IN THE COUNTY COURT OF VICTORIA
AT BALLARAT & Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
 Suitable for Publication	
 Case No. CR-21-01129

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SHEENA GILBERT		

‑‑‑

JUDGE:	HIS HONOUR JUDGE D SEXTON	
WHERE HELD:	Plea & Further Plea – Ballarat; Sentence - Melbourne	
DATE OF HEARING:	19 May 2022; 20 May 2022	
DATE OF SENTENCE:	27 May 2022	
CASE MAY BE CITED AS:	DPP v Gilbert	
MEDIUM NEUTRAL CITATION:	[2022] VCC 825		

REASONS FOR SENTENCE
‑‑‑

Subject:		CRIMINAL LAW 
Catchwords: 		Assist Offender 
Legislation Cited:		Crimes Act 1958; Sentencing Act 1991
Cases Cited:			DPP v Anastasiadis [2018] VCC 1397
Sentence:		Community Correctional Order of 18 months

‑‑‑

APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr D. Cordy	Solicitor for the Office of Public Prosecutions 	
			
For the Offender	Mr R. Barton	Sarah Pratt & Associates	

HIS HONOUR:
Introduction
1	Sheena Gilbert, you have pleaded guilty to one charge of assist offender contrary to s325 of the Crimes Act 1958, which carries a maximum penalty of five years’ imprisonment.
2	Until approximately three weeks ago, when your matter resolved, you were facing a trial indictment containing one charge of causing serious injury intentionally, and one charge of causing serious injury recklessly in the alternative.  As I have indicated, that matter resolved on 5 May 2022, and you were arraigned before me on 6 May 2022, where you entered a plea of guilty to the assist offender charge.
Circumstances of the Offending
3	The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 17 May 2022, Exhibit 1 at your plea hearing on 19 May.  That document sets out an agreed factual basis for the offending for which you now fall to be sentenced.
4	Your offending can now be briefly summarised.  
5	On Saturday, 23 May 2020, Natalie Wren was seriously assaulted in her housing unit in Bacchus Marsh.  Travis Labinas has pleaded guilty to recklessly causing serious injury in relation to this assault on Ms Wren, among other charges.  You and Mr Labinas are ex-partners, having previously been in a relationship for approximately 10 years.
6	Mr Labinas met Ms Wren approximately four weeks before the assault through a mutual friend.  Since meeting, Mr Labinas and Ms Wren had regular text message contact, and Mr Labinas would occasionally visit Ms Wren at her unit.  
7	On Saturday, 23 May 2020, Ms Wren was at her unit in Bacchus Marsh with another man, using the drug Ice.  A number of people came and went from Ms Wren’s unit throughout the day and evening, including Mr Labinas and yourself.  At 4.21pm, Ms Wren left her address and attended at the address of another man, Mr Hine, and remained there for several hours.  During this period, Ms Wren and Mr Hine smoked some Ice.
8	At approximately 7.00pm, you and Mr Labinas arrived at Mr Hine’s address.  You both remained at Mr Hine’s address for approximately half an hour, during which time you had a conversation with Mr Hine about money which you said was owed to you, and Mr Labinas apparently began talking to Ms Wren in an aggressive way and was acting erratically due to being drug-affected.
9	Shortly afterwards, you and Mr Labinas left Mr Hine’s address and travelled on foot to Ms Wren’s unit, approaching the front door at approximately 7.54pm.  Ms Wren, who had left Mr Hine’s address shortly before you and Mr Labinas, arrived back at her unit at 7.56pm, just after you and Mr Labinas.  She was met at the front door by the two of you, and the three of you entered Ms Wren’s unit together.
10	Between 7.56pm and 9.03pm, you were the only three people inside Ms Wren’s unit, with nobody entering or leaving during this time.  At some stage during this period, Ms Wren was seriously assaulted by Mr Labinas.  She was kicked, punched, and pushed into the shower of her bathroom, where she was stabbed in the neck with a knife.  Ms Wren lost consciousness during this assault.  You were present in the unit throughout the assault.  
11	Sometime after 9.03pm, you and Mr Labinas were observed by another man in the lounge room of Ms Wren’s unit, and when the other individual enquired as to where Ms Wren was, Mr Labinas directed him towards the shower where Ms Wren was located laying in the shower seriously injured.  She had a large stab wound on the side of her neck and was bleeding heavily.
12	At 9.07pm, you left Ms Wren’s unit, and three minutes later Mr Labinas also left Ms Wren’s unit.  He had bare feet and was carrying Ms Wren’s handbag.  At around this time, a neighbour contacted Triple Zero and ultimately ambulance members arrived and transported Ms Wren to the Royal Melbourne Hospital for treatment.
13	As indicated in the Summary of Prosecution Opening for Plea, throughout 24 May 2020 you engaged in various activities linking you to your involvement in the incident concerning Mr Labinas and Ms Wren.
14	On 25 May 2020, police attended at your address and located various items of clothing.  The clothing had been washed.
15	Your conduct in relation to the charge of assist offender relates to you leaving Ms Wren’s unit when you were aware that she had been seriously assaulted by Mr Labinas and had suffered a serious injury, and you then washing the clothing of Mr Labinas, in order to assist him by destroying potential evidence of his involvement.
16	In subsequent interviews with police, you denied involvement in the assault.
17	Ms Wren was seriously injured as a result of the assault by Mr Labinas upon her.  Ambulance members arrived at Ms Wren’s unit in the minutes following your departure.  She was transported by ambulance to the Royal Melbourne Hospital where she was placed into an induced coma for the next eight days, until 31 May 2020.  
Impact on Ms Wren
18	Two Victim Impact Statements were tendered at your plea hearing, one from Natalie Wren and one from her mother, Anita, both dated 17 May 2022, which were marked Exhibits 2 and 3 respectively.  In that regard, I confirm that both Natalie and Anita are present and observing these proceedings today.  At the request of both women, both Victim Impact Statements were read aloud at your plea hearing.  In combination, they graphically highlight the extremely serious nature of the assault by Mr Labinas upon Natalie Wren, whilst you were present in the unit.  Whilst you are not criminally liable for that assault, the assessment of the seriousness of that assault, which necessarily involves considering the impact on Ms Wren and her mother, is relevant ultimately to an assessment as to the seriousness of your offending, which involved assisting Mr Labinas in evading punishment.  Nothing I now say can do justice to the sentiments expressed by Natalie Wren with regards to the impact of the assault upon her, except to say that the impacts upon her have clearly been profound, causing her to feel unsafe anywhere and causing a significant deterioration in her mental health.  Likewise, the Victim Impact Statement of Anita Wren graphically highlights the often far reaching impacts of criminal offending upon the families of victims.  Anita Wren powerfully described those impacts upon her and her husband as they anxiously awaited clarification and then improvement with regards to their daughter’s injuries.
19	Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the Court of the often catastrophic and far reaching consequences of offending upon them.  As one of the factors relevant to the sentencing exercise, I have taken into consideration the Victim Impact Statements to which I have referred.
Seriousness of the Offending
20	An assessment as to the seriousness of your offending involves a consideration of the offending which led you to assist Mr Labinas, together with the nature of your assistance.  Clearly, the offending involving Mr Labinas was extremely serious, bringing with it life-threatening injuries to Ms Wren.  Your criminal liability arises from your active efforts to assist Mr Labinas by washing his clothing and therefore attempting to destroy potential evidence of his involvement in this serious crime.  Importantly, you did this in the knowledge that he had seriously assaulted Ms Wren and caused a serious injury to her.  Accordingly, in my view, this must be seen as a serious example of the crime of assist offender.  However, I acknowledge that your conduct was fairly rudimentary, lacked any real sophistication, and most likely was a fairly spontaneous act on your part to protect the man with whom you had been in a relationship for a decade, and a man with whom you shared three children.
Your Level of Responsibility
21	Your counsel did not submit that your moral culpability for your offending was reduced due to any mental impairment, or ingestion of drugs or alcohol.  Whilst I was informed and accept that prior to your offending you had been a victim of family violence at the hands of Mr Labinas, your counsel did not submit that there was any meaningful connection between this and your decision to assist Mr Labinas in the manner I have outlined.  I was provided with no other material which would serve to reduce your moral culpability for the offending.  In these circumstances, I must conclude that your culpability for your offending is high.  
Personal Circumstances
22	As I have made clear in submissions, somewhat concerningly, some important details regarding your personal background such as your Aboriginality and some significant personal events in your life come from the Corrections pre-sentence report and the MHARS report, as opposed to anything put to me at your plea hearing by your counsel, presumably based on your instructions to him.  Other than pointing this out, I make no further comment regarding this disparity.  
23	You are now 32 years of age.  You have one full sister who is one year older than you and apparently suffers from an intellectual learning disorder.  I was informed that you have been very protective of your older sister from your teenage years.  Your parents separated when you were very young.  Both of your parents have, I understand, subsequently re-partnered and you have a number of half siblings with whom you have minimal contact. 
24	You apparently attended multiple schools before ultimately ceasing your education at the start of Year 10, when you were approximately 15 years of age.  Around this time you left home and moved in with your father who was then residing in Reservoir.  You have since then embarked on a degree of employment, in your teenage years working for two ALP Members of Parliament, and you have subsequently obtained work at a hotel in Bacchus Marsh.  I was informed that you have commenced and indeed attempted various vocational courses, including hairdressing, but have not completed these courses.  You apparently harbour ambitions to enter the nursing field.  
25	You were in an on-and-off relationship with Travis Labinas for some 10 years.  You have three children together, aged 13, 11 and 10.  As I have indicated, there is a history of family violence between you, and in that regard I have read and considered the bundle of documents collectively tendered as Exhibit A at your plea hearing, regarding the criminal history of Mr Labinas and police involvement with regard to incidents in 2018, and some five days before your offending when police were called to your place due to Mr Labinas refusing to leave the property, notwithstanding that he was breaching a bail condition not to have contact with you at that time. 
26	You have lived at your current address in Bacchus Marsh, a social housing property, since about 2011.  Your mother apparently lives one street away from you.  I was informed and accept that the Department of Health and Human Services have been involved with regards to welfare concerns regarding your children, and I was informed that this related to concerns with regards to their exposure to the family violence to which I have referred.  The children, as I understand it, currently reside with your mother nearby, and there are current Childrens Court proceedings with regards to a Family Reunification Order. 
27	Whilst it is fair to say that the details provided at your plea hearing were sparse to say the least, you have apparently endured difficulties with regards to the use of methylamphetamines for some time.  I was informed that you were generally using Ice in the period leading up to the offending but had not consumed this illicit substance on the day of your offending.  As I remarked at your plea hearing, it is evident from the Summary of Prosecution Opening for Plea that you were, to some degree, involved in a drug using milieu around the time of the offending.  You instructed your counsel that you have been free of Ice use for some 12 months, in the context of drug abstinence requirements associated with the Childrens Court proceeding.  I infer therefore that your drug use has most likely been a relevant factor with regards to Departmental involvement with your children.  
28	You have lived with the anxiety associated with this case for some time, with the filing hearing taking place in September 2020, a committal hearing in May 2021 and the matter finally resolving before me in recent weeks.  Particularly given your absence of any criminal history, I accept that this case has no doubt weighed heavily upon you.  I also accept that the delays associated with your case have no doubt been impacted by the COVID‑19 pandemic and its unprecedented challenges to the administration of justice in this state.  A mitigatory allowance is warranted. 
Other Sentencing Factors
29	Turning now to other sentencing factors.  I have already referred to your personal history.  You fall to be sentenced as a person, at the age of 32, with a complete absence of any criminal history, and your previous character is a mitigatory factor standing to your credit.
30	You have pleaded guilty to the offence of assist offender.  Whilst your matter only resolved in the day or days preceding a scheduled jury empanelment, you were originally indicted with regards to charges of causing serious injury intentionally and causing serious injury recklessly in the alternative.  Clearly the parameters of the prosecution case against you shifted markedly last week, leading to your plea of guilty.  In these circumstances, as accepted by the prosecution, a mitigatory allowance is warranted due to your plea of guilty entered early in the context of the chronology to which I have just referred.  
31	Your counsel submitted that a further sentencing discount was warranted due to your remorse, as evidenced through your cooperation with police and your plea of guilty.  The prosecution took issue with this submission.  A plea of guilty in and of itself can reflect remorse on the part of an offender.  However, in your case, particularly given the events of the last seven days to which I have referred, there is, in my view, an absence of any further material which would warrant a positive finding with regards to your remorse.  
32	In formulating an appropriate sentence in your case, I have also considered current sentencing practices for the crime of assist offender.  In that regard the prosecution provided me with relevant portions of the Judicial College of Victoria Sentencing Manual, containing a table of relevant cases, together with a copy of the decision of the DPP v Anastasiadis, a sentence of her Honour Judge Chambers on 29 August 2018.  I have considered those cases, in particular the decision of Anastasiadis.  As pointed out by Mr Cordy on behalf of the prosecution, there were some similarities between that case and yours, however, Mr Anastasiadis apparently gave an undertaking to assist in the prosecution of co‑accused, a distinguishing feature as this is absent in your case.  In my view, Mr Anastasiadis clearly cooperated with authorities in a manner more meaningfully than you.  In that regard, I understand that you, to some degree, outlined the criminal involvement of Mr Labinas in your police interviews and made statements attesting to the truthfulness of your interviews, and you were apparently willing to give evidence should Mr Labinas take his matter to trial.  However, as I understand it, you have not provided an undertaking to assist, with the significant sentencing ramifications as set out in the Sentencing Act 1991.  Clearly, the sentences imposed for the offence of assist offender have been disparate, extending from adjourned undertakings to sentences of imprisonment. 
Respective Submissions
33	At your plea hearing on 19 May, your counsel submitted primarily that all of the relevant sentencing factors and principles could be accommodated through a lengthy adjourned undertaking with conviction.  Alternatively, it was submitted on your behalf that a Community Correction Order would be appropriate. 
34	At your plea hearing on 19 May, Mr Cordy, on behalf of the prosecution, submitted that a Community Correction Order with a punitive component would be within range, and that an adjourned undertaking would be insufficient in all the circumstances.  
35	At that plea hearing I indicated that, in my view, an adjourned undertaking would be insufficient to meet the various sentencing factors and principles, and I ordered an assessment as to your suitability for a Community Correction Order.  You have been assessed as suitable, with various recommendations made as to appropriate conditions.  
36	I must say, the Corrections pre-sentence report raises some concerns with regard to the degree to which you accept responsibility for your criminal behaviour, some aspects of inconsistency in your account, or relevant matters such as drug use, and overall, your motivation and willingness to conscientiously participate in the rigours of a Community Correction Order.  You must, in my view, understand that a Community Correction Order is essentially an alternative to imprisonment and that I am unable to impose a Community Correction Order unless you consent to it.  Once imposed, it is not discretionary.  It is not a low priority.  In order to avoid breach proceedings where a jail term is a distinct possibility, you must wholeheartedly embrace each and every aspect of the Order.  
37	Due to these concerns and your late attendance on your original sentencing date of Friday 20 May, together with your, quite frankly, concerning attitude and demeanour once you belatedly attended Court that day, I ordered that you be assessed by the Mental Health Advice and Response Service (‘MHARS’) through Forensicare and that you be sentenced today.  The report overall is positive, notwithstanding, again, some aspects of inconsistency which indicate to me a level of secrecy at the very least, on your part, with regard to salient matters relevant to the sentencing exercise.  However, overall, as I indicate, the report is positive, which indicated that you attended, that you were calm, composed, engaged, polite and cooperative, and ultimately, the report indicates that you would be a suitable candidate for a mental health condition attaching to a Community Correction Order, and that your current mental state would not impede your ability to engage in a Community Correction Order or any recommended associated conditions.  Notwithstanding my initial concerns and the prosecution’s submissions with regards to the appropriateness of a sentence of imprisonment, submissions reiterated and confirmed by Mr Cordy today with a degree of hesitation, I remain of the view, in all the circumstances, particularly giving your absence of prior criminal history, that a Community Correction Order is appropriate.  
Sentence to be Imposed
38	Whilst you do not fall to be sentenced with regards to the serious assault upon Ms Wren, in my view, your conduct in assisting Mr Labinas essentially to evade detection and prosecution must be seen as serious criminality on your part.  In the absence of any meaningful explanation proffered by you, I can only conclude that you engaged in this serious criminality simply to assist Mr Labinas, in circumstances where you knew that a serious crime had been committed by him.  Any penalty imposed must, in my view, appropriately punish you for your criminality and it must reflect the important sentencing principles of denunciation and general deterrence.  Put simply, others must be deterred from contemplating such serious offences against justice.  In my view, having carefully considered the matter, the community can best be protected through your rehabilitation, which can be facilitated through a carefully tailored Community Correction Order.  That order must have a punitive component due to the reasons I have outlined.  
39	Ms Gilbert, on the charge of assist offender, you are convicted and ordered to undergo and complete a Community Correction Order.  The length of the Order is 18 months, commencing today.  There are, as always, a number of core or mandatory conditions attached to the Order.  They are as follows;  You must not commit another offence for which you could be imprisoned during the time that the order is enforced, you must comply with any obligations or requirements prescribed by the relevant regulations, you must report to and receive visits from delegates from Community Corrections, you must report to the Community Corrections Centre – in your case, Ballarat Community Correctional Services – within two clear working days of the order starting, you must let a Community Corrections officer know within two clear working days of you changing your address or job, you must not leave Victoria without first getting permission to do so, and you must obey all lawful instructions from and directions of a delegate of Corrections.  
40	In addition to the mandatory conditions that I have just outlined, you will be subject to the following additional conditions.  You must perform 180 hours of unpaid community work over the 18 months of the Order.  You must be under the supervision of a Community Corrections Officer for the duration of the Order.  You must undergo assessment and treatment including testing for drug abuse or dependency as directed.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed.  Finally, you must comply with judicial monitoring requiring you to attend before me so that I can monitor your progress on this Order.  
41	In the circumstances of your case, and particularly given the events of the last seven days, I am declining to make any allowance with regards to the time spent complying with the therapeutic and treatment conditions being deductible from the unpaid community work.  That means, the entirety of the 180 hours must be completed.  The first judicial monitoring hearing is Friday 1 July at 9.30 am, and you can appear remotely for the purposes of that hearing.  
42	Mr Cordy, there were no ancillary orders that I could see in this matter.  
43	MR CORDY:  No.  
44	HIS HONOUR:  Is there nothing else that I need to deal with?  Any other orders of any ambiguities for that matter?  
45	MR CORDY:  No ambiguities, Your Honour.  
46	HIS HONOUR:  Yes.  Thanks.  Mr Barton, anything else from you before I speak directly with your client?  
47	MR BARTON:  No.  
48	HIS HONOUR:  No.  Now, Ms Gilbert, as I said to you in my reasons for sentence, I can only impose this Order if you agree to it, and you can only agree to it if you understand what is involved in the Order, and that includes not only the conditions, but the consequences should you breach the conditions.  I am not going to repeat what has already been said.  I maintain a degree of concern with regards to your ability and willingness to comply with this Order.  
49	If you do not comply with this Order – and that can be through committing an offence punishable by jail, not attending appointments, not complying with testing requirements or assessment requirements, not undertaking your unpaid community work – you can be breached.  That is a criminal proceeding which will come back before me.  I am making it crystal clear to you, Ms Gilbert, I will take a very dim view if you breach this Order.  I do not want to hear an explanation such as ‘I didn’t understand what the order was’, or ‘I didn’t quite get the priority that needs to be attached to this Order.’  If you are in doubt, if you are confused, your barrister is here.  Now is the chance to clarify any issues.  Would you like to speak with Mr Barton to clarify any aspects of this order?  
50	OFFENDER: No.
51	HIS HONOUR: Knowing the rigours of the Order, that is, the conditions of the Order and the consequences should you breach them, do you agree to comply with this Community Correction Order?
52	OFFENDER:  Yes, I do.  
53	HIS HONOUR:  Yes.  All right.  Well the Order will now be taken back to you for signing.  Mr Barton, would you accompany my Associate down to the dock please.  
54	MR BARTON:  Certainly.  
55	HIS HONOUR:  Yes.  You have signed that Order and you will get a copy before you leave.  Ms Gilbert, my final words to you are these; I will see you in a month’s time for a judicial monitoring hearing.  I get a report from Corrections with regards to your progress on the Order, as do the lawyers in this matter.  If there are any problems with regards to your progress on the Order, I will hear about it straight away.  You need to understand, if you fall into breach with regards to this Order, the maximum penalty for a charge of breach of a Community Correction Order is three months’ imprisonment for the breach charge itself.  More significantly, one of the options open to me on a breach is that I can cancel the Order and re-sentence you, and you will do well to keep in the front of your mind the sentencing submissions made by the prosecution in relation to this matter.  Do you understand?  
56	OFFENDER:  Yes.  
57	HIS HONOUR:  I hope, sincerely, that on the next occasion I receive a positive report with regards to judicial monitoring.  Yes.  Thanks, Mr Barton.  You’ll get a copy of that Order as well.  
58	MR BARTON:  If the Court pleases.  
59	HIS HONOUR:  Thanks, Mr Swindon.  
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