R v Gibbs [2013] ACTSC 293

1. Brenden Joseph Gibbs be convicted of aggravated burglary on 10 October 2012.

2. Brenden Joseph Gibbs be convicted of theft on 10 October 2012.

3. Brenden Joseph Gibbs be convicted of being knowingly concerned and dishonestly obtaining property by deception on 10 October 2012.

4. Brenden Joseph Gibbs be convicted of being knowingly concerned and dishonestly obtaining property by deception on 10 October 2012.

5. Brenden Joseph Gibbs not be sentenced for these offences at this time.

6. Brenden Joseph Gibbs appear at 9:30 am on 11 June 2014 to be sentenced for the offences of aggravated burglary and theft and two offences of being knowingly concerned and obtaining property by deception.

7. Brenden Joseph Gibbs be released on bail to appear on that day with the following conditions:

(a) that he accept the supervision of the Director-General or her delegate, and obey all reasonable directions of the person delegated to supervise him, especially as to alcohol and drug treatment and counselling and mental health treatment and counselling.

(c) that he submit, when reasonably required by the officer delegated to supervise him, to urinalysis.

8. The Director-General prepare a Pre-Sentence Report under Pt 4.2 of the Crime (Sentencing) Act 2005 (ACT), to address each of the Pre-Sentence Report matters set out in s 40A of that Act, but limited to updating the report of 27 November 2013.

1. There can be no doubt that burglary is a prevalent offence in the ACT. One only has to consider the number of such offences dealt with in the Magistrates Court and in this Court. It involves the unauthorised entry into peoples' homes for the purpose of committing offences, usually theft, thereby depriving people of property for which they have often worked hard.

2. It is unsurprising, therefore, that such an offence should be regarded seriously and the maximum penalties provided by the legislature make that clear. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31]. Circumstances of aggravation are specified in the legislation to include committing burglary in company with one or more people, or committing burglary and having at the time an offensive weapon.

3. Brenden Joseph Gibbs has pleaded guilty to one count of aggravated burglary, one count of theft and two counts of being knowingly concerned in dishonestly obtaining property by deception.

• Aggravated burglary is an offence under s 312 of the Criminal Code 2002 (ACT) rendering Mr Gibbs liable to a maximum penalty of 2,000 penalty units (that is, a fine of $220,000), or imprisonment for twenty years, or both.

• Theft is an offence against s 308 of the Criminal Code and renders Mr Gibbs liable to a maximum penalty of 1,000 penalty units (that is, a fine of $110,000), or imprisonment for ten years, or both.

• Dishonestly obtaining property by deception is an offence against s 326 of the Criminal Code and renders Mr Gibbs liable to a maximum penalty of 1,000 penalty units (that is, a fine of $110,000), or imprisonment for ten years or both.

4. Under s 45 of the Criminal Code, a person who is convicted of aiding, abetting, counselling, procuring or being knowingly concerned in or party to an offence is taken to have committed the offence and the offence is punishable as if the person had committed the offence. Thus, Mr Gibbs is liable for the maximum penalties prescribed for the offence of dishonestly obtaining property by deception.

5. On 10 October 2012, Mr Gibbs went with a co-offender, Rodney John Wray, to a townhouse in Watson. They initially knocked on the front door but the owner was unwell and did not answer the door. They then went to the back of the townhouse and entered by opening a sliding door in the courtyard. They began then to search the house and took various items belonging to the owner.

6. The owner saw Mr Gibbs searching through a black sports bag of hers. She confronted Mr Gibbs, who cursed an expletive, and then walked out of the townhouse. The owner then confronted the co-accused, Mr Wray, who confronted her. The statement of facts described him as having "puffed out his chest in an attempt to intimidate her". He pushed past her and left with a laptop bag containing her laptop. He subsequently got into a motor vehicle and, on their departure, the owner saw both of them drive off in the motor vehicle, the registration number of which she noted down and advised to police.

7. The following items were stolen from the property:

• a dark green coloured Fossil brand leather purse containing a $50 note;

• small change of unknown value and various credit cards in the name of the owner;

• a silver and gold coloured men's wrist watch; and

• a grey and black coloured laptop bag containing a Toshiba brand laptop computer.

8. As noted, the co-offender took the laptop bag. He was subsequently found by police also in possession of the watch, the leather purse and two credit cards of the owner.

9. Later on the same day, Mr Gibbs and his co-offender entered an electronics retail store in Fyshwick and the co-offender used one of the credit cards stolen from the Watson property to purchase electronic equipment worth $496. They left the store but returned shortly after and purchased some further electronic equipment including games, items totalling a value of $897.62.

10. Later that day, police intercepted the vehicle and arrested Mr Gibbs and the co-offender. Mr Gibbs admitted to police to attending with the co-offender at the Watson address and at the retail store in Fyshwick. He said that he drove his father's vehicle and the co-offender gave him two bags of coins for petrol. He saw the co-offender sign for the purchases at Fyshwick using the stolen credit cards.

11. Mr Gibbs was granted bail on 11 October 2012. On 21 March 2013, he was committed for trial to this court on the charges of aggravated burglary and theft. The trial was listed to begin on 21 October 2013 but later re-listed to begin on 16 October 2013. Unfortunately, on 2 October 2013, a new indictment was presented. To the offences for which Mr Gibbs had been committed to this Court were added two offences of being knowingly concerned with the offence of dishonestly obtaining property by deception. He pleaded guilty to all four offences on that day.

12. Mr Gibbs is a forty-one year old single man. He has four siblings, but none live in Canberra. He had been living with his father, who died about eleven months ago. This has left him quite isolated, as he has no family in Canberra and few friends. He is unemployed and in receipt of a disability support pension.

13. I do not have any information about his education. He has never been in paid employment.

14. Mr Gibbs was deeply affected by the death of his father and, in June 2013, was diagnosed with depression. He was prescribed medication for that condition but stopped using it after about four weeks because of the side effects it caused. Nevertheless he says he is still experiencing depression and is struggling to manage his grief issues. This seems to have caused some paralysis of any motivation to address his offending and its causes.

15. Mr Gibbs has in the past suffered neck injuries as a result of a physical assault.

16. Mr Gibbs began smoking cannabis when he was fifteen years old. He has also used amphetamines, hallucinogens and heroin over the years. His drug of choice is cannabis, which he uses on a daily basis.

17. He was, while on bail, directed to attend for urinalysis on three occasions. On the first occasion the analysis detected a presence of cannabis, amphetamines, methylamphetamines and benzodiazepines. He failed to attend on 1 and 21 November 2013 but was in an accident on the latter date which excused his non-attendance.

18. Mr Gibbs has made two attempts at residential drug and alcohol rehabilitation, at Karralika and at Westmount-Katoomba. In both cases he was discharged from the program for breaching policy.

19. As to alcohol, Mr Gibbs told the author of the Pre-Sentence Report that he rarely consumes alcohol but later admitted that he binge drinks.

20. Mr Gibbs has a long and serious criminal history. He has eighty-three offences on his record, though in one court appearance in 1991 he was dealt with for thirty burglary offences, four attempted burglary offences and a breach of a recognisance. For that spree of criminality, however, he was sentenced to imprisonment for two years, wholly suspended for three years. He breached that recognisance by committing, inter alia, an aggravated burglary in 1992, and was sentenced to two years imprisonment with a non-parole period of one year.

21. He subsequently breached the recognisance again, for which he was sentenced to three months' imprisonment. He has a total of thirty-six offences of burglary (those include the thirty dealt with in 1991), aggravated burglary, attempted burglary or break and enter and steal on his record. Of the total of eighty-three offences recorded, there are some relatively minor offences of violence and twelve traffic offences. This is of course a shocking record and denies him the leniency that may otherwise be available to him.

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.

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. I also had evidence from one of the sisters of Mr Gibbs; it appears that the family separated some time ago because of domestic violence that Mr Gibbs' father perpetrated on his mother. As a result, Mr Gibbs and one of his brothers remained with his father, while the other siblings remained with his mother. They all now live in the Mildura area.

24. After a long period of little or no contact, Mr Gibbs' family have now reconnected with him and the two sisters and his mother were in Court during the sentencing proceedings.

25. I have noted above the serious nature of such offending, especially in the light of the maximum penalties the legislature has set. Although I did not have a victim impact statement, I accept that the owner of the premises must have been, at least, very disconcerted to find two strange men in her house. It often makes such people feel unsafe in their own homes.

26. In this case it appears that the property was mostly returned, though most of the cash was almost certainly dissipated. The $50 bank note was, however, recovered. The loss in this case was minimal, largely due to the prompt action of the owner of the premises, the subject of the burglary, and of the police.

27. Mr Gibbs appears to have played a somewhat lesser role in the offences which were, it would seem, being directed by the co-offender. Thus, he drove to the premises where he was told to drive, being paid by the co-offender to do so. While both entered the premises, Mr Gibbs left immediately upon being confronted by the owner and without any property, whereas the offender confronted the owner and brazenly left with some of her property.

28. Again, while Mr Gibbs drove them to Fyshwick and entered the retail store, it was the co-offender who produced the credit card and signed the receipt. That he was charged with being knowingly concerned in these latter offences confirms his level of participation. There is no doubt that Mr Gibbs was responsible for these offences, but his actual level of participation was somewhat less than that of the co-offender.

29. The co-offender was sentenced, on 8 February 2013, by Higgins CJ to two years imprisonment to commence on 10 October 2012, with a non-parole period of one year. I had details of the circumstances of the co-offender. They were both charged ultimately with the same offences, although Mr Gibbs was charged with being knowingly concerned in the dishonestly obtaining property by deception, rather than the principal offence.

30. Mr Wray pleaded guilty on 16 October 2012, six days after his arrest. Mr Gibbs pleaded not guilty until shortly before the trial, although on the two charges of being knowingly concerned in dishonestly obtaining property by deception he pleaded guilty as soon as he was charged with those offences.

31. Mr Gibbs has, as I have outlined above, a long and serious criminal history. Mr Wray has thirty-nine offences on his record, but they include robbery and aggravated robbery, very serious offences, as well as five offences of personal violence, including assaults occasioning actual bodily harm. This is a bad record with serious offences, but certainly not as many as Mr Gibbs has committed. Higgins CJ described Mr Wray's criminality as "escalating". What is very different, however, is that Mr Wray's most recent offence, prior to these offences, was committed on 23 August 2011, for which he was sentenced to two months' imprisonment. He was released on 26 August 2012, less than two months before these offences were committed.

32. Mr Wray is eleven years younger than Mr Gibbs, but, at thirty, still relatively mature. At his sentencing, Mr Wray relied on a letter which expressed his remorse for his actions and showed insight into the effect of his offending. Mr Gibbs has not done so.

33. While Mr Gibbs suffers from depression, which was expressly relied on as having inhibited him from addressing his relevant criminogenic factors, Mr Wray has been diagnosed with a schizoid affective disorder which is controlled through depot injections. He has also a substance use disorder. While I make no claim to be able to diagnose such a disorder, an inspection of the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Publishing), also known as the DSM-V, suggests that Mr Gibbs is likely to have a substance abuse disorder also. There was no evidence in the sentencing proceedings of Mr Wray to suggest that his mental health was relevant to the commission of the offences or of his rehabilitation. So far as affecting the way he would spend his incarceration, the evidence of the psychiatrist was that his symptoms are controlled while in the Alexander Maconachie Centre.

34. Mr Wray had declined to participate in the Solaris Therapeutic Community. I note that Mr Gibbs did attend residential rehabilitation, though he was discharged for breaching policy. Submissions were made in the case of Mr Wray that he could reside with his uncle at Gunning, where he could "earn his keep and stay away from antisocial influences".

35. There are, accordingly, significant similarities between Mr Wray and Mr Gibbs, but three matters stand out. Mr Gibbs has spent over twelve recent years conviction free; his participation in the offences was less than Mr Wray; and Mr Gibbs' mental condition has been a relevant factor in limiting his immediate ability to engage in rehabilitation.

36. Mr Gibbs does not, so far as the more serious offence is concerned, enjoy the discount for an early plea of guilty that Mr Wray did, though Mr Gibbs did make significant admissions to police.

37. Mr Lawton submitted that I should make a deferred sentence order.

38. This was largely based on the evidence of Mr Gibbs' sister. She explained in her evidence that the family breakup had meant that Mr Gibbs had had little contact with their sisters and mother. There had been some attempts to make contact, but this was rejected and limited by their father. She explained that, before he died, Mr Gibbs' father was very ill and that Mr Gibbs was his carer. His death affected Mr Gibbs very deeply. His isolation, with no other family in Canberra and lack of friends or other social networks, affected him and he became reclusive. She described his house, which was consistent with that description. She proposed that Mr Gibbs relocate to Mildura, where he could live with her. She has a fiancé who may be able to provide him with work and she has a thirty-two year old son. Between the three of them, they would ensure that he attended relevant appointments such as medical appointments, counselling and the like.

39. Mr Lawton submitted that, given that there was a particular explanation for the return by Mr Gibbs to criminality after such a long absence, the opportunity to nip that in the bud was an opportunity that should not be lost. To defer sentence would give Mr Gibbs the chance to have the support and encouragement of his family, with whom he has reconnected, to address the matters which led to him to reoffend.

40. Ms R Griffiths, who appeared for the prosecution, opposed the application. She submitted that the offences were so serious that only a sentence of full-time imprisonment was appropriate. She referred to the fact that, despite the level of participation which Mr Lawton had submitted was that of Mr Gibbs in the offences, he was aware of what was being done and he had actually participated in the burglary. That is, of course, correct, but he did not participate directly in the theft and did leave in a less culpable way than did Mr Wray.

41. Ms Griffiths referred, too, to the assessment of Mr Gibbs as having a high risk of re-offending. The areas of risk were identified as unresolved drug and alcohol abuse, mental health status, employment and developing pro-social networks. She referred to the lack of any evidence that Mr Gibbs had, since his arrest, made any efforts to address these issues. She also noted that his family's willingness to address these issues could not be taken to be the willingness of Mr Gibbs himself.

42. I accept the force of much of what Ms Griffiths submitted. Ordinarily, an offender charged with aggravated burglary can expect to receive a custodial sentence with a substantial period of fulltime custody.

43. That is, of course, not always the case. See, for recent examples, R v Heffernan (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 10 November 2008), R v Reis (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 15 December 2008) and R v Morgan (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 18 March 2011).

44. I also accept that Mr Gibbs does not come before the Court with a plan of rehabilitation for which he is personally responsible. It is a plan prepared and promoted by his family. Notwithstanding this, he will have, in a deferred sentence order, the opportunity and obligation to deliver on the rehabilitation that is required. If he does not, then the default position of full-time custody will be the outcome.

45. While Mr Gibbs' criminal record does not justify leniency, he is entitled to receive the full benefit of the more than twelve years of conviction free time in the community. In my view, that means that he is realistically at a turning point. It is not the kind referred to in R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314. It is rather the point at which Mr Gibbs will either revert to the pre-2000 life of crime which he had perpetrated so well for fifteen years, or the conviction-free post-2000 period which he managed to deliver for more than twelve years.

46. Some intense intervention now may halt this reversion to crime and reinforce the success of the past twelve years. Ms Griffiths submitted that this could be achieved in custody. I have no confidence of that. In the first place, there is the obvious circumstance that he will be surrounded by offenders. This will certainly not address the risk factor recommended in the Pre-Sentence Report to be addressed, namely the development of pro-social networks. Secondly, the Court of Appeal recently, in Drayton v The Queen [2013] ACTCA 44 at [29], referred to what the High Court said in Muldrock v The Queen:

[I]t was an error to determine the structure of the sentence upon a view that the appellant would benefit from treatment while in full-time custody. Full-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody. Furthermore, the availability of rehabilitative programs within prisons is a matter for executive determination. There can be no confident prediction that an offender will be accepted into a program or that the program will continue to be offered during the term of the sentence.

47. As French CJ said in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [32], "[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection as is clearly in the public interest."

48. I take into account Mr Gibbs' plea of guilty. Though not made at the earliest opportunity for the burglary and theft offences, there is, as the Court of Appeal noted in Coggan v The Queen [2013] ACTCA 49, utilitarian value even in late pleas of guilty, though I accept that there must be a substantial benefit to an early plea of guilty.

49. I take into account the seriousness of the offences as I have described them and the need for general deterrence, punishment, and denunciation.

50. I take into account the subjective circumstances of Mr Gibbs as I have earlier described. In my view, it is appropriate to permit him the opportunity, before I impose sentence, to address the factors contributing to his offending behaviour.

1. I convict you of aggravated burglary on 10 October 2012.

3. I convict you of being knowingly concerned and dishonestly obtaining property by deception on 10 October 2012.

4. I convict you of being knowingly concerned and dishonestly obtaining property by deception on 10 October 2012.

5. I have decided not to sentence you for these offences at this time.

6. I note that you are not serving or liable to serve a term of imprisonment for an offence other than the offences for which I am sentencing you.

7. I have considered the Pre-Sentence Report about you and the other evidence I have heard on sentence.

8. I consider that you should be given an opportunity to address your criminal behaviour and the risk factors that have contributed to that behaviour before I sentence you for these offences.

9. I am satisfied that I may release you on bail under the Bail Act 1992 (ACT).

10. Accordingly, I order that you appear before me at 9:30 am on 11 June 2014 to be sentenced for the offences of aggravated burglary and theft and two offences of being knowingly concerned and obtaining property by deception.

11. I will release you on bail to appear on that day and impose the following conditions on the bail:

(a) that you accept the supervision of the Director-General, or her delegate, and obey all reasonable directions of the person delegated to supervise you, especially as to alcohol and drug treatment and counselling and mental health treatment and counselling.

(b) that you reside at either of addresses known to, and specified, by the Court.

(c) that you submit, when reasonably required by the officer delegated to supervise you, to urinalysis.

12. 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.

13. 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.

• If you breach the conditions of the bail or the order, you are liable to be arrested and brought before the court.

• I may review the deferred sentence order at any time.

• In addition to me reviewing the deferred sentence order on my own initiative, the Director-General, the Director of Public Prosecutions or yourself may apply to have the order reviewed.

• On a review of the deferred sentence order I may take no action or warn you about the need to comply with the conditions of the deferred sentence order and your bail or amend the conditions of the deferred sentence order or cancel the order.

• If your bail is revoked, the deferred sentence order is automatically cancelled.

15. I will order the Director-General to prepare a Pre-Sentence Report under Part 4.2 of the Crime (Sentencing) Act 2005 (ACT), to address each of the Pre-Sentence Report matters set out in s 40A of that Act, but limited to updating the report of 27 November 2013.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Darryl Perkins Solicitors