Director of Public Prosecutions v Gibson
[2023] VCC 2360
•15 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW GIBSON (a pseudonym) |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2023 and 13 November 2023 | |
DATE OF SENTENCE: | 15 December 2023 | |
CASE MAY BE CITED AS: | DPP v Gibson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2360 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Sexual penetration of a stepchild – Sexual assault of a child under the age of 16 – Serious breach of trust – Victim 10 years of age – Standard sentence offences – General deterrence – Denunciation – Good prospects for rehabilitation
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991
Cases Cited:Clarkson v The Queen (2011) 32 VR 361 – DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 – Adamson v The Queen (2015) 47 VR 268 – DPP v Walsh [2018] VSCA 172 – R v Cooper (1998) 103 A Crim R 51
Sentence: Total effective sentence of 9 years’ imprisonment with a non-parole period of 5 years and 6 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Fargher (26 September 2023) Dr J Harkess | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms J Hotchkin | Stephen Peterson Lawyers |
HIS HONOUR:
1Andrew Gibson,[1] you have pleaded guilty to two charges of sexual assault of a child under the age of 16[2] (Charges 1 and 3) and one charge of sexual penetration of a stepchild[3] (Charge 2). Charge 1 is a rolled-up charge comprising two temporally related incidents of offending.
[1] A pseudonym used to protect the victim’s identity.
[2] Contrary to s 49D of the Crimes Act 1958.
[3] Contrary to s 50D of the Crimes Act 1958.
2The maximum penalty for sexual assault of a child under the age of 16 is 10 years’ imprisonment. The maximum penalty for sexual penetration of a stepchild is 25 years’ imprisonment.
The facts
3The prosecution filed a summary of prosecution opening for plea dated 22 August 2022,[4] which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
[4] Exhibit (‘Ex’) P1.
4Your offending relates to an incident which took place in the afternoon of 31 October 2022, at the home where you and the victim lived.
5The victim is your step-daughter. At the time of your offending, she was 10 years of age and you were 39 years old. You were living in a de facto relationship with the victim’s mother.
6On 31 October 2022, which was Halloween, the victim was not at school and was left alone in your care. At some stage during the afternoon, you took her into the bedroom you shared with her mother and committed the sexual offending against her.
Background
7Approximately two years before the alleged offending, you and the victim’s mother met online and began dating. Towards the end of 2020, approximately 18 months before the offending, you and the victim’s mother moved into a house together in a rural town east of Melbourne.
8The victim is her mother’s daughter from a previous relationship. The victim began living with you and her mother when you moved in together in the rural town. Your young son from a previous relationship would also occasionally stay at the house.
9On 7 July 2021, you and the victim’s mother had a daughter together, DG.
10At the time of your offending, you, the victim’s mother, the victim and DG lived together.
11The victim’s mother worked full time as a chef. While she was at work, you were often solely responsible for looking after the victim and DG, if they were not attending school or day care.
Circumstances leading up to the offending
12On a number of occasions prior to the present offending, you showed the victim pornographic videos on your mobile phone. These videos depicted male and female adults engaging in sexual interactions, or a female alone sexually touching herself.
13You showed these videos to the victim at home when no one else was present. You often showed these videos to her while the two of you were ‘snuggling’ on the couch at home.
Circumstances of the offending
14On 31 October 2022, the victim was at home in your care because she did not have school that day. The victim‘s mother was at work and DG was at day care.
15At some point during the afternoon, you and the victim were in the dining room. The victim was sitting on your lap. She was wearing pants and a t-shirt. You began massaging her back and shoulders. You then told her to go into your bedroom, being the bedroom you shared with her mother. The victim went into the bedroom as she was told, with you.
Uncharged act
16The victim lay face down on the bed and you began to massage her back. You told her to take her shirt off, which she did. You took a bottle of baby oil from the bedside table and poured some of it on your hands. You massaged the victim’s bare back with baby oil. There is no charge relating to this conduct. It is led as context evidence.
Charge 1 (rolled-up): Sexual assault of a child under the age of 16 (Incident 1)
17You pulled the victim’s pants down to her ankles so that her bare buttocks were exposed. You massaged her buttocks with your hands and fingers, which were still covered with baby oil.
Charge 2: Sexual penetration of a step-child
18While massaging the victim’s buttocks, you inserted your finger into her anus. You did this several times.
Charge 1 (rolled-up): Sexual assault of a child under the age of 16 (Incident 2)
19You rolled the victim over so she was lying on her back. You moved her legs apart. You began messaging her vagina with your hands and fingers. She could feel your fingers on her vagina. She gave evidence you rubbed her vagina ‘everywhere’.
Charge 3: Sexual assault of a child under the age of 16
20The victim shut her eyes. You put your head near her vagina and licked her vagina with your tongue. She felt your tongue licking her vagina and opened her eyes. She told you to stop, saying ‘Stop, please.’ You stopped licking the victim’s vagina and left the room.
21Shortly after your offending, you and the victim went to collect DG from day care.
Complaint
22In the weeks following your offending, the victim told two school friends you were making her watch ‘inappropriate stuff’. She later told one of her friends you did ‘inappropriate stuff’ to her. The victim told this friend it was like a massage, that it happened at her house and you licked her. The victim later told her other friend that you licked her private parts, put your fingers in her bum and were touching her. The victim told both friends not to tell anyone because she loved you and did not want you to get into trouble.
23On 16 November 2022, the victim spoke to her teacher while at school. She told her teacher she wanted to talk to her about you, that you had shown her movies of girls and boys doing things to each other’s private parts and that you licked her private parts once.
24While at school on the same day, the victim spoke to her school principal. She told the principal that when her mum was away for work, you would watch pornography on your phone and invite her to ‘snuggle’ with you on the couch. She also said you had licked her private parts.
25In the afternoon of 17 November 2022, the victim had a conversation with her mother. She asked her mother to tell you not to put grown up videos on when you were ‘snuggling’. The victim told her mother these were sex videos. The victim also told her mother that on Halloween you had licked her ‘down there’ on her ‘privates’. She told her mother she took her top off for you to give her a back rub, that you had taken her pants off down to her ankles and had licked her privates.
26The victim’s mother took her to school and went to work. In response to the complaint made to her teachers the previous day, members of the closest Sexual Offences and Child Abuse Investigation Team as well as child protection officers from the Department of Families, Fairness and Housing attended the victim’s primary school and spoke to her. The victim told the officers what you had done to her on Halloween.
27In the afternoon of 17 November 2022, the victim participated in a video and audio recorded interview with police (VARE). During the VARE she told police:
(a) Her biological father’s name and that you were her stepfather.
(b) In relation to pornographic videos, you had shown her videos of ‘boys and girls doing massages on their private bits’. She said the videos showed ‘mainly a boy, or a girl, or just a girl, and playing with their private bits and licking them and the boys putting their private bits up the girls bum’. The victim said you had showed her these videos ‘usually sometimes when mum goes to work’, when you were looking after her.
(c) During the day she was sitting on your knee at the dining room table, having a ‘snuggle’ and watching a video about wiring your car. She said you had ‘started giving me a message on my back and then he took me into the – told me to go in the bedroom’. She said she went into the bedroom because ‘he told me to’.
(d) She said after she went into the bedroom, ‘he started giving me a massage on my back still, told me to take my shirt off, so I did and then he told me to roll over, and then he started pulling my pants down, even when I was on my back, as well, and he massaged on these two spots.’ The victim pointed to her vagina and her bottom. She said she was on top of the doona, and that she was lying on her tummy. She said you used baby oil to massage her back and her bottom.
(e) The victim said you were massaging her bottom with your hands and fingers. She said you put your fingers ‘up the hole’ and that you did this a couple of times.
(f) In relation to massaging her vagina, the victim said you started with your fingers. She said she wasn’t watching but could feel your hands ‘in there...and on there’ in the area of her vagina. She said her eyes were closed and that she wasn’t sure if you put your fingers inside like you did with her bottom.
(g) The victim said after you touched her vagina with your fingers you ‘then licked them’. She said you ‘then he licked it [scil her vagina] with his mouth’. She told police she felt you lick her vagina, and she opened her eyes and said ‘Stop, please.’
(h) You stopped when she asked you to stop. The victim said, ‘and then I told him to stop, and then he stops, and then we picked up [DG].’
Arrest and interview
28On 17 November 2022, police attended your home and placed you under arrest. You were cautioned, informed of your rights and conveyed to a regional police station where you participated in a video recorded interview.
29You made a number of admissions during the interview. You told police:
(a) The victim was your stepdaughter.
(b) There had been occasions where the victim has seen pornography on your phone. You said, ‘she’s come in several times while I – like, if I’ve been on the couch or something, she’s come in and jumped on the couch and she’s seen stuff’. You said it’s possible that she has watched porn with you on a number of occasions and that ‘she may have seen some stuff’. You said she may have seen it, but you had not shown it to her.
(c) In relation to the offending, you said at some stage in the afternoon, ‘I was inside, and [the victim] was sorta sitting on my lap, and she wanted a massage, so I gave her a massage, and then, I don’t know why, but I touched her.’
(d) You said, when you first started massaging her, she was sitting on your lap at the dining table.
(e) You and the victim then moved into the bedroom and onto the bed you shared with her mother.
(f) In the bedroom, ‘I was giving her a backrub to start with’ and that the victim was laying on the bed face-down. You told police the victim’s shirt was removed and that you slipped her pants down to her knees. You said you used baby oil.
(g) You said, you probably massaged between her buttock cheeks and it is possible your hands went near her anus.
(h) You said, you massaged her vagina with your fingers. You touched her vagina ‘obviously, probably everywhere. I don’t really recall.’ You said you rubbed her vagina and when asked if you touched her clitoris, you said ‘possibly, yes. Possibly.’ When asked if you remembered touching her clitoris you said, ‘There’s, yep, probably a chance I did, yes’.
(i) You denied penetrating her vagina or anus.
(j) You didn’t remember licking her vagina. You said ‘it possibly could’ve happened. I’m not sure’.
(k) You agreed that the victim said ‘stop’ and you stopped.
30During a search police located a bottle of baby oil in your bedroom of the house where the offending occurred.
31You acknowledged your role in your offending to Ms Lechner, a clinical psychologist engaged by your legal representatives.[5] However she notes you do not believe you penetrated the victim. You said, ‘it just happened, I wasn’t thinking, I had a hash brownie and a couple of cans … working on my car that day, came inside, had lunch and watched videos on my phone … I don’t know what happened after then, I gave her a massage, was rubbing her shoulders … I don’t know what I was thinking, such a dumb thing, I didn’t think … I never looked at child porn, if anyone touched my girls I’d kill them, they’re my world.’
[5] See Carla Lechner, Psychological Report dated 7 September 2023 (Ex D2).
32You told Ms Lechner you would never deliberately show the victim any pornography but conceded the victim may have looked over your shoulder. You admitted the need to be more vigilant and judicious when you access pornography. You denied fantasising about the victim in a sexual manner. You also denied accessing child pornography and claim to have not been aroused at the time of your offending.
33You said that when the victim said ‘stop’ you woke up and ‘felt sick and disgusted with yourself’. You were not able to explain why your massage of the victim ‘went further’.
Victim impact
34No victim impact statements were tendered by the prosecution. Nonetheless, the Victorian Court of Appeal has made clear there is a presumption of harm to children who are exposed to premature sexual activity and that long lasting physical and psychological harm is to be assumed.[6]
[6] Clarkson v The Queen (2011) 32 VR 361, 371 [33] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
35I am mindful of the observations of the Court of Appeal in DPP v Dalgliesh (a pseudonym):[7]
… as this Court explained in Clarkson v The Queen,[8] the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.
[7] [2016] VSCA 148 [47] (Maxwell ACJ, Redlich and Beach JJA) (‘Dalgliesh [No. 1]’).
[8] (2011) 32 VR 361, 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
36The Court of Appeal has on numerous occasions noted also it is ‘a well-known fact that young victims of incest carry the scar for their lives’.[9] Moreover, in Adamson v The Queen,[10] the Court of Appeal quoted with approval from the judgment of Baroness Hale in R v G[11] where Her Ladyship said:
More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.
[9] R v KHB [2004] VSCA 219 [105] (Gillard AJA) quoted in DPP v Charlie Dalgliesh (a Pseudonym) (2017) 271 A crim R 1, 16 [70] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh [No. 2]’). See also DPP v Tewksbury (a Pseudonym) (2018) 271 A Crim R 205, 221 [72] (Tate, Kyrou JJA and Kidd AJA).
[10] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA).
[11] [2009] 1 AC 92, 108-9 [48]–[49]. See also Clarkson v The Queen (2011) 32 VR 361, 370–1 [32].
37The Court of Appeal has also reaffirmed the important role restorative justice plays in the criminal justice system. In Talbot (a pseudonym) v The Queen[12] the Court approved the statement of Vincent JA in DPP v Toomey[13] concerning the notion of social rehabilitation, where his Honour said:
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[14]
[12] [2016] VSCA 218 [39] (Weinberg and Osborn JJA).
[13] [2006] VSCA 90.
[14] Ibid [22]. See also DPP v DDJ (2009) 22 VR 444, 454 [40] (Maxwell P, Vincent and Neave JJA) and Pitt (a Pseudonym v The Queen [2020] VSCA 73 [52] (Priest and Weinberg JJA) (‘Pitt’).
Offence seriousness
38Sexual penetration of a stepchild is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence[15] and ‘reflects the community’s abhorrence of sexual crimes against children.’[16] Sexual assault of a child under the age of 16 is also a serious offence as indicated by the maximum penalty of 10 years’ imprisonment. Your counsel conceded these are inherently serious offences.
[15] See eg Nguyen v The Queen (2016) 311 FLR 289, 332 [146] (Redlich JA, Tate and Whelan JJA agreeing); Dalgliesh [126].
[16] Dalgliesh [78], [123], [126]; Dalgliesh No. 2 [75].
39Sexual offending by adults against vulnerable children is a ‘most serious blight on society’.[17] The Victorian Court of Appeal, and its predecessor, have emphasised on numerous occasions the harm sexual offending against children causes to the innocent victims and the community at large.[18] As Hedigan AJA, adopting an earlier statement of Marks J in R v Sposito,[19] put it in R v MJ:[20] ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate’.[21]
[17] DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ) (‘Dalgliesh’).
[18] See eg R v Wayland (unreported, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3–4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 4–5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH (2004) 10 VR 234, 237–238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing); DPP v CPD (2009) 22 VR 533, 546–547[54]–[56] (Maxwell P, Redlich JA and Robson AJA); DDJ 453–54 [36]–[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]–[19] (Maxwell P and Neave JA); Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 310 [83] (Priest JA, Maxwell P and Whelan JA agreeing); Sutton (a Pseudonym) v The Queen [2015] VSCA 251, [25]–[28] (Maxwell P and Redlich JA).
[19] Unreported, Court of Criminal Appeal, 8 June 1993, p 4.
[20] [2000] VSCA 66.
[21] Ibid [17]. See also DPP v Toomey [2006] VSCA 90 [18]–[19] (Vincent JA) (‘Toomey’).
40Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment.[22] The crime of incest involving a child ‘strikes at the familial roots of civilised society’[23] and ‘has long been regarded as being [a crime] of particular repugnance.’[24]
[22] See eg R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing).
[23] R v Ware [1977] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing) (“Ware”); quoted with approval in Dalgliesh [28].
[24] DPP v Charlie Dalgliesh (a Pseudonym) [2017] VSCA 360 [66] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh No. 2’).
41Moreover, sexual penetration of a stepchild and sexual assault of a child under the age of 16 are both standard sentence offences.[25] The standard sentence fixed for sexual penetration of a stepchild is imprisonment for 10 years.[26] The standard sentence fixed for sexual assault of a child under the age of 16 years is imprisonment for 4 years.[27]
[25] Sentencing Act 1991 (‘SA’) s 5A(1); CA s 50D(3); CA s 49(2A).
[26] CA s 50D(3).
[27] CA s 49(2A).
42In sentencing you for these offences, I must have regard to the standard sentence[28] which ‘is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness’.[29] It is a matter I must have regard to as one of the factors relevant to the sentences I impose on you.[30] However, the standard sentence is just another factor to consider, it is not determinative and does not interrupt the operation of my instinctive synthesis.[31] In fact, the relevant legislation specifically approves the instinctive synthesis approach to sentencing.[32] It is to be treated as a ‘legislative guidepost’, as is the maximum penalty.[33]
[28] SA s 5(2)(ab).
[29] SA s 5A(1)(b).
[30] SA s 5B(2)(a).
[31] Brown v The Queen (2019) 59 VR 462, 464 [4], (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Brown’).
[32] SA s 5B(3)(b).
[33] Brown 464 [4], 479 [55]–[57] (applying Muldrock v The Queen (2011) 244 CLR 120, 132 [27] ((French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
43Your offending conduct in relation to Charge 2 is particularly abhorrent. You penetrated the victim’s anus with your finger several times. As the authorities have made clear, this offending conduct is inherently serious, and there are no trivial examples of this kind of offending.[34]
[34] See McPherson v The Queen [2021] VSCA 53 [27] (Priest and T Forrest JJA) where this was observed by the Court in the analogous context of an offence of sexual penetration of a child under 12.
44Charge 1 is a rolled-up charge involving you massaging the victim’s bare bottom and rubbing her vagina with your hands. Accordingly, the criminality involved in this charge is necessarily greater than if the charge concerned a single criminal act.[35]
[35]See R v Jones [2004] VSCA 68 [13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); McCray (a pseudonym) v The Queen [2017] VSCA 340 [17]–[18], [29]–[30] (Maxwell P and Croucher AJA; Crawford v The Queen [2018] VSCA 113 [43]–[44] (Maxwell P and Kyrou JA); R v Richard [2011] NSWSC 866 [102]–[109] (Garling J).
45You offending conduct in relation to all charges involved a gross breach of trust and an abandonment of your responsibility to protect the victim, who was young and vulnerable. It also involved a breach of the victim’s mothers trust, who had left the victim in your care while she went to work. As the Court of Appeal observed in DPP v Walsh:[36]
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[37]
[36] [2018] VSCA 172.
[37] Ibid [1] (Maxwell P and McLeish JA).
46Moreover, you committed these dreadful crimes in the victim’s home, a place where she is entitled to feel safe. This further increases the gravity of your offending conduct.
47There was also a very significant age gap between you (aged 39 years) and your young victim (aged 10 years).
48I agree with the prosecutor’s submission that your offending involved elements of grooming and pre-meditation by way of the pornographic material you showed the victim on several occasions. This rebuts any suggestion your offending was opportunist or unplanned.
49I also agree with the prosecutor’s submission that your offending conduct involved a degree of force by virtue of you pulling the victim’s pants down, moving her legs apart and turning her body during the offending.
50Nonetheless, I consider your offending conduct in relation to all three charges, objectively viewed, falls below the mid-range for this type of serious offending. Sadly, it is the experience of this Court that there are much worse examples of offences of this type.
51At the plea hearing your counsel submitted, which I accept, that your offending did not occur over a protracted period and when asked by the victim to stop you did so and left the room. Moreover, you did not submit your victim to any threats of violence and there is also an absence of any attempt by you to conceal your offending by manipulating, coercing or endeavouring to silence the victim.[38]
[38] Crawford v The Queen [2018] VSCA 113 [60] (Maxwell P and Kyrou JA).
52Nonetheless, denunciation, general deterrence and just punishment must be given substantial weight in sentencing you for these abhorrent offences. I consider your moral culpability to be high.
53Because I will be sentencing you to terms of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charge 3.[39] By reason of this status, in sentencing you on Charge 3 I must regard the protection of the community from you as the principal purpose for which that sentence is imposed.[40] The Director did not submit I should impose a disproportionate sentence on that charge[41] and I will not do so.
[39] SA s 6B(2)(a) and Schedule 1, clause 1, item (a)(vii).
[40] SA s 6D(a).
[41] See SA s 6D(b).
Personal circumstances
54You were assessed on 30 August 2023 by Ms Lechner who took a personal history from you which is summarised in her report.[42]
Personal history
[42] Ex D2.
55You are currently aged 40 years, and are the youngest of three children born to your mother and father. Your father passed away in mid-2023. During your assessment, you reported to Ms Lechner you had just been informed that your father died the night before; he had apparently been in a coma after falling from a ladder. You were upset but elected to go ahead with the assessment when given the option to reschedule.
56You were close to your father and remain close to your mother and sister who is aged 42 years. You do not enjoy as close a relationship with your other sister who is aged 45 years.
57You were married to a woman for four years. There are no children from that union. You separated on account of the woman’s alleged problems with alcohol. You then commenced a three year relationship another woman, with whom you have an eight-year-old son. You currently have written contact with your son. You subsequently began a relationship with the victim’s mother. You remain in contact with her, reporting your relationship is ongoing despite your offending. I note the victim’s mother is present in court today.
58You grew up in rural Victoria, attending three local primary schools. You described yourself as ‘not great’ at learning. You were diagnosed with ADHD at the age of nine and were treated until the age of 15 with the stimulant medication, Ritalin. You told Ms Lechner you ‘sort of’ had friends, ‘not that close … I was an angry kid, people would stir me up and I’d fly off the handle.’ You were bullied on account of your short fuse and this led to some degree of social anxiety and a strong desire to please others. You were often in trouble for ‘fighting, skipping class and disturbing the class’.
59You attended a local secondary college but transferred to another campus of the school for half of Year 7, which provided you with one-on-one tuition. You then returned to the college’s main school for Year 8, repeated that year and left part-way through Year 9.
60In relation to your family life, you reported to Ms Lechner, ‘we didn’t have much money, got what we were given, even now I don’t need money to be happy.’ You denied exposure to domestic violence, although reported, ‘we got the strap a lot … dad had a long stick, a curtain rod … if I stuffed up, I got it … it was probably over-the-top.’ You also believe you mother may have suffered depression.
61After leaving school, you worked as a mechanic’s assistant for about 18 months. You completed a pre-apprenticeship in boiler-making at TAFE and commenced but did not finish training in that field.
62You had issues with drugs in your late teenage years after leaving home and living with your sister. After your parents brought you back home, you ceased drug use and worked in the hospitality industry.
63You worked in a range of positions such as at the abattoirs, a shearing shed and as a builder’s labourer, until taking up a chef’s apprenticeship. You have been working as a chef for the past twenty years, although your last job was as an apprentice boilermaker. You estimate that since leaving school, you have had employment about 95% of the time.
64After your first marriage ended, you moved in with your parents. You formed another romantic relationship about a year later, stating that it was ‘good at the start and toxic at the end’. You became stressed and were working long hours. This caused you to relapse into abusing drugs and alcohol.
65When you separated from this partner, co-parenting was difficult as she moved quite a distance away. You sold your home to pay out debts and moved to another rural Victorian township to see your son more easily. However, you felt as though contact was highly dependent on how much money you could provide to your former partner.
66When you formed a relationship with the victim’s mother, your former partner moved to Bendigo with your son and contact became even more difficult.
67You began dating the victim’s mother through an online dating website. You moved in together after about 12 months. You ceased your substance abuse, and you felt the happiest you had been in years. You regarded the victim as though she was your own daughter.
68Ms Lechner notes you are mortified by your offending and you told her you are at a loss to explain your offending. You expressed feelings of disgust and immense shame to her. You attributed your actions to the impact of drugs and alcohol and ‘not thinking’. You stated that substance use can lead to increased sexual arousal. Ms Lechner opines you have a good understanding about the breach of trust that your behaviour represents.
Drug and alcohol history
69You began smoking cannabis when you were 15 years old, with your heaviest period of use being between 17 and 22 years of age when you smoked about three to four grams per day. You ceased cannabis when you were 22 years old, apart from ‘dabbling once in a blue moon’. You reported to Ms Lechner that on the day of your offending, you consumed a hash cookie that had been left at your home after a weekend party.
70You used speed ‘but not often’ in your mid-twenties when working in hospitality. You have also used cocaine ‘in the last 4 to 5 years’. You denied use of all other illicit substances. You were not taking any prescribed medication.
71With respect to alcohol, you told Ms Lechner that once or twice a week you would consume a couple of cans of mixed drinks.
Mental health
72You completed the Kessler Psychological Distress Scale (K10) which canvasses symptoms of depression and anxiety and ability to cope over the past four weeks. You returned a score of 37 indicative of ‘likely to be severely psychologically distressed’.
73You were also administered the Beck Depression Inventory (‘BDI’), a self-report questionnaire that canvasses a range of psychological and physiological symptoms of depression experienced over the prior two weeks. Your score on the BDI falls within the extreme range. Ms Lechner opines this was consistent with your presentation at interview and a diagnosis of clinical depression. She notes you have a history of low mood, social anxiety and substance abuse and opines you currently meet the criteria for an adjustment disorder with depression, secondary to your offending behaviour and pending a court hearing.
74You also completed the Adult ADHD Self-Report Symptom Checklist. You positively endorsed 16 of the 18 items in the clinical range. You reported symptoms such as recklessness, impulsivity, distractibility, lack of focus, attention and concentration. Ms Lechner opines it is likely your childhood disorder persisted into adulthood.
Sexual history and risk of reoffending
75So far as your sexual history is concerned, you have had three long term and five casual sexual partners, all age appropriate. You reported to Ms Lechner no sexual dysfunction and described your sex drive as being ‘high’. You told Ms Lechner you have a very satisfactory sexual relationship with the victim’s mother.
76In relation to your risk of sexual reoffending, you were assessed utilising the STATIC-99 and the Risk of Sexual Violence Protocol (RSVP), the latter tool taking into account professional judgment rather than actuarially derived risk percentages based on static factors. Ms Lechner conducted the assessment on the basis that penetrative sex occurred in this case.
77Based on your STATIC-99 score, you are placed in the low risk category relative to other male sex offenders. However, ultimately Ms Lechner considers you have a low/moderate risk of sexual reoffending. She opines that whilst you mainly present as a low risk, the setting in which the offending occurred and the quick escalation of your actions is concerning and raises your risk level to ‘low/moderate’.
78Ms Lechner accepts your offending appears to have been opportunistic but your inability at the time to assess the seriousness of your actions, or the impact they might have on the victim, is concerning. Ms Lechner considers this may have been owing to the influence of drugs and alcohol and/or problems with inhibiting your sexual urges at the time.
79Ms Lechner observes you require further assessment regarding your mental health and substance abuse problems in order to determine the level of intervention required. She opines that at the very least you appear to be in need of psychological support that assists you in developing adaptive mood and stress management strategies and that helps you to develop strategies to inhibit your impulses. Additionally, Ms Lechner recommends your substance use be monitored.
80Your counsel accepted that no Verdins principles[43] are engaged in your case.
[43] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
81In light of Ms Lechner’s risk assessment, and the nature of your offending conduct, I consider I must give a moderate degree of weight to specific deterrence in sentencing you for these offences.
Prior criminal history
82You have a relatively minor and largely irrelevant prior criminal history.
83On 8 January 2002, you appeared in the Moe Magistrates’ Court in relation to one charge of careless driving, one charge of unlicensed driving and one charge of use unregistered motor vehicle on a highway. You were convicted and placed on a community based order (‘CBO’) for three months.
84On 4 March 2004, you were convicted and sentenced to another CBO for a period of 12 months in the Korumburra Magistrates’ Court in relation to one charge of burglary and one charge of theft. You subsequently breached that order and, on 28 April 2005, you were convicted and fined $1000.
Mitigating circumstances
85This matter resolved following a sentence indication hearing which was conducted by me on 26 September 2023. You accepted the sentence indication on 6 October 2023, and pleaded guilty to the present indictment on 2 November 2023.
86While this is not a plea at the earliest opportunity, I accept it has significant utilitarian benefit, particularly in the COVID-19 environment.[44] Your plea also indicates a willingness to facilitate the course of justice and an acceptance of responsibility for your offending conduct. Importantly, your plea has saved the victim and her mother the trauma of having to give evidence in this case which adds to the utilitarian benefit of your plea.[45]
[44] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [39] (Priest, Kaye and T Forrest JJA), [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
[45] Carter (a pseudonym) v The Queen (2018) 272 A Crim R 170, 187 [75] (Weinberg, Beach and Hargrave JJA).
87You expressed some remorse to Ms Lechner when you told her that when the victim said ‘stop’ you woke up to yourself and ‘felt sick and disgusted’ with yourself. Your counsel submitted a number of admissions you made when interviewed by police also indicate your level of remorse, including the following:
(a) ‘It made me feel sick afterwards, and I went out and threw up and – yeah, I was just absolutely disgusted with myself.’
(b) ‘So I actually went back out to the shed and had my Stanley knife, and contemplated slashing my wrists. So that was – yeah. I was absolutely disgusted with myself.’
(c) ‘I don’t know why I did it. Just – yeah, like, I can’t explain it … it’s been on my mind since.’
(d) ‘I’m still absolutely disgusted in myself, so – it’s not something that should’ve ever happened.’
(e) ‘I don’t know what came over me.’
88However, I am not satisfied on the evidence before me you demonstrate true contrition and remorse for your offending conduct and genuine victim empathy. During your interview with police, you made a number of statements that sought to minimise your offending. This included your answer that the victim may have inadvertently seen pornographic material on your phone but you had not shown it to her.
89This tendency to downplay your behaviour is echoed in Ms Lechner’s report, which states you denied deliberately showing any pornography to the victim but conceded that she ‘maybe looked over my shoulder’. Moreover, you continued to deny to Ms Lechner that penetration occurred.
90As Winneke P, with whom Tadgell JA agreed, said in R v Cooper:[46]
A distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds herself. The degree of true remorse demonstrated by an offender is a question of fact for the judge.
[46] (1998) 103 A Crim R 51, 55 (citations omitted).
91I allow you are regretful for the position in which you find yourself and you are embarrassed by your offending conduct, however, I am not satisfied you are genuinely remorseful for what you have done and the irreparable harm the offending conduct is likely to cause the victim.
92You are 40 years old and have only five prior convictions for relatively minor offences. You have no prior convictions or findings of guilt for sexual offences. Your last conviction was recorded in 2005 and you have managed to remain offence free for an 18-year period. I take this into account in assessing your character.[47] As the Court of Appeal observed in Williams (a pseudonym) v The Queen,[48] whilst it might be accepted ‘as a general proposition’
that previous good character is afforded less weight in the case of sexual offending against children than in cases involving other kinds of offending … it is not the case that previous good character is to be given no, or wholly insignificant, weight. … [It] remains a mitigating factor that the sentencing judge is bound to consider.[49]
[47] See Williams (a pseudonym) v The Queen (‘Williams’) [2021] VSCA 35 [18] (Priest and Kyrou JJA).
[48] [2021] VSCA 35
[49] Williams [18] (Priest and Kyrou JJA) citing SD v The Queen (2013) 39 VR 487, 494 [30] (Ashley, Redlich and Priest JJA) (‘SD’) and Ryan v The Queen (2001) 206 CLR 267, 278 [33]–[34] (McHugh J).
93I also must be careful to not reduce the weight I give to this factor, while treating your breach of trust as an aggravating circumstance of your offending conduct.[50]
[50] See SD [31]; Torrefranca v The Queen [2021] VSCA 157 [33]–[41] (McLeish and Osborn JJA).
94At the plea hearing, the prosecutor submitted the fact you showed your victim pornographic videos prior to your offending is relevant to your risk of reoffending and prospects of rehabilitation. However, the prosecutor did not submit that s 5AA of the Sentencing Act (‘the Act’) is enlivened in this case. I accept both of these submissions.
95By contrast, your counsel submitted that Ms Lechner was aware of the circumstances surrounding your offending, including the pornographic videos you had shown the victim, and took this into account when assessing your risk of reoffending. Your counsel submitted your prospects of rehabilitation are good owing to your low/moderate risk of sexual reoffending, your strong employment history, the ongoing support of your family, your willingness to engage in any treatment recommended and your participation in programs relating to stress management, drug and alcohol abuse and a barista course while in custody.
96In all the circumstances, I consider your prospects of rehabilitation are good.
Application of sentencing principles
97I have had regard to current sentencing practice in relation to the charges of sexual penetration of a stepchild and sexual assault of a child under the age of 16 as informed by the decisions of the High Court of Australia in R v Kilic[51] and DPP (Vic) v Dalgliesh (a pseudonym)[52] and the Victorian Court of Appeal decisions in DPP v Zhuang[53] and DPP (Cth) v Thomas.[54]
[51] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[52] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[53] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
[54] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
98I am precluded by s 5B(2)(b) of the Act from taking into account sentencing practices which predate the introduction of the standard sentencing regime on 1 February 2018. I have had regard to the comparable case your counsel referred me to.[55]
[55] DPP v Waring(a pseudonym) [2021] VCC 1419 (Judge Dyer).
99While current sentencing practice under the standard sentence regime is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[56]
[56] See DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ).
100Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from so-called ‘comparable cases’, I have sought to do so in your case.
101Sexual penetration of a step-child is a ‘Category 1’ offence as defined in the Act.[57] Accordingly, an immediate custodial sentence is mandatory in this case on Charge 2. It was not suggested that anything other than lengthy sentences of imprisonment are called for in this case.
[57] See SA s 3(1) definition of ‘category 1 offence’ paragraph (i).
102As I observed earlier, you fall to be sentenced on Charge 3 as a serious sexual offender. Accordingly, unless I otherwise direct, the term of imprisonment imposed on Charge 3 must be served wholly cumulatively on the sentences of imprisonment imposed on Charge 1 and Charge 2.[58] In your case I will otherwise direct and order a large measure of concurrency because the three offences arise from the one continuing episode of offending.
[58] SA s 6E.
103The basic purposes for which a court may impose a sentence are just punishment, deterrence – both specific and general, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact of the offences on the victim, and your personal circumstances.
104I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
105Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences. Moreover, for the reasons previously adumbrated, I must consider protection of the community as the principle purpose in sentencing you on Charge 3. I consider some weight needs to be given to specific deterrence. Finally, as I observed earlier, I assess your prospects for rehabilitation as being good.
106In the present circumstances, Charge 2 is a Class 1 offence for the purposes of the Sex Offenders Registration Act 2004 (Vic) (‘SORA’)[59] and Charges 1 and 3 are Class 2 offences.[60] Given the offences arise from the same incident, pursuant to section 5(1), 34(1)(b) and 34(3)(a) of SORA, you will be required to comply with the reporting requirements under that Act for a period of 15 years.
[59] Under Sex Offenders Registration Act 2004 (‘SORA’) s 3 and Schedule 1, clause 1.
[60] Under SORA s 3 and Schedule 2, clause 5A.
Stand up Mr Gibson
On Charge 1 (sexual assault of a child under the age of 16) you are convicted and sentenced to three years’ imprisonment.
On Charge 2 (sexual penetration of a stepchild) you are convicted and sentenced to seven years’ imprisonment.
On Charge 3 (sexual assault of a child under the age of 16) you are convicted and sentenced to three years’ imprisonment.
I am required to state the reasons for imposing these sentences.[61] They are contained in my reasons for sentence. I am also required to explain how these sentences relate to the standard sentences of four years’ imprisonment on Charges 1 and 3, and ten years’ imprisonment on Charge 2 respectively.[62] The sentences imposed on Charges 1 and 3 are both one year shorter than the standard sentence for those offences and the sentence imposed on Charge 2 is three years shorter than the standard sentence for that offence.
[61] See SA s 5B(4)(a).
[62] See SA s 5B(5).
Recognising these offences were committing during the one incident of criminal offending, and in order to give effect to the totality principle and avoid the imposition of a crushing sentence, among other considerations, I order one year of the sentence imposed on Charge 1 and one year of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 2 and with each other, making a total effective sentence of 9 years’ imprisonment.
I order you serve a minimum of five years’ and six months’ imprisonment before becoming eligible for parole. This minimum term is closely equivalent to the presumptive 60 per cent ratio provided for in the Act for a standard offence of this length.[63] I do not consider it is in the interests of justice to impose a lesser non-parole period in your case considering the seriousness of your offending conduct and the mitigating factors present in your case.
[63] See SA s 11A(4)(c).
I declare 393 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
I declare you have been sentenced as a serious sexual offender on Charge 3.
Pursuant to the provisions of the Sex Offenders Registration Act 2004, I order you comply with the reporting provisions of that Act for 15 years.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to ten years and six months’ imprisonment with a minimum non-parole period of seven years.
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