Director of Public Prosecutions v Gibson (a pseudonym)
[2022] VCC 2172
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Sexual Offences List
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY GIBSON (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF PLEA HEARING: | 25 July 2022 and 28 November 2022 | |
DATE OF SENTENCE: | 8 December 2022 | |
CASE MAY BE CITED AS: | DPP v Gibson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2172 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: First indictment (CR-20-01758) – pleas of guilty to five charges of committing an indecent act with a child under the age of 16 years (one charge being a rolled-up charge) – victim was a neighbour of the offender – second indictment (CR-20-01759) – convicted following a trial, offender convicted of four charges of indecent assault of a person under the age of 16 years, two charges of incest and one charge of indecent act with a child under the age of 16 years (the victim being the offender’s stepdaughter) and one charge of gross indecency with a person under the age of 16 years under the care, supervision or authority of the offender (the victim being the offender’s biological daughter)
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004; Criminal Procedure Act 2009
Cases Cited:Director of Public Prosecutions (DPP v Walsh (A Pseudonym) [2018] VSCA 172; Shaun Page (a pseudonym) v The Queen [2021] VCCA 364 The Queen v Verdins & Ors [2007] VSCA 102
Sentence: In relation to indictment L11222880.1: total effective sentence 2 years imprisonment
s.6AAA declaration for indictment L11222880.1: total effective sentence 3 years imprisonment with a non-parole period of 2 years.
In relation to indictment L10900881: 14 years imprisonment with a non-parole period of 10 years.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms S Wendlandt on 25 July 2022 and Ms M Brown on 28 November 2022 | Stary Norton Halphen |
HER HONOUR:
1Timothy Gibson[1], on 14 February 2022, you pleaded guilty to five charges of committing an indecent act with or in the presence of a child under the age of 16 years on Indictment L11000880 (“the first indictment”). One of these charges, Charge 2, is a rolled-up charge. Each of these charges carries a maximum penalty of ten years’ imprisonment. The offences were committed against Abby Van Dyk[2], a neighbour of yours, between 1 March 2007 and 30 June 2007.
[1]A pseudonym.
[2]A pseudonym.
2Subsequent to pleading guilty to the charges to which I have just referred, you conducted a trial in Geelong, which involved ten charges, on Indictment L10900881 (the second indictment). At the conclusion of the prosecution case, I determined that there was no case to answer on Charges 5 and 7 and, pursuant to s241(2)(b) of the Criminal Procedure Act 2009, the jury were discharged without verdict on these charges, and I directed that an entry of “not guilty” be made on the record in respect of them.
3On 28 February 2022, the jury found you guilty of the remaining eight charges on the second Indictment. These comprised four charges of indecent assault of a person under the age of 16 years, each of which carries a maximum penalty of 5 years imprisonment, two charges of incest, each of which carries a maximum penalty of 20 years imprisonment, and one charge of indecent act with a child under the age of 16 years which carries a maximum penalty of 10 years imprisonment. The victim of such charges was your stepdaughter, Brenda Gibson[3]. The jury also found you guilty of one charge of gross indecency of a person under the age of 16 years who was under your care, supervision or authority, which carries a maximum penalty of 3 years imprisonment. The victim of that offending was your own biological daughter, Leila Gibson[4].
[3]A pseudonym.
[4]A pseudonym.
4Following the verdicts of the jury on 28 February, I revoked your bail and remanded you in custody for a plea hearing in relation to both indictments which was listed for 5 May 2022. This date was selected, as a neuropsychological assessment was proposed to be undertaken of you in April 2022. Unfortunately, as you were transferred to a different prison, that assessment could not go ahead, and it became necessary to further adjourn the plea hearing until 25 July 2022. On that date, material was tendered which suggested that you may have dementia. Accordingly, the plea hearing was adjourned part-heard to 28 November 2022 for that matter to be investigated.
The Second Indictment
5I shall deal first with the offending of which you were found guilty at trial (the second indictment), as that offending precedes the offending to which you have pleaded guilty. The victim of Charges 1, 2, 3, 4, 8, 9 and 10, was Brenda, the daughter of Margaret Daniels[5] from a previous relationship which she had had prior to commencing a relationship with you in or about 1982. You and Margaret Daniels subsequently married in 1989 and the surname of her daughter, Brenda, was changed to Gibson. Brenda’s date of birth is in October 1976. Your offending against her took place from October 1986, when she was aged approximately ten years, to October 1992, just before her sixteenth birthday.
[5]A pseudonym.
6The circumstances of your offending on the second indictment, consistent with the findings by the jury, are as follows:
·Charge 1, indecent assault of a person under the age of 16, occurred between 30 October 1986 and 22 August 1988 when you were living at an address in Reservoir. You told Brenda, who was then aged 10 or 11 years, that, in order for the family to get a swimming pool, she would have to allow you to lick her genitals. As she lay on her bed, you licked her vagina, and your tongue went inside the lips of her vagina.
I note that, at the close of the prosecution case, your counsel, Ms Wendlandt, submitted that I should find that no evidence was lead to support this charge, because the witness’ evidence in examination-in-chief was that she had to permit you to lick her genitals in order to use the pool, not to get the pool. This became the subject of a ruling[6] which ultimately focussed upon her response to a question in cross-examination. Ms Wendlandt had asked the witness whether she remembered that she had told police in her second statement “I remember in order for us to get this pool I had to allow my stepdad [Tim] to lick my genitals” and her response was “That’s right”.[7] Taking the prosecution case at its highest, I ruled that the appropriate interpretation of her response was her assertion that the conduct occurred, not simply that she remembered making the statement to police. Accordingly, I find that the factual basis upon which the jury convicted on Charge 1 is that Brenda had to permit the offence to occur in order to get the pool, consistent with the particularisation on that charge on the indictment.
·Charge 2, indecent assault of a person under the age of 16 years occurred between 30 October 1986 and 22 August 1988 and it comprises conduct where Brenda had to permit you to lick her genitals in order for her school friends to be able to come over to play. You went inside her bedroom and knelt beside her bed and licked her bare vagina.
It was asserted that a further pre-condition of her being permitted to have friends over was that she had to leave her bedroom blinds open so that you could spy on the girls getting changed. I here note that it was not necessary for the jury to find this other assertion proven in order to convict on Charge 2.
·Charge 3, indecent assault of a person under the age of 16 years, occurred between 30 October 1986 and 22 August 1988. Brenda wanted to play with a go-kart.[8] The night before this was due to occur, you told her that she would only be allowed to do this if she permitted you to perform oral sex on her. You went into her bedroom and licked her vagina.
·Charge 4, indecent assault of a person under the age of 16 years, occurred between 30 October 1986 and 22 August 1988 at an address in Reservoir, where you lived in a house with Brenda and her mother. Brenda was in grade 6 and about 12 years old. You knew that she wanted a pair of Reebok pump white shoes with fluorescent green and pink colouring. You purchased those shoes for her and gave them to her at night in her bedroom while her mother was in the shower. You proceeded to perform oral sex on her and then left her room.
·Charge 6, gross indecency with a person under the age of 16 years occurred between 22 August 1988 and 31 March 1990. This relates to your biological daughter from your first marriage, Leila Gibson. Each weekend, your children from your previous marriage would stay over at your house. Leila gave evidence about an incident where you stood in the archway of the room in which she was sleeping and instructed her to show you her vagina. She took her pants off and you told her that you “couldn’t see anything” and instructed her to “open [her] private area so [you could] see”.[9]
·Charge 8, incest, comprised an incident which took place on or around 24 July 1990, in which you penetrated Brenda’s vagina with your penis. This took place in her bedroom. In the lead-up to this offending, it was alleged that you had invited a colleague of yours, who was then aged 17 years, over to your house while your wife was in hospital. It was alleged that you watched while Brenda performed oral sex on him. Following that alleged incident, whilst she was in her bedroom, you told her to lie on the floor and penetrated her vagina causing pain.
I here interpolate that your colleague gave evidence during the trial in which he denied having received oral sex from Brenda.[10] Although I am not satisfied that he was an entirely truthful witness, and I note that his evidence before the jury was the first time in which he had categorically denied that this could have occurred, as distinct from previous statements that he had no knowledge of or he was unable to remember it,[11] it is not a matter of which the jury had to be satisfied in order to convict you on this charge. Thus, I make no findings on the alleged catalyst for the act for which you have been convicted.
·Charge 9, incest, relates to an incident where you penetrated Brenda’s anus with your penis. This took place when she was aged 13 or 14 years. She had returned from the outside toilet at the property and, as she arrived at the rear entrance of the house, you approached her and pulled down her shorts and underwear. You then inserted the tip of your erect penis into her anus. She stated that it hurt and she said ‘oww’.[12] You then put your penis back in your pants and went back outside, allowing her to enter the rear door of the property.
·Charge 10, indecent act with or in the presence of a person under age of 16 years, occurred while you resided at a property at Kingsbury. On this particular occasion, you entered Brenda’s room while her mother was in the shower, you sat on her bed and then pulled up her nightie and licked her vagina. Brenda was 15, not quite 16, years old at the time.
[6] Ex tempore ruling, delivered on 21 February 2022
[7] Transcript (‘T’) 104, lines 25-27
[8] Charge 3 on the indictment particularises this incident as “Licked [Brenda Gibson’s] vagina so she could play with the billy cart”, whereas the complainant was repeatedly referred by the prosecutor to incidents involving a ‘go-kart’, which she adopted in her answers. It is clear that these terms were used interchangeably.
[9] T155, lines 21-22
[10] T250, lines 10-19
[11] In his statement to police (Depositions p.42), at paragraphs 9-10, he stated that he cannot remember it and that it is not something he would have done.
[12] T73, lines 16-19
The First Indictment
7As stated, you pleaded guilty to five charges of indecent act with or in the presence of a child under 16 years. The circumstances of your offending are contained in the Summary of Prosecution Opening for Plea (Exhibit “B”).
8In 2007, you met your victim, Abby Van Dyk, through her close friendship with your daughter, Rachel Gibson[13]. You were neighbours at a property at Corio and, over time, you and your wife, Margaret, became friends with your victim’s mother. You each began to share the responsibility of driving your victim and your daughter to school.
[13]A pseudonym.
9The offending occurred between 1 March 2007 and 30 June 2007. It generally comprised you attending your victim’s house when you knew that she would be alone and touching her bottom and genitals by placing your hands under her clothing. The circumstances of your offending are as follows:
·Charge 1, was an incident which occurred between 1 March 2007 and 30 March 2007. In the hallway at Abby’s home, you put your hands down the inside of her jeans.
·Charge 2 is a rolled up charge that covers three incidents, each of which occurred on the same day between 1 March 2007 and 30 April 2007. On the first occasion you entered the living room where Abby was watching Foxtel. You said to her “come and give me a big hug”. She hugged you and as she did, you nibbled her ear and put your hands down her pants, rubbing and pinching her. On the second occasion, you again asked for a hug. You proceeded again to nibble her ear and put your hands down her pants, again rubbing and pinching her. On the third occasion, Abby was eating in the kitchen. You said to her, “you won’t come over here and give me a hug”. She gave you a hug and as she pulled away you nibbled her ears and put your hand down her pants.
·Charge 3, relates to conduct which occurred between 5 May 2007 and 12 May 2007 where you hugged the victim and rubbed her legs under her skirt and over her bottom. Leading up to this offence, Abby and her mother had attended a party at your home, which you hosted for your son’s birthday. Abby had left and returned home. Later, you entered her house and asked her for a hug. Your offending occurred while her mother was still at your home.
·Charge 4, occurred between 12 May 2007 and 30 June 2007. You entered your victim’s home and sat opposite her in the lounge room. She gave you a hug and you then proceeded to put your hands down her pants and lift her up whilst pinching and grabbing her bottom. You left soon after and returned with a video-game for your victim.
·Charge 5, relates to an incident where you nibbled your victim’s ear and put your hands down her pants and on her bottom. Abby was eating in the lounge room. You asked her “don’t you love me anymore?” and instructed her to “just come over and give me a hug and I’ll leave you alone”. Abby went over to where you sat and gave you a hug. This was the last occasion upon which you offended against Abby. It took place between 12 May 2007 and 30 June 2007.
10Abby reported your offending to the school chaplain who, on 28 June 2007, subsequently reported it to police. About a month later, Abby took part in a Video and Audio Transcript of Evidence (‘VATE’)[14] in which she outlined the nature of the offending. Before describing the nature of the offending to police in the manner I have outlined, she described your relationship with her as “a bit like a father figure” and that you “would spoil [her] like a little brat”.[15] She went on to provide context to the offending that, after a time, you would enter the house when her mother wasn’t there and she was not attending the school so you knew that she would be home alone.
[14] The current equivalent is a video and audio recording of evidence, or VARE.
[15] VATE answers to Q 20 and 21, Depositions pp. 95-96
11On 25 July 2007, Abby made what is referred to as a pretext phone call.[16] In it, she stated that your biological daughter, Rachel, wanted to know why she, Abby, had stopped talking to you, and told you that “you know why”. After you had initially refuted that you knew what she was talking about, she said “Yes you do – what you did to me”, to which you respondent “Oh that” and proceeded to admit that something inappropriate had occurred, albeit without specifics.
[16] Pretext statement and transcript, Depositions pp. 150-152
12Two days after the pretext call, on 27 July 2007, you were interviewed by police in relation to that offending, but not charged. Notwithstanding the content of the VARE and the pretext phone call, police had determined that there was not enough evidence to charge you with the offending. However, once other offending by you came to light in 2019, police reviewed the file relating to this matter and, ultimately, a decision was made to lay charges in relation to this offending in May 2020.
13As I have already stated, the charges on the first indictment were also destined for trial until, you entered pleas of guilty prior to the commencement of the trial of the charges on the second indictment.
14You are presently aged 71 years, having been born in October 1951. You come before the court with no prior criminal history.
15In a plea on your behalf by Ms Wendlandt on 25 July 2022 and, later, by Ms Brown on 28 November 2022, the court was told that you had a sad and disadvantaged upbringing.
16You grew up in a family believing that the other nine children in the household, who were both younger and older than you, were your siblings and that the person rearing you was your sister. When you were about 18 years of age, you discovered that the woman rearing you was, in fact, your mother and that the people whom you had grown up believing to be your brothers and sisters were, in fact, your uncles and aunts.
17You had been conceived by your mother whilst her husband was in prison. She was in a relationship with a person whom you regarded as your step-father, who was violent towards her and also administered regular beatings towards you. The family was very poor and you apparently went around begging for money for the family so that you could buy food.
18You ran away from home and, according to a brief record from the Social Welfare Department, when you were aged about 15 years you appear to have come to the notice of authorities and were brought before Northcote Magistrates’ Court on 10 November 1966 as a child “likely to lapse into a career of vice and crime”. [17] It seems that you were made a Ward of the State and sent to live at Turana Youth Training Centre. It was recorded that you attended school there and were well-regarded for your standards in maths, spelling, reading and general good behaviour. Overall, you were regarded as achieving a good Grade 5 or consistent Grade 6 standard. It would appear that, on 17 August 1967, you were transferred to a boys’ hostel at 50 Power Street Hawthorn, run by the Presbyterian Church. According to a history in a report from Christopher James, Psychologist with Bellarine Psychology, you spent 2 years there before later going to live at a boarding house.[18]
[17] Exhibit “5”
[18] Exhibit “5”
19It would appear that you had no further schooling after you left Turana and, at some stage, went to work at a bakery in Brunswick for a few years and, later, as a delivery person for a spares parts company, and subsequently as a chauffeur. Your longest employment was working as a crew leader at Avalon Airport between 1999 and 2006, but you suffered a back injury at work after falling off a ladder and have not worked since 2006. This resulted in you receiving a Disability Support Pension, although now you are in receipt of the Aged Pension.[19]
[19]Report of Mr Martin Jackson, neuropsychologist, dated 9 September 2019, Exhibit “1”, page 2
20Mr Jackson, neuropsychologist, has assessed you on a number of occasions since 2019. He noted in his first report that you became depressed and anxious following bullying and assaults dealt out to you at Turana over approximately an 18-month period, and that you experienced ongoing stress, anxiety and quite severe nightmares relating to it.[20] He had access to the previously mentioned report from Christopher James, which seems to have been produced on or about 6 May 2008, at the request of Ms A Sdrinis at Ryan Carlisle Thomas, who was apparently acting for you in relation to a claim relating to the abuse that you had suffered. This report notes that you had seen the author on some eight occasions, presumably in 2007. The teasing, bullying, assaults and humiliation are noted to have taken place in the bathroom at Turana, where you would be surrounded by older boys who would insult the size of your genitals and engage in cruel and sadistic sexual and physical assaults. Mr James noted that you had never spoken about your distress and anxiety concerning this treatment before, and it had resulted in you still being unable to go to a public toilet for fear that you may be attacked by a group of men and sexually assaulted.[21] You told Mr Jackson when you first saw him in 2019 that that remains the case until the present time.
[20]Ibid, page 3
[21]Exhibit “4”
21When you were aged 20 or 21 years, you married your first wife, Moira[22], and remained together for 13 years. You had two children of that marriage, one of whom is Leila Gibson, your victim on charge 6 on the second indictment. Subsequently, you married your second wife, Margaret, and were together for 31 years. As previously stated, Margaret’s daughter, Brenda, from an earlier relationship, is the victim of your offending over a period from 1986 to 1990. As a result of these charges, your wife “kicked you out” of the family home and you lived with your brother and family for some months.
[22]A pseudonym.
22Although you have no prior criminal history, it is of relevance to note that on 18 November 2019 you were sentenced at Geelong Magistrates’ Court for sexual offending on 15 April 2019 against two of your own grandchildren aged seven and six years respectively. These are the daughters of your own biological child, Georgia[23], who is a child of you and your second wife, Margaret. On that occasion, you were convicted and ordered to undertake a Community Correction Order for a period of 18 months with supervision, treatment and rehabilitation conditions. The offending consisted of compelling your victims to pull down their pants and pose on all fours while you kissed their bare bottoms.
[23]A pseudonym.
23Given that your offending overall against multiple victims spans a period from 1986 to 2019, Ms Brown conceded that you do have an attraction to young females.
24I have had the benefit of reading four reports from Mr Martin Jackson, neuropsychologist, respectively dated 9 September 2019,[24] 11 July 2022,[25] 8 August 2022[26] and 2 November 2022.[27]
[24]Exhibit “1”
[25]Exhibit “2”
[26]Exhibit “7”
[27]Exhibit “8”
25I shall initially focus upon the first two of Mr Jackson’s reports as they involved him reporting upon neurological assessments of you which were conducted three years apart. In each of those reports, he refers to the physical, emotional and sexual abuse which you experienced as a child, particularly in Turana Youth Training Centre, and how it has caused you to experience ongoing stress and anxiety of quite a severe nature such that you would wake in the middle of the night sweating with dreams and nightmares relating back to that time. Also, as previously mentioned, you remain unable to go to a public toilet as you suffer a panic attack when you try to do so.
26Mr Jackson noted that your symptoms have been exacerbated by a protracted claim for compensation for the abuse suffered in state care, which has apparently still not come to fruition. He noted that you had had some sessions of counselling with Mr Christopher James, psychologist, to whom you had been referred in October 2007, and had seen a mental health social worker, Ms Caroline Prince, at Barwon Health. He expressed the view that you suffer mental illness relating to your physical and sexual abuse as a child/adolescent from both your step-father and whilst in Turana, and that this had caused anxiety and depression as well as Post-Traumatic Stress Disorder.
27Mr Jackson stated that, although your criminal legal issues also caused you stress, these were secondary compared to the Post-Traumatic Stress Disorder issues related to your abuse as a child. He noted that you reported symptoms suggestive of extremely severe depression, extremely severe anxiety and severe stress. He stated that clinically you presented as clearly depressed, with significantly lowered mood and such a reduced range of emotional affect that there was no positive affect at all. He noted that you also presented with signs of anxiety/stress in that you were generally restless, moving around in the chair, and occasionally had shaky hands.
28He noted that your general practitioner had referred you to Barwon Health Community Mental Health Assessment on 18 May 2020 because of an adjustment period and depressed mood, in the context of being charged with criminal offences and facing court, and that there had been a past history of depression and anxiety resulting in panic attacks and fleeting suicidal ideation. At Barwon Health on 18 June 2020, you had been prescribed Sertraline (100 milligrams), as well as Melatonin (2 milligrams), with a primary diagnosis of Post-Traumatic Stress Disorder being noted, albeit that there had apparently been no formal psychiatric diagnosis. According to Mr Jackson’s report of 11 July 2022 you had only recently commenced seeing a psychologist, as such consultation ceased to be available during the COVID pandemic and you had been left to manage your medication and counselling via your general practitioner.
29Mr Jackson noted that, separate from your mental health issues, there were concerns about your cognitive function. These had been noted by Ms Prince, the mental health social worker, in a letter to your lawyers dated 29 July 2019.[28] These concerns related to your poor memory and confusion regarding appointment times and some difficulty understanding and processing information, as well as difficulty presenting your history and giving information, and confusion regarding your current situation.[29]
[28]Exhibit “3”
[29]Exhibit “3”
30Ms Prince had recommended cognitive testing, which was undertaken by Mr Jackson. Mr Jackson estimated your premorbid abilities on the basis of your education and occupational history to be in the low average range. On testing, he noted you obtained a full scale IQ of 72, which is in the borderline range and below your estimated premorbid level of functioning. In addition, you achieved performances in the extremely low range relating to initial learning on rote learning tasks, delayed recall on most tasks (demonstrating between 40-60 per cent loss of information), verbal abstract reasoning and perceptual recognition memory. He concluded that you do not have an intellectual disability, given that your better performances were in the low average range or better, which was your estimated premorbid level of functioning. However, he considered that you do show significant cognitive impairments in the areas of new learning and memory, including a rapid rate of forgetting on most tasks. Further, your verbal abstract reasoning is particularly poor, and you have a significant disorder of attentional control and monitoring, difficulty doing two things at the same time and difficulty focussing.
31Mr Jackson noted that the areas of impairment to which I have just referred are not ones impacted upon by depression and anxiety. Hence, he concluded that the cause of your cognitive impairment could not be explained by your mental health state alone. He considered that they were strongly indicative of significant impairment of your frontal lobes and, to a lesser degree, your temporal lobes. He assessed you as having relatively poor insight into your cognitive deficits and the fact that you make errors. He considered your impairments of executive function, memory and attentional control and monitoring to be severe.
32In his first report, Mr Jackson considered that your cognitive impairments may be due to cerebrovascular disease primarily due to smoking or, alternatively, a neurodegenerative disorder such as dementia. When he reassessed you three years later in July 2022, you believed your concentration was a problem and told him that you could just wander off at times. Also you reported that your memory had become worse in that you would forget what you had gone to the shops for, or would forget such things as your PIN for cards.
33In July 2022, Mr Jackson noted that, on testing, you obtained a full scale IQ of 69 (in the extremely low range). He stated that, comparing the results of the 2022 neuropsychological assessment with the previous one in 2019, there were concerning areas of deterioration. Your processing speed score had reduced from 76 (borderline) to 65 (extremely low). There had been severe deterioration in your ability to learn and remember information, and a similar deterioration was seen on the spatial learning test. There also appeared to have been a deterioration in your language abilities.
34Mr Jackson concluded that “Overall, there has been clear deterioration in Mr [Gibson’s] processing speed, new learning and memory abilities (which are now extremely severely to profoundly impaired) and some language skills”. Again, he considered that the deterioration could not be accounted for by your mood state, and he expressed considerable concern that you were in fact dementing, as deterioration in speed, memory and language supports a diagnosis of a neurogenerative disorder and you now have very limited memory abilities. Accordingly, he considered that you needed a formal assessment for dementia.
35Following Mr Jackson’s expressed concern that you may be suffering from dementia, your solicitors arranged for you to be assessed by Dr Alastair Mander, consultant physician and geriatrician. He assessed you by telephone (as a videolink was not available) on 2 September 2022 and embodied the results of his assessment in a report of the same day.[30] He noted that a relative of yours, who was either your uncle or brother, has severe dementia and is currently in fulltime care for it. He also noted your history of anxiety, depression and Post-Traumatic Stress Disorder, the fact that you are a former smoker, and the comprehensive neuropsychological assessment by Mr Jackson.
[30]Exhibit “6”
36Dr Mander concluded “On the available evidence submitted, it would appear that [Timothy] has dementia. The aetiology of his apparent dementia and its prognosis would require physical examination and further investigations”.[31] He went on to note that reversable dementia syndromes are rare and the usual history is of natural decline with increased dependency. He suggested that the investigations necessary to further delineate your prognosis could be arranged by the medical practitioner at Hopkins Correctional Centre where you are currently held.
[31] Exhibit “6”, p2
37In his report dated 2 November 2022,[32] Mr Jackson had opined that, given the deterioration in your cognitive state which he had noted over the previous three years, it was highly likely that you would continue to deteriorate rapidly over the next few years. He repeated his concerns expressed in an earlier report that a custodial environment would be more difficult for you because prison staff are not necessarily equipped or trained to manage and understand the issues or needs of patients with dementia, your memory was so poor that you rapidly forget and would not benefit from cues and prompts, you were likely to get confused in the prison environment, you were at risk of significant harm from other prisoners as you would not remember what you had been told or were supposed to do and, finally, as your condition deteriorates, your cognitive and physical needs would only get worse.
[32]Exhibit “8”
38Mr Jackson commented upon a letter from Mr Scott Swanwick, Director of Health Service and Clinical Governance with the Department of Justice and Community Safety, dated 12 October 2022,[33] which had outlined the healthcare available to you in prison. Mr Jackson stated that, whilst prison staff provide support to prisoners with an impaired cognitive function, there is no specific dementia or aged care facility which would provide the sort of personal care that hostels or nursing homes in the community provide, including assistance with showering, dressing and shaving.
[33]Exhibit “G”
39Mr Jackson also referred to a mini mental State examination which had been conducted by mental health staff in the Department of Justice and Community Safety. He stated that this was a very simple test and that, as your memory was extremely poor, your answers on such a test would not be reliable, especially as your insight into your cognitive problems are poor.
40Mr Jackson opined that, whilst someone in the very early stages of dementia could be managed in a custodial setting, it was inevitable that your situation would deteriorate to the point where you would need to be moved to a nursing home. As such a move can be very disruptive, he opined that there would be benefit in that move taking place now, as leaving it until you cannot manage even basic daily functions would result in you being extremely upset in a new environment and likely major behavioural issues.
41The letter from Mr Swanwick stated that where you are currently housed at Hopkins Correctional Centre you have access to nursing staff seven days a week who oversee your medication. In addition, mental health staff monitor your mental health status, including anxiety and depression. He noted that a mini mental State examination assessment by mental health staff indicated that, although you have mild dementia, you remain high functioning. You are accommodated in a unit close to the medical centre at Hopkins Correctional Centre and work as a billet assisting other prisoners in the unit. You are self-caring and mobilise using a walking frame due to chronic back pain.
42Mr Swanwick’s letter confirmed that Victorian prisons do not provide specific dementia or aged care facilities, but the system is based on the principle of community equivalents, so that prisoners are provided with healthcare of a quality and standard equivalent to that provided in the community through the public health system.
43At the plea hearing on 28 November 2022, Mr Swanwick gave oral evidence before me. He stated that he believes you are managing well in custody and are seen regularly by nursing, medical and other allied health professionals with whom you engage well. You are currently housed in the Canton Unit, Unit 5, which is cottage-style accommodation which accommodates six older prisoners in a communal residence.
44Mr Swanwick stated that, in early April this year, you had forgotten to take your medication for back pain, so the regime was changed to have staff supervise you taking it. Other than that, there were no reports of you forgetting to do things or failing to follow instructions. He stated that you are employed as a billet in the unit in which you reside, which involves you cooking for all the prisoners in that unit. He was not aware of you having any problems managing the ordering of ingredients for the meals you prepared or in relation to cooking them.
45He stated that, should you deteriorate, there are a number of services available to you. Personal care attendants come into the prison to help older prisoners, and this might be once or more per day. At Hopkins Correctional Centre, there is a subacute unit which, at present, houses eight prisoners. It has a registered nurse on duty 24 hours per day, and other nurses from healthcare units can come to assist as required. In addition, personal care attendants can come into the unit to help with showering or feeding a prisoner if necessary. Further, there is a 40-bed hospital based unit at Port Phillip Prison, and at Ravenhall Prison there is a 10-bed subacute unit similar to that at Hopkins Correctional Centre. In addition, a high care unit able to accommodate 35 prisoners is currently under construction at Langi Kal Kal.
46He noted that since you had been remanded in custody following your conviction by the jury on 28 February 2022, you had seen a doctor on six occasions (with the last consultation having been on 21 November 2022). Also, you had been seen by a physiotherapist, audiologist and optometrist. In addition to nursing staff supervising your daily medication since April, you had had additional consultations with nursing staff every one to two weeks and had seen a mental health nurse (with the last such occasion having been on 6 October 2022).
47In response to a specific question from myself, Mr Swanwick stated, that on four occasions over the last six years, prisoners’ mental and/or physical health had declined to the point where they could not be adequately catered for at the prison. On each of those four occasions, an application had been made to the Attorney-General for the prisoner be removed to a nursing home on compassionate grounds, and this had occurred. He stated that the Department have a contract with Wintringham Aged Care Services to undertake aged care assessments within the prison system, and prisoners had transitioned to Wintringham’s nursing homes in the community, both prior to and subsequent to parole being granted.
48After I heard from Mr Swanwick, you asked to speak to the court. You stated that, although you had been anxious when you first came into prison, you are happy where you are and feel well looked after and like it, and do not want to go anywhere else. You described it as a completely difference experience from when you had been in Turana. You stated that you love cooking and do not have any problems with planning meals and ordering the ingredients required in advance or with cooking the meals for yourself and the other five residents of your unit. You stated that you are comfortable with the other five people in the unit, and have a lot of friends in Hopkins Correctional Centre. You stated that you walk around the whole complex several times each day for exercise, as well as going to the gym a couple of times per week, where you get on the treadmill for about an hour. You are also able to go to the swimming pool in another area of the prison if you wish, and sometimes participate in playing basketball. You stated that you enjoy colouring-in activities, which you find soothing.
49After hearing the evidence of Mr Swanwick and also what you told the court, your counsel, Ms Brown, submitted that although you suffered a lot of fear and anxiety when you first went into custody, after some 10 months you had found a rhythm in activity, which is likely to stave off your cognitive decline. She also accepted that Mr Swanwick’s oral evidence had made clear that there are personal care attendants who can help you, should your needs in that regard increase. She stated that she did not rely upon a submission that the prison environment cannot cater for your health needs, as that is not borne out by the evidence.
50Mr Gibson, I accept that you suffered a very confusing childhood in terms of not being aware of the true identity of the person who was rearing you, whom you thought to be your sister when she was in fact your mother, along with your belief that people whom you believed were uncles and aunts were your siblings. Layered upon this is tragic neglect and abuse from your step-father, the trauma of being sent to Turana Youth Training Centre because of your parental neglect and abuse, and then suffering the indignity and pain of both sexual and physical abuse from older residents at Turana. In sentencing you, I accept that this very sad and traumatically dysfunctional upbringing, where you not only did not know appropriate love, nurturing and role modelling from your parents, but in fact were abused and then subjected to further trauma when you were taken into the care of the State during your formative years, has been detrimental to your development. Courts acknowledge that such childhood trauma is enduring.
51Thus, in accordance with the principles in Bugmy v The Queen,[34] I accept that you have a lesser subjective culpability for your offending than a person who has had the advantage of a happy, stable, supportive home environment and who has not endured the psychological, physical and sexual trauma at a crucial stage of adolescent development as you did. The prosecution has not taken issue with the application of the principles in Bugmy. I acknowledge that your traumatic childhood contributed to your mental health conditions of anxiety, depression and Post-Traumatic Stress Disorder and I note that you continue to be medicated for your mental health by Sertraline, as well as Mirtazapine.
[34][2013] 243 CLR 571
52The state of the evidence concerning your cognitive capacity and whether you do or do not have dementia is inconclusive. I accept that quite a significant number of further investigations would need to take place as detailed in Dr Mander’s report. However, your counsel, Ms Brown, urged that the matter proceed to sentence without such investigations taking place, particularly as both the prosecution and defence agree that the only appropriate sentence is a significant term of imprisonment.
53I accept that the neurological testing conducted by Mr Jackson in 2022 shows a decline in your processing speed, capacity for new learning and memory ability and some language skills. However, it may be that his assessment, which was conducted on 29 June 2022 when you were still relatively new to the prison environment, was impacted upon by some heightened emotional distress on your part about that factor. It seems that Mr Jackson’s rather gloomy predictions of how the prison environment might adversely impact upon you have not been realised. The only adverse circumstances noted in your Justice Health Record relate to you having forgotten to take some medication back in April this year and a note by a psychiatric nurse on 6 October 2022 that you have memory losses and it “takes an effort at times”[35]. It is difficult to know how things will go in relation to your cognitive state in the foreseeable future but, generally speaking, the evidence before the court as to how you are currently managing your custodial environment and being supported is quite positive. You seem to enjoy the stimulation of the activities in which you are able to engage in custody and have made some friendships. It is possible that the exercise regime, interaction with others and activities are having beneficial effects upon your cognitive state. Nevertheless, I do take into account that having cognitive difficulties, particularly layered upon your mental health problems, does make serving a term of imprisonment more onerous for you than for a prisoner without such difficulties. I also take into account in this regard that you do suffer ongoing back pain relating to your 2006 work injury back in 2006, albeit that you seem to be mobilising quite well and also undertake regular exercise by walking, as well as attending the gym.
[35]Exhibit “9”
54It was not submitted that the evidence concerning your cognitive decline attracted principle 1 in The Queen v Verdins & Ors.[36] On the basis that, there is no material which could satisfy me on the balance of probabilities that it played a causative role at the time of any of your offending to reduce your moral culpability. Indeed, when a pretext call was made by Abby Van Dyk against whom you had offended in 2007, you acknowledged the offending. There is no suggestion that you could not recall it and you pleaded guilty to it after being charged in 2019, albeit that you continue to deny the offending against your other victims.
[36][2007] VSCA 102
55Ms Wendlandt who appeared for you on 25 July 2022 had urged that principles three and four of Verdins should apply to reduce the weight to be given to general and specific deterrence due to your current mental impairment, as well as principle five, the additional hardship of undergoing a sentence with such impairment (which I have already acknowledged). As far as principles three and four are concerned, I consider that the current state of your cognitive impairment is such as to warrant some amelioration of the emphasis to be placed upon general and specific deterrence, but there is still a need for considerable emphasis upon both of those factors given the gravity of your offending and the fact that it occurred over quite a period of time and involved multiple victims.
56In relation to your offending on the first indictment, I note that your pleas of guilty to the charges were late pleas, entered only four days prior to the matter being listed for trial. You were formally arraigned and pleaded guilty on 14 February 2022. Nevertheless, you are entitled to a discount on your sentence referable to those pleas because of saving the time and expense of a trial and sparing Abby having to endure the ordeal of giving evidence. Also, the pleas were entered at a time when it was still difficult to run criminal trials in Victoria because of the COVID pandemic, so some further utilitarian value should be fairly attributable to the pleas. However, I find no evidence that they are remorseful pleas.
57There is no such discount available on the sentences in relation to the matters of which the jury have found you guilty. Both of your victims had to give evidence and relive the trauma of your offending against them. As previously mentioned, it is of concern that you continue to deny such offending.
58I note that Mr Jackson in his 2019 report referred to your lack of remorse for your actions really being equated to your lack of insight into your executive impairments. However, he also opined that your cognitive deficits impede your capacity for rehabilitation and increase your risk of reoffending because of your inability to learn new information and a tendency to revert to past behaviours due to your incapacity to come out with well-thought-out and reasonable solutions to situations. He considered that you would need a lot of support around you on the basis of your cognitive problems.[37] Mr Jackson stated that there are no possible therapeutic or rehabilitative options for you, although, he stated that this risk of reoffending is probably alleviated to some degree by your deteriorating cognition, as well as your physical capabilities. I accept the latter to be so, particularly given that you are likely to remain in a prison setting for a considerable time because of the offending for which I must sentence you.
[37]Exhibit “1”, pages 18 and 19, and Exhibit “2”, page 16
59Although your age, 71 years, is not of itself a mitigatory factor, I am mindful that you come before the court with no prior criminal history alleged against you in relation to the offending for which I must sentence you. This is the only evidence before me of prior good character. Where you are to be sentenced for offending over a number of years against three different victims that must logically reduce the weight to be given to your good character. Thus, I do not regard it as a prominent mitigatory factor.[38] However, I do take into account that it is likely to be more difficult for you to serve a prison sentence than would be the case for a younger prisoner. The court acknowledges that the magnitude of your offending warrants a sentence such that you may actually spend the rest of your life in prison. I have no doubt that being remanded in custody for the first time at your age would have been confronting, particularly as you would have been required to spend time in isolation. In addition, there have been some further restrictions relating to out-of-cell hours and reduced availability of programs and contact visits during the time of restrictions because of the pandemic, which I take into account as having made that first experience of prison more onerous for you.
[38] Shaun Page (a pseudonym )v The Queen [2021] VCCA 364 paragraph 53
60Mr Gibson, my impression of you is that you do not seem to be able to grasp the seriousness of the impact of your offending upon your victims. The law provides special protection to children. It seeks to guard them from being exposed to sexual conduct before they have the capacity to understand it and respond appropriately to it. It is recognised that, where children have been prematurely exposed to inappropriate sexual behaviour like that perpetrated upon your victims, then the impact can be adverse and long term. You offended against each of your victims at a time in their lives when they were heading towards adolescence and, in the case of Brenda, for many years beyond that. This is a stage where a child is developing both physically and psychologically and trying to come to terms with their sexual identity and their place in the world. For that reason, they are at a particularly vulnerable stage of development and the law must show, in sentencing you, how serious offending against the innocence of children will be appropriately punished. In the case of each of your victims, you seriously abused a position of trust that you held in their lives in order to selfishly gratify your own sexual needs. You exploited the authority that you had, and the trust that you had, in a most terrible way. The law presumes harm to your victims, but the Victim Impact Statement of each of them leaves me in no doubt that you actually have caused very significant harm to them.
61The victim of your offending on the first indictment, Abby, was only 14 years old. You were 41 years old. She was the best friend of one of your daughters and lived next door. Her mother apparently trusted you, and Abby viewed you as a father figure. The exploitation of these factors by you, in having sexually offended against her, is truly morally repugnant. There was nothing opportunistic about the offending. You engaged in emotional manipulation of Abby by giving her money and other things, and ensured that you went to her home, where she was entitled to feel safe, when you knew her mother would not be present. In this sense, it was very deliberate and planned. I note that Charge 2 is a rolled-up charge comprising three discrete acts of offending. Your touching of Abby was under her underwear, involving an intimate violation of her. Your offending against her went on for approximately 4 months, and only ceased after she began locking the door to stop you coming into her home and made a complaint to her school chaplain.
62Abby has had a long wait for you to be brought to justice. She made complaints in 2007, but no prosecution eventuated at that stage. It was not until 2019, when police began investigating complaints against your other victims, that the file containing Abby’s complaint was re-opened. Abby’s Victim Impact Statement, made on 28 February 2022, speaks of her spending much of the last fifteen years trying not to think about what you did to her, and took advantage of her and betrayed her trust, which related in the loss of her innocence, her friendships and sense of self-worth, because she felt nobody believed her. As a consequence, she has suffered long-term anxiety and depression and erosion of self-worth, which has impacted adversely upon her adult relationships. All of these are entirely understandable consequences of your selfish and appalling behaviour towards her.
63Your offending on the second indictment has the same despicable aspects to it. Even your own biological daughter, Leila, was not safe from your acts of depravity. She was in a vulnerable position, because you and her mother had separated and she was obliged to spend weekends at the home where you were living. You were a strict and possessive parent and you humiliated her by telling her to expose her vagina and open it so you could see better. You, as her father, had a legal and moral obligation to care for her and protect her but, instead, you gratified your own lust at the expense of your daughter, who was aged only 12 to 13 years, and away from the protection of her own mother.
64In Leila’s Victim Impact Statement, she speaks of her confusion and feeling used and hurt by a person she should have been able to trust, and how this has made her vulnerable and she finds it difficult to trust other people, and has suffered a number of long-term adverse consequences. I am mindful that this Victim Impact Statement should be read in the light of you having been convicted of one charge only relating to Leila, but her hurt and vulnerability are understood by the law, as is her need to express the effect of your offending upon her.
65Your offending against Brenda was drawn out over some six years from when she was aged only ten, to just before her sixteenth birthday. Your offending only stopped because she just could not stand it anymore and moved to her grandmother’s house when she was 16 years old. She gave evidence before the jury of quite numerous acts of sexual abuse by you which were not the subject of any charge. Obviously, you are not to be sentenced for those, but it is plain that the charges of which the jury have found you guilty are not isolated events. You manipulated her in a cruel way for your own sexual ends. You were her stepfather and in a relationship with her mother. The acts took place in her own home, where she should have felt safe. You knew that her father showed scant interest in her and that her mother was the only really caring adult in her life. You would taunt her that, if she told anyone about what you did, she would be taken away from her mother, and her mother would not like her anymore. You instilled fear into her and it became commonplace that she had to allow you to do sexual things in order for her to be able to enjoy basic pleasures of childhood. In particular, she used to dread her mother having showers at night because some of your offending against her would occur while her mother was in the shower. This shows callous planning by you, as does the fact that you directed her not to wear underwear to bed, making it easier for you to be clandestine in your violation of her. Your offending against her was repeated and persistent, and escalated in seriousness from licking her vagina, to offences of penetration of her vagina and her anus with your penis.
66Brenda’s Victim Impact Statement, made on 7 October 2022, is a heartrending document. She bravely speaks of the impact of your control over her and the fear that it instilled, the horrible feeling of being manipulated by you and of being unheard by others, and of feeling trapped in her own home. She speaks of feeling frozen and distressed by her own inability to cry out and how she became quiet and nervous, and anxious, with very little bowel control and horrible nightmares. She stated that, when she did speak up, rumours began to circulate in the family that she had made up the story about you abusing her, and she became even more devastated and more powerless, and, ultimately, sank into depression and maladaptive ways of comforting herself. She described how hard it was to write her Victim Impact Statement because she has had to open up old traumas which she has spent so much time trying to erase through counselling, and it is only now that she is realising the profound impact that your offending behaviour has had on her in terms of dealing with other adverse events in life. She speaks, too, of her guilt in not having spoken up sooner so that her little nieces might have been spared the offending to which you pleaded guilty at Geelong Magistrates’ Court. She has been formally diagnosed with Post-Traumatic Stress Disorder, struggles to have meaningful relationships, and suffers ongoing low self-esteem. She continues to require counselling and medication all these years down the track. There can be no doubt about the long-term and grave harm that you have caused to Brenda, and it is entirely understandable that she has renounced your surname, which was given to her when her mother began a relationship with you.
67Mr Gibson, I have acknowledged the adverse impact of your disadvantaged and traumatic childhood. The tragic irony is that you have now transmitted trauma to multiple others – the child next door who was the best friend of one of your own daughters, your daughter from your first marriage, your stepdaughter from your second marriage, and your two biological granddaughters, the children of a daughter of your second marriage. The latter are the subject of the sentences of Geelong Magistrates’ Court and form no part of my sentencing considerations save to show that, as recently as 2019, you were still a danger to children. You have torn apart families and generations, and left a trail of hurt and destruction behind you. Despite the fact that you pleaded guilty to the charges on the first indictment, you still refuse to acknowledge your guilt on the matters which were the subject of your trial. As an adult, you have been found seriously wanting in your responsibilities as a parent and stepparent, and a fatherlike figure to Abby. All of these children trusted you and were entitled to expect your care, protection and decent behaviour towards them. Instead, you violated them in a horrible way and have scarred them psychologically.
68The length of the offending, and the nature of the offending, particularly in relation to Brenda, makes it very grave. The law recognises the appalling nature of incest, involving as it does such a fundamental breach of trust, an abdication of parental responsibility and a cynical exploitation of the opportunity for sexual contact while in a position of trust. It is also a crime of violence.[39] It strikes at the heart of the family relationship and involves abuse of parental responsibility to protect a child and, instead, does harm. The seriousness of this offence is indicated by the maximum penalty of 20 years imprisonment. In sentencing for this and, indeed, all of the offences, the Court must denounce your abhorrent conduct, deter others who might be minded to engage in such depraved behaviour, protect the community and impose just punishment. I consider you prospects of rehabilitation to be poor and generally there would be a need also to place weight upon specific deterrence. However, I have accepted that this is a less prominent consideration because of your age and likely physical and psychological decline and the fact that you will not be in proximity to children whilst serving a lengthy term of imprisonment. As has been conceded by your counsel, there can only be one sentence appropriate to your offending, and that is a significant term of imprisonment.
[39]Director of Public Prosecutions (DPP) v Walsh (A Pseudonym) [2018] VSCA 172
69As I intend to impose a term of imprisonment on Charges 1 and 2 on the first indictment, you fall to be sentenced as a serious sexual offender within the meaning of s6B of the Sentencing Act 1991. Pursuant to s6D(a), in imposing sentences on the remainder of the charges on the first indictment and all of the charges on the second indictment, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. Although s6D(b) gives power to impose a disproportionate sentence in order to achieve that purpose, it has not been submitted by the prosecution that this should apply in this case and I consider that the relevant sentencing objectives can be achieved without imposing a disproportionate sentence.
70Pursuant to s6E of the Sentencing Act, every term of imprisonment imposed by a court on a serious offender must, unless otherwise directed, be served cumulatively on other sentences. In this case, were I to do that, the term of imprisonment would be excessive and offend the principle of totality. Accordingly, I consider that, in order to achieve an overall just sentence, some concurrency is merited.
71I note that, when you were sentenced at Geelong Magistrates’ Court on 18 November 2019, you were sentenced for registrable offences pursuant to the Sex Offenders Registration Act 2004, resulting in a mandatory reporting period of 15 years. As a consequence of the sentencing of you in relation to the charges on the first and second indictments, you will now be subject to reporting under that legislation for the rest of your life.
72On the first indictment, you are to be sentenced as follows;
73On Charge 1, you are convicted and sentenced to be imprisoned for a period of nine months.
74On Charge 2, you are convicted and sentenced to be imprisoned for a period of 16 months;
75On Charge 3, you are convicted and sentenced to be imprisoned for a period of six months;
76On Charge 4, you are convicted and sentenced to be imprisoned for a period of 12 months;
77On Charge 5, you are convicted and sentenced to be imprisoned for a period of 9 months.
78The base sentence is that of 16 months imposed on Charge 2. I order that two months of the sentence imposed on Charge 1, one month on the sentence imposed on Charge 3, 3 months on the sentence imposed on Charge 4 and 2 months of the sentence imposed on Charge 5 be served cumulatively upon the base sentence, and upon each other. The total effective sentence on that indictment is, thus, 2 years’ imprisonment.
79Pursuant to s6AAA of Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence would have been 3 years’ imprisonment, with a non-parole period of 2 years.
80On the second indictment, you are to be sentenced as follows.
81On Charge 1, you are convicted and sentenced to be imprisoned for a period of 2½ years.
82On Charge 2, you are convicted and sentenced to be imprisoned for a period of 2½ years.
83On Charge 3, you are convicted and sentenced to be imprisoned for a period of 2½ years.
84On Charge 4, you are convicted and sentenced to be imprisoned for a period of 2½ years.
85On Charge 6, you are convicted and sentenced to be imprisoned for a period of 10 months.
86On Charge 8, you are convicted and sentenced to be imprisoned for a period of 5½ years.
87On Charge 9, you are convicted and sentenced to be imprisoned for a period of 5 years.
88On Charge 10, you are convicted and sentenced to be imprisoned for a period of 2½ years.
89The base sentence is that of 5½ years imposed on Charge 8. I direct that 9 months of the sentence imposed on each of Charges 1, 2, 3, 4 and 10, 3 months of the sentence imposed on Charge 6 and 2½ years of the sentence imposed on Charge 9 be served cumulatively upon the base sentence and upon each other.
90The total effective sentence is thus 12 years’ imprisonment.
91I direct that this sentence be served cumulatively upon the sentence imposed on the first indictment.
92The overall total effective sentence is thus 14 years’ imprisonment. I direct that you serve a period of 10 years of imprisonment before becoming eligible for parole. I declare a period of pre-sentence detention of 283 days’ imprisonment to be time reckoned as already served under the sentences imposed this day. I cause to be noted in the records of the Court that, in relation to the first indictment, you have been sentenced on Charges 3, 4 and 5 as a serious offender and on the second indictment, you have been sentenced on all charges, namely, Charge 1, Charge 2, Charge 3, Charge 4, Charge 6, Charge 8, Charge 9 and Charge 10, as a serious offender.
93Pursuant to the provisions of the Sex Offenders Registration Act, you are liable to be registered as a sex offender and will be obliged to comply with the reporting conditions for the rest of your life. Rather than detail the classification of each offence in these sentencing remarks, I propose to append to those sentencing remarks a document from the Director of Public Prosecutions dated 7 December 2022 entitled Crown Sex Offender Registration Act 2004 Submissions which sets out this information to my sentencing remarks.
94Mr Gibson you will now be provided with two documents relating to your reporting obligations under the Sex Offenders Registration Act 2004 would you please sign the back page where it has your name, acknowledging you have received them, please. The custody officials will then transmit that acknowledgement back to my associate.
In the s.198B cross-examination on 14 February 2022:
When put to him that he had asked Brenda Gibson to perform oral sex on him, to which he responded: “I have no knowledge so I am going to say no to that. No, definitely” (T20, lines 11-16)
When asked to clarify whether he was saying it did not happen or he does not remember it, he responded: “I don’t remember. I absolutely don’t think I would have done that, no.” (T21, lines 5-7)
2
0