Director of Public Prosecutions (Cth) v Gibson

[2024] VCC 65

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 22-02199

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW GIBSON

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2024
DATE OF SENTENCE:	8 February 2024
CASE MAY BE CITED AS:	DPP (Cth) v Gibson
MEDIUM NEUTRAL CITATION:	[2024] VCC 65

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Use carriage service to groom person under 16 years – Fail to comply with reporting obligations – Permanent intellectual disability – Physical disability – Cooperation – Exceptional circumstances – COVID-19 pandemic.

Legislation Cited:      Criminal Code (Cth) s 474.27(1); Sex Offenders Registration Act 2004 (Vic) ss 34(1)(c), 46(1A); Crimes Act 2014 (Cth) ss 16A, 16AAB, 16AAC, 20(1)(b)(iii), 20(1B); Sentencing Act 1991 (Vic) s 6AAA.

Cases Cited:Director of Public Prosecutions (Cth) v Singh [2017] VSCA 146; The Queen v Asplund (2010) 216 A Crim R 48; Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 168.

Sentence:                  Imprisonment for a period of 2 years and 3 months, to be immediately released upon giving a recognizance in the amount of $2,000 and to be of good behaviour for a period of 3 years; for state offences, adjourned undertaking for a period of 2 years to be of good behaviour.

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APPEARANCES:	Counsel	Solicitors
For the DPP (Cth)	Ms K Breckweg with Ms E Addams	Commonwealth Director of Public Prosecutions
For the Accused	Ms J Ollquist	Docherty Legal

HIS HONOUR:

Introduction

1Andrew Gibson, you have pleaded guilty to:

(a) one charge of using a carriage service to groom a person under 16 years contrary to s 474.27(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment (Charge 1); and

(b) two charges of failing to comply with reporting obligations contrary to s 46(1A) of the Sex Offenders Registration Act 2004 (Vic), which carries a maximum penalty of 5 years imprisonment (Charges 2 and 3).

2You have also admitted your prior criminal history.  

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

Charge 1 – Grooming

4The victim in this matter, Charles Russo[1], was 15 years old at the time of the offending. His username on Snapchat was ‘Charlie Russo’.

[1] A pseudonym.

5On 3 January 2022, the victim received a notification that someone called ‘Gibbo’ with username ‘andrew_g1028’ had added him on Snapchat. The victim added ‘Gibbo’ back and said ‘hi’. You were ‘Gibbo’. The victim did not know you and had never met or seen you before.

6You asked the victim ‘how old are you’ and he replied, ‘I’m 15’.

7You then told the victim you were 18 years old. You were in fact 32 years old.

8You asked the victim some other questions, including where he lived and if he was gay. In response to the latter, the victim said ‘no’.

9Between 5:49 p.m. and 6:23 p.m., you sent the victim the following Snapchat messages, which each included a photograph:

(a)   ‘how would you feel if I was feeling ya [sic] legs’;

(b)   ‘feel ya legs to see what ya di maybe work up ya shorts to ya cratch’;

(c)   ‘have ya got loose shorts on? Probably make my way to ya dick to feel n wank it’;

(d)   ‘if I was there I’m likely to fuck ya’; and

(e)   ‘wanna suck n taste ya cum to see if it got taste’.

10The victim took screenshots of these messages and the accompanying photographs. A red and yellow striped blanket can be seen in each of the screenshots. The left half of your face can be seen in one of the screenshots.

11The victim did not send you any messages of a sexual nature.

12You asked the victim to send a ‘penis picture’, to which he responded ‘no’. You then blocked the victim on Snapchat and he blocked you.

Charges 2 and 3 – Fail to comply with reporting obligations

13On 5 January 2021, you were placed on the Register of Sex Offenders. As a result of your registration, you were required to report certain information to Victoria Police, including:

(a)   any internet usernames, instant messaging usernames, chat room usernames or other username or identity, used or intended to be used by you through the internet or other electronic communication service. You were required to report this information within seven days; and

(b)   the name of each child with whom you had contact, including any form of written communication (whether electronic or otherwise). You were required to report this information within one day. You were also required to provide other details of each child with whom you had contact, within seven days.

14On 7 January 2021, you acknowledged receipt of a notification of your reporting obligations and reported details of your WhatsApp and Facebook accounts, and your use of the PlayStation gaming site, as required.

15By 25 January 2022, you had not reported the following information to Victoria Police as required by your reporting obligations:

(i)contact with the victim in this matter; and

(ii)your use of the Snapchat username ‘andrew_g1028’.

Record of interview and seizure of blanket

16On 13 January 2022, police commenced a record of interview with you which was suspended to allow an independent third person to be present. Upon resuming, you told police:

(a)   your address;

(b)   that you had used Snapchat before to ‘chat to people’;

(c)   the account was under your own name, probably either ‘Andrew’ or ‘Gibbo’;

(d)   you go to your grandma’s house every day;

(e)   when you sit on the couch at your grandma’s house, you use your phone;

(f)    you no longer had Snapchat on your phone; and

(g)   you understood you were obliged to report things including ‘chat sites, anything like that’.

17In the morning of 13 January 2022, police attended your grandmother’s address where they located and photographed a red and yellow striped blanket over a couch in the living room. The blanket is identical in pattern and colour to the blanket seen in the Snapchat messages you sent to the victim.

Nature and gravity of the offending

18Charge 1 on the indictment is recognised by Parliament as an inherently serious offence which is reflected in the maximum penalty of 15 years imprisonment.  Further, the seriousness of offences of this nature is well settled.  In Director of Public Prosecutions (Cth) v Singh the Court noted: [2]

These provisions, and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children, are designed to protect young people from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue.  It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment.  Deterrence, both general and specific, is the paramount sentencing consideration.  It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.[3]

[2] [2017] VSCA 146.

[3] Ibid at [45] (citations omitted).

19While your offending remains inherently serious, there are a number of factors to be taken into account when assessing the nature and gravity of the specific offending in this instance.[4] After the victim told you that he was 15, you nonetheless sent the messages which were of a sexual nature as outlined above. However, when the victim rejected your request to send a ‘penis picture’ you then blocked him and he blocked you. Relevantly, the offending was of a short duration (approximately one hour) and on only one occasion.

[4] The Queen v Asplund (2010) 216 A Crim R 48, [48]-[49].

20Ms Ollquist, who appeared on your behalf, submitted that the offending in this instance falls towards the lower end of the scale of offending of this nature. I note also that the communication with the victim did not feature some of the more aggravating features of offending of this type such as the exchange of, or reference to, child exploitation material. The communication was limited to one exchange rather than multiple contacts over time where typically, in grooming cases, the seriousness of the communication escalates. Further, unlike other cases of this nature, your offending is limited to the one charge and one victim. Ms Breckweg who appeared with Ms Addams on behalf of the Commonwealth Director of Public Prosecutions, accepted that in all the circumstances your offending does fall towards the lower end.

21While Charges 2 and 3 represent separate offending, and you are not to be doubly punished, the fact that your offending in relation to Charge 1 breached your obligations pursuant to the Sex Offenders Registration Act 2004, elevates the seriousness of your conduct. Nonetheless in all the circumstances I accept that the offending in relation to Charge 1 does fall towards the lower end.

22In relation to Charges 2 and 3, you were made subject to reporting conditions from 5 January 2021 for a period of 15 years, one year before the commission of this offence. While it is acknowledged that you suffer from an intellectual disability, you nonetheless were able to articulate the nature of your reporting obligations to the police during your record of interview. As such your offending represents a deliberate breach of the reporting conditions where the primary purpose of the conditions is to protect the community from further offending of the nature of Charge 1. In those circumstances I do not consider the offending in relation to Charges 2 and 3 to be of a low level.

Personal circumstances

23You are now 34 years of age, residing with your mother and stepfather in Piangil, a township of approximately 250 people in the vicinity of Swan Hill, where you were born. You have spent your entire life living and going to school in this area. You have not worked in approximately 10 years and are currently supported by the NDIS. You help out to the best of your abilities in your small community, mowing the lawns of elderly neighbours and spending time with older members of the community, however you do not maintain any friendships with same-aged peers, mainly due to a lack of such people in the local community and also due to your intellectual difficulties and medical problems, which I will explain in detail below.

24Your parents separated before your birth. Your mother stays at home to care for you. Your father is aged 60 and works on the vineyards. You have an older sister, as well as a younger half-sister. You are close to both your parents and your stepfather. You had a relatively normal childhood in which you were encouraged to socialise with friends and relatives, and had few restrictions placed on you. You attended the local primary school and completed Year 12 at Tooleybuc High School. You had a teacher’s aide at school and struggled at times but report no problems in your relationships with teachers or peers.

25In terms of your relationship history, you have had three or four relationships with adult women who you have generally met online. The relationships have all been relatively short lived, with the longest lasting for a period of three months. You were assessed by psychologist Warren Simmons in September 2020 in relation to different sexual offending and denied at that time having any attraction to prepubescent children. A more recent assessment with psychotherapist Liz McDonald showed that whilst you appear to understand the fundamentals of sex, relationships, sexual conduct, social expectations and legal obligations, you fail to grasp ‘the complexities of healthy relationships’, including ‘respect and responsibility’. Ms McDonald concludes that the degree to which you do understand these concepts is ‘outweighed by [your] urge for personal sexual gratification’.

26I turn now to your medical and psychological ailments. You were born with spina bifida and hydrocephalus, conditions which have given rise to serious medical consequences for you. You have repeatedly had surgeries over the course of your life, including in relation to the structure of your bladder. You self-catheterise and have an umbilical stoma which allows you to wash out your bowel. You also had a shunt inserted into your skull at birth to treat your hydrocephalus.

27An operation record issued by Goldfields Urology confirms you most recently underwent another surgery on 23 January 2024, in relation to urethra and bladder complications. Currently, you have a post-operative catheter bag that will require removal in the coming days. It is likely that you will require an increasing number of surgeries as you grow older, due to scarring on your urethra and associated infections that have become more frequent over the past five years. It was submitted by your counsel, Ms Ollquist, that your medical complications are ongoing and will not resolve.

28You have a permanent intellectual disability, as evidenced by the Statement of Intellectual Disability dated 7 December 2020 from the Department of Health and Human Services, tendered on the plea. You were diagnosed with an intellectual disability at around 12 years of age via the Royal Children’s Hospital neuropsychologist, Elisabeth Northam.

29Also tendered on the plea were several reports which provide insight into the psychological and neuropsychological aspects of your intellectual disability, including a mental health assessment report by Ms McDonald dated 17 August 2022, a psychological report by Mr Simmons dated 25 September 2020 and a neuropsychological report by Ms Northam dated 11 April 2001. Mr Simmons conducted intelligence testing with you and concluded that you have a non-verbal IQ score of 46, putting you at less than the 0.1 percentile. Your composite or total score was 52, a score at the 0.1 percentile. You results put you in the disabled range of intellectual functioning. Your psychological and medical history are particularly relevant to the sentencing process and I will discuss those considerations further below. As already mentioned, you completed Year 12 at a mainstream school without incident, and with the assistance of a learning aide, but it is apparent that you were simply permitted to progress through the various grades at school without regard to whether you were able to complete the work to the requisite standard.  

30Currently, you attend the Swan Hill Men’s Shed with your NDIS support worker once a week. On Thursday evenings, you are accompanied to the Swan Hill Club where you and the worker play pool. These are the only social outlets available to you. It is apparent that you are psychologically as well as geographically isolated from your same-aged peers, and you use technology to communicate with others, but even so, you have little to keep you occupied in such a small community.

Sentencing considerations

31As Charge 1 is a Commonwealth charge, I am required to sentence you in accordance with Part 1B of the Crimes Act 2014 (‘Crimes Act’). Pursuant to s 16A(1) of the Crimes Act, the overarching principle is that any sentence I impose must be of ‘a severity appropriate in all the circumstances of the offence’. As part of that process, I must take into account the non-exhaustive list of matters pursuant to s 16A(2) of the Crimes Act that are relevant and known to the court.

32I first take into account your plea of guilty, which was entered following an application for sentence indication hearing before this Court. As such, your plea has great utilitarian benefit and has facilitated the course of justice. Further, while the backlog of cases as a result of the pandemic has now eased, there are still some residual pandemic-related delays and thus a moderate amelioration in sentence is still able to be taken into account.[5]

[5] Worboyes v The Queen [2021] VSCA 169, [39]; Biba v The Queen [2022] VSCA 168, [26].

33Due to the operation of s 16AAB of the Crimes Act you face a mandatory minimum head sentence of 4 years. However pursuant to s 16AAC(2) and (3) there is provision of a reduction of up to 25% to reflect a plea of guilty and up to 25% to reflect any co-operation with authorities. As noted, the prosecution accept that the offending in this instance falls towards the lower end. As such Ms Breckweg submitted that the 4 year minimum does not allow for full weight to be given to the plea of guilty and co-operation. In those circumstances it was accepted that in applying the provisions of s 16AAC(2) and (3) your plea of guilty should be given significant weight and that you should receive some discount for your co-operation.

34Ms Ollquist, while conceding your offending demands a period of imprisonment, submitted that given the low level of the offending together with your plea of guilty and co-operation, the total sentence should fall below 3 years allowing for the possibility of immediate release if exceptional circumstances are able to be established pursuant to s 20(1)(b)(iii) of the Crimes Act.

35As detailed in the material tendered and summarised above, you have a complex psychological and medical profile which in my view must be given significant weight in the sentencing synthesis. Ms Ollquist submitted that your intellectual disability alone constitutes exceptional circumstances allowing for the possibility immediate release. Further, it was submitted that your serious medical conditions, including your spina bifida, ongoing complications with your bladder, umbilical stoma, the need to self-catheterise and the high likelihood that you will require more surgeries in the future, also meet the exceptional circumstances threshold.

36I turn first to the s 16AAC(2) and (3) sentence reduction provisions. In my view your offending does fall towards the low end and once the reduction provisions are applied, in my view the appropriate sentence falls under three years. I am also of the view that exceptional circumstances are made out as a result of the combination of your intellectual and physical disabilities.

37If you are to be released directly into the community given the nature of your offending pursuant to s 20(1B) of the Crimes Act,  you will be subject to supervision and be required to undertake rehabilitation programs as directed. As such, in my view if you comply with such conditions your prospects of rehabilitation can be assessed as reasonable.

38Turning to other relevant sentencing considerations. General deterrence remains the most prominent sentencing principle. It is well settled that because online offending of this nature allows adults to coerce young people to become involved in sexual behaviour, ultimately putting them at risk of serious psychological harm, others must be deterred from contemplating engaging in such conduct. In your case, in my view, specific deterrence must also carry weight as you offended knowing that you were subject to the Sex Offenders Registration Act reporting conditions and you must be deterred from such conduct.

Sentence

39Mr Gibson, would you please stand.

40Andrew Gibson, on Charge 1, use carriage service to groom a person under 16, you are convicted and sentenced to 2 years and 3 months imprisonment.

41Pursuant to s20(1)(b) of the Crimes Act, I direct that you be released immediately upon giving a recognizance in the amount of $2,000 to be of good behaviour for a period of 3 years.

42Further, as a condition of the recognizance release order, you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for a period of 2 years after release. You must obey all reasonable directions and treatment conditions as outlined in the order.

43I am required to explain to you that if you breach the conditions of the order you may be brought back before the court to be dealt with for that breach, which could include being ordered to serve the prison component of the order, and you may forfeit the $2,000.

44In relation to Charges 2 and 3, failing to comply with reporting obligations contrary to the Sex Offenders Registration Act 2004, you are convicted and will be placed on an adjourned undertaking for a period of 2 years to be of good behaviour.

45Further, pursuant to s 34(1)(c) of Sex Offenders Registration Act 2004, you will be required to comply with reporting obligations for the remainder of your life.

46Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 4 years imprisonment with a non-parole period of 2 years and 6 months.