Director of Public Prosecutions v Gibbon
[2025] VCC 968
•14 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01492
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN GIBBON |
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JUDGE: | HIS HONOUR JUDGE LEWIS | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 June 2025 | |
DATE OF SENTENCE: | 14 July 2025 | |
CASE MAY BE CITED AS: | DPP v Gibbon | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 968 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing.
Catchwords: Plea of Guilty – Obtaining Financial Advantage by Deception – Handling Stolen Goods – Livestock Export - General Deterrence - Specific Deterrence – Delay – Mental Health – Moral Culpability -
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Pavlovski [2019] VCC 144 - The Queen v Huynh [2014] VSC 53
Sentence: Total Effective Sentence of 6 months’ imprisonment, in combination with a Community Corrections Order for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | M. Keks (Plea) D. Vrech (Sentence) | OPP |
| For the Accused | A. Lewis | Tony Hargreaves & Partners Lawyers |
HIS HONOUR:
INTRODUCTION
1Nathan Gibbon, on 1 April 2025, you pleaded guilty to :
·Two charges of obtaining a financial advantage by deception. The maximum penalty for obtaining financial advantage by deception is 10 years’ imprisonment.
·One charge of handling stolen goods. The maximum penalty for handing stolen goods is 15 years’ imprisonment.
2Your plea hearing proceeded before me on 24 June 2026.
3The circumstances of your offending are outlined as follows, and constitutes the factual basis upon which I sentence you.
THE OFFENDING
4You were born in August 1974, and were between 44 and 47 years of age at the time of the offending.
5You were a registered livestock agent who facilitated the export of cattle to China through export companies including Australasian Global Exports Pty Ltd (AGE) and Yarra Corporation Australia Pty Ltd (Yarra Corp).
6Charges 1 and 2 relate to cattle that you sold to AGE and Yarra Corp respectively for export to China. On four occasions, you falsely represented that certain cattle had been bred on particular properties and were thus eligible for export to China, when they had not. Three of those occasions relate to charge 1, which is a rolled-up charge. The other occasion relates to charge 2. As a result, you fraudulently obtained a total of $234,705 from AGE and Yarra Corp.
7Charge 3 relates to a stolen Bobcat which was found in your possession. The bobcat was valued at around $78,000 at the time of its initial theft.
Background—export of live cattle to China
8The live export trade is regulated by the Australian Department of Agriculture, Fisheries and Forestry (formerly the Department of Agriculture, Water and the Environment). The Manual of Importing Country Requirements (MICOR) contains information and requirements set by foreign importing countries, including China, regarding live cattle exported from Australia.
9Requirements that must be met by Australian exporters of live cattle into China include:
a) The farms from which the exported cattle originate must have had no clinical cases of diseases including tuberculosis, enzootic bovine leucosis, infectious bovine rhinotracheitis and akabane for the past year.
b) The cattle must have been born and raised on the farm from which they are being exported (that is, vendor bred) or resident on the farm for six months prior to export (that is, non-vendor bred).
c) The farms must be located in the bluetongue virus transmission-free zone.
d) Prior to export, the cattle must have been quarantined for at least 30 days at an approved quarantine facility.
10Compliance with these requirements is tracked using, among other things:
a) the National Livestock Identification System (NLIS), which is a national database tracking the life history of an animal from birth to slaughter or export;
b) cattle NLIS ear tags;
c) a Property Identification Code (PIC), which is a code allocated by Agriculture Victoria to a property used for agricultural purposes; and
d) a National Vendor Declaration (NVD), which is a document provided by a seller of livestock to a buyer (such as a livestock agent) identifying the livestock being sold as either vendor bred or non-vendor bred.
11Cattle are exported by export companies holding a licence issued by the Australian Government. The process by which cattle are exported is as follows:
a) The exporter contacts stock agents, such as yourself, to advise of an upcoming export consignment.
b) Stock agents nominate cattle which comply with the export consignment details.
c) The exporter or their agent inspects the cattle on farm and selects particular animals for export. This involves the scanning of ear tags.
d) An accredited veterinarian attends at the vendor’s property and conducts blood testing of the selected cattle to ensure they are free from diseases that are not allowed into the country to which they will be exported (in this case, China).
e) Upon receiving the results of these blood tests, cattle that are disease free and suitable for export are sent to a quarantine facility where they are scanned by the exporter to ensure that only cattle eligible for export are inducted.
f) Cattle remain at the quarantine facility for 30 days. During this period:
i.All cattle are subjected to clinical examination by an accredited veterinarian and must be free of any symptom of disease.
ii.All cattle are again blood tested by an accredited veterinarian for the purposes of screening for disease.
iii.Cattle are vaccinated for diseases. A further clinical examination of all cattle is conducted by an accredited veterinarian with 24 hours of being loaded for export, and all cattle must be free of any symptom of disease.
12Cattle cleared for live export to China attract substantially higher prices than those sold on the domestic market.
13Offending that involves the falsification of records pertaining to live cattle exported to China has the potential to cause damage to Australia’s live animal export market.
Charge 1—cattle sold to AGE
14On three occasions between November 2018 and July 2019, you sold cattle to AGE for export consignments which were subject to the strict Chinese protocol, falsely representing that certain cattle was vendor bred and therefore eligible for export to China. AGE paid you a total of $209,955 for the cattle in respect of which you had made false representations.
15By falsely representing to AGE that the cattle were vendor bred and therefore eligible for export to China on those three occasions, you dishonestly obtained a financial advantage ($209,955) by deception (Charge 1).
16The details of those three occasions were as follows
Export consignment AGE China 58
17On 19 November 2018, you issued an invoice to AGE for a total of 280 head of cattle in respect of export consignment AGE China 58, including 105 head of cattle described as dairy heifers from property identification code PIC 3BWJY777.
18That property identification code was allocated to the property at 44 McHugh Road, Longwarry, associated with Aaron THOMAS.
19You relied on national vendor declaration NVD 2116958, which was to the effect that THOMAS was the owner of the cattle and that they were vendor bred and eligible for export to China, which was purportedly signed by THOMAS on 13 November 2018.
20Between 7 and 14 December 2018, AGE paid $307,800 to a bank account in the name of Nathan Gibbon Livestock Pty Ltd which was controlled by you (the NGL account) pursuant to the invoice. $115,300 was attributable to the THOMAS cattle.
21In fact, the 105 head of cattle were not from the property identified by the property identification code. THOMAS did not sign the national vendor declaration, and the cattle identified were not on his property.
Export consignment AGE China 59
22On 3 January 2019, you issued an invoice to AGE for a total of 761 head of cattle in respect of export consignment AGE China 59, including seven head of cattle described as dairy heifer from property identification code PIC 3BWJY777 (associated with THOMAS).
23You relied on national vendor declaration NVD 21169630, which was to the effect that THOMAS was the owner of the cattle and that they were vendor bred and eligible for export to China, which was purportedly signed by THOMAS on 21 December 2018.
24On 17 January 2019, AGE paid $808,640 to the NGL account pursuant to the invoice. $7,700 was attributable to the THOMAS cattle.
25In fact, the seven head of cattle were not from the property identified by the property identification code. THOMAS did not sign the national vendor declaration and the cattle identified were not on his property.
Export consignment AGE China 62
26On 3 July 2019, you issued an invoice to AGE for a total of 381 head of cattle in respect of export consignment AGE China 62, including:
a) 22 head of cattle described as dairy heifers from the property identified by property identification code PIC 3BWJY769, which was a code allocated to the property at 635 Main Neerim Road, Drouin West, associated with Erin HORTON; and
b) 51 head of cattle described as dairy heifers from property identification code PIC 3BWJY777 (associated with THOMAS).
27You relied on:
a) National vendor declaration NVD 16069192, which was to the effect that HORTON was the owner of the cattle, and that they were vendor bred and eligible for export to China, which was purportedly signed by HORTON on 1 July 2019; and
b) National vendor declaration NVD 21728177, which was to the effect that THOMAS was the owner of the cattle and that they were vendor bred and eligible for export to China, which was purportedly signed by THOMAS on 1 July 2019.
28On 19 July 2019, AGE paid $518,925 to the NGL account pursuant to the invoice. $30,855 and $56,100 were attributable to the HORTON and THOMAS cattle respectively, for a total of $86,955.
29In fact, the cattle were not from the properties indicated in the property identification codes:
a) In respect of the HORTON cattle, the property associated with property identification code PIC 3BWJY769 had been sold by HORTON in 2015, and in any event the property did not have the capacity for the number of cattle sold, nor the appropriate machinery for dairy cattle.
b) In respect of the THOMAS cattle, THOMAS did not sign the National Vendor Declaration and the cattle identified were not on his property.
Charge 2—cattle sold to Yarra Corp
30On 7 August 2019, you issued an invoice to Yarra Corp for a total of 739 head of cattle in respect of export consignment CN1902, including 25 head of cattle described as dairy heifers from property identification code PIC 3BWJY777 (the code associated with THOMAS).
31You relied on national vendor declaration NVD 33915854, which was to the effect that THOMAS was the owner of the cattle and that they were vendor bred and eligible for export to China, which was purportedly signed by THOMAS.
32On 6 September 2019, Yarra Corp paid $817.342.50 to the NGL account pursuant to the invoice. $24,750 was attributable to the THOMAS cattle.
33In fact, the 25 head of cattle were not from the property indicated in the property identification code.
34By falsely representing to Yarra Corp that the cattle was vendor bred and therefore eligible for export to China, you dishonestly obtained a financial advantage ($24,750) by deception (Charge 2).
Charge 3—handle stolen goods
35On 18 May 2020, a Caterpillar compact track loader/Bobcat (model CAT239D) was reported stolen from the CAT rental store in Laverton. At the time it was stolen, it had seven hours of operation recorded and, as mentioned, it was valued at $78,000.
36In an intercepted telephone conversation on 25 June 2022, you discussed using a bobcat.
37On 14 July 2022, police executed a search warrant at your residential property at 1149 Lardners Track, Lardner. During the search, police observed a Caterpillar excavator inside the machinery shed. Subsequent checks revealed that it was the excavator stolen from Laverton.
38In an intercepted telephone conversation on 15 July 2022, you were advised to take the bobcat to another location in case police had noticed it.
39On 22 July 2022, a further search warrant was executed in order to seize the stolen Caterpillar. You told police that, about six months ago, a person not known to you had a flat tyre outside the front of your property and asked to put the Caterpillar in your shed. You told police that you had used the machine for some time.
40When the Caterpillar was seized from your property, it had 155.4 hours of operation recorded on the digital display, and it was caked in mud and had concrete residue on the front bucket.
41By dishonestly retaining the bobcat, knowing or believing that it was stolen, you handled stolen goods.
INVESTIGATION
42Agriculture Victoria commenced an investigation in early 2019.
43In October 2019, property inspections were conducted at several farms linked with you. During an inspection at your property at 1149 Lardners Track, several national vendor declaration books and bags containing ear tags that appeared to have been removed from cattle were located, along with handwritten notes detailing property identification code numbers, company names and dates.
44In 2021, the matter was referred to Victoria Police.
45In May 2022, police applied for a telephone intercept warrant in respect of your mobile phone number. Interception commenced on 6 June 2022.
46As described above, on 14 July 2022, a search warrant was executed at your residence at 1149 Lardners Track, Lardner. Business records, cattle National Livestock Identification System ear tags and national vendor declaration books were seized. On 22 July 2022, a further search warrant was executed and the bobcat was seized.
Initial interview
47You participated in a record of interview with police on 23 May 2023. You made no comment.
MATTERS PERSONAL TO THE ACCUSED
48You are now 50 years of age.
Family
49You are the eldest of three children. You have a sister and a brother. You grew up on a farm in Drouin West. Your father ran the farm and also worked as a stock agent and auctioneer.. Your mother worked as an interior decorator.
50You experienced parental conflict in your early years, which arose from your father’s violent and controlling behaviour. Your father drank heavily and was controlling and physically abusive towards your mother. He also had regular extra-marital affairs.
51Your parents separated and reconciled multiple times. These issues came to a head when you were 16 or 17 and felt compelled to step in when an argument between your parents became violent. As a result, you suffered violence at the hands of your father before police were called. Your parents subsequently divorced. Although you clearly had a number of difficulties in your youth, counsel did not seek to draw a connection between your childhood hardship and the offending.
Education
52As a child you attended Warragul North Primary School, followed by Drouin West Primary School. You report that you “battled with concentration in school”. You completed years 7 to 11 at High School in Warragul. You undertook and completed year 12 in Queensland following your parents separation. However, you regarded your results with disappointment.
53You enrolled in an agricultural diploma, worked on a cattle station in the Kimberly for nine or ten months, and then returned to work with your father in Victoria, at his request. You have worked as a livestock agent and auctioneer since then.
Employment
54You started your own business, Nathan Gibbon Livestock Pty Ltd, when you were 35. You also purchased, bred and sold your own cattle. You worked long hours. In 2009 you purchased another business in order to expand. You also entered into a business partnership with your second wife, Ms Horton. I will come back to that partnership presently. As a result of these offences, you have now sold your business and, since then, have been working with the company that purchased it.
Personal life
55You have been married twice, and you have three children from the two relationships. One from the first and two from the second. The offending occurred in the aftermath of your second divorce and, I was told, was intimately connected with the fallout of the marriage breakup.
56You have a current partner who has remained supportive throughout this prosecution.
Forensic history
57You have a single prior offence in relation to charge 3 only. That is an offence of driving whilst disqualified. It has no relevance to these offences. However you do have a subsequent offence which has some relevance. That is a conviction for concealing a document to prevent its use as evidence. I was informed that it related to the removal of an identify tag from a cow after it had been involved in a collision with a motor vehicle. That offending does bear some relation to the this offending, however, I am cognisant that it does not constitute prior offending for purposes of this sentencing exercise.
IMPETUS FOR AND GRAVITY OF OFFENDING
Background
58Assessing the gravity of the obtaining financial advantage by deception charges is not straightforward because the offending is of a type that is a little unusual. Generally speaking charges for this offence involve a victim who is disadvantaged in direct proportion to the advantage obtained by the accused, although this is not universally so.
59Further, it is unusual that the offending in this case had the potential to cause damage to an entire industry sector. Usually the potential harm from offending is not so far reaching.
60The total amount involved in the offending, including the handling stolen goods charge, exceeds $300,000. However, care must be taken in relation to a couple of issues when approaching that figure.
61The Caterpillar was valued at around $78,000 at the point in time that it was originally stolen. It is less clear exactly how and when you came into possession of the machine, and what it was worth at that point in time. Accordingly, that $78,000 figure needs to be discounted to some extent.
62Also, counsel raised a couple of arguments in relation to how the court should approach the amount in relation to the obtaining financial advantage charges.
63Firstly, it was said that there was no actual loss to the victims.
64Secondly, it was said that the cattle in question had an actual value which appears, on the material, to be something in the order of half of the amount obtained. Therefore, it was said, the practical effect was that you did not gain the full amount, but really about half of that figure.
65In relation to the first proposition, your counsel provided me with a number of cases where financial institutions were the victims and no actual losses were occasioned by the offending. They were County Court sentences where, in each instance, community corrections orders had been imposed. One of those cases was DPP v Pavlovski.[1] The judge in that case referred to the Supreme Court case of The Queen v Huynh[2] in which Dixon J had observed that it was not to the point that the lenders had not suffered any loss. They had been exposed to loss and the offending undermined the integrity of the system.
[1] [2019] VCC 1442.
[2] [2014] VSC 53at [10].
66Likewise here, the absence of identifiable loss on the part of the purchasers of the cattle is no more than the absence of a potentially aggravating factor. It is not mitigatory. Further, like those financial institution cases, part of the gravamen of the offending is the potential to damage the system that is being taken advantage of.
67In the case of Huynh the offending was seen as undermining the commercial process of low documentation loans. In this case, it was the live cattle export industry. Your counsel quite properly conceded that your offending had some capacity to undermine confidence in Australian live cattle exports. The fact that you were prepared to take such a risk in relation to an industry, in which many of the people that you must have known and dealt with over years, worked and earned their livings, is striking. It was a gamble taken to enrich yourself, that you were not entitled take on their behalf.
68Further, as was pointed out by the prosecutor, as a result of the fact that you sold cattle that were unqualified for export, it is reasonable to infer that a genuine vendor missed out on making those sales.
69As to the second proposition, that the nature of your gain was less than the amount reflected in the charges, it is a matter that I take into account as an aspect of the overall scheme of the offending.
70Your counsel submitted that your offending was not motivated by greed or to fund an extravagant lifestyle. Whilst I accept the latter aspect of that proposition, I have some difficulty with the former. Whilst there is no suggestion that the fruits of your offending were squandered on luxury items, that is not to say that greed played no part.
71Your counsel took me through a considerable amount of material in order to demonstrate that, at the time the offences were committed, you were under considerable financial strain as a result of the break up of your second marriage and the consequent break up of your business partnership with your second wife. Your assets were highly leveraged and there were complex arrangements between the two of you.
72It is reasonable to conclude that those matters were the chief motivators of your offending. You were driven by a perceived need to save your business. This was a business that you had built over decades and which you were very keen to maintain. It was conceded, however, that, with hindsight, the situation was not perhaps quite as desperate as you had thought at the time. Nonetheless, it is your thinking at the time which illuminates your moral culpability.
73You are, of course, not the first person to face a divorce that could have significant detrimental financial ramifications. Whilst seeking to maintain a well-loved business by way of committing offences can perhaps be regarded as an act that is less ignoble in nature than committing the same offences in order to live an extravagant lifestyle, both are motivated by greed of one sort or another.
74I regard your moral culpability to be high and the offending to be a serious example of obtaining financial; advantage by deception.
MATTERS OF SENTENCING PRINCIPLE
Plea of guilty
75You pleaded guilty to the charges on the indictment at the committal hearing on 2 September 2024, having come to an agreement with the prosecution sometime before that, and no witnesses were cross-examined in these proceedings. I take your relatively early plea into account, and you are entitled to a palpable discount as a result of it.
General deterrence
76General deterrence is a matter of considerable importance in relation to this type of offending. I accept the prosecutor’s submission that general deterrence here is aimed more broadly than simply at those working in this particular industry sector. This sentence must take into account the need to deter anyone who seeks to unlawfully gain by deceit, particularly, as was the case here, insiders who misuse their expert knowledge for the purpose. Such offending is notoriously difficult to detect and thus the need for general deterrence is significant.
Specific deterrence and prospects of rehabilitation
77Having said that, the need for specific deterrence is reduced in this case by the fact that you have, up until now, led a relatively law abiding life. Your subsequent offending in relation to the escaped cow is relevant, as it is another demonstration of a willingness to deceive. However, your total offending history is very limited having regard to your 50 year lifespan.
78Further, you have clearly lived a useful life in which you have worked hard. This is reflected in the references that you have been able to provide to the court. Those references paint a picture of you as an upright and useful member of the community over a significant number of years.
79They provide justification for confidence in your rehabilitation. As a result, I regard your prospects of rehabilitation as good.
Delay
80Your counsel submitted that delay was a relevant consideration. It appears from the material that I have been provided with, that, whilst police first became involved in 2021, it was not until mid-2022 that you became aware of their involvement. That is three years ago and I take into account the fact that that period is longer than usual for a prosecution, particularly one that resolved to a plea at committal stage.
Current sentencing practices
81I have taken current sentencing practices into account, including the cases provided to me by both prosecution and defence. I acknowledge, of course, that such sentences are but one of many factors to be taken into account in sentencing.
Totality
82I have considered the sentence that I intend to impose in light of the principle of totality and applied that principle in order to ensure an appropriate overall sentence.
SENTENCE
83After having carefully considered, balanced and weighed all of the relevant sentencing considerations, including the relevant sentencing guidelines referred to in s5 of the Sentencing Act 1991, I have come to the conclusion that, as a result of the seriousness of the combined offending, some period of imprisonment is required. However, I have concluded that, due to your prospects and prior good character, that period of imprisonment need not be lengthy and, as a result, you are within range for a combination sentence, which encompasses a term of imprisonment followed by a community corrections order.
84Accordingly, I intend to sentence you as follows: On charges one, two and three on the Indictment, I sentence you to a term of imprisonment of six months followed by a community corrections order of 18 months duration.
85The community corrections order will include a work component of 100 hours. You were assessed after the plea, and the report that I received indicated that you would benefit from some counselling. I have therefore included a condition that you undergo any mental health assessment and treatment as directed. 25 hours of any such treatment satisfactorily undertaken will count as hours of unpaid community work.
PRE-SENTENCE DETENTION
86You have served no days in custody, so I make no declaration under section 18 of the Sentencing Act1991.
s.6AAA
87But for your plea of guilty, I would have sentenced you to a term of imprisonment of twelve months followed by a community corrections order for two years.
Forfeiture
88I make an order for the forfeiture and disposal of three cattle tags and one National Vendor Declaration book. The order is not opposed.
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