Ibbott v The Queen
[2021] VSCA 338
•6 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0107
| BEAU IBBOTT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 6 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 338 |
| JUDGMENT APPEALED FROM: | [2021] VCC 968 (Judge McInerney) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary, intentionally damage property (3 charges), arson, possess prohibited weapon – TES of 5 years and 7 months, with NPP of 4 years – Sentencing judge misstating contents of expert psychiatric report – Whether sentencing judge thereby erred in assessment of applicant’s insight and/or prospects of rehabilitation – Manifest excess – Whether sentence manifestly excessive – No reasonable prospect that less severe sentence would be imposed – No reasonable prospect that total effective sentence would be reduced – Criminal Procedure Act 2009, s 280(1) – Application for leave to appeal refused.
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| REPRESENTATION: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham with Mr C Tom | Victoria Legal Aid |
| For the Respondent | Mr G Buchhorn | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA:
The applicant pleaded guilty in the County Court to one charge of aggravated burglary,[1] three charges of intentionally damaging property,[2] one charge of arson[3] and one charge of possessing a prohibited weapon.[4] On 15 July 2021, following a plea hearing conducted on 23 and 24 June 2021, the applicant was sentenced as follows:
[1]Contrary to s 77(1) of the Crimes Act 1958.
[2]Contrary to s 197(1) of the Crimes Act 1958.
[3]Contrary to ss 197(1) and (6) of the Crimes Act 1958.
[4]Contrary to s 5AA of the Control of Weapons Act 1990.
Charge Offence Maximum Sentence Cumulation 1
Aggravated Burglary
25 years
4 years and 6 months
Base
2
Intentionally Damage Property
10 years
2 years
4 months
3
Arson
15 years
3 years
6 months
4
Intentionally Damage Property
10 years
4 months
Nil
5
Intentionally Damage Property
10 years
12 months
3 months
6
Possess Prohibited Weapon
2 years
1 month
Nil
Total Effective Sentence:
5 years 7 months
Non-parole Period:
4 years
Pre-sentence detention:
367 days
6AAA Statement: 7 years with a non-parole period of 5 years
The applicant now seeks leave to appeal on the following proposed grounds:
1.The judge erred in his assessment of the applicant’s insight and prospects of rehabilitation by reason of his erroneous understanding of the psychiatrist’s expert report.
2.In all the circumstances, the total effective sentence and non-parole period are manifestly excessive. Specifically, the judge failed to give sufficient weight to:
(a)the applicant’s plea of guilty and its considerable utility;
(b)the applicant’s genuine remorse; and
(c)the extra-curial punishment the applicant suffered.
Circumstances of the offending
The prosecution opening, tendered on the plea, was an agreed summary of facts. In short, the applicant had been staying in a caravan on the property of his sister, Destinee, and her partner, Lewis Bywater. The applicant’s mother was also staying at the property after separating from the applicant’s father, Wayne Ibbott, four days earlier.
On 2 July 2020, the applicant’s father made several abusive calls to the applicant’s mother before arriving at the property and making further threats. He was asked to leave by Destinee, who then called 000. She also called Mr Bywater and asked him to come home and assist. When Mr Bywater arrived home, the applicant’s father was confrontational, and a physical altercation ensued. Mr Bywater was able to subdue him (the applicant’s father) until police attended.
When the applicant arrived at the property, he saw his father being restrained by police and bleeding from an abrasion sustained during the earlier scuffle. The applicant, upset by what he was seeing, was hostile towards Mr Bywater. Both the applicant and Mr Bywater were caught on police body worn camera footage remonstrating. The applicant was recorded saying ‘wait ‘till the police are gone’.
As a consequence of the altercation, the applicant was told by his sister and by Mr Bywater to leave and that he was not welcome back at their address. He gathered some belongings, left the property and went to the home of a friend.
Shortly after the applicant left the property, his mother followed him to his friend’s address. When she arrived, she attempted to explain to him the situation that had occurred earlier. She specifically told him that it was because of his father’s actions. She further commented that he needed to stop drinking and calm down.
While the applicant was away from the property, Mr Bywater retrieved a firearm from his father’s property, and his brother Rowan Bywater and friend Blake Pegler came to the property where the altercation had occurred earlier.
Later that night, the applicant returned to his sister’s property. He gained access to the building via an unlocked glass sliding door, which opened to an alfresco area (charge 1, aggravated burglary). At the time he entered, he was armed with a homemade implement described as a ‘mini axe’ (charge 6, possess a prohibited weapon). The mini axe was a homemade implement consisting of a steel tube of about 60 cm in length, to which a crude blade of approximately 15 cm in length had been welded at one end of the tube.
In his written case in this Court, the applicant asserted that it was his possession of the mini axe which gave rise to charge 6 (possess a prohibited weapon). That assertion is wrong. On the day of his offending, a flick knife was found in one of the applicant’s shoes.[5] It was the applicant’s possession of the flick knife which gave rise to charge 6.[6]
[5]Amended summary of prosecution opening for plea, dated 17 June 2021 (‘the prosecution summary’), pp 1, 14. See also, the applicant’s answer to question 266 of his record of interview.
[6]Charge 6 was a related summary charge formulated as: ‘The accused at Baxter on 02/07/2020 did possess a prohibited weapon without an exemption under s 8B or an approval under s 8C of the Control of Weapons Act 1990 namely a flick knife’.
Turning back to the circumstances of the applicant’s offending, once inside the alfresco area of the home, the applicant attempted to gain entry through a north facing door by striking it with the mini axe. As he struck the door, the mini axe rebounded and hit the applicant in the head causing a laceration. The applicant dropped the weapon and smashed glass windows of the en suite with his fists.
While inside the property, Mr Bywater retrieved the firearm and loaded it. As the applicant was walking to the front of the house Mr Bywater discharged the firearm, in what Mr Bywater described as a ‘warning shot’. As the applicant approached the front of the house, he began smashing the glass panels of the door. As the applicant reached through a smashed window, while attempting to gain entry, Mr Bywater fired a second shot directly towards the applicant which struck him in his right flank at the level of his lower back.
After being shot, the applicant collected a chainsaw and used it to damage a vehicle belonging to his sister (charge 2, intentionally damage property). He then used a butane torch to set fire to a vehicle belonging to Mr Pegler (charge 3, arson).[7] He also caused damage to Mr Bywater’s employer’s truck and Mr Bywater’s utility vehicle (charges 4 and 5, intentionally damage property). The total value of the damage done by the applicant was $42,060.58.
[7]While page 15 of the prosecution summary asserted that charge 2 related to Mr Pegler’s vehicle and charge 3 related to the applicant’s sister’s vehicle, charge 2 on the indictment referred to the plaintiff’s sister’s vehicle and charge 3 referred to Mr Pegler’s vehicle. No party sought to make anything of this apparent discrepancy, either on the plea or in this Court, and nothing turns on it.
The applicant was taken to the Alfred Hospital via ambulance. He required surgery and had a midline laparotomy with removal of the appendix and segment of caecum. The evidence on the plea was that his injuries, if not treated appropriately, could have been life-threatening.
Upon his release from hospital the applicant was arrested and interviewed at the Rosebud Police station on 13 July 2020 and then remanded in custody.
Applicant’s background
The applicant was 30 at the time of his offending, and 31 at the time of sentencing. As a child, the applicant and his family moved around a lot. The applicant’s father struggled with alcoholism for periods, which resulted in arguments at home.
The applicant experienced bullying during his school years, attending four different primary schools. He was kept down in Year 7, and left school in Year 10. After leaving school, he commenced work bricklaying. Despite drinking excessively, before the offending for which he fell to be sentenced, the applicant had been able to hold down full-time employment.
In addition to drinking excessively (which commenced in his teens) the applicant used cannabis and abused prescription medication in combination with alcohol. On the plea, a report from a psychiatrist, Dr Nina Zimmerman, was tendered. Dr Zimmerman conducted an assessment of the applicant in March 2021, at the request of the applicant’s solicitor. It is Dr Zimmerman’s report which is the subject of proposed ground 1. Dr Zimmerman expressed the opinion that the applicant ‘meets criteria for alcohol, cannabis and benzodiazepine dependence and opioid (oxycodone) misuse disorder’.
At the time of the plea, the applicant had two young children, aged 3 and 18 months, by his partner, who was supportive of him.
At the time of sentencing, the applicant had been before the courts on some nine occasions, commencing in 2010. His prior offending included multiple convictions for unlawful assault, recklessly causing injury, criminal damage and assault with a weapon. His prior offending also included using threatening words in a public place, threatening an authorised officer exercising duties, contravening a suspended sentence order, possessing dangerous articles in public places, behaving in a riotous manner in public places, contravening a family violence intervention order, contravening a community correction order, threatening to damage property and theft.
Additionally, on 2 May 2019, the hearing of a charge of criminal damage was adjourned to 30 July 2020 (28 days after the offending for which the applicant fell to be sentenced by the judge). As the prosecutor put it on the plea, this was ‘an adjourned criminal charge which he’s breached’.
Sentencing reasons
The judge commenced his reasons for sentence with a description of the applicant’s offending.[8] The judge then turned to the objective gravity of the aggravated burglary charge. After referring to authority, including Hope v The Queen,[9] Longhurst v The Queen,[10] Hogarth v The Queen,[11] Director of Public Prosecutions v Meyers,[12] Suckling v The Queen,[13] Hatzis v The Queen[14] and Maslen v The Queen,[15] the judge rejected a submission made by the applicant’s plea counsel that the aggravated burglary ‘should be seen as a low-range example of the offence’.[16] The judge said that he rejected this submission for the following reasons:
[8]DPP v Ibbott [2021] VCC 968, [1]–[26] (‘Reasons’).
[9][2021] VSCA 177.
[10][2021] VSCA 179.
[11](2012) 37 VR 658; [2012] VSCA 302.
[12](2014) 44 VR 486; [2014] VSCA 314 (‘Meyers’).
[13][2013] VSCA 278.
[14][2021] VSCA 43.
[15][2018] VSCA 90.
[16]Reasons [32].
(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 ss 76 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 s 77, 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.[17]
[17]Ibid.
In relation to the applicant’s prior criminal history, the judge said that this was ‘concerning’.[18] The judge then set out some of the detail of the applicant’s criminal history, noting opportunities that had been given to the applicant in relation to some of the applicant’s previous sentencing dispositions.[19]
[18]Ibid [36].
[19]Ibid [36]–[38].
The judge referred to the victim impact statements of the applicant’s sister and Mr Bywater.[20] The judge said that it was ‘difficult for [him] to determine precisely from an analysis of those statements the impact of [the applicant’s] crime spree … on the victims’,[21] before noting that Mr Bywater had been charged with offences related to shooting of the applicant.[22]
[20]Ibid [43]–[45].
[21]Ibid [43].
[22]Ibid [45].
Next, the judge dealt with what was described as the ‘extra-curial punishment’ suffered by the applicant as a result of being shot during the course of his offending. In dealing with this issue, the judge referred to the medical evidence tendered on the plea in some detail, and to photographs taken of the applicant’s injuries and scarring.[23]
[23]Ibid [46]–[53].
In relation to the applicant’s plea of guilty and the issue of remorse, the judge said:
Insofar as the plea was concerned, in addition as mitigatory factors [the applicant’s counsel] 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.
I 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.[24]
[24]Ibid [54]–[55].
The judge then immediately turned to Dr Zimmerman’s report and, in a passage that is the subject of proposed ground 1, said:
The 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.[25]
[25]Ibid [56].
The judge then referred in detail to a number of passages in Dr Zimmerman’s report.[26] In the course of doing so, his Honour noted what he described as the applicant’s ‘excellent employment history despite [his] mental and drug issues’,[27] before summarising in some detail Dr Zimmerman’s report.
[26]Ibid [57]–[68].
[27]Ibid [57].
In the course of summarising Dr Zimmerman’s report, the judge referred to a passage in the report that recorded that the applicant was now aware that, leading up to his offending, his life had been ‘spiralling out of control’.[28] His Honour also referred to the following extract of Dr Zimmerman’s report:
Mr Ibbott speaks of a strong desire to return to live with Gidget and his children and, in light of past difficulties, working with a therapist on managing any stresses that arise in the relationship will be protective [sic].[29]
[28]Ibid [60].
[29]Ibid [67].
At the conclusion of his summary of Dr Zimmerman’s report, the judge said:
Having 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.[30]
[30]Ibid [68].
Finally, the judge accepted that the fifth principle[31] referred to in R v Verdins[32] was engaged.[33] The judge then concluded his reasons for sentence by saying:
Clearly, the criminality here is a scale up from your previous crimes. The principles that relate [to] 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 possible in the circumstances.[34]
[31]The existence of impaired mental functioning at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
[32](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[33]Reasons [69].
[34]Ibid [70].
Consideration
The applicant makes two complaints about the sentence which was imposed upon him: first, that the judge erred in his assessment of the applicant’s insight and prospects of rehabilitation (caused by the judge’s misreading of a passage in Dr Zimmerman’s report); and secondly, that the total effective sentence and non-parole period are manifestly excessive (particularly having regard to the applicant’s plea of guilty, his level of remorse and the extra-curial punishment he suffered as a result of being shot by Mr Bywater).
Dealing first with the judge’s misreading of Dr Zimmerman’s report, in the relevant passage of the report,[35] Dr Zimmerman said:
Mr Ibbott told me that his goals are now to remain well and off drugs. He said that he wants to attend AA meetings and see a psychologist. ‘I know I can’t fix my life on my own’. He intended to live with his partner Gidget and believed that this would not present problems. Mr Ibbott informed me that his brother has a job for him as a bricklayer.[36]
[35]Paragraph [66] of Dr Zimmerman’s report.
[36]Emphasis added.
Plainly, the judge misread the quote attributed to the applicant in this paragraph of Dr Zimmerman’s report — the judge reciting the quote as, ‘I know I can fix my life up on my own’.[37] Thus, the judge said that he was ‘somewhat surprised at [the applicant’s] arrogant, if not ignorant, comment’.[38]
[37]Reasons [56].
[38]Ibid.
That said, it is also plain that what the judge misread was at odds with the balance of Dr Zimmerman’s report, and the recitation in it, of the applicant’s willingness to attend AA meetings, to see a psychologist, and to work with a therapist on managing his stresses. Thus, after the judge summarised the balance of Dr Zimmerman’s report, his Honour said that those additional matters to which he had referred, had caused him (‘understand[ably]’) to be ‘somewhat amazed at [the applicant’s] comment’.[39]
[39]Ibid [68].
The judge was wrong to criticise the applicant in respect of the judge’s own misreading of Dr Zimmerman’s report. He was wrong to use the words ‘ignorant’ and ‘arrogant’ in relation to the applicant. The question, however, is whether it is reasonably arguable that the judge erred in his assessment of the applicant’s insight and prospects of rehabilitation (proposed ground 1).
The judge did not accept a submission that the applicant’s actions since his offending indicated genuine remorse.[40] Instead, his Honour said that he was ‘somewhat guarded about that given [the applicant’s] history’.[41]
[40]Ibid [55].
[41]Ibid.
When one considers the circumstances of the applicant’s offending, his personal circumstances and his poor criminal history (containing as it does the relevant prior convictions to which I have already referred), the judge could hardly have come to any conclusion other than that the applicant’s prospects of rehabilitation were somewhat guarded. Notwithstanding the level of the applicant’s insight disclosed by the evidence (and more particularly in the report of Dr Zimmerman), any contention that the applicant’s prospects of rehabilitation were better than guarded is not reasonably arguable. It follows that the applicant’s submission that the judge erred in his assessment of the applicant’s prospects of rehabilitation (by not finding them to be better than guarded) is not reasonably arguable, and must be rejected.
Moreover, whatever misapprehension the judge may have laboured under, in relation to the applicant’s level of insight (caused by the judge’s misreading of Dr Zimmerman’s report) could not have been of any great moment in the sentencing synthesis, in any event, given that the applicant’s actual prospects for rehabilitation, as disclosed by the whole of the evidence, could not be described as other than guarded.
The aggravated burglary committed by the applicant was a serious example[42] of a serious crime. The seriousness of the crime of aggravated burglary is underscored by the maximum penalty it carries — imprisonment for 25 years. The offences of intentionally damaging property and arson committed at the same time as the aggravated burglary were also serious. Having regard to all of the circumstances of this offending, just punishment, general deterrence and denunciation were important sentencing purposes in this case.[43]
[42]As to the seriousness of particular instances of aggravated burglary, see Meyers (2014) 44 VR 486, 498 [48] (Maxwell P, Redlich and Osborn JJA).
[43]See s 5(1) of the Sentencing Act 1991.
Additionally, given the applicant’s prior criminal history, specific deterrence was a relevant sentencing purpose. Plainly, the sentences which had been imposed on the applicant in the past did not deter him from the serious offending which he chose to engage in on 2 July 2020.
The applicant contends that his total effective sentence and non-parole period were manifestly excessive. That contention is totally devoid of merit.[44] The sentences imposed for each of the charges to which the applicant pleaded guilty were moderate, if not modest. Notwithstanding the matters in mitigation relied upon by the applicant (including the very significant utilitarian value of his plea,[45] his level of remorse, and the extra-curial punishment he suffered) the sentences imposed by the judge on each charge, the total effective sentence, and the non-parole period were all well-within the range of sentences open to his Honour. The contrary is not reasonably arguable.
[44]See Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[45]See Worboyes v The Queen [2021] VSCA 169, [22], [35], [39] (Priest, Kaye and T Forrest JJA).
Section 280 of the Criminal Procedure Act 2009 permits this Court to refuse an application for leave to appeal against sentence if:
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
When one has regard to the gravity of the applicant’s offending and all of his personal circumstances, there is no reasonable prospect of a less severe sentence being imposed than the sentence first imposed on any of the charges to which the applicant pleaded guilty; nor is there any reasonable prospect that this Court would reduce the applicant’s total effective sentence.
Conclusion
The application for leave to appeal against sentence will be refused.
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