R v Gibson
[2006] VSCA 258
•30 November 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 50 of 2006
| THE QUEEN |
| v. |
| STUART LACHLAN GIBSON |
---
JUDGES: | CALLAWAY and REDLICH, JJ.A. and SMITH, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 November 2006 | |
DATE OF JUDGMENT: | 30 November 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 258 | |
---
Criminal law – Sentencing – Evidence of uncharged acts included in depositional material – Sentencing judge not informed that prosecution no longer relied on those allegations – Reference to allegations in reasons for sentence – Appellant re-sentenced for threatening to inflict serious injury (two counts), damaging property, being a prohibited person in possession of an unregistered firearm and fraudulently using a motor vehicle number plate.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S.M. Cooper | Ms A. Cannon Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Victoria Legal Aid |
CALLAWAY, J.A.:
I agree with Redlich, J.A.
REDLICH, J.A.:
On 3 February 2006 the appellant pleaded guilty to two counts of threatening to inflict serious injury (counts 1 and 2) and was sentenced to a term of imprisonment of 12 months on each count. Six months of count 2 was to be served concurrently with the sentence on count 1. The appellant pleaded guilty to one count of damaging property and was sentenced to 14 days’ imprisonment, such term to also be served concurrently with the sentences imposed on counts 1 and 2. He also pleaded guilty to one count of being a prohibited person in possession of an unregistered firearm (count 4) and was sentenced to 18 months’ imprisonment, six months of which was to be served concurrently with the sentences previously imposed. He also pleaded guilty to a summary charge of fraudulently using a motor vehicle number plate (charge 3) and was sentenced to one month’s imprisonment, such term to be served cumulatively on the sentences previously imposed. Finally he pleaded guilty to one summary charge of using an unregistered motor vehicle (charge 5) and was fined $200. The total effective sentence was 31 months’ imprisonment and the appellant was ordered to serve a period of 20 months before he would be eligible for parole.
The appellant appeals against the sentences imposed, leave to appeal having been granted on 2 June 2006. I now turn to a brief examination of the circumstances of the appellant’s offending.
On 1 June 2004 the appellant threatened to inflict serious injury on Diane Joy Amor who was an officer of the Department of Human Services. The appellant and his family were clients of the Warrnambool Office of the Department, which was responsible for the welfare of the appellant’s children and for arranging the appellant’s access to his children under custody orders that had previously been made. That morning, Ms Amor, a child protection worker for the Department, telephoned the appellant to organise his access with the children. It appears that following the appellant’s release from custody in late 2003 the Department of Human Services had supervised his contact with his two youngest children who resided with their mother in Warrnambool, the appellant residing in Melbourne. On the plea, the mother of the appellant’s children, who has been separated from the appellant for some time, gave character evidence on his behalf and testified as to the close relationship and significant contact which the appellant had with his children. It appears that the appellant maintained regular supervised contact with his children following his release, Ms Amor telephoning him on a weekly or fortnightly basis to arrange contact. In March 2004 Ms Amor ceased making contact with the appellant as she went on sick leave. It appears that for some 3 months there was no contact by the Department with the appellant and he did not have contact with his children. He became increasingly resentful and distressed. On the morning of 1 June 2004 Ms Amor, who had returned to work, called the appellant to arrange access. The appellant requested that Ms Amor apologise for the fact that he had not been called and had not had access to his children. Ms Amor sought to explain to the appellant that she had been off work due to an injury, and when she refused to apologise the appellant lost his temper and said, adding a good deal of foul language: “I’m going to come down there and cut your head off.” Ms Amor felt threatened when the appellant said this to her and immediately hung up and contacted the police.
Ms Amor contacted the police about this telephone call but they were unable to locate the appellant until some 11 months later when he was arrested in respect to the conduct the subject of counts 2, 3 and 4 and the summary charges. No victim impact statement was tendered on behalf of Ms Amor.
The conduct the subject of counts 2, 3 and 4 and the summary charges occurred on 15 and 16 May 2005. I draw largely upon the facts as set out in the learned sentencing Judge’s reasons for sentence. The appellant had known Melissa Seccull, the victim in relation to count 2, since 2002. He had a brief intimate relationship with her before he was sentenced to a term of imprisonment in November 2002. Following his release the appellant resumed his relationship with Ms Seccull in July 2004. He stayed with her for a few weeks and thereafter continued to see her on an intermittent basis.
At the time of the appellant’s offending in May 2005 he was living in fear for his own safety because of the activities of one of his former criminal associates. He had been the subject of threats and was a potential witness to the shooting of an associate. The learned sentencing judge was informed that at this time the appellant was living with a woman named Attard and her two children. He took them to Ms Seccull’s home for safety and remained there for some days before leaving Ms Seccull’s home.
On 15 May 2005 the appellant returned to Ms Seccull’s home at about 11.00 p.m. to collect a bag which Ms Attard had left behind on their previous visit. Ms Seccull was then living in the house with her two sons aged 11 and 16. The appellant remained in Ms Seccull’s house for some eight hours in a highly agitated state. During this time he was abusive to her and threatened her with a bashing. Ms Seccull was in fear of being killed. He told her that he would “kick the fuck out of her head” and her children would not recognise her when he had finished with her. In his reasons for sentence, the learned sentencing judge referred to threats made by the appellant that he was going to kill Ms Seccull’s friend’s baby daughter and torture the friend. Ms Seccull took all of these threats seriously describing the appellant as being in a “crazy state”. The appellant told her he was “suited up” which she understood to mean that he had a firearm. The appellant had previously shown Ms Seccull a home made pistol and although he did not produce it on this occasion she believed him to still be in possession of the firearm.
On the plea, his Honour was informed by counsel for the appellant that during the time that the appellant was present he calmed down and he and Ms Seccull were sexually intimate. The appellant left the house in the morning and returned a little later. He invited Ms Seccull to spend the day with him on the other side of town. When she refused he left the house in a temper and reversed out of her driveway at speed. He then drove back into the driveway knocking over garbage bins. Ms Seccull ran into the house and shut the door. The appellant then got out of the car and smashed a window at the front of the house and kicked and damaged the front door. Ms Seccull was so terrified at this turn of events that she fled over the back fence to a neighbour’s property and called the police. As a result of this call the police located the appellant driving on the Tullamarine Freeway. Upon searching his car they found a home made pistol under the seat. It was a home made 410 gauge hand gun that fired a 410 shot gun cartridge. At the time of his arrest there was a shell in the chamber but the handle was detached from the rest of the weapon. The vehicle which the appellant was driving was displaying false number plates and it was unregistered. Ms Seccull made a victim impact statement which showed that both she and one of her sons had been psychologically affected by these events and are suffering from post traumatic stress.
Ground two of the Notice of Appeal alleges that when sentencing the appellant on count 2, the learned sentencing judge took into account matters upon which the Crown did not rely. Count 2 concerned the threat to inflict serious injury upon Ms Seccull. As I have already mentioned, his Honour referred to the fact that the appellant made threats that he was going to kill Ms Seccull’s “friend’s baby daughter and torture the friend”.
Charges had originally been laid against the appellant in relation to those threats. The evidence of those particular threats was contained in depositional material placed before the judge. Following the committal proceedings the Crown withdrew those charges and resiled from any allegation that the appellant had made those specific threats. The evidence of those threats was contained in the depositional material placed before the judge, but unfortunately his Honour’s attention was not drawn to the fact that the Crown no longer relied upon those allegations. Counsel for the appellant submitted that this impugned evidence must have adversely affected the sentencing judge’s view of the appellant’s conduct. It was contended on the respondent’s behalf that those threats, though not relied upon by the prosecution, had only been mentioned as part of the narrative by the learned sentencing judge and that there was nothing to suggest that those matters had operated adversely to the appellant in the context of the sentence that was imposed. Whether or not those matters affected the severity of the sentence imposed cannot now be established. Counsel for the respondent conceded that his Honour’s reference to material which was not part of the evidence upon which the appellant fell to be sentenced was, in the circumstances of this case, an error sufficient to re-open the sentencing discretion. That concession being correct, it falls to this Court to re-sentence the appellant.
Although this Court must now determine the sentence which should be imposed, counsel for the appellant sought to demonstrate that a number of the individual sentences and the total effective sentence imposed by his Honour were excessive and that this Court should not impose the same sentences.
In relation to count 4 it was submitted on the respondent’s behalf that general and specific deterrence were important considerations and that a sentence of 18 months should not be viewed as excessive. Initially it was submitted on the appellant’s behalf by Mr Boyce that taking into account that the appellant claimed that he had possession of the firearm for the purposes of self defence, the sentence imposed should be viewed as excessive. Mr Boyce rightly acknowledged during the course of the plea that in light of the decision of this court in DPP v. Faure,[1] in which a similar explanation had been advanced for possession of an unregistered firearm, the sentence imposed on count 4 could not be viewed as other than moderate. In Faure, the Crown appealed against the sentence imposed on the respondent, who had pleaded guilty to one count of being a prohibited person in possession of an unregistered firearm. The Court referred to the increase in the penalties for the illegal possession of firearms. A sentence of 18 months with a non-parole period of nine months was increased to a term of imprisonment of three years with a non-parole period of two years. Thus, counsel for the appellant rightly described the sentence imposed in the present case as “moderate”.
[1](2005) 12 VR 115.
Counsel next submitted that the term of one month’s imprisonment on the summary charge of the fraudulent use of registration plates was excessive and that the decision to cumulate the sentence in its entirety was also an error. I am unable to agree. The conduct constituting this offence was unrelated to the other events of this day.[2] No explanation was proffered on the plea or before this Court for the commission of this offence. The appellant’s most recent prior conviction in November 2004 had been for forging a registration label and using an unregistered motor vehicle on a highway.
[2]See R v VN [2006] VSCA 111 at [144] and the cases there referred to; R v O’Rourke [1997] 1 VR 246 at 253.
The appellant’s primary contention was that the sentences imposed on counts 1 and 2 and the total effective sentence were manifestly excessive, notwithstanding that the appellant admitted 26 prior convictions from 12 prior court appearances between 1987 and 2004. The prior convictions included using threatening words in public, three prior convictions for wilful damage, six prior convictions for assault, and one conviction for reckless conduct endangering persons. Despite this poor record it was not until 22 November 2002 that the appellant was for the first time sentenced to a term of imprisonment. He was sentenced to one year and six months’ imprisonment for being a prohibited person carrying a firearm, making three threats to kill, assault with a weapon and intentionally causing injury. It was shortly following his release that the conduct comprising count 1 occurred.
Counsel for the appellant submitted that the sentencing Judge had omitted to give any or any sufficient weight to the factual context in which the charged offences took place. He relied upon the fact that the context for the commission of count 1 was the inability of the appellant, as a caring and committed father, to obtain access to his children because the responsible departmental officer had gone on sick leave. These matters were referred to at some length by his Honour in his reasons for sentence. As to count 2 it was submitted that the factual context in which the offending conduct occurred was the appellant’s state of crisis because of his fear of coming to some harm at the hands of a former associate. Although the appellant and Ms Attard originally went to the victim’s home some time earlier for the reason ascribed, it is far from clear that the offending conduct of 15 and 16 May should be viewed within this context. His Honour made no reference to it and I am not persuaded that this factor was a matter of significance in explaining the offending conduct.
The individual and total effective sentences needed to be assessed, it was submitted by Mr Boyce, in light of the appellant’s early plea of guilty, his genuine remorse and his demonstrated progress towards rehabilitation. While serving his sentence, the appellant has undertaken a number of courses and had twice completed the anger reduction course. During his lengthy incarceration at the Melbourne Assessment Prison, he undertook the role of a peer educator, providing new prisoners with support and guidance. He has also been the head billet of his unit. These were positions of significant trust.
A report from a clinical psychologist was tendered on the plea. Although the sentencing judge referred at some length to the report it was submitted that his Honour had failed to make reference to the most salient features of it, namely, that the appellant appeared to suffer from an attention deficit disorder, was diagnosed as suffering from chronic fatigue syndrome and had been diagnosed by a medical practitioner as suffering from a “quite serious mental illness”. Attention was drawn to the conclusions expressed in the report that as a consequence of his mental condition the appellant “had a reduced capacity to modulate his behaviour when facing frustrations in emotionally potent situations”. It appears that on the day of the appellant’s arrest following a preliminary interview, he was taken from the Moonee Ponds Police Station to St. Vincent’s Hospital where he was diagnosed as suffering from chronic fatigue syndrome. Counsel submitted that whilst these diagnoses did not constitute a mental condition as contemplated in R. v. Tsiaras,[3] his mental condition was relevant to some degree to the sentence that should be imposed as it impinged upon his ability to exercise judgment and restraint.[4]
[3][1996] 1 VR 398.
[4]Counsel for the appellant referred to R v Van Boxtel (2005) 11 VR 258; R v Yaldiz [1998] 2 VR 376; R v Chambers (2005) 152 A Crim R 164; and R v Sebalj [2006] VSCA 106.
Reliance was also placed upon the circumstances in which the appellant had to serve his prison sentence. Because the appellant’s former associate is now within the prison system and charged with murder, the appellant’s safety is at risk. Between the time of the appellant’s arrest in May 2005 and the hearing of the plea in February 2006, the appellant was kept almost the entire time in remand at the Melbourne Assessment Prison, it being a relatively safe sanctuary. In September 2005 he was transferred to Port Phillip Prison for a period of 25 days where he was kept in a lock-down unit for 22 hours per day.
On the hearing of the appeal the Court inquired as to the circumstances of the appellant’s custody since he had been sentenced in February 2006. Following the hearing an affidavit dated 3 November 2006 was filed on the appellant’s behalf, with the consent of the respondent, which showed that the appellant had been transferred from the Melbourne Assessment Prison to Barwon Prison on 2 March 2006. From that date until 20 May 2006 the appellant had been held in 22 hour lock-down custody. Since that date the appellant has been in a small unit at Barwon Prison with five other prisoners and can have no access to prison programmes.
For the reasons already referred to the appeal must be allowed and the appellant re-sentenced. Giving due regard to each of the matters relied upon on the appellant’s behalf I would sentence the appellant to the following terms of imprisonment:
Count 19 months’ imprisonment
Count 2 18 months’ imprisonment
Count 314 days’ imprisonment
Count 418 months’ imprisonment
Charge 31 month’s imprisonment
I would direct that five months of the sentence imposed on count 1, six months of the sentence imposed on count 4 and the whole of the sentence imposed on charge 3 be served cumulatively upon each other and upon the sentence imposed on count 2, making a total effective sentence of 30 months’ imprisonment. I would fix a non-parole period of 19 months.
SMITH, A.J.A.:
I agree for the reasons given by Redlich, J.A. that the appeal be allowed and that the appellant be resentenced in the manner his Honour has proposed.
---
4
5
0