Director of Public Prosecutions v Gibson

[2021] VCC 94

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02138

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK GIBSON

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2021
DATE OF SENTENCE:	8 February 2021
CASE MAY BE CITED AS:	DPP v Gibson
MEDIUM NEUTRAL CITATION:	[2021] VCC 94

REASONS FOR SENTENCE

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Subject: Use a carriage service to transmit communications to a person under 16 years of age, which included material that was indecent.

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Breckweg	Office of Public Prosecutions
For the Accused	Ms V. Drago	Gallant Law

HER HONOUR:

1Mark Christopher Gibson, you have pleaded guilty to one charge of using a carriage service to transmit communications to a person that you believed to be under 16 years of age, which included material that was indecent.  Your offending occurred between 16 July and 6 November 2013 and related to sexualised communications between you and “Valerie” who identified herself as a 14-year old girl.  

2The maximum penalty for this offence is imprisonment for 7 years. 

3The details of your offending and contents of the relevant conversations are set in the Summary of Prosecution Opening (Exhibit A) and can be summarised as follows:

4As part of a broader investigation into child exploitation offences associated with online sites, on 2 May 2019, Australian Federal Police (AFP) investigators executed a search warrant at your house in Bayswater North.  Subsequent examination of your computer revealed that you had operated a Skype account.  The AFP identified chats involving sexualized communications between you and “Valerie”, a 14-year old girl – though no such person has ever been located. 

5After some introductory Skype chats commencing on 28 June 2013, on 10 July 2013 you  complimented “Valerie” on her appearance and she asked you whether “we were something” to which you responded you were friends.  During the course of the communications over the offending period “Valerie” restated her age on a number of occasions.

6The first chat with sexualized content between you was on 16 July 2013.  You indicated that you would like to kiss “Valerie” and asked her to send images of herself.  You also asked her about her sexual experiences and told her that you really wanted to explore a young girl.  The details of the sexualised nature of this chat is set out in paragraphs 14 and 15 of Exhibit A. 

7Two days later  ‘Valerie’ sent you an explicit image of herself, to which you responded “Ooohh wow my fav … ur awesome Valerie” – you went on to have other sexualised conversations over the next two days as set out in paragraphs 16 and 17 of Exhibit A. 

8You and “Valerie” next communicated on 16 August 2013, when she initiated contact with you.  She advised you that she had a boyfriend, and informed you that they had not engaged in sexual activity, to which you responded, 'Maybe it will go further one day do u think?' Two days later in chats you indicated you wanted to remain friends with Valerie, and later you both discussed her relationship with her boyfriend and other sexually explicit details as set out in paragraph 19 of Exhibit A.

9On 21 August 2013, you and ‘Valerie’ had another chat, in which she informed you of her sexual experiences with her boyfriend.  You responded enthusiastically, ‘Ooohh myyy goddd!! That’s so hot !!!’ and that you were jealous.  You both expressed the sentiment that you wished it had been with each other – you then sought further details of her sexual activities with her boyfriend.  You had another chat two days later discussing similar issues.

10On 5 September 2013 you both engaged in two separate sexualized chats.  In the first chat, Valerie indicated she had turned her webcam on, and you told her you were aroused and hard.  That you would have liked to show her, but couldn’t because you didn’t have a webcam.  In the second chat you told “Valerie” that you got excited just looking at her and you both discussed a desire to engage in mutual oral sex.  (see Paragraph 23 of Exhibit A)

11You and ‘Valerie’ had a more lengthy chat on 10 September 2013, when you advised “Valerie” that you had not obtained a “webcam”, that you and “Valerie” should be friends and that you would be unable to meet up.  You advised “Valerie” to find a boyfriend and to “dump” you.

12On 19 September 2013, “Valerie” advised you that she was meeting an ex-boyfriend and you enquired if she was going to have sex.  The next day you asked her if she had been naughty, and she offered to send you texts and videos – you were happy to receive such material as indicated in paragraph 27 Exhibit A.  The next week you told her you liked the video and that she was hot. 

13You and ‘Valerie’ engaged in a lengthy chat on 6 November 2013 during which she advised you that she had recently attended a party around a swimming pool where most of the guests were naked, and she told you about the sexual encounters that had taken place.  (see paragraph 30, Exhibit A).  This was the last occasion that you had a sexually explicit conversation with Valerie. 

14Additionally over the period of your offending you had a number of other conversations or chats with Valerie, though these were not classified as sexually explicit – see paragraphs 19,22,26,28,29,31 and 32 of Exhibit A.

15You were not interviewed about the chats as they were unknown to police at the time of execution of the search warrant.  You were charged and bailed on 24 June 2019.  You offered to plead to this charge in September 2019, though that was not accepted by the prosecution until 12 months later.

16In sentencing for Commonwealth matters, s.16A(2) of the Code provides a non-exclusive list of factors that the Court must take into account where relevant and known to the Court:

17The character, antecedents, age, means and physical or mental condition of the person: s.16A(2)(m).

18I received reports from Mr Simon Candlish, Forensic psychologist dated 20 January 2021; and Dr Chris Richardson, your treating psychologist, dated 11 January 2021.

19I also received a number of character references.  I take all of that material into account.  I also note that some of your family members were in court to provide support to you and that you have strong support from them and others in the community.  You have no prior convictions and I accept apart from the circumstances of this offending, you  are otherwise of good character. 

PERSONAL CIRCUMSTANCES

20You are currently aged 72 and were 65 at the time of the offending, which occurred in 2013.

21You grew up in Mansfield with seven siblings in a loving environment and enjoyed a happy childhood.  You completed Year 12 then commenced a Bachelor of Electronic Engineering at RMIT in 1968, which you undertook for about two years.  Upon leaving RMIT, you soon commenced work in the family business, a Nissan dealership in Benalla.  You remained employed in the family business until it was sold in 1978, then opened a service station with your brother in that town. 

22You moved to Melbourne later that year, and recommenced studies at night school in bookkeeping – the course took you five years to complete.  You have since had continuous employment in various businesses as set in paragraph 15 of the Defence submissions.  Most recently you have managed and owned Autobarn stores and operated a netspares.com business.  You have made a significant contribution to the community involved with and doing voluntary work for organisations including the Benalla Auto Club, JC Community Service Club and Benalla Golf Club.  As reflected by this history you have worked consistently and hard throughout your life and have also made a valuable contribution to the community.  

23You have been in a number of long term relationships - most recently and relevant to this offending period, you were in a relationship with Lee who had three children of her own.  You acted as a father figure to those children.  That relationship ended in 2012 upon you discovering her infidelity, and I note it was in this context that this offending commenced.  I was informed that after the relationship break down that you moved from the family home.  You felt lonely and depressed and began communicating with people online for companionship.

24You have limited physical health issues and are on medication for elevated blood pressure.  You recently discovered a slightly excessive white blood cell count and have been seen by the relevant professional.  Save for treatment with Dr Richardson, psychologist, you have never previously engaged with therapeutic supports.  You have participated in 22 sessions with him since 2 September 2019, and have indicated a preparedness to continue engagement.  I accept that you have sought professional help of your volition, and have worked and are committed to trying to understand what led to this kind of offending. 

25Your counsel submitted on the basis of Dr Richardson's opinion, it was likely that at the time of the offending that you met the DSM-V diagnostic criteria for Adjustment Disorder, specified as being chronic and with disturbance of conduct.  Reliance was placed on this opinion to support the application of the first limb of Verdins, and thus reduce your moral culpability.

26The prosecution submitted the evidentiary basis for Verdins had not been met, and that the Court should prefer the opinion of Mr Candlish, an experienced forensic psychologist, who opined that your offending appeared reflective of “poor judgment in the context of loneliness and likely sexual arousal to such conversations” rather than any psychological condition.  He further opined that there was no evidence existing of anti-social orientation, sexual deviance or issues with sexual preoccupation.  I accept the prosecution’s submission given the expertise of Mr Candlish and take his opinion into account in consideration of the context and explanation for your offending, though it does not excuse it. 

The degree to which the person has shown contrition s.16A(2)(f); and Plea of guilty s.16A(2)(g); Degree of co-operation with authorities s.16A(2)(h)

27I take into account your plea of guilty- you indicated that you would plead to this matter at an early stage after you were charged.  Your plea has utilitarian value and is demonstrative of a willingness to facilitate the course of justice, shows acceptance of responsibility and remorse. 

28Additionally you have expressed a high level of shame to a number of professionals and family – such is indicative of remorse as are your endeavours to address your issues with professional help.

29Linked to your plea is delay – this offending occurred in 2013 though police did not make contact with you until May 2019.  Finalisation of this matter is more than 12 months after the plea offer was made.  I accept the delay has contributed to your distress with the uncertainty of how your case would  proceed, its outcome and your personal difficulty reconciling this conduct with your otherwise everyday life. 

The prospects of rehabilitation of the person s.16A(2)(n)

30There are a number of matters that auger well for your rehabilitation:

31Mr Candlish's opinion that you show no indication of significant psychopathology and that you do not meet criteria for mental health or personality disorders.  On his assessment after relevant testing he placed you in the “very low risk” category for being charged or convicted of another sexual offence.  Additionally he remarked that you had strong protective factors in place. 

32Dr Richardson opined that you have predominantly resolved your issues associated with your offending specifically those relating to a difficult relationship breakdown, social isolation and loneliness;

33Your plea of guilty and high level of remorse;

34Your good work history and community participation;

35no prior criminal history;

36steps taken by you to address your issues.

37I accept that you have excellent rehabilitation prospects.

The nature and circumstances of the offending s.16A (2)(a)

38If the offending forms part of a course of conduct consisting of a series of acts of the same or similar character s.16A(2) (c)

39You were told and believed, that “Valerie” was 14-years.  There was a significant age difference of 50 years between you, and such reflects an imbalance in levels of maturity and life experience.

40Although some of the contact was instigated by Valerie, you actively encouraged her to send you materials and expressed your sexual desires or interest in her, actively seeking her responses and participation in the chats.

41Your offending was not spontaneous, isolated or a “one off” occurrence but continued from 16 July 2013 to 6 November 2013;

Specific deterrence

42I accept that given the steps you have taken towards rehabilitation and the continuation of your engagement with Dr Richardson, and the time passed since the commission of the offence and delays in finalisation, that specific deterrence though relevant, has more limited application to you.

General deterrence and the need to ensure that the offender is adequately punished s.16A(2)(k)

43It is authoritatively established that general deterrence is the paramount consideration when sentencing for offences of this kind.  The existence of cyberspace provides a place where adults can easily deceive children and young people as to their true identity, remain anonymous and inveigle them into sexual behaviours beyond their maturity.  Given the circumstances of this offending has been over the internet, it is also difficult to detect.  The creation of these kind of offences, to accommodate the occurrence of sexual exploitation of children via this popular medium, serves to protect this vulnerable class of victim. 

44The maximum penalty for this offence is seven years and reflects the seriousness with which this offence is viewed by Parliament. 

45As dictated by the Code, the Court must impose a sentence that is of a severity appropriate in all of the circumstances – the Court must not impose a sentence of imprisonment unless it is satisfied that no other sentence is appropriate in all the circumstances. 

46Both counsel provided written submissions as to the appropriate sentence I should impose and I take that material into account.  The prosecution submitted that a term of imprisonment was warranted but submitted that you should be placed on a recognisance release order and be released immediately. Alternatively it was submitted that a CCO was within sentencing range. 

47Your counsel submitted that I should impose a financial penalty.  That given your age, no prior history, engagement with treatment and delay, that the punitive aspect of your sentence could be served by the imposition of a fine. 

48In sentencing you I have taken into account all the relevant matters listed under s.16A(2) of the Code.  It is necessary for me to balance matters personal to you, your plea of guilty and delay with the objective seriousness of your offending. 

49I had you assessed by Corrections as to your suitability for a CCO and received a positive report.  Although there was significant material in mitigation presented on your behalf, I am not persuaded that a fine adequately reflects the seriousness of your offending.  Having regard to all the relevant sentencing considerations I propose to impose a community correction order for a period of 18 months. 

50That period allows for offence specific treatment if deemed necessary.  Corrections should liaise with Dr Richardson regarding your treatment.  I also impose a condition regarding supervision as recommended.

51Pursuant to the Sex Offender Registration Act, the offence is “Class 2” offence and you will be subject to registration on the Sex Offender Register for a period of eight years.3 

52Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty, I would have imposed a sentence of nine months. 

FORFEITURE

53I understand there is a forfeiture order by consent. 

54Are there any other matters?

55MS BRECKWEG:  No, Your Honour. 

56MS DRAGO:  No, Your Honour.

57HER HONOUR:  No, thank you.  Mr Gibson, my associate will prepare the relevant order and you will be required to sign that.  Thank you.  You need to be aware, Mr Gibson, if you commit another offence in the time of the community correction order that the order may be breached and you may come back before me for re-sentence. 

58OFFENDER:  Yes.

59HER HONOUR:  I am just having the normal condition regarding offence-specific behaviour amended, because I think it is important that Corrections liaise with Mr Gibson's current treating psychologist.  It may be that they determine that effectively any offence-specific behaviour and treatment has already been commenced and completed.  I just do not know.

60MS BRECKWEG:  Yes, thank Your Honour.

61HER HONOUR:  Thank you.  I will stand down. 

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