Director of Public Prosecutions v Gibson

[2019] VCC 265

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

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 March 2019
CASE MAY BE CITED AS:	DPP v Gibson
MEDIUM NEUTRAL CITATION:	[2019] VCC 265

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Hotchkin
For the Accused	Mr J. Behan

HER HONOUR: 

1Rodney Gibson, you have been found guilty by a jury of one charge of sexual assault of a child under 16.  The maximum penalty for that offence is ten years' imprisonment.  The victim in this matter was, at the relevant time, a 12-year-old child. 

2On 24 December 2017, she was at a shopping centre with her parents and sister.  At about 3.25 pm, she was standing on the second level, adjacent to the railing.  She was looking down to the first level.  You walked past the victim and used your left hand to squeeze her right buttock over he clothing.  The squeeze lasted a second and the victim said it was a hard squeeze. 

3She reacted immediately and told her mother what had occurred.  Her mother followed you and took photos which led to your identification via social media.  The matter was reported to both centre management and the police on the same day.  You were interviewed and admitted you were present but denied the touching as alleged. 

4The charge of sexual assault of a child under 16 is a serious offence, this is demonstrated by the maximum penalty imposed by Parliament.  In my view, however, this could not be described as high level offending.  It was opportunistic, of a seconds' duration, over the victim's clothing.  I, of course, accept that nevertheless the incident was frightening for the victim, who described herself as shocked, and concerning for her mother, who took her daughter to a psychologist on two occasions to ensure her welfare.  These matters are detailed in their statements to police and were accepted by your counsel upon plea. 

5You have admitted the contents of a criminal record which discloses a history of appearances before the criminal courts, commencing in 1988.  Your history discloses drug offending, dishonesty, weapons and driving offences between 1988 and 1992.  There is then a substantial gap.  Your only other conviction is for recklessly causing injury.  I have been told this related to you driving off with your ex-partner holding onto the vehicle.  You were placed on a community corrections order with unpaid community work.  What is notable about your prior convictions is that you have no prior convictions for sexual offending.  I have been told that there are no subsequent or pending matters.

6You are now aged 48, having been born on 22 April 1970.  You attended Werribee Technical School till the end of Year 9.  Subsequent to leaving school, you have had a strong unskilled work history up until about the time you separated from your wife. 

7You have worked in tyre fitting, re-treading, labouring, truck driving and forklifting.  You have been unemployed since November of last year but I am told that you remain looking for work.  

8I note that during the course of the trial it became clear that you have a hearing impediment and you require the use of headphones. 

9You have one daughter who is now aged 19.  After separation, you did not see her for a number of years but she is now back in your life, which I think is a positive factor in terms of your rehabilitation.  You are living with your father and his partner. 

10While your earlier offending discloses issues with drugs and alcohol, I am told that these have not been issues in recent years and it was certainly not suggested that they played any role in this offending. 

11In relation to your prospects of rehabilitation, I think that they are properly globally assessed as positive.

12As well as matter personal to you, including your prospects of rehabilitation, I take into account other relevant sentencing considerations.  General deterrence is of considerable importance in matters such as this.  I must seek to deter not only you but others who would engage in like conduct.  The court and the community will not tolerate offending which damages the lives of our children.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must seek to deter you from future offending, which can be given less weight in light of your history. 

13Your counsel submitted that a CCO is within range and the prosecution concur. 

14You are convicted and placed on a community corrections order.  The period of the order is 12 months, you are to be under the supervision of a community corrections officer, you are to perform 80 hours of unpaid community work and you are to participate in offending behaviour programs as directed by the regional manager.

15As regards sex offender registration, you have now been found guilty of a class 2 offence; registration is mandatory.  It is common ground the reporting period is eight years.  In a moment, my associate will ask you to sign an acknowledge that you have received the notice and relevant paperwork. 

16Finally, the Crown make application pursuant to s.464ZF of the Crimes Act for an intimate forensic sample to be taken from you.  I am satisfied that it is in the interest of justice and note that you consent to the making of the order.  I order that an intimate forensic sample be taken from you.  I must inform you that police may use reasonable force to enable that procedure to be conducted. 

17You are to attend upon the officer in charge of the Altona North Police Station at 72 Cooper Street, Altona North, during the period of four weeks which commences 28 days after today's date or once any appeal is finally determined and the forensic sample offence is upheld, whichever is later.  What that means is that 28 days from today, a period of four weeks starts and it is in those four weeks that you have to present yourself for the forensic sample.  It will involve no more than a swab of the inside of your cheek if you cooperate.  If you do not cooperate, they will take a blood sample.

18All right, I am just going to organise for the sex offender registration materials to be printed and acknowledged.  Thank you.

19MS BATE:  Your Honour, can I just confirm that the duration of the order was 12 months?

20HER HONOUR:  Yes, is 12.  I know they recommended 18, it is too long for this offence so I decided on 12. 

21MS BATE:  As Your Honour pleases.

22HER HONOUR:  Thank you.

23MR BEHAN:  As Your Honour pleases.

24HER HONOUR:  Have a seat for a moment, we need to prepare some documents.

25OFFENDER:  Thank you.

26HER HONOUR:  Mr Behan , I want to make sure that you explain to your client, please, that my options would be extraordinarily limited if he comes back with a breach.

27MR BEHAN:  Of course.  Yes, Your Honour, that will be reinforced.

28HER HONOUR:  Thank you.  I will just stand down for a minute, thank you.

29(Short adjournment.)

30HER HONOUR:  Thank you.  Counsel, I propose to further direct that 40 hours of treatment and rehabilitation can be satisfactorily counted towards unpaid community work, so half.

31MR BEHAN:  Yes, Your Honour.

32HER HONOUR:  Yes.

33MS BATE:  As Your Honour pleases.

34HER HONOUR:  All right.  I think that is all I need to do.  I will just sign this.  All right.  Madam Associate, please get the CCO signed and the acknowledgement signed in relation to registration, please.

35ASSOCIATE:  Yes, Your Honour.

36HER HONOUR:  Mr Behan, you can approach as well.

37MR BEHAN:  Thank you, Your Honour.  Thank you for that time, Your Honour.

38HER HONOUR:  Thank you.  The orders have now been signed.  Counsel, is there anything further?

39COUNSEL:  No, Your Honour.

40HER HONOUR:  Ms Hotchkin, thank you for your assistance, Mr Behan.  Yes, very well, I will stand down.  We are 9 o' clock tomorrow, thank you. 

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