District Court New South Wales Medium Neutral Citation: R v Gibbons [2017] NSWDC 321 Hearing dates: 3 November 2017 Date of orders: 03 November 2017 Decision date: 03 November 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 2 years with a head sentence of 3½ years. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Being armed with intent to commit an indictable offence – Possess means of disguising his face with intent to commit indictable offence – Offender of parole at time of offending – Institutionalised offender. Cases Cited: Veen v The Queen [No 2] (1988) 164 CLR 465 Category: Sentence Parties: The Crown David Gibbons Representation: Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender File Number(s): 2016/373878 SENTENCE 1. HIS HONOUR: The decision of Veen v The Queen [No 2] (1988) 164 CLR 465 tells us that, as long as a sentence is not increased beyond that which is proportional to the objective gravity of an offender's conduct, a judge is entitled to take into account that a particular offence represents a continuing attitude of disobedience towards the law. 2. That attitude has been displayed by Mr Gibbons for a number of years now. He committed a serious offence whilst on parole. It is worth examining what he was on parole for. He had been sent to prison for reasonably lengthy periods for offences of armed robbery, and he committed those offences whilst he was on seven bonds. 3. He received a sentence for the armed robbery matters which the Court of Criminal Appeal found to be lenient. The Crown appeal was allowed and in the course of their judgment, the Court of Criminal Appeal did note Mr Gibbons' continuing attitude of disobedience towards the law. 4. Unfortunately, that attitude has continued. Mr Gibbons had only been out of custody on parole for about four months when he committed the offence I will now describe. 5. He appears to have taken a dislike to a particular person. He went to a shopping centre. He was wearing a black hooded jumper and gloves. His manner of dress attracted the attention of a member of the public because the temperature at the time was in the high 20's, with no wind. 6. Mr Gibbons hung around. He was near an ATM. The member of the public clearly suspected that Mr Gibbons was up to no good, and he called police. 7. Police arrived, watched him for a while and then approached him. They searched him and discovered that he had a knife in his possession. They also discovered a black coloured face covering with a hole in it. He told them, "Look, I've done nothing wrong. I'm waiting for a bloke who my missus is cheating with. I thought he'd be here. Yeah, I had a knife, but he had a baseball bat last time." 1. Accordingly, Mr Gibbons has pleaded guilty to an offence of being armed with intent to commit an indictable offence, namely an assault, and he asks that when I sentence him for that matter, I take into account an offence of possessing means of disguising his face with intent to commit an indictable offence, namely assault. 2. The maximum penalty for the substantive offence is seven years, as is the maximum penalty for the offence on the Form 1. 3. Mr Gibbons pleaded guilty at the earliest opportunity, and so the sentence I impose upon him will be approximately 25% less than it would otherwise have been. 4. Mr Gibbons has an unfortunate background and has spent a great deal of his adult life in gaol. Indeed, he is described as institutionalised in the psychological report tendered on his behalf today. 5. His life started going awry when he was about 13 years of age. He had run away from his second stepfather, who was physically abusive towards him, and moved in with his first stepfather, his mother having passed away when Mr Gibbons was younger, at about nine years of age. 6. Mr Gibbons' first stepfather, the man he was living with when he was about 13, was a shift worker, and so Mr Gibbons was effectively unsupervised for large parts of his life. He told the psychologist, "I was allowed to do anything I wanted and had free rein." 7. It was at this time that he began using drugs. His home became a place for his delinquent friends to spend time, free of parental intervention, and this led to Mr Gibbons entering juvenile detention. Mr Gibbons says that if he had direction, things might have been different. 8. From then on, Mr Gibbons has led a life measured out in prison sentences and court dates, until we reach today. 9. The offence is no doubt a serious one. Mr Gibbons claims that he was not going to use the knife to assault the person he was waiting for, but it is not beyond the realms of possibility to think that in the heat of the moment he might have resorted to using that weapon. 10. I am not surprised at all that Mr Gibbons is in some way thankful that the member of the public intervened to prevent him committing an offence which would clearly have put him in a much worse position than the position he is in today. 11. Mr Gibbons is now 33 years of age, and as he recognises, getting a bit old for the life that he has been living. 12. If one looks at his custodial history, one can see a number of institutional charges over the years, but none since he went into custody on 13 December 2016. There is a contrast between his behaviour in custody previously and his behaviour in custody on this occasion. 13. He has done courses whilst in custody too, including courses which have enabled him to develop some empathy towards the victims of his crime. 14. No-one would pretend that it is going to be easy for Mr Gibbons when he is ultimately released from gaol, but he clearly wishes to put the life that he has been leading behind him. He will need support to do so. 15. Ms Fraser, who appears for Mr Gibbons today, asks me to make a finding of special circumstances. 16. There are two clearly countervailing considerations here. One is, as I have just said, that Mr Gibbons does need substantial supervision whilst on parole because of the very fact that he has become institutionalised. His ability to cope with the stresses of everyday life after release from custody is severely affected by the circumstance that he has been living in custody for a great part of his adult life. 17. On the other hand, his criminal history has demonstrated that he, at least in the past, has been the sort of person who commits offences despite being subject to conditional liberty. Thus, on one view, a finding of special circumstances would merely enable him to go out and commit an offence earlier than he would otherwise have done. It is a serious matter to show leniency to someone when they have in the past abused that leniency. 18. Notwithstanding that consideration, without wishing to use the cliché of suggesting that Mr Gibbons is at a "crossroads", I am prepared to give Mr Gibbons one last opportunity by making a finding of special circumstances in his favour. 19. There was some discussion regarding the commencement date. Mr Gibbons was arrested on 13 December 2016 and has been serving his balance of parole for the armed robbery offences, as well as being bail refused on the offence for which I must sentence him shortly. 20. It is important that I do not double count by both failing to give him credit by backdating this sentence and by also regarding the fact that he was on conditional liberty as a seriously aggravating factor. 21. What I have chosen to do is to commence the sentence on 13 March 2017, which gives some partial accumulation to his time serving the balance of parole. 22. I impose sentence as follows. 23. I impose a non-parole period of two years to have commenced on 13 March 2017 and a head sentence of three and a half years. The non‑parole period will expire on 12 March 2019, on which day Mr Gibbons is eligible to be released to parole. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2017