the windows of the en suite, but could not gain entry; 

(iii)then, despite being threatened and hearing a warning shot, he still persisted, that is, he persisted to try to effect the intent to assault element of this crime;

(iv)he persisted by smashing the glass of the top panels of the front door and seeking to gain entry, that is actual entry into the  house where these victims were.  At that stage, as I have said, he was shot.

(g)   Sixthly, the victims then fled as they were clearly particularly frightened of the accused, albeit that they had utilised the shotgun for their protection. 

(h)   As a result of all of those circumstances, I classify this as a serious aggravated burglary to which the principles set out in Hogarth and Meyers are applicable.

33As detailed in Dalgliesh [2017] ALJR 1063, [49], by the High Court, Mr Ibbott is entitled to individualised justice and a just sentence upon the facts of this case, which I hope I shall deliver.

34I said I will come to the additional charges and explain those again.  As I say, these are detailed in Exhibit A and those facts are accepted by Mr Tom.

35It is hard to understand what was going on in Mr Ibbott's mind at this stage; however, it appears to be as best I can understand it a drug, alcohol and aggression-fuelled response.  In Charge 2 he chain-sawed the 2014 Commodore Holden of his sister, causing damage of $8,545; he then chain-sawed and butane torched the car, being the Ford Ranger, of Mr Pegler, a friend of Mr Bywater, at a damage cost of $19,000, that is Charge 3.  Charge 4, he then damaged Lewis Bywater's work truck by smashing the windscreen, and finally Charge 5, at a cost of some $3075 he damaged the white ute owned by Bywater's employees, Everton Pty Ltd.

36I then come to the subjective factors and the first of these, of course, is the priors of Mr Ibbott, which are concerning.  These priors go back to 2013 when he was 18.  He was convicted of unlawful assault in August of 2013, criminal damage, assault with a weapon, and a breach of family violence intervention order for which he was given a four-month suspended gaol sentence.

37On 23 January 2014 Mr Ibbott was convicted of reckless cause injury, unlawful assault, for which he was given another three-month suspended sentence.  On 6 February 2015 those two sentences were restored and he was ordered to serve those cumulatively, being seven months, and in addition the breaching offences on that day, being reckless cause injury, unlawful assault and hinder police officer, resulted in him getting a further community correction order for a period of 12 months.  Apparently the Court must have felt that despite the serious breaches and further serious offences he deserved another opportunity after serving his seven months.

38However, unfortunately that proved not to be so, albeit that the CCO period was served without further matter offence.  In April 2018 Mr Ibbott was again convicted of unlawful assault.  Remarkably, it might be thought, he was given another community correction order for 12 months on that day.  In July of 2018 he had a contravention of that CCO which involved criminal damage and damage property for which he was given one month's gaol. In May of 2019 Mr Ibbott had a further criminal damage charge which was adjourned to 30 July 2020 and hence the offences here breach that adjournment. 

39Mr Ibbott, I want to make it clear to you that you do not come before this Court to be resentenced for those crimes.  You are not to be punished again for those prior offences, but your history is relevant as an indicator of your moral culpability, your prospects of rehabilitation, consideration of your dangerous propensities and the community's need for protection and, given such background, the increased importance of specific deterrence, as what was referred to by the Court of Appeal in Victoria in Berichon v The Queen [2013] VSCA 319, [44], as an animating factor in the sentencing process.

40I stress again in regard to your prior offences that the Court is governed by principles set out by the High Court in Veen v The Queen (No.2) (1988) 164 CLR 465, 477 where the High Court said as to prior offences:

'The first is that an antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed' -

41I stress this to you, Mr Ibbott:

'but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'.

42On that same page the Court went on to say that such prior offences are relevant to show:

'Whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continued attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing offences of a like mind.'

43I come then to the victim impact statements, being Exhibits C and D, which were read out to this Court.  It is difficult for me to determine precisely from an analysis of those statements the impact of Mr Ibbott's crime spree on this day on the victims.  Clearly, both thought they were in grave danger.  They defended themselves by the use of a shotgun.  As a result of what they describe as these crimes, they undertook momentous changes to their lives.  That is, they changed their occupation, their residence, and they appear to have dramatically changed their manner of living.

44They describe that your crimes have caused them to lose it all, that is, what they had built up to that date.  It is difficult for this Court to fully understand that reaction, and I am not being critical in any way, but to understand it in circumstances where neither were physically injured, albeit no doubt that they suffered grave concern about their safety.  Clearly, it is necessary for them to somehow get on with their lives and try to get back to the productive lives they were living before this day.

45No doubt, there have been issues, because as I understand Mr Bywater was charged with offences related to you being shot and he had to expend fees for lawyers, and indeed was convicted of lesser matters apparently, all of which he would no doubt say emanated out of your criminality.  However, I do take those matters into account as best I can understand them.

Plea of Mr Beau Ibbott

46Coming then to the plea, the first matter relied upon by Mr Tom was the issue of extra-curial punishment.  If I can return again to Exhibit A, being the prosecution opening, in particular at paragraph 60, those details are set out.  You were taken to the Alfred Hospital.  The medical notes document that you were hypotensive, that is having abnormally low blood pressure en route to the hospital, with a high heart rate.  On arrival you were hemodynamically stable and you had normalised.  You were seen to have suffered a shotgun wound to the left flank.  You had a CT scan.  That scan showed several pellets had penetrated the abdomen.  There was penetration particularly in an area of the bowel, one shotgun pellet had penetrated into the abdominal cavity.  There was also a cluster of pellets adjacent to your right 11th rib.

47Your blood pressure dropped while you were in CT.  You were required to be given a blood transfusion and were then sent to theatre for an emergency laparotomy.  It was found that there was in fact only one shotgun pellet which had penetrated into the abdominal cavity.  The appendix was required to be removed because of the impact upon it of the pellets.  You had five days in hospital and you were discharged.  You subsequently underwent a CT scan of your abdomen and that showed a bowel obstruction on 8 July, however that proved to be effectively managed.  You discharged yourself apparently against medical advice.  You were required to isolate at home.  Whether you did or not is not too clear, but you were certainly arrested by the police on 13 July.

48Insofar as understanding fully your circumstances by way of extra-curial punishment, tendered firstly was the notes of the Latrobe Hospital.  This in fact related to your condition prior to the offences occurring. It is noted that you were suffering from self-harm and anxiety issues and on the 4th day of May 2020 had been treated for that, and discharged.

49Coming back to your extra-curial punishment, Exhibit 5 was tendered which was the forensic medicine analysis by a Dr Bolt.  At pg. 6 of that report her assessment was that the injuries you suffered were serious.  Dr Bolt said as follows: 

'Mr Ibbott's abdominal injuries had the potential to be life-threatening without surgical management.  As a consequence of his injuries his appendix had to be removed and he developed a post-operative ileus.  He will have a permanent scar to his abdomen from the emergency laparotomy.  He may have long-term sequelae'. 

50Dr Bolt therefore considered the injuries you suffered could be classified as serious.

51The Court was further assisted by Exhibit 7 which was a report of a forensic pathologist, Dr Byron Collins, and I refer to pg. 3 of that report which notes that the shotgun wound to the right flank was severe and life-threatening, if not appropriately treated.  You can be very thankful for the treatment you received from the medical staff.  At pg.5, as to your future treatment, the view of Dr Collins was that provided the wound to the right flank does not become infected, you are unlikely to require further surgical treatment.  There is, however, a possibility of complications which are set out on that page.  To date, fortunately, you have not had those complications.  At my request, in order to fully understand this aspect, also tendered were photos of the scarring that you have suffered as a result tendered as Exhibit 8. 

52The Court takes into account the authorities put and referred to by your counsel at paragraph 38 and 39 of his written submission, Exhibit 1, and I also refer to the statements of the Court of Appeal made subsequently to this plea in Singh v The Queen [2021] VSCA 161. I accept that you have suffered extra-curial punishment as a result of your crimes on this day. Hence, your sentence needs to be discounted for such injury that you suffered, for the need to undergo emergency operative repair, and for the risk to you of future complication, with which you will live. Fortunately, there does not seem to have been a great issue in that regard to date.

53As to the issue as to the scarring on your body, having seen Exhibit 8 it does not seem to me that that is going to cause you too much concern or trouble, except as was put, as a reminder of your outrageous behaviour on this day.  Hopefully such ongoing reminder will assist your rehabilitation.

54Insofar as the plea was concerned, in addition as mitigatory factors Mr Tom put to me the utility of your plea of guilty, which I accept.  You saved the victims from having to give evidence in Court; you have accepted responsibility for your crimes.  Secondly, as I have said, I find the plea to the aggravated burglary, given the possible issue as to the element of trespass, a valuable plea.  Thirdly, I accept that the 367 days that you have been on remand are such that you have been subject to COVID-19 restrictions by way of lockdowns, restriction of visitors, you have not seen apparently your two children for some 10 months, the stress of being in such an environment and, of course, the risk of contracting COVID-19 in gaol, although fortunately for the Court whole system, not only for you, the steps taken in gaol to date have been such that we have not had an instance of community infestation.

55I also take into account the additional utility basis of the plea being made in these times.  That basis was set out in Worboyes [2021] VSCA 169, [39], by the Court of Appeal. It was put to me that I should also accept that your actions indicate genuine remorse. I must say I am somewhat guarded about that given your history. It is also said that I should effect a sentence which assists your rehabilitation. I will have some more words to say on that, but in this regard what was relied upon was the report of the forensic psychiatrist, Dr N. Zimmerman, Exhibit 2, dated 10 April 2021.

56The first comment I would want to say, Mr Ibbott, is that I was somewhat surprised at your arrogant, if not ignorant, comment made at paragraph 66 where you say the following.  'I know I can fix my life up on my own'.  It is clear that you cannot.  You will need tremendous assistance to ensure you stop the criminality that you have been involved in.  I say that because of the following comments and opinions expressed by Dr Zimmerman, and I want to refer in particular to this report.

57It should be noted that you have had an excellent employment history despite your mental and drug issues.  I note in particular the letter from you brother offering you employment when you are released from prison.  You have been able to gain employment in what might be seen as a hard occupation and are well respected in that regard.

58In regard to your history, the doctor notes that you told him about that at paragraph 17 and your history of work.  At paragraph 19 you refer to the issues that broke up the relationship you had had for nine years by way of substance misuse.  Despite that, drinking heavily and dealing with depression, you were able to hold down your job.  As you say at paragraph 20, you spent time in prison, then you met your current partner after being released.  You have one child of your own with her, and she has another child. You said to Ms Zimmerman that you were distressed as you reflected on the fact that you had not seen those two children for some time.  You noted the problems that Gidget had herself in regard to drinking and drugs. 

59At paragraph 23 you reflected on your own upbringing and the fact that you wanted to kill yourself when you were about 14.  You spoke there of the impact that your father had upon you, even at that stage.  You further spoke at paragraph 30 about issues with friends of yours committing suicide.  At paragraph 33 you spoke about your substance history.  You drank heavily in your teens, to the degree that at the time of offending you were drinking daily a bottle of Jack Daniel's, plus a few cans.  As I have already noted, despite that and your depression you have been able to hold down a job.  You abused prescription pills and opioid analgesics.

60If I go now to your offending.  At paragraph 47 you were aware now, perhaps in retrospect, that leading up to this offending your life had been spiraling out of control.  A couple of weeks prior to the offending, which would match with the medical report tendered that I have referred to already, there had been an issue in regard to your father which you became aware of and again, with your personality, you could not control your reaction.  You said that you were involved in a road rage incident.

61If I go to paragraph 73 under Dr Zimmerman's opinion, she noted that you experienced episodic periods of dysphoria, irritability and anxiety, intense inappropriate anger and difficulties controlling those feelings. She says these personality characteristics are typically seen in individuals who fail to form a stable sense of self as a result of negative development issues, often including a lack of secure attachment to parents.

62Dr Zimmerman said that it was reasonable to conclude, Mr Ibbott, that you had a very vulnerable personality structure, that, combined with heavy abuse of alcohol and prescription medication throughout your adult years, has led to significant emotional dysfunction and likely has been associated with at least some of the offending.  As to your substance abuse and relapsing and remitting disorders, she said they are not intractable, but your lengthy and heavy dependence on alcohol, cannabis and prescription medication means that you will face a considerable challenge in remaining off these substances.

63I note that your period in custody to date has been associated with a period of sobriety.  In that regard I note, as I have said in the plea, there is no evidence to that effect except I understand that the manner in which you are talking to your family, and in which you have been observed by your family when they could, indicates that you are much better than you were.  However,
Dr Zimmerman notes your impulsivity and difficulty managing emotional states will put you at risk of dysregulated behaviour in the context of conflict and inevitable challenges of the custodial environment.  As I understand it, so far at least there does not seem to be any chronic issues with you in gaol, although I accept that risk given your personality.

64At to the offending, at paragraph 79 Dr Zimmerman said this: 

'I believe that Mr Ibbott's sense of identification with his father led to the rage which he perceived was his unfair humiliation at the hands of his sister's partner.  He was already feeling despair, shame and helplessness about his situation at the time and this triggered impulsive anger.  Once further disinhibited by large quantities of alcohol and Alprazolam, both of which impact significantly ability to control impulses,
Mr Ibbott embarked on a course of destructive behaviour.  Mr Ibbott expressed his guilt because of how his actions have impacted on his mother, his sister, and her partner'.

65In Dr Zimmerman’s opinion at paragraph 82 she said this: 

'A two-pronged approach will be most effective in assisting Mr Ibbott with his rehabilitation and reducing the risk of future offending.  Firstly, it is crucial that Mr Ibbott remain free of drugs'. 

66At paragraph 83 she said:

'Engaging with a psychologist for the medium to long term to address issues relating to identity, emotional regulation and interpersonal will be vital to assist Mr Ibbott to avoid relapsing into depression, substance misuse and reducing the risk of recidivism'.

67Dr Zimmerman notes that you speak of a strong desire to return to live with Gidget and the children, in light of past difficulties, working with a therapist or managing any stressors that arise in a relationship which will be protected. 

68Having read those matters out you will now understand why I am somewhat amazed at your comment, which I classed as either arrogant or ignorant, that you believe you can solve the problems yourself.  Mr Ibbott, you obviously cannot.  Your future will be doing weights in goal, as far as I am concerned, unless you take into account what Dr Zimmerman has said.  Remove drugs totally from your life and accept the assistance of professional help to try and solve the problems that you live with.

69I accept totally the submission from Mr Tom that there will be difficulties for you in gaol, and I take into account Verdins Principle 5 in regard to the circumstances of having to serve the penalty which I am about to pronounce.  I note also that you have the support of your family.  I note in particular Exhibit 3, being the references from your mother and partner.  There is also a reference from your father, but I do not know what help that will be.  As I say, there is no evidence to date before the Court that you have desisted from drugs; however, that is the view of your family who attest to you looking physically much better.  Given
Dr Zimmerman's report the Court is guarded as to your future.  It is clear that you need to take dramatic steps to overcome the problems that he detailed.

70Mr Ibbott, in regard to your sentence I take all those matters into account.  Should you wish to not be in gaol again, and see your kids again as you express, you must take the steps that Dr Zimmerman has set out.  Clearly, the criminality here is a scale up from your previous crimes.  The principles that relate your sentence I have detailed, and I must balance those with the matters of mitigation that have been put on your behalf.  I consider the sentence is as merciful as is possible in the circumstances.

Sentence

71As I say, we now come to the sentence.  In the circumstances you can remain where you are.  I will pronounce them, and having heard from Mr Tom as to whether he has any issues, I will give you the opportunity to talk to him after I leave the bench.  Mr Ibbott, you will be sentenced as follows. 

72In regard to the charge of aggravated burglary, a period of imprisonment of four and a half years.

73In regard to the charge of criminal damage, Charge 2, a period of imprisonment of two years.

74In regard to the arson charge, Charge 3, a period of imprisonment of three years.

75In regard to the criminal damage, Charge 4, a period of imprisonment of four months.

76In regard to the criminal damage, Charge 5, a period of imprisonment of 12 months. 

77Using the sentence on Charge 1 as the base sentence, that is four and a half years, I order that six months of the sentence on Charge 3, four months of the sentence on Charge 2, and three months of the sentence on Charge 5 be served cumulatively with each other and with the base sentence, making a total aggregate sentence of five years and seven months.

78I order that the period that you must serve before being eligible for parole is four years.  I declare that you have served as part of that sentence pre-sentence detention of 367 days and that such declaration be recorded in the records of this Court.  The effect of that, which will be explained to you, is essentially you will be eligible for parole in another three years, roughly.

79I am required by Parliament to tell you the benefit to you of your plea of guilty.  It is very difficult in your case.  The particular provision s6AAA talks only about the plea of guilty.  Here there are multiple factors I have had to take into account in your sentencing.  However, doing as best I can to comply with the Parliament's request, can I indicate to you that had you not pleaded guilty the sentence that I would have given you would not be five years and seven months with a non-parole period of four years, but a sentence of seven years with a non-parole period of five years.

80I have signed the disposal order and I think that is all the matters.  Ms Anderson or Mr Tom, any matters about that that you need clarified?

81MR TOM:  No, Your Honour.

82MS ANDERSON:  Your Honour, apologies.  Can I just clarify the sentence on Charge 4?

83HIS HONOUR:  Charge 4, four months.

84MS ANDERSON:  And the cumulation on that as well, Your Honour.  Sorry to ask.

85HIS HONOUR:  No cumulation on Charge 4.

86MS ANDERSON:  Thank you for clarifying that .

87HIS HONOUR:  All right, thank you all and we will go out into the lobby and leave you, Mr Tom, to have a chat to Mr Ibbott.

88MR TOM:  Thank you, Your Honour.

89HIS HONOUR:  Thank you for your assistance.

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