Director of Public Prosecutions v Gibson

[2020] VCC 1018

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01797

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY GIBSON

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2020
DATE OF SENTENCE:	13 July 2020
CASE MAY BE CITED AS:	DPP v Gibson
MEDIUM NEUTRAL CITATION:	[2020] VCC 1018

REASONS FOR SENTENCE
---

Subject:  Criminal law

Catchwords:              Contravention of Community Correction Order; sexual assault of a child under 16 years

Legislation Cited:      Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:
Sentence:                  Fine of $2,000; 7 days imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Fernando	Office of Public Prosecutions
For the Offender	Mr J. McGarvie	Stary Norton Halphen

HER HONOUR:

1Rodney Gibson, on 6 March 2019 you were convicted by jury of a single charge of sexual assault by touching of a child under 16 years and sentenced by
Her Honour Judge Hannan to a 12 month community corrections order.

2That order included a range of conditions which comprised 80 hours of unpaid community work, supervision by the Office of Corrections, and treatment and rehabilitation programs to address factors relating to your offending.  In addition, 40 hours of therapeutic conditions were to be offset against the 80 hours of community work ordered.  The order was designed to punish, but also to foster your rehabilitation.

3That order expired on 5 March 2020.

4You admit breaching that order by way of non-compliance and reoffending.  Judge Hannan is no longer at this court and it has fallen to me to deal with your contravention of Judge Hannan's order.

5You failed to perform unpaid community work as directed on three occasions, failed to attend for supervision as directed on one occasion, failed to report to the Community Corrections Service specified in your order within two clear working days, and failed to obtain permission before leaving Victoria on one occasion.

6In addition, on 5 March 2020 you appeared at the Werribee Magistrates' Court for failing to comply with the reporting obligations under the Sex Offenders Registration Act.  You were convicted and fined the amount of $1,500.

7The failures outlined are relevant to assessing the gravity of the contravention charge.

8Section 83AS(2) of the Sentencing Act1991 requires me to take into account the extent to which you have complied with the order made.

9On a finding of guilt for contravention of a community corrections order, a court has power to vary the order, confirm the order originally made, cancel the order and resentence on the original offences, or cancel the order and make no further order.  As the order has expired, I do not have power to vary.

10Section 83AS(1) of the Sentencing Act provides that a judge who is dealing with contravention of a community corrections order can deal with the offender for the original offence with respect to which that order was made as if the court had just found him or her guilty of that offence.  In other words, the offender is to be resentenced entirely afresh.  In effect, you can be sentenced for both the contravention of the community corrections order and your original offending which saw you placed on that order.  It is that course which the Office of Corrections seeks I undertake - that I resentence you on the original offence of sexual assault by touching a child under 16 years.  That recommendation is supported by the prosecution.

11That charge carries a maximum of 10 years imprisonment, reflective of the seriousness with which Parliament regards that offence.

12I have had recourse to the sentencing reasons of Her Honour Judge Hannan dated 6 March 2019.  Your offence involved using your left hand to squeeze the right buttock over the clothing of a 12-year-old girl who was at a shopping centre with her parents on 24 December 2017.  That squeeze lasted for a second and the victim described it as “a hard squeeze”.

13At that time, Judge Hannan took into account that your offending could not be described as high level, was opportunistic, of a second's duration and over the victim's clothing.  Her Honour took into account your criminal record and noted that you had no prior convictions for sexual offending.  She assessed your prospects of rehabilitation as being positive and noted the relationship you particularly enjoyed with your 19-year-old daughter.

14The only change since Judge Hannan's assessment appears to be to your prospects of rehabilitation.

15You were well aware at the time the sentence was imposed that should there be a breach of the conditions or reoffending, you could fall to be charged with the contravention and resentenced for the original offences.

16I have had recourse to the contravention package, which includes a report dated 20 April 2020, entitled “Contravention of a Community Correction Order by Conditions and Further Offences”, which details various contraventions as outlined by me at the start.  Whilst the failures exist and you appear to have been a somewhat reluctant participant, the report does describe you as attending for appointments on a fortnightly basis with generally good compliance, that you continued to participate in the order up until its expiry, and that you completed approximately 46 hours of the work requirement.  Despite your recalcitrance, there has been a degree of compliance which must be taken into account.

17In addition to the contravention report, I have had the benefit of written submissions provided by both the prosecution and your legal representative.  I take the contents of those submissions into account.

18You are presently on remand and have matters pending in the Magistrates' Court which are to be finalised on or about 20 July 2020.

19There is no utility in imposing a further corrections order at this time.  I doubt that you would be willing to participate, in any event.  In times of the COVID-19 pandemic there is limited utility in such an order as supervision is via the phone, community work is suspended and many programs are also suspended.  That reality also needs to be recognised.

20In my view, if Judge Hannan's assessment of the gravity of your offending was that a community corrections order should be imposed, it seems inappropriate to now impose a gaol sentence.  Your real criminality comes in the contraventions of the corrections order she imposed.

21Accordingly, in relation to the original offence you are convicted and fined the amount of $2,000.  In terms of that, the s.6AAA direction is that I would have imposed a community corrections order.

22In relation to the contravention of the community corrections order you are convicted and sentenced to seven days imprisonment, noting there is no
pre-sentence detention.  Again, taking into account your plea of guilty, the s.6AAA declaration is that I would have otherwise imposed a sentence of 14 days imprisonment. 

23Any issues from your end, Ms Fernando?

24MS FERNANDO:  No, Your Honour.

25HER HONOUR:  Mr McGarvie?

26MR McGARVIE:  No, Your Honour.

27HER HONOUR:  All right.  In a moment, Mr McGarvie, I'll stand down.  Everybody else will be removed from this hearing.  It'll just give you the opportunity to finalise matters with your client.

28MR McGARVIE:  As the court pleases.

29HER HONOUR:  All right, thank you.  I close the court sine die.

---