Director of Public Prosecutions v Gibson
[2010] VCC 22
•21 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS | CR-09-01554 |
| CR-09-01555 | |
| v | |
| BRIAN GIBSON JAMES GIBSON |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 13 May 2010 | |
DATE OF SENTENCE: | 21 May 2010 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v. Gibson & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 22 | |
REASONS FOR SENTENCE
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Catchwords: indecent assault – gross indecency – commission of an indecent act with a child under the age of 16 – sexual penetration of a child under the age of 10 – incest – crimes admitted by both accused – pleas of guilty – life registration under the Sex Offenders Registration Act 2004 – sentenced to 5 years 5 months imprisonment with a non-parole period of 4 years, and 7 years 6 months with a non-parole period of 5 years
Cases: R v Wayland (unreported, Court of Criminal Appeal, 14 September 1992) – R v Ware [1997] 1 VR 647 – Sposito (unreported, Court of Criminal Appeal, 8 June 1993) – Zunica [1998] VSCA 32 – NJD v R [2010] VSCA 84 – R v RLP [2009] VSCA 271 – RHMCL v R (2000) 203 CLR 452
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Jones | Ms J. Mcleod |
| For both Accused | Mr R. Willcox | Stella Stuthridge & Associates |
HIS HONOUR:
1 Brian Gibson[1] pleaded guilty to nine counts in Presentment No.Y0179896. Mr Jones appeared on behalf of the Director, and Mr Willcox appeared for both Mr Gibsons. Five of those nine counts related to his daughter, Catherine Gibson.[2] Three of those counts were counts of indecent assault laid under s.44(1) of the Crimes Act 1958 for which the maximum penalty is one of five years. One was a count of sexual penetration with a child under 10, which was a count of incest, which brought with it a maximum penalty of 20 years, and one is a count of gross indecency which is an offence against s.50(1)A and pursuant to s.52 given the averment provision warrants a maximum penalty of three years.
[1] Brian Gibson is a pseudonym
[2] Catherine Gibson is a pseudonym
2 The circumstances as agreed are essentially based upon the admissions of Mr Gibson. I make the point for the purpose of sentencing, all counts are individual sentences only. They occurred between the years 1981 and 1982 and at a time when Catherine, Mr Gibson’s daughter, turned 12 in the November of 1981. By consent a prosecution summary was tendered which became Exhibit A. The first count was a count of indecent assault involving Mr Gibson placing his hand down the nightie of his daughter, and touching her vagina when she was in bed. He allegedly stopped when she woke up.
3 Some three weeks later, again in circumstances where she was in bed he touched and rubbed her vagina. Such circumstances make up Count 2. Count 3 was another two weeks later when in fact he penetrated her vagina with his finger. He played with her vagina and allegedly brought her to orgasm. It is noted in the victim impact statement that the daughter considers this to be the first breach of her vaginal integrity. It is also to be noted that given the law at that time though there was a penetration, such a penetration was not so defined as sexual penetration by the law.
4 Count 4 was a count of incest. This occurred on another occasion. The circumstances of this crime did amount to sexual penetration as the law then stood. Mr Gibson was having a shower. He apparently attained an erection for some reason or other, and his child was present and he had her place her mouth over his penis. Such amounting to a count of incest.
5 The last count, Count 5, of gross indecency occurred when Mr Gibson was naked in his kitchen. The child was also naked and he asked her to sit on top of his erect penis. She said "No". That count, as I said, is aggravated by the averment that at the time Catherine, being the age of 12, was under the care, supervision and authority of her father.
6 We then come forward 20 years when Mr Gibson saw fit to commit similar assaults upon his granddaughter. Against it is to be said in his favour that when interviewed as a result of the granddaughter coming forward from matters concerning her own father and her making statements about her grandfather, each of these four counts were essentially based on admissions that he then made.
7 The statement made by the child was essentially that her grandfather had touched her on the bottom and on her privates. They were living at Avoca at the time. The child was aged five to six. As I say there are four counts of commission of an indecent act with a child under the age of 16. It is a breach of an offence under the then s.47(1) of the Crimes Act 1958, maximum penalty of which is 10 years. The offences occurred in 2002.
8 The first count concerned an incident when he had the child in his car. For some reason or other Mr Gibson saw her, given how she was disported and was able to see her vagina. He apparently became excited about this, touched her vagina, to the extent that he parted the lips of the vagina. On the same occasion in the car he thereafter licked her vagina which is the basis of Count 7, and at the same time having attained an erection masturbated himself to ejaculation, the circumstances making up Count 8.
9 In the same period in a similar circumstance, that is with the child in the car, he took out his penis and climbed on top of the child and eventually ejaculated in her presence, this makes up Count 9.
10 Mr Gibson senior comes before the court with no priors. As I have already remarked, he is now subject to a life registration under the Sex Offenders Registration Act 2004, as a result of these offences. Tendered were the victim impact statements: Exhibit B, that of the grandchild Rebecca,[3] and Exhibit C, that of Catherine. Exhibit B was a document filed by a friend of Rebecca’s on her behalf. Clearly, no doubt as a result of both of the consequences of the abuse by her grandfather and by her father, Rebecca, to say the least does not lead a normal life. There have clearly been serious consequences in her life, no doubt many of which can be sheeted home to the abuse that she has had from both of the persons who were designated by way of society to assist her. The matters that have been referred to in Exhibit B, which I will not elucidate, seem to me totally consistent with a girl who has been so cruelly abused.
[3] Rebecca Gibson is a pseudonym.
11 As I said in regard to Exhibit C, Catherine remarked as to her loss of virginity, in regard to the matter that I referred to, and her anger at the time because she was not believed apparently when she complained about such matters, in particular to her mother.
12 Mr Jones submitted that the appropriate penalty in these circumstances was gaol for Mr Brian Gibson and Mr Willcox certainly did not resile from that circumstance. It is to be noted that having pleaded guilty to these nine counts the provisions of the serious sexual offender provisions of the Sentencing Act 1991 come into play, that is, upon being given a sentence of gaol which Mr Gibson will be given for the first two counts of indecent assault of a child under the age of 16 being an offence against s.44(1) such is deemed to be a serious offence pursuant to the provisions of Schedule 1 of the Sentencing Act 1991, in particular in regard to paragraph (g).
13 As I said Mr Willcox did not resile from the proposed appropriate sentence. In his plea he submitted that Mr Willcox had what he described as a normal childhood. He comes before the court aged 67 and has expressed remorse in the manner in which he answered to the allegations and also by way of that remorse accepts the grossly inappropriate behaviour of which he was responsible.
14 Mr Brian Gibson currently suffers blood pressure and vertigo, matters which will be the reason for a notation as to sentencing remarks. He has been a widower since 2009. He was a railway worker all his life until the age of 44 when he then became the full-time carer for his wife who subsequently died in 2009 after a 40 year marriage. His two children are those to whom I have already referred, and his daughter, Catherine, and his son, James,[4] is also in Court today.
[4] James Gibson is a pseudonym
15 As Mr Willcox pointed out in his favour, when his daughter said "No" and indeed the granddaughter said "No" Mr Brian Gibson resiled from this conduct. It was submitted in his statement that at all times he wanted to go to the police but could not force himself to do so. As a result of these matters coming before the community it has been necessary for him to shift out of Avoca, I understand he has gained some solace of a personal nature with a local church group.
16 Exhibit 1 was tendered on his behalf, and at p.11 of such exhibit, the diagnosis referred to, despite some assessment issues, it was in the opinion of the psychologist, Mr Simon Kennedy, he be assessed as a man who was suffering from paedophilia. This was obviously situational in the sense that there is no other reported sexual offending, and it was the opinion of Mr Kennedy that the matters expressed by Mr Willcox in his plea were correct being that Mr Brian Gibson had experienced strong guilt and remorse in regard to these crimes.
17 Mr Willcox reminded the Court of the necessity, in the circumstances, for an appropriate discount coming about as a result of his plea of guilty, the utilitarian benefits of such plea, and the evidence of genuine remorse, the fact in this matter that there are no prior offences.
18 It is necessary in regard to both of these sentences to rehearse the appropriate law. In going to that in regard to Mr Brian Gibson I make the point that I also adopt and will adopt insofar as Mr James Gibson is concerned, the matters that I am about to refer to. Matters such as this have been the subject of a number of determinations by our Courts of Appeal in recent times. I refer firstly to the matter of the R v. Wayland, a decision of the Court of Criminal Appeal, unreported judgment of 14 September 1992, the Court said:
"The Courts and particularly this Court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect both to specific and general deterrence. In this, as in so many like cases, the victims are young. They are debauched in a manner calculated to cause serious psychological harm to all but the most resilient. The conduct often is, as in this case, abhorrent, disgusting and repulsive."
19 Subsequently in a case of R v Ware the then Court of Appeal considered like matters the reference being [1997] 1 VR 647. In particular in the determination of Hedigan AAJ there was reference to the comments in Wayland, and in particular to the comments in the unreported case of Sposito, a determination of the then Justice Marks of 8 June 1993 when His Honour said:
"Over the recent past the large number of incest cases before the Court has made it apparent that the commission of incest, repulsive and as unnatural as one would assume, is not the rarity for which a civilised society may be expected to hope."
20 He went on to say:
"A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate."
21 Further in Zunica [1998] VSCA 32, Batt JA said at p.9:
"Incest is regarded by Parliament, the Courts and the community as a very grave crime. It is an abhorrent offence striking at the root of family relationships and usually, as here, involving breach of trust and dereliction of protective duties in the pursuit of perverted gratification or the exercise of power. Accordingly the offence usually merits condign punishment, since general deterrence and denunciation of the offender's conduct are important for sentencing purposes."
22 More recently incest sentences have been considered by the Court of Appeal of this State in particular in NJD v R reported 19 April 2010, [2010] VSCA 84. The Court in that instance in the judgment of Habersburger AAJ went through the sentencing practice in this State in regard to incest and in particular I note the comments made paragraphs 20-22, however, essentially the endorsement was of the matters that I have already referred to.
23 Hence coming back to Mr Brian Gibson it is necessary to take into account all of those matters that I have referred to, the law that I have referred to, and in particular the matters put on his behalf by his counsel.
24 Mr Brian Gibson, I would ask you to stand please.
25 In regard to these counts you will be sentenced as follows: Count 1, sentence of imprisonment of nine months; Count 2, sentence of imprisonment of nine months. As I said earlier that renders you a serious sexual offender. Pursuant to s.6D(a) of the Sentencing Act 1991 I am required to now take into account as the principal purpose of sentencing the protection of the community. There is no submission by the prosecution in this case that I should exercise the powers granted to me under s.6D(b) to impose an inordinate sentence.
26 Under s.6E of the Sentencing Act 1991 I am required to cumulate your sentences subject, of course, to the principle of totality. In this regard, of course, it is necessary that the Court does not derogate from the legislative intent, as is set out by the Court of Appeal in R v RLP [2009] VSCA 271, in particular the reference to the determination of the High Court in the case of RHMCL v R (2000) 203 CLR 452, in particular at 476 where the High Court states that the Courts have an obligation to be astute not to diminish the intent of the legislature in these matters.
27
Taking all of those circumstances into account, therefore, in regard to
Count 3, I sentence you to a period of imprisonment of 15 months, in regard to Count 4, a period of imprisonment of three years, and in regard to Count 5, a period of imprisonment of six months.
28 Coming then to the offences against your granddaughter in regard to Count 6, I sentence you to a period of imprisonment of 18 months, in regard to Count 7 I sentence you to a period of two years, Count 8, a period of nine months, and Count 9, a period of 16 months.
29 Having Count 4 as the base sentence, being a sentence of three years' imprisonment, I order that three months of Count 1, three months of Count 2, five months of Count 3, six months of Count 6, six months of Count 7, three months of Count 8, and three months of Count 9 be served cumulatively upon each other and upon the sentence imposed in Count 4. That makes a period of 29 months cumulated upon the period of three years, making a total sentence imposed upon, Mr Gibson, of 65 months or in clearer terms, five years and five months. The period that you will be required to serve in regard to that sentence before being eligible for parole is a period of four years.
30 I declare pursuant to s.6AAA of the Sentencing Act 1991 that had you not pleaded guilty the sentence that I would have imposed would have been a period of seven years with a minimum period of six years and two months.
31 I declare that you have been sentenced as a serious sexual offender and that such circumstance be entered in the records of this court. I have already signed the materials pursuant to s.464ZF and given you the appropriate instruction in that matter.
32 Finally I note in the sentencing remarks not only the need to have concern for your medical history, but also because of the warped sense of the community in gaol you now are placed in a position where your safety is at jeopardy, and I order that the authorities take steps to ensure your safety while you are in custody both in police custody, and finally when you go to prison, and they will be part of the sentencing remarks.
33 Is there anything else I need to include Mr Willcox?
34 MR WILLCOX: No, Your Honour.
35 HIS HONOUR: Yes, you can take the prisoner away.
36 In this matter Mr James Gibson has pleaded guilty to 5 counts in Presentment No.CR0901558. As I have already remarked Mr Jones appeared for the Director, Mr Willcox for Mr Gibson.
37
These offences concern Mr James Gibson’s daughter, Rebecca. Rebecca at the time of these offences was aged between six and thirteen years. The presentment involved five counts. Counts 2 and 3 make up counts of incest being laid under s.44(1) of the Crimes Act 1958, matters for which Parliament has prescribed a maximum penalty of 25 years. It is obvious from that the manner in which Parliament assesses crimes of this type. The other counts relate to indecent act with a child under the age of 16, which is a breach
of s.47(1) of the Crimes Act 1958 for which the maximum penalty imposed is one of 10 years.
38 Again I point out that these counts are not representative and are dealt with by me on the basis of them being individual counts.
39 The background to these crimes comes about by way of an understanding that there was a marriage break-up in Mr Gibson's life. Apparently were that there was no alternative but for Mr James Gibson to take on the care, supervision and protection of his daughter. That took place, and his obligations as a sole parent, began in December 2001. Suffice to say he gravely breached those obligations quite soon thereafter and indeed for the next five years during the time that the family lived at Avoca.
40
Again in Mr James Gibson's favour it is to be said that these counts are made up essentially not only from the statement of the daughter, but from his own admissions. Count 1 involves an indecent act. They were sleeping in the same bed at the time, she was aged six. As a result of malalignment of his understanding of the appropriate relationship between father and daughter,
Mr Gibson touched his daughter on the vagina and on the bottom.
41 Count 2 occurred when she was aged nine. This is a count of incest. Again it occurred in the bedroom of the family home and involved the sexual penetration of his child by way of his finger into her vagina. She stated in her statement that he commented to her at the time "Only us will know about this."
42 Count 3 involved a further count of incest in 2007 when the child was aged between 10 and 11. The child had gone to her father's bed because she was in fear, as a result of a thunderstorm. As a result of her seeking protection from her father she instead got abuse by way of incest which involved him licking her vagina.
43
Count 4 occurred some two years later in 2009 when he placed his hands down her pants. He was pushed away by the child, and to his credit restrained himself thereafter his child had told him to stop. He apparently also encouraged her to report these matters to the authorities which she did, and when he was interviewed by way of a record of interview with the police on
14 June of 2009 he admitted to a further count which makes up Count 5, which involved him masturbating in front of the child.
44 The points that he made in the record of interview with the police were the regret that he felt at such abuse of his child and indeed the relief brought about by the fact that she had reported and such crimes would now not occur again.
45 As I said, Mr Willcox also appeared for Mr James Gibson. He submitted that Mr Gibson had no priors whatsoever. Mr Gibson is now subject to life registration and has been served with the appropriate notice, and like his father will be sentenced as a serious sexual offender for the same reasons as I rehearsed.
46 In this matter the exhibit insofar as his daughter's victim impact statement was Exhibit RB, I have already remarked on that matter and the effect of both these abuses by her father and abuses by her grandfather. As Mr Jones submitted, there was no alternative but for imprisonment in these circumstances.
47 Mr Willcox, in his plea, pointed to the reduced intellectual capacity and the speech impediment suffered by Mr Gibson throughout his life. He also pointed to the effect as a young man of bullying that has probably only now been appreciated in the community, the long term impacts of what used to be seen as bullying or not even labelled as bullying, but joshing.
48 Exhibit R1 was tendered which again was a report from the psychologist insofar as Mr James Gibson was concerned, Dr Simon Kennedy. Such report was dated 19 October 2009. In such report it noted in assessing the criminality in this matter the following at the bottom of p.5: "It appears that there had been some sexualisation of Rebecca. It is clear that there are some cognitive distortions. Mr Gibson stated it may have been in his own head that he was in a relationship with her, and she was in a relationship with him, and he stated she would treat him like she was in a relationship with him. Mr Gibson stated that ultimately she wanted the sexual acts to stop." One need only read that sentence to understand the term "distortion".
49 At p.9 of such report, in his conclusions Mr Kennedy, the psychologist said that indeed Mr Gibson had insight into the fact that his actions were morally wrong and illegal. He thought such insight to be quite sound. He wondered about Mr Gibson’s insight into the effects of such abuse upon his child.
50 He noted that Mr Gibson requires treatment over the next three to five years to address these issues in a specific sex offender treatment program and subsequent follow-up, as well as a the more general psychological problems.
51 Mr Willcox, referring to the totality of the manner in which these matters were reported by the daughter, the record of interview undergone by his client, the comments of Dr Kennedy to the effect that he submitted that I should accept that Mr Gibson now has expressed genuine remorse for these gross crimes. He noted the need for treatment. One can only hope that this treatment is given in goal and not like we often hear in the last three months before people who are moved. Clearly there was some cognitive distortion in this matter to the extent that the child against the appropriate relationship was sexualised.
52
By way of background Mr Gibson has been a factory worker for most of his life and more recently, a worker in a winery. I note again his actions relied upon by Mr Willcox that finally having committed Count 5 he realised - or Count 4,
I think, in particular - that he could not trust himself and asked his daughter to report this matter.
53 Mr Willcox referred to the discount that is available in such circumstances for a plea of guilty and the utilitarian benefit particularly appropriate in cases such as this. He asked me to note the genuine remorse of Mr Gibson and in particular the fact that he had desisted willingly, after of course some five years, and that there were no priors at all.
54 I refer to and repeat the principles of law that I spoke of in the sentence of his father. I adopt those principles in regard to this sentence.
55 I ask you to stand please, Mr Gibson.
56
Coming then to the sentence of Mr James Gibson for the abuse of his daughter, taking all of the matters into account that I have rehearsed, and in particular the matters put to me on the plea by Mr Willcox: on Count 1, Mr Gibson will be sentenced to a period of imprisonment of 15 months; on Count 2, the first of the incest counts, a period of imprisonment of four years. Given those two sentences of imprisonment the provisions of the Serious Sexual Offenders Provision of the Sentencing Act 1991 apply for the reasons which I have already expressed. So does sub-s.6D(a). There is no submission pursuant to 6D(b) by the prosecution that I should pass a sentence which is not proportionate to the criminality in these circumstances, and in regard to the provisions of s.6E
I repeat my comments earlier insofar as cumulation and its relationship to a court's obligation to reflect totality in a sentence.
57 Coming then to Count 3, for the second count of incest upon your daughter, you will be sentenced to a period of five years, on Count 4, you will be sentenced to a period of six months, and Count 5, a period of nine months.
58 The head sentence therefore is Count 3, a sentence of five years. I order that two years of the sentence imposed on Count 2, two months of the sentence imposed on Count 4, and four months of the sentence imposed on Count 5 be served cumulatively upon each other and upon the sentence imposed in Count 3, making a total effective sentence of seven years and six months.
59 I order that the period that you must serve, Mr Gibson, before being eligible for parole is a period of five years, and I declare pursuant to s.6AAA that had you not pleaded guilty the sentence that I would have imposed upon you is a period of nine years with a minimum of six years and eight months.
60 I declare that you have been sentenced as a serious sexual offender, and such is to be noted in the records of this Court. I have already remarked that I have made an order under s.464ZF and have made the appropriate warning to you. I echo the remarks insofar as your safety is concerned and I have added those to the order.
61 Mr Willcox, any matters that I need to attend to?
62 MR WILLCOX: Nothing, sir.
63 HIS HONOUR: Mr Jones?
64 MR JONES: No, Your Honour.
65 HIS HONOUR: So you understand, Mr Gibson, the penalty therefore in layman's terms is one of seven years and six months, with a minimum of five years.
66 Yes, you can take the prisoner away.
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