R v Brenden Joseph Gibbs
[2014] ACTSC 292
•21 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Brenden Joseph Gibbs |
Citation: | [2014] ACTSC 292 |
Hearing Date(s): | 8 May 2014 |
DecisionDate: | 21 July 2014 |
Before: | Refshauge J |
Decision: | 1. Brenden Joseph Gibbs be convicted of aggravated burglary of 10 October 2012. 2. For that offence, Brenden Joseph Gibbs be sentenced to eighteen months’ imprisonment from 21 July 2014. 3. Brenden Joseph Gibbs be convicted of theft on 10 October 2012. 4. Brenden Joseph Gibbs be sentenced to nine months’ imprisonment from 21 July 2014. That is to be wholly concurrent with the sentence for the aggravated burglary. 5. Brenden Joseph Gibbs be convicted of aiding and abetting Rodney Joseph Wray who, by deception, dishonestly obtained property belonging to another on 10 October 2012. 6. Brenden Joseph Gibbs be sentenced to twelve months’ imprisonment, to commence on 21 July 2015. That is to be cumulative as to six months on the sentence for the offence of aggravated burglary. 7. Brenden Joseph Gibbs be convicted of aiding and abetting Rodney John Wray in the offence of by deception, dishonestly obtaining property belonging to another on 10 October 2012. 8. Brenden Joseph Gibbs be sentenced to twelve months’ imprisonment to commence on 21 July 2015. That is to be wholly concurrent on the sentence for the earlier aid and abet. 9. Brenden Joseph Gibbs be convicted of possessing a firearm without licence to do so. 10. Brenden Joseph Gibbs be sentenced to three months’ imprisonment to commence on 21 April 2014. That is to take into account pre-sentence custody. 11. That sentence be suspended for a period of two years from 21 July 2014. 12. Brenden Joseph Gibbs be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with the following conditions: (a) a probation condition that he be under supervision of the Director‑General, or her delegate, for two years, or such lesser period as the person delegated to supervise him, determines, and obey all reasonable directions of that person, especially as to alcohol and drug treatment and counselling, mental health treatment and counselling, and to undertake such educational or vocational courses as he may be directed to take by the person delegated to supervise him; and (b) to submit to urinalysis when reasonably required by the person delegated to supervise him. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing – Aggravated burglary – Theft – Aiding and abetting – Dishonestly obtaining property by deception – Possessing a firearm without authority |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
| Cases Cited: | R v Gibbs [2013] ACTSC 293 |
| R v Ross [2011] ACTSC 211 | |
Parties: | The Queen (Crown) Brenden Joseph Gibbs (Defendant) |
Representation: | Counsel Ms A Clarke (Crown) Mr J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Number(s): | SCC 41 of 2013 SCC 41 of 2014 |
Refshauge J:
Brenden Joseph Gibbs stands today for sentence on charges of aggravated burglary, theft, aiding and abetting the dishonestly obtaining of property by deception, and possessing a firearm without authority. He appeared before me on 3 December 2013 and, on all these charges, other than the firearms charge, I made a deferred sentence order under s 27 of the Crimes (Sentencing) Act 2005 (ACT). See R v Gibbs [2013] ACTSC 293. In doing so, I said (at [13]), as required under s 118 of the Crimes (Sentencing) Act when making a deferred sentence order:
I indicate that if you do not comply with this order and the bail conditions, I consider that you should be sentenced to a term of immediate imprisonment for a period of two years. I indicate that if you comply with this order and the bail conditions, I consider that you should sentenced to imprisonment for a period of approximately two years, which will be served either by periodic detention or wholly suspended with a good behaviour order including possibly a community service condition.
I set out, in R v Gibbs, the maximum penalties for the offences, the circumstances of the offending behaviour and Mr Gibbs’ subjective circumstances. I do not need to repeat them. I noted that the offending was serious, especially in light of the maximum penalties, and I noted that the ordinary result of being found guilty, whether on plea or otherwise, of committing an aggravated burglary, would be a custodial sentence; though, as I noted, that was not always the case.
I also noted that, while Mr Gibbs did not come before the Court with a plan of rehabilitation for which he was personally responsible, there was a plan that involved him moving to live with his family in Mildura. This appeared to address a significant risk factor, namely his social isolation, which had led him to reliance on his limited social network where most of his peers were involved in criminal activity.
Regrettably, this arrangement did not last. Mr Gibbs returned to Canberra on 23 January 2014, to collect some belongings. While here, he was charged with a further offence, namely the possession of a prohibited firearm while not authorised under the Firearms Act 1996 (ACT). This is a serious offence attracting a maximum penalty of imprisonment for ten years.
Mr Gibbs was initially remanded in custody, but, on 22 April 2014, he was released on bail. Conditions attached to his bail required him to be supervised by the Director-General or her delegate, and to submit, as and when required, to urinalysis. A subsequent variation required him to attend on Dr Stephen Moulding, his general practitioner, and also the Canberra Men’s Centre.
Relevant, too, is Mr Gibbs’ criminal history. His record discloses eighty-three offences, although thirty-four of these offences were dealt with on one occasion. That record, however, includes thirty-six offences of burglary, aggravated burglary, attempted burglary or breaking, entering and stealing. There are also a number of relatively minor offences, but I accurately described it in R v Gibbs (at [21]) as “a shocking record”.
I added, however, (at [22]):
The record however needs to be evaluated carefully. In particular, he has no offences recorded against him since August 2000 when he was sentenced to two months’ imprisonment, wholly suspended, for an offence of minor theft committed in April 2000. That means that for twelve and a half years, he has not been convicted of any offences.
The relapse into criminality was also rather unusual, and I noted the explanation proffered for the commission of further offences (at [23]):
His counsel, Mr J Lawton, submitted that his most recent offences, that is, those for which I am sentencing him, were committed because of the depression and grief occasioned by his father’s death.
There was also an explanation for the most recent offence, namely that the firearm was in fact his father’s and had been left in the house when his father died. Mr Gibbs said he was reluctant to dispose of it and his father’s other belongings. The circumstances of the commission of this further offence are a little unclear. The Statement of Facts, which was not disputed by Mr Gibbs, was somewhat oblique. It asserted that Mr Gibbs’ daughter and her husband, with their two children, were inside the house with him and some police negotiation was required before they were able to leave the residence.
The precise circumstances of that were not at all clear. What it is suggestive of is something like a hostage situation. Nothing like that was clearly stated and I could not, on this material, make a finding of any such aggravating circumstances. Indeed, Mr Gibbs is stated to have himself advised the police that he had the firearm and did not attempt to hide it or minimise the situation. He said it was in a bag in his bedroom, where, in fact, it was found by police, and the Statement of Facts did not suggest that he was using it to threaten any person.
It was, in fact, in a black toiletry bag locked with a small padlock. There were five rounds of ammunition in a separate plastic container. Mr Gibbs said that he had never used the firearm and had never held a firearms licence.
It appears that the difficulties that caused the family to separate some time ago, as referred to in R vGibbs (at [23]), have continued, and any attempt to make contact with the rest of his family and integrate with them has been stressful for Mr Gibbs and ultimately unsuccessful. His sister, who initially invited him to reside with her in Victoria, does not want him to return. Despite the caution about the prospects for rehabilitation by Mr Gibbs that I expressed in R v Gibbs, real progress does seem to have been made.
Before making the Deferred Sentence Order, I had a report from Dr Anthony Barker, consultant psychiatrist, who had diagnosed Mr Gibbs with an adjustment disorder with a depressed mood and a history of substance abuse disorder. Dr Barker confirmed that Mr Gibbs was suffering ongoing distress and difficulty with coping following the death of his father, and recommended ongoing support and counselling. This, Dr Barker said, could be provided by staff from the Canberra Men’s Centre. Dr Barker also recommended that Mr Gibbs should engage in drug and alcohol counselling.
Since being released on bail, Mr Gibbs appears to have abstained from alcohol and drugs. He was twice subjected to urinalysis, returning negative results for all illicit substances on both occasions. He has also attended Directions ACT regularly for alcohol and drug counselling and case management, targeting family issues and life skills. He has, it is reported by Directions ACT staff, engaged appropriately. I did not have a report from Directions ACT, but this was a report received by the author of the helpful Pre-Sentence Report, which updated the situation for me.
Mr Gibbs continues to suffer from pain related to an injury that occurred in 1995 and has regularly consulted his general practitioner for pain management, adhering to a medication regime prescribed by him also to manage a mental health condition. His general practitioner, Dr Moulding, said:
Currently he is being treated for depressions with mirtazapine, and this has had beneficial effect. He is continuing on an antidepressant medication as advised. In recent months I have not seen any concerning issues with his appearance or behaviour, and to my knowledge he does not use any other medication or drugs.
He has further attended the Canberra Men’s Centre regularly to discuss grief issues. It is said that he has engaged with his counsellors and has continued to receive support. In addition, I had a letter from Mr Andrew McDonald, his counsellor, who described the circumstances of seeing Mr Gibbs since 17 July 2013 and setting out the background to that. His opinion was:
In our sessions I found Mr Gibbs reflective and open. The wounds of his family life will take some time to heal, but he is doing his best to address those issues.
Mr Gibbs’ previous response to supervision by ACT Corrective Services was unsatisfactory. He failed to engage effectively with external agencies and often rescheduled or failed to attend for supervision appointments. Since being granted bail, however, he has engaged "regularly and appropriately" with external agencies, as is noted in the comments I have made above about his general practitioner and the Canberra Men’s Centre, as well as the reported account of his involvement with Directions ACT. He has also attended for urinalysis testing as required and attended supervision appointments as directed. This is in stark contrast to his early problematic engagement with ACT Corrective Services.
Mr Gibbs has been assessed as not suitable for community service work, specifically to being medically unfit, and has also been assessed as not suitable to serve a sentence by way of periodic detention, due also to being medically unfit and his ongoing mental health issues. I have the capacity to overrule those assessments, but in light of the basis for them, it seems unlikely that I would do so.
The commission of a further offence is of some concern. The circumstances, however, to put it in perspective, seemed to me, in reality, not to disclose fresh offending, since it would appear that the firearm has been in his possession since his father died, well before I made the Deferred Sentence Order.
That does not diminish the fact that it is a serious offence, but is to put it into context so far as the deferred sentence order is concerned. I acknowledge that it is important not to undermine the integrity of the sentencing option that a deferred sentence order brings. It is clear to me, however, that complete and precise compliance will often not be achieved, and it would be unfair not to take into account the progress has been made. See, for example, R v Ross [2011] ACTSC 211 at [87].
It is clear from the terms of s 118 of the Crimes (Sentencing) Act that the court is not constrained to impose the sentences that it indicates, and that the ordinary sentencing discretion is enlivened by the occasion of sentence, following the period of the deferred sentence order. See R v Ross at [86]. The constraint, of course, to act judicially and in accordance with sentencing principles, must be informed as well by fairness, given the range of sentence that was articulated when the deferred sentence order was made. See R v Ross at [86].
In all the circumstances, I am satisfied that Mr Gibbs has made significant progress and should be given the benefit of that. I note that he was in custody for approximately three months, and that seems to me sufficient penalty for the firearms offence and insofar as it constituted a failure to comply with the opportunity that I gave him, but the progress he is now making justifies a less severe sentence than had he failed to take any, or any substantial advantage of that opportunity.
I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. I take into account his pleas of guilty. The plea for the firearms offence was entered in the Magistrates Court and so at an early stage. The pleas for the other offences were entered a couple of days before his trial was to begin. Although they do not justify the same discount as the early plea, they have saved the administration of justice and, combined with his efforts at rehabilitation, show remorse for his offending.
I take into account the seriousness of the offences and the need for general deterrence. In the circumstances, it does not seem to me that specific deterrence need play a significant part, though the conditional liberty on which I will release Mr Gibbs will provide impetus for him to continue with working on his rehabilitation.
I accept that, for the offences of aggravated burglary and theft, he was not the initiator or major participant, and I have regard to the sentence imposed on his co-offender.
I take into account the subjective circumstances, as I have described them in R v Gibbs (at [12]-[28]), and the additional matters referred to above. I also take into account the progress he has made in his rehabilitation and the commitment he has made, despite the difficulties in reconnecting with his family, to come to terms with the factors that have caused his criminality.
I have noted above (at [17]), that Mr Gibbs has been found unsuitable for community service work and the condition to a good behaviour order and for periodic detention.
Having carefully considered all of the options, I consider that a sentence of imprisonment must be imposed, but that Mr Gibbs be given an opportunity to show that these were aberrations and not a return to the criminality to which he was formerly devoted. I will also give him the chance to continue his rehabilitation.
Mr Gibbs, please stand:
13. I convict you of aggravated burglary of 10 October 2012.
14. I sentence you to eighteen months’ imprisonment from today. Had you not pleaded guilty, I would have sentenced you to twenty months’ imprisonment.
15. I convict you of theft on 10 October 2012.
16. I sentence you to nine months’ imprisonment from today. That is to be wholly concurrent with the sentence for the aggravated burglary. Had you not pleaded guilty, I would have sentenced you to ten months’ imprisonment.
17. I convict you of aiding and abetting Rodney Joseph Wray who, by deception, dishonestly obtained property belonging to another on 10 October 2012.
18. I sentence you to twelve months’ imprisonment, to commence on 21 July 2015. That is to be cumulative as to six months on the sentence for the offence of aggravated burglary. Had you not pleaded guilty, I would have sentenced you to fifteen months’ imprisonment.
19. I convict you of aiding and abetting Rodney John Wray in the offence of by deception, dishonestly obtaining property belonging to another on 10 October 2012.
20. I sentence you to twelve months’ imprisonment to commence on 21 July 2015. That is to be wholly concurrent on the sentence for the earlier aid and abet. Had you not pleaded guilty, I would have sentenced you to fifteen months’ imprisonment.
21. I convict you of possessing a firearm without licence to do so.
22. I sentence you to three months’ imprisonment to commence on 21 April 2014. That is to take into account pre-sentence custody.
23. That is a total of two years’ imprisonment from today.
24. I suspend that sentence today for two years.
25. I require you to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with the following conditions:
(a) a probation condition that you be under supervision of the Director‑General, or her delegate, for two years, or such lesser period as the person delegated to supervise you determines, and obey all reasonable directions of that person, especially as to alcohol and drug treatment and counselling, mental health treatment and counselling, and to undertake such educational or vocational courses as you may be directed to take by the person delegated to supervise you; and
(b) to submit to urinalysis when reasonably required by the person delegated to supervise you.
[His Honour then spoke directly to Mr Gibbs]
Mr Gibbs, that is the formal order I have made, but I am required to explain it to you briefly. In substance I have said that this amount of criminality, including all the offences, is worth two years and three months’ imprisonment. You have done your three months, and I have put that down to the firearms offence, which was a serious offence, even though I can understand your sentimental commitment to that property of your father’s, with whom you were so close. As to the other offences, I have suspended that and do not require you to serve any more time in prison.
If you really have turned the corner now, then now is the opportunity for you to start getting some assistance to get your life back into order. You have started well with Directions, with the Canberra Men’s Centre, and your continuing work with Dr Moulding. That, I expect, will continue, but you are under supervision with Corrective Services. That is partly control, so that they can make sure that you are living the straight and narrow life now, but it is also an opportunity for you, when things get tough, when loneliness is a real problem, when your depression is a real problem, that they can assist you by identifying agencies or ways in which you might address that.
This is a risk for me, but you have shown in the last few months that you are, I accept, committed to your rehabilitation, and that is important, because, with your record, further offending is unlikely to leave you out of gaol. The courts will have real difficulties in not sentencing you to gaol if you commit offences such as these again. It is important that you try to keep away from those peers who are only going to lead you astray, if you want to stay out of gaol. I assume that you, like most people, do. This is an opportunity for you. You have started to take it, I hope you can take it further.
If not, if you do not do that, then you can be brought back before me and I can re-sentence you, and that includes sentencing you to a period of imprisonment. So the stakes are relatively high, but I think you gave got the resources, now that you are getting some professional assistance, to provide that.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 2 February 2015 |