IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE

VICTORIAN GOVERNMENT REPORTING SERVICE
217759

CRIMINAL JURISDICTION	 Revised
Not Restricted
Suitable for Publication	

GENERAL LIST	
CR-20-00483, CR-20-00484	
	
DIRECTOR OF PUBLIC PROSECUTIONS

v

JED GILBERT AND TYSON GILBERT	

---

JUDGE:	HER HONOUR JUDGE HASSAN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 November 2020 and 12 February 2021	
DATE OF SENTENCE:	19 March 2021	
CASE MAY BE CITED AS:	DPP v Gilbert & Anor	
MEDIUM NEUTRAL CITATION:	[2021] VCC 298	

REASONS FOR SENTENCE
---
Subject:	CRIMINAL LAW	
Catchwords:	Sentence — recklessly causing serious injury — intentionally causing injury — commit an indictable offence whilst on bail — plea of guilty — relevant criminal history — childhood abuse — family violence — no remorse — poor prospects of rehabilitation — general deterrence — specific deterrence — denunciation — protection of the community	
Legislation Cited:	Sentencing Act 1991 (Vic)	
Cases Cited:		Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Drake [2019] VSCA 293; R v Verdins (2007) 16 VR 269	
Sentence:	Total effective sentence of 8 years and 8 months with non-parole period of 5 years and 8 months (Jed Gilbert); 8 years and 1 month with non-parole period of 5 years and 1 month (Tyson Gilbert)
Section 6AAA declaration: 11 years with non-parole period of 8 years (Jed Gilbert); 10 years with non-parole period of 7 years (Tyson Gilbert)	
---

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr M Fisher	Solicitor for the Office of Public Prosecutions 	
			
For the Accused J Gilbert	Mr B Johnston	 	
			
For the Accused T Gilbert	Dr M FitzGerald		

HER HONOUR:
1	Jed Gilbert and Tyson Gilbert, on the evening of 22 February 2019, you were drinking together in Rosebud. Jed Gilbert, you had been released from custody only three days earlier after having served a lengthy stint of imprisonment; in excess of five years. Tyson Gilbert, you were on bail. You were aged 26 and 24 respectively at the time.
2	At about 11 o’clock on the evening of 22 February 2019, you, Tyson Gilbert, went to the Rosebud Hotel bottle shop and bought a carton of Carlton Draught beer. At about 11:45pm that evening, both of you and some friends were ejected from the Rosebud RSL due to your behaviour and state of intoxication.
3	At about midnight, you went to a house at 112 Foam Street, Rosebud. You were looking for two men, Michael O’Connor and Thomas Warrall, against whom you harboured some sort of grievance. You were both intoxicated and one of you yelled, ‘Where’s Mick the little dog, where the fuck is he, where the fuck do we find him?’. You both scaled the fence. You were both still drinking from bottles of beer.
4	Neither Michael O’Connor nor Thomas Warrall was at the property. The four people present that night were Megan Scott-Smith, Ramona Hanlon, Lisa Johnson and Dean Hoger. They were all understandably concerned and frightened to see two drunken men appear on their property at night.
5	Ramona Hanlon and Lisa Johnson went outside. Ms Hanlon picked up a garden rake to protect herself. You both tried to take the rake from Ms Hanlon.
6	You both repeatedly said, ‘I’ll fucking stab you, I’ll fucking kill you’. Tyson Gilbert, you struck Ms Hanlon to the face with your beer bottle, while you, Jed Gilbert, punched her to the head. Ms Hanlon fell to the ground, whereupon Jed Gilbert took possession of the rake and swung it towards Ms Hanlon’s face.
7	At this point, Ms Scott-Smith tried to intervene and help her friend. Both of you punched her numerous times until she fell to the ground, whereupon you both started to kick her to the head.
8	You were both saying, ‘Jed Gilbert and Tyson Gilbert, yeah, remember our names, the Gilbert boys!’.
9	Jed Gilbert, you then used a piece of wood to stab Ms Scott-Smith to the lower right side of her face. You used such force that the wood broke, with part of it remaining lodged in Ms Scott-Smith’s face. That is charge 2 — intentionally causing injury.
10	You then moved to Ms Hanlon, who was still on the ground. You raised your foot and stomped on Ms Hanlon’s face.
11	An air compressor was nearby in the front yard. This is a heavy object. Jed Gilbert, you grabbed the air compressor, you raised it in the air and you brought it down and smashed it into Ms Hanlon’s head. This rendered her unconscious. This is charge 1 — recklessly causing serious injury.
12	Meanwhile, Ms Johnson went to 114 Foam Street and asked the neighbours to call the 000 service. You both fled the property, leaving the injured victims in the front yard along with three beer bottles. Some more beer bottles were later located adjacent to the front fence of 112 Foam Street and on the nature strip outside 108 Foam Street.
13	During the attack on the victims, Mr Hoger was fearful you would enter the house and locked himself in a bedroom.
14	Police and paramedics attended the house a short time later. Ms Scott-Smith and Ms Hanlon were taken to the Frankston Hospital where they were treated for their injuries.
Arrests and Interviews
15	At about 3 o’clock on the morning of 24 February 2019, police located you, Tyson Gilbert, on Point Nepean Road, Capel Sound. You fled but were arrested a short time later in Violet Street, Capel Sound. You were then taken to the Mornington Police Station where you participated in a formal record of interview.
16	At about 9:45am that morning, police attended at 81 Foam Street and arrested you, Jed Gilbert. You were taken to the Rosebud Police Station where you participated in a formal record of interview .
17	During your interview, you, Tyson Gilbert, gave mainly ‘no comment’ answers, but you denied any involvement in the assaults that had occurred at 112 Foam Street, Rosebud.
18	During your interview, Jed Gilbert, you stated that you had attended at 112 Foam Street with your brother and that you were looking for Michael O’Connor. You said that Ms Hanlon approached you with the wooden garden rake and that you acted in self-defence. You admitted that you punched both victims. However, you denied using anything as weapons. You showed police some scratches to your face, arms and back, and stated that they were from the wooden garden rake.
19	You were both charged and remanded in custody.
Maximum Penalties
20	The maximum penalty for recklessly causing serious injury is 15 years’ imprisonment. The maximum penalty for intentionally causing injury is 10 years’ imprisonment. The maximum penalty for committing an indictable offence on bail is 30 penalty units or three months’ imprisonment.
The Injuries Sustained by the Victims
21	As a result of the attack, Ms Scott-Smith suffered numerous injuries, including:
(i)	penetrating facial injuries to the right temporal bone (with gas in the soft tissue near the right facial muscle), to the right side of the lower jaw bone (with a piece of wood extending into the right cheek and protruding into the upper neck), weakness to the eyelid muscle and the facial muscles (including to the joint connecting the jaw to the skull) and facial nerve impairment;
(ii)	nasal injuries, including bone fractures and abrasions;
(iii)	multiple soft tissue injuries, including soft tissue swelling in the right ear canal, bruising in the soft tissue around the left eye, open injuries over the shoulder blade, bruising in the skin over the back of the right rib cage, a large bruise to the back of the neck and a small laceration on the left forearm; and
(iv)	arm, hand and finger injuries, including to the right hand middle finger, dislocation to the hand finger joint, deformities of the index to little finger and fluid accumulation in the right elbow joint.
22	Ms Scott-Smith required a number of procedures and treatments, including specialist trauma plastic surgery under general anaesthetic and the removal of the wooden stake lodged in her face, conducted under general anaesthetic because of the significant pain and the depth of the penetrating wound. She also required surgery on her right middle finger, again under general anaesthetic, and the application of a stabilising splint.
23	She required outpatient treatment for a three week period to monitor her wound healing, review her surgery and rehabilitate her right hand. She required a suite of medications.
24	As a result of the attack, Ms Hanlon suffered numerous and serious injuries, including:
(i)	multiple soft tissue injuries, including deep lacerations and bruising to the face (including to the right eye region and to the right cheek region);
(ii)	multiple deep lacerations and bruising to the scalp;
(iii)	a laceration to the left temple;
(iv)	large scalp lacerations to both sides of the head;
(v)	significant bruising and swelling in the soft tissue around the right eye;
(vi)	bruising to her limbs;
(vii)	blurred vision;
(viii)	a complex fracture to the lower and inner walls of the right eye socket with herniation of an eye movement and fat tissue (this is known as a ‘blow out fracture’); and
(ix)	blood collection in facial bone cavities (including in the nasal sinuses and in the right upper jawbone cavity).
25	Ms Hanlon required a number of treatments, including:
(i)	specialist surgeries under general anaesthesia;
(ii)	open reduction and internal fixation of a fracture to her right eye socket;
(iii)	placement of surgical mesh within the right eye socket floor; and
(iv)	repair of multiple facial lacerations with cleaning, washout and closure by suturing.
26	Following her admission to hospital, Ms Hanlon received outpatient treatment for a period of time that included:
(i)	assessment of her fracture and wounds by the Plastic and Reconstructive Surgical Team at the Frankston Hospital on 14 March 2019;
(ii)	examination of her eyesight on 18 April 2019, where some blurriness was detected;
(iii)	assessment in the Plastic Outpatient Clinic, where some loss of sensation about the right nasal region was detected;
(iv)	assessment of spinal injuries;
(v)	precautious neck spine stabilisation;
(vi)	investigative imaging involving computerised tomography (‘CT’) and X-rays; and
(vii)	medications including potent painkillers, antibiotics, tetanus vaccination booster, anaesthetics, and medication to prevent nausea and vomiting.
27	Without medical intervention, Ms Hanlon’s injuries were potentially life-threatening because of the risk of infection due to the large wounds. Without treatment, she was also likely to have sustained impaired functioning of the eye and facial deformity around the eye area.
Victim Impact Statements
28	Neither Ms Hanlon nor Ms Scott-Smith have made victim impact statements, but this must have been a terrifying ordeal for both of them.
29	Jo-Anne Scott-Smith, Megan Scott-Smith’s mother, made a victim impact statement. She says the attack on her daughter and Ms Hanlon took place on her property. She says seeing her daughter laying bloodied in the emergency department is something that she will never forget.
Timing of Plea
30	You both pleaded guilty to the charges on the indictment and were arraigned on 30 September 2020. This was post-committal, at an initial directions hearing in this Court before a trial was listed.
31	The committal took place on 19 March 2020 and was conducted on a narrow basis, exploring the seriousness of the injuries suffered by Ms Scott-Smith. She gave evidence at the committal, but only on this topic, and a charge of causing serious injury to her did not proceed.
32	Both of you have actively sought to resolve this matter since around June 2019. Tyson Gilbert offered to plead guilty to the charges on the indictment on 1 April 2020. Jed Gilbert offered to plead guilty to the charges on the indictment at around the same time.
33	These pleas are not made at the earliest opportunity, but they are early pleas and are a significant matter in mitigation, particularly in the present context of the extreme stress on the administration of criminal justice in this State caused by the COVID-19 pandemic.
34	I will discuss the issue of your remorse later in these reasons.
Objective Gravity of Offending and Moral Culpability
35	I turn now to consider the objective seriousness of your offending and your moral culpability.
36	Your offending was nothing short of disgraceful.
37	You were both heavily intoxicated, which may to some extent explain your behaviour, but in no way excuses it.
38	Your counsel submitted that you did not go to the property seeking confrontation, and certainly you did not go armed, but whatever your motivation, when challenged by the residents who came outside, you resorted to savage acts of violence. You brutally attacked two women. You, Tyson Gilbert, struck Ms Hanlon to the face with a beer bottle. I pause here to note that the bottle did not break and this was not a ‘glassing’. Nevertheless, it remains a cowardly and despicable act.
39	You, Jed Gilbert, stabbed Ms Scott-Smith in the face with a stake, and then dropped a heavy piece of equipment on Ms Hanlon’s head. Your comments, ‘remember our names, the Gilbert boys’, were boastful and, most disturbingly, suggest you were enjoying what you were doing.
40	Your offending had a number of aggravating features, which include that the assaults were committed in company. Moreover, they were assaults on two women by two men, you used improvised weapons, your victims were assaulted on their own property at night, and the entire incident involved sustained and repeated assaults on both victims.
41	Tyson Gilbert, you were on bail at the time. I intend to sentence you separately for the offence of committing an offence while on bail, and therefore will not aggravate your sentence on the charges of recklessly causing serious injury and intentionally causing injury by reference to you being on bail.
42	Jed Gilbert, as I stated at the outset, you had been released from jail only three to four days earlier, after having served a lengthy period of imprisonment. In my view, the fact that you have resorted to violence yet again, and so soon after your release from prison, is not only relevant to my assessment of your prospects of rehabilitation and engages the sentencing principles of specific deterrence and protection of the community, but it is also directly relevant to my assessment of your moral culpability.
43	It is anticipated both victims will recover fully from their injuries. The injuries to Ms Scott-Smith I regard as a serious example of injury simpliciter, and the penetrating injury to her face, near her eye-socket, must have been intensely distressing to her.
44	Ms Hanlon, who suffered serious injury, did not suffer injuries which were catastrophic or permanently disabling, but she suffered extensive and very significant injuries and, as is conceded by counsel for each of you, this attack will have a lasting and damaging impact on the wellbeing of both the victims.
45	In all the circumstances, I consider this a very serious example of the offences of recklessly causing serious injury and of intentionally causing injury. Before I turn to the question of your moral culpability, it is necessary for me to consider your background and your personal circumstances, as both of you have relied upon your experiences of violent childhoods and formative years as enlivening Bugmy principles and therefore bearing upon my assessment of your moral culpability.
Background and Personal Circumstances
46	Your mother, Ms Robyn Fowler, gave evidence on this topic. She told the Court that her husband and your father was Neil Gilbert. She told the Court that after he lost the family business and the family home, your father became an alcoholic who was violent to her and to both of you and your younger brother.
47	She said your father was both verbally and physically abusive. Ms Fowler said he would grab her around the throat a lot, pin her down and pull her hair. Recounting specific incidents, she said there was an occasion where she locked herself in the bathroom and he kicked the door in. This incident was witnessed by you, Jed Gilbert.
48	She said the violence continued for a long time and affected your schooling. She said if you got in trouble at school, your father would beat you. She said there was an incident when he bashed you, Jed Gilbert, and split your lip and eyebrow because you had been in trouble at school.
49	She said the incidents were never reported to police or social workers or medical personnel because the family was too frightened of her husband’s violence. She said if you required medical treatment because of your father’s violence, you would not tell doctors your father was responsible but would make something up.
50	Ms Fowler said she left her husband and went to Port Macquarie. She said she had had enough, and that the domestic violence that she was enduring was making her ill and her weight had plummeted to only 48 kg. She said that you, Jed Gilbert, were talked into staying with your father, and her other children came with her. She said you, Jed, were about 12 years old at this time. You eventually moved to Port Macquarie when you were 14–15 years old, but returned to Melbourne to do an apprenticeship. You returned to Port Macquarie when you were 18 years old. She said that between 12 and 18 years of age, you, Jed Gilbert, continued to experience physical abuse at the hands of your father and often had to turn to your grandmother, Ms Fowler’s mother, for help.
51	Ms Fowler said Tyson Gilbert is only 16 months younger than Jed Gilbert and had also witnessed the violence inflicted upon her. She said you, Tyson Gilbert, came to Port Macquarie with her when you were about 10 years old.
52	She said you, Tyson Gilbert, were also subjected to physical violence from your father for bad behaviour at school. She said there was an incident when you were around 10 or 11 when your father bashed your head into a steering wheel, and when you returned home your mother described your condition as ‘legless and blurry’.
53	Psychological reports were tendered on behalf of both of you, and your background was explored in these reports.
54	I begin with you, Jed Gilbert. A report was tendered from Ian Mackinnon, consultant psychologist, who spoke with you on 6 November 2020. You told him that your father was violent and that you hated him. Mr Mackinnon was of the view that your experience of childhood abuse led you to adopt strong defensive reactions and to resort to violence to solve interpersonal problems. He was also of the view that you have been chronically distressed since childhood and have long suffered with a mild but complex PTSD. He says, however, this condition has not contributed to your offending.
55	Tyson Gilbert, a report was tendered from Matilda Douglas, psychologist, who met with you on 17 October 2020. You told her that you moved to Port Macquarie with your mother to get away from your father, who you remembered being violent to you from around the age of eight. You told Ms Douglas that you were diagnosed with attention deficit hyperactivity disorder (‘ADHD’) and were prescribed Ritalin at the age of around eight, and would often get suspended from school because of poor behaviour, in response to which your father would ‘bash’ you. You told Ms Douglas about the incident when your father slammed your head into the steering wheel of a truck. Ms Douglas opined that you had a history of trauma and maladjustment. She was of the view that you had a cannabis use disorder, in addition to abusing alcohol, and that you had used these substances to self-medicate since adolescence.
56	On the basis of the evidence, I accept that the violence you witnessed and endured during childhood and your formative years engages Bugmy principles. The prosecution did not dispute this.
57	As was said by the Court of Appeal in the case of Director of Public Prosecutions (Vic) v Drake,
the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.
58	I find that the moral culpability of each of you is moderated pursuant to Bugmy principles. However, weighed against this is the gravity of your offending and its many aggravating features. Furthermore, your inability over the years to refrain from violence enlivens the sentencing principles of specific deterrence and community protection.
59	I turn now to consider further aspects of the psychological material presented on behalf of each of you.
60	Beginning again with you, Jed Gilbert. You told Mr McKinnon that you attended school until year 10 at Dromana Secondary College. You said you had a speech impediment and that your literacy was poor, and to your credit you have worked to overcome these difficulties. You qualified as a roof tiler at the age of 18. You have been unable to pursue your employment because of the long periods you have spent in custody.
61	In your youth, you enjoyed and were good at both football and cricket. You told Mr McKinnon that although you began abusing alcohol and cannabis in your teens, and at one stage methamphetamine, you were able to regulate your drug and alcohol intake when you were playing sport.
62	You have a six-year-old daughter from a previous relationship with whom you have limited contact. You told Mr McKinnon your current partner was Tanneal, who had been your childhood sweetheart and with whom you had reconnected. Tanneal Bertram and her mother both provided character references for you.
63	Mr McKinnon was of the view that you had the potential to rehabilitate, given that you had overcome your significant learning difficulties and had developed literacy skills, and that in the past you had addressed, at least temporarily, your drug and alcohol addictions. Furthermore, you had in the past embraced a positive lifestyle, achieving your apprenticeship and excelling at sport.
64	Mr McKinnon assessed you as being of average intelligence. You told him you were currently being prescribed an antidepressant medication. There was no submission made on your behalf that any Verdins principles were engaged in sentencing you.
65	You told Mr McKinnon that in custody you are keeping fit and working as a unit billet. You are seeing the prison chaplain for support. You have regular phone contact with your mother and with Tanneal Bertram.
66	Mr McKinnon was of the view that you were suffering with genuine remorse and regret over your offending and stated, ‘he did not appear to hold any grudge against the victims, nor any intention to again seek them out to harass or otherwise distress them’. Mr McKinnon said you told him, ‘I felt shattered … They weren’t the ones we were after. They were women. They came at us with garden stakes but there’s no excuse for how we reacted. It wasn’t right. They didn’t deserve that’.
67	I reject Mr McKinnon’s opinion that you are remorseful. Your statement to him, if it is a statement of remorse, is highly qualified and is diminished by the false assertion that the victims came at you with stakes. I find no evidence of full and insightful remorse on your part.
68	I turn now to you, Tyson Gilbert. You told Ms Douglas that your schooling was interrupted because of your ADHD and family dislocation. You finished year 9 and since then have had sporadic employment, interrupted by periods of incarceration.
69	In 2018, you were employed by Vins Bins in Dromana and you enjoyed this work and were doing well. You had a serious motorbike accident in 2018 and were incapacitated for around six months. You were prescribed Endone for pain management. You told Ms Douglas you became depressed and you self-medicated, increasing your use of cannabis.
70	Ms Douglas says you described to her experiencing depressive symptoms since around 2010. You told her you had been diagnosed with depression in 2014.
71	Ms Douglas concluded that you did not present with any symptoms of severe mental illness, intellectual impairment or personality disorder, but that you experience recurring episodes of major depressive disorder and that you presented with moderate depression and mild anxiety. On this basis, your counsel, Dr FitzGerald, submitted that Verdins principle 5 was engaged; that is, a term of imprisonment will weigh more heavily on you than on a prisoner in robust mental health. This was not disputed by the prosecution. I accept the submission and give some weight to the fifth limb of Verdins in sentencing you.
72	Ms Douglas considered you to have good insight into your offending behaviour and its links with your substance abuse. She considers you remorseful. You told her you regretted what had happened and wished it had never happened. However, I am of the view that these statements are more indicative of self-pity and, in all likelihood, concern for your brother’s situation, rather than expressions of full and insightful remorse. I do not find that you are remorseful.
73	You have undertaken courses in custody to address your substance abuse, and your mother in her evidence said you had completed a road traffic control management certificate and that you looked forward to being released from custody and going back to work.
Prior Convictions
74	You both have relevant prior convictions. In 2012, you both appeared at Port Macquarie District Court on charges including assault occasioning actual bodily harm and affray. You picked a fight with three people outside a shopping centre. You assaulted them several times, including punching and kneeing to the head, and chased them as they tried to flee. Jed Gilbert, you were also charged with intimidating a police officer in execution of his duty. Upon your arrest for this incident, you told a police officer you knew his face and name, and would find out where he lived.
75	Jed Gilbert, on 26 September 2011, you were sentenced in the Frankston Magistrates’ Court for recklessly cause serious injury, recklessly cause injury, unlicensed driving, assault police and drunk in a public place. These charges resolved on the basis that you did not physically cause the injuries. You were fined $500 and ordered to pay $1504.69 compensation.
76	On 25 November 2013, you appeared at Melbourne Magistrates’ Court on charges of recklessly cause injury, threat to inflict serious injury, theft, and failure to answer bail. The charges of recklessly cause injury and threat to inflict serious injury involved you punching a male to the nose at a house party. You were sentenced to an aggregate 90 days’ imprisonment, partially suspended. The total effective sentence was 30 days’ imprisonment with an operational period of 12 months.
77	On 16 June 2015, you again appeared at Frankston Magistrates’ Court, for recklessly cause injury, shop theft, and failure to comply with bail reporting obligations. The charge of recklessly causing injury involved you repeatedly punching and hitting a male victim to the head as he tried to get off a bus. You received a total effective sentence of three months’ imprisonment.
78	On 14 December 2015, you received a total effective sentence of four years and three months’ imprisonment in this Court, for criminal damage, recklessly cause injury, intentionally cause injury, contraventions of family violence intervention and interim intervention orders, unlawful assault, assault with instrument, discharge missile to cause injury/danger, resist police, threat to inflict serious injury, attempt to pervert the course of justice, and threat to destroy property. This offending related to your repeated assaults and abuse of your former partner, which included punching her, grabbing her throat, cutting her arm with a razor, choking her with a belt, and kicking her to the stomach when you knew she was pregnant. This offending was in breach of a community correction order to which you were sentenced by Judge Grant of this Court on 14 March 2014 after you pleaded guilty to sexual penetration of a child under 16. You were 20 years old when you committed this offence and your victim was 15 years and six months. This matter was resolved on the basis that the sexual activity between you and the victim was consensual.
79	On 5 June 2018, you were sentenced in the Stawell Magistrates’ Court to 30 days’ imprisonment for persistent contravention of a family violence intervention order. You contravened an intervention order that prohibited you from contacting your ex-partner by repeatedly telephoning her from custody at the Hopkins Correctional Facility.
80	Tyson Gilbert, on 29 April 2011, you were charged in Port Macquarie with assault occasioning actual bodily harm. You threw several punches and spat at a taxi driver who refused to drive you with an opened can of alcohol. On 30 May 2011, you appeared at the Melbourne Children’s Court for breach of youth supervision order, regarding charges including assault, recklessly cause injury, intentionally cause injury, indecent assault, and recklessly cause serious injury. Your youth supervision order was confirmed. It ended on 9 November 2011.
81	You appeared in Frankston Magistrates’ Court on 25 February 2015 on charges of recklessly cause injury and shop theft. You attempted to steal a bottle of whisky from a bottle shop and punched the shop assistant when he tried to expose the bottle hidden in your clothes. You were also charged with unlawful assault and drunk in a public place. You were ejected from a nightclub and punched a security guard to his face. You were sentenced to a community correction order of 12 months.
82	On 14 December 2015, you pleaded guilty in this Court to one charge of recklessly cause serious injury. You followed a group of five men as they exited a hotel around 2–3am, and punched one of the men to the head from behind. He fell to the ground unconscious, hitting his head on the concrete. You were sentenced to two years’ imprisonment with a non-parole period of one year.
83	On 12 April 2016, you appeared at Frankston Magistrates’ Court. You were charged with reckless conduct endangering serious injury, commit indictable offence on bail and fail to stop motor vehicle. You drove towards a police vehicle twice, missing the vehicle by less than half a metre. You were also charged with intentionally cause injury and affray. You were involved in a fight and struck the victim across the back with a garden stake, and threatened to kill him and burn his house down. You received a total effective sentence of four months’ imprisonment.
84	Your criminal histories show you both to be young men for whom gratuitous, drunken violence is a way of life. Jed Gilbert, your most serious prior conviction involves a sustained campaign of abuse and assault against your former partner.
Current Conditions of Imprisonment
85	I take into account, in sentencing you both, the current difficult conditions in prison caused by restrictions imposed due to the COVID-19 pandemic.
86	I take into account that, because of your prior conviction for a sex offence, you, Jed Gilbert, are currently on remand in protection and will spend the remainder of your sentence in protection. I accept that this increases the hardship of your time in custody.
87	I have already discussed that in your case, Tyson Gilbert, your depressive disorder will make your time in custody, particularly in the context of the current COVID-19 restrictions, more difficult.
Application of Relevant Sentencing Principles
88	In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must express the community’s denunciation of your conduct and I must also promote, if possible, your rehabilitation.
89	I have been provided with sentencing statistics for the offences of recklessly causing serious injury and intentionally causing injury as a guide to current sentencing practice and I take those into account.
90	I regard the prospects of rehabilitation for both of you as poor, although not forlorn or hopeless. I make this assessment primarily on the basis of your criminal histories. You have both been unable to rehabilitate and achieve productive and fulfilling lives. However, you are both still relatively young men.
91	Jed Gilbert, you have wasted most of your young life in custody, and here, again, you come before the Court to be sentenced inevitably to another lengthy term of imprisonment for offending committed only three to four days after your release from prison. You were once a good sportsman and could regulate your drinking when you were training and playing sport, and you obtained your apprenticeship, so you do have the ability to exercise self-control and to achieve, but you have wasted your efforts by continued episodes of criminality, and serious criminality at that. It is really up to you, Mr Gilbert. You are, in my view, at risk of becoming institutionalised — that is, spending your life in and out of jail — if you do not finally make a real and determined effort to rehabilitate.
92	Tyson Gilbert, you have a less sustained and serious criminal record. Again, it is really up to you whether or not this current episode of violence and its consequences for you, your brother and your family becomes a circuit breaker.
93	I have stated already in these reasons that specific deterrence and community protection are important sentencing considerations, given your histories of violence and the gravity of the offending for which you now fall to be sentenced.
94	General deterrence, just punishment and denunciation are also engaged. Wanton acts of serious alcohol-fuelled violence by young men such as yourself must be denounced by the Court on behalf of the community in the strongest terms, and it is the obligation of the Court to make it clear to anyone who would behave as you did that this kind of behaviour will result in stern punishment.
95	I am mindful of the principle of totality, but given your offending involves two victims and has had serious consequences for each victim, I will order some cumulation as between charges 1 and 2.
96	On the question of parity, I accept the submission made by Dr FitzGerald on behalf of Tyson Gilbert that the roles played by each of you in the offending can be distinguished. You, Tyson Gilbert, played a more limited role, particularly in respect of Ms Hanlon. It was Jed Gilbert who both stomped and dropped the heavy object onto Ms Hanlon’s head. You, Tyson Gilbert, also have a more limited criminal history.
97	Weighing up all the various and often competing sentencing principles as best I can, I intend to sentence you as follows.
98	I begin with you, Jed Gilbert.
99	On charge 1, recklessly cause serious injury, you are convicted and sentenced to a term of imprisonment of seven years.
100	On charge 2, intentionally cause injury, you are sentenced to a term of imprisonment of three years and six months.
101	Charge 1 is the base charge. I order 20 months of cumulation of charge 2 upon charge 1. This results in a total effective sentence of eight years and eight months’ imprisonment. I direct that you serve five years and eight months’ imprisonment before being eligible for parole.
102	Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of 11 years with a non-parole period of eight years.
103	Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 756 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
104	Tyson Gilbert, on charge 1, recklessly cause serious injury, you are sentenced to six years and six months’ imprisonment.
105	On charge 2, intentionally cause injury, you are sentenced to three years and three months.
106	On the summary charge of commit an indictable offence on bail, you are sentenced to one month imprisonment.
107	You are convicted on all charges.
108	I order 18 months of the sentence on charge 2 and the one month imposed on the summary charge be served cumulatively on charge 1.
109	That makes a total effective sentence of eight years and one month. I direct you serve five years and one month before you are eligible for parole.
110	Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to 10 years’ imprisonment with a non-parole period of seven years.
111	The pre-sentence detention in your case is 575 days not including today and I direct that be entered into the records of the Court.
112	I make the disposal order sought by the prosecution. The order was unopposed.
‑ ‑ ‑