Director of Public Prosecutions v Gibson (a pseudonym)
[2021] VCC 206
•5 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LARRY GIBSON (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2021 | |
DATE OF SENTENCE: | 5 March 2021 | |
CASE MAY BE CITED AS: | DPP v Gibson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 206 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Plea of guilty – one charge indecent assault – one charge sexual penetration with child under 10 years – one charge commit indecent act with a child under 16 years – two charges sexual assault with child under 16 years – impact of age and ill health - circumstances of COVID-19 pandemic
Legislation Cited: Crimes (Sexual Offences Act) 1980; Crimes (Sexual Offences) Act 1991; Crimes Amendment (Sexual Offences) Act 2016; Sentencing Act 1991 (Vic).
Cases Cited:Brown v The Queen [2019] VSCA 286; Lugo v The Queen [2020] VSCA 75; R v Jones [2004] VSCA 68; R v RLP (2009 213 A Crim R 461
Sentence:Total effective sentence of six years and nine months with a non-parole period of four years and one month.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Hannan | Office of Public Prosecutions |
| For the Defence | Mr J. Van Arkadie | Victoria Legal Aid |
HER HONOUR:
Introduction
Plea of guilty and Maximum Penalty
1 Larry Gibson,[1] you have pleaded guilty to one charge of indecent assault, an offence which carries a maximum penalty of five years' imprisonment; one charge of sexual penetration with a child under 10 years, the maximum penalty for which is 20 years' imprisonment; one charge of committing an indecent act with a child under 16 years, the maximum penalty for which is 10 years' imprisonment; and two charges of sexual assault with a child under 16 years, the maximum penalty for which is 10 years' imprisonment.
[1] A pseudonym.
Circumstances of the Offending
2 The Prosecution Opening, dated 25 January 2021, sets out the circumstances of your offending. It was tendered on the plea and became Exhibit A and is attached to and forms part of these reasons. I will summarise some of the facts giving rise to your offending here.
3 Briefly, the charges relate to sexual offending against your son, Alan,[2] when he was nine years old; your nephew Travis,[3] when he was 13 years old; and your grandson, Alan's son, when he was 12.
Alan Bowen
Charge 1: Indecent assault (a rolled up charge).
[2] A pseudonym.
[3] A pseudonym.
4 Alan Bowen is your eldest child. When he was nine he was at home sick in bed. He recalls you coming into his bedroom to sleep next to him. He awoke to find you fondling his penis over his clothing. You then took off your son's underwear and put him on top of you. You were naked. Alan remembers you moving his body on top of yours, his penis against yours. You then ejaculated on your son.
5 These two events, your touching of your son's penis over his clothing, and then the subsequent moving of your body on his, occurring close in time on the same day are being dealt with as one rolled up charge of indecent assault, the particulars on the Indictment relate to the rubbing of your penis against your son's penis.
6 After these events you told Alan, “Don't say nothing and I'll buy you a basketball ring tomorrow.”
7 Alan left the room and went into his mother's bed. He did not sleep. He did not tell anyone.
8 Later you bought him the basketball ring.
Charge 2: Sexual penetration of a child under 10
9 Not long after this, when Alan was still nine, you and Alan went in the family car to pick watercress. When you arrived you pulled down your son's pants and put his penis in your mouth. He was still in the passenger seat.
10 You then got on top of him and put your penis in his mouth. You ejaculated onto him.
11 These two events, occurring close in time on the same day, are being dealt with as one “rolled up” charge of sexual penetration of a child under 10 years. The particulars on the Indictment describe you putting your penis into your son's mouth.
12 There were many occasions where you committed similar acts with your son. These happened in similar circumstances in the car near the creek, at home and in other places. This behaviour only stopped in early 1994 when your son left his family to go to boarding school.
13 Your son moved back with you in 1998 but nothing sexual happened from that time. At one stage your son confronted you about your behaviour. You told him that it happened to you as a child. You never spoke about it with him again.
Travis Curry
14 Travis Curry is Alan's cousin, your nephew. He was born in New Zealand and moved to Australia in 1991. His mother is your sister.
Charge 3: Indecent act with a child under 16
15 When you took Alan to boarding school in early 1994, his cousin Travis and sister Cathy[4] came to the airport with you in the car.
[4] A pseudonym.
16 After saying goodbye to Alan at the airport, you took Travis and Cathy back to your house. You then offered to drive Travis back home. Travis asked your daughter Cathy to come too. You told her to stay home.
17 When you arrived at Travis' home no else was there. You went inside with him. Travis started playing his guitar. You put your body behind his and tried to grab him in the crotch area. You put your hand down his leg and touched his testicles and penis on the outside of his pants and said to him, “do you have a big dick?” Travis was scared. He did not say anything. He was shaking. You left.
18 Travis told his mother when she came home from work. His mother made a phone call and was heard to say, “how dare you,” and other similar things. Apparently the Police were not notified. Soon after Travis moved back to New Zealand.
Ian Gibson[5]
[5] A pseudonym.
19 In January 2006 your son Alan had a son, Ian[6].
Charge 4: Sexual assault of a child under 16
[6] A pseudonym.
20 Sometime between 1 May 2018 and 31 May 2018 when Ian was 12 years old, he had a day off school because of an injury. He was playing video games while his mother was out shopping. You were at the house. You went into Ian's bedroom. You sat on his bed and moved to lie on him, rubbing along his body. Whilst doing so you touched him on his penis over his clothing and kissed him on the lips. Ian pushed you away and went into the bathroom to wash his face.
Charge 5: Sexual assault of a child under 16
21 On 25 August 2018 Ian stayed at his Aunt's house. You were at the house. Ian fell asleep on the couch. Early in the morning you came in and sat on the couch. You put your hand under the blanket and touched him on his penis under his clothing. Ian tried to move away while you did this. Ian rang his father and asked to be picked up and to be taken home.
Complaint
22 On 7 November 2018 the victim's mother, Darla Brady[7], returned home at about 10 am after work to find that her son, Ian, had slept in and was late for school. He was upset. After some time Ian told his parents what you had done. They reported it to Police.
Arrest and Interview
[7] A pseudonym.
23 You were arrested the same day. You participated in a record of interview with Police. In essence you denied the offending. You told Police that you never went to the house where Ian lived.
24 On 31 January 2019 you were interviewed again, this time about the allegations made by Alan Bowen and Travis Curry. Again, you essentially denied the offending. You told Police, amongst other things, that the allegations were “made up stories”.
Prior Criminal History
25 You have three relevant prior convictions. In New Zealand in 1972 you were convicted of three charges of committing an indecent act with a boy under 16, for which you were fined and sentenced to be released on probation for six months for a total of 18 months. In 1975, again in New Zealand, you were convicted of an indecent act with a boy under 16 and an indecent assault on a boy under 16. Again, you were fined and convicted and sentenced to be released on probation for a period of two years. In 1979, still in New Zealand, you were convicted of indecently assaulting a boy under 16 for which the disposition was, and I quote, “convicted and sentenced to come up for sentence if called upon during the following three years.”
Procedural History
26 I will now set out the procedural history of your case. You were charged on summons on 14 August 2019. Your case proceeded by way of committal on a straight hand-up brief on 21 February 2020. By 31 March 2020 your case had formally resolved to pleas of guilty. No witnesses were cross-examined in this process.
Nature and Gravity of the Offending: Culpability and Degree of Responsibility
27 I will now address the nature and gravity of your offending and your culpability and your degree of responsibility.
28 Your offending spans a period of 28 years, acknowledging though, the very large gap between 1994 and 2018.
29 Your victims were children aged between 9 and 13 years old. Moreover, you occupied a position of trust and authority as a father, uncle or grandfather respectively. Each boy was entitled to your total affection and protection. You betrayed your duty as uncle, father, and grandfather in the most fundamental way. Such acts dismantle a child's world.
30 Other notable aspects of your offending are that your offending was intergenerational, that is, for Alan Bowen he is both a primary and a secondary victim of your offending. You gave Alan a basketball ring in exchange for his silence. You were much older than each of your victims, your offending having taken place when you were between 44 years old and 71 years old.
31 I accept that the offending on Charge 3 was of relatively short duration, was over clothing and your conduct did not apparently persist. In relation to Charges 4 and 5, it would seem that your offending was opportunistic.
32 Charges 1 and 2 are both charged as rolled up counts, bundling together two events in each case. In sentencing you on these charges I am cognisant of the single maximum penalty for each charge. I will also take into account that the “rolled-up” events occurred in relation to the same victim and close in time. [8]
[8]R v Jones [2004] VSCA 68, [13] (Charles JA).
33 Paragraph 10 of the Prosecution Opening states that similar types of sexual offending to Charges 1 and 2 occurred on many occasions. Both Prosecution and Defence accepted that these uncharged acts were relevant, to show the full context of your offending and which are also relevant to specific deterrence and the protection of the community. Such an approach is consistent with the Court of Appeal's decision in Lugo v R VSCA 75 at paragraph 40.
34 I regard the conduct giving rise to Charge 2 in its full context as being particularly grave. This charge will be the foundation of the sentence that I impose.
Personal Circumstances
35 I will now turn to your personal circumstances. You are now 73 years old. You were born in New Zealand in 1947. You are of Maori heritage. You are one of 11 children. Your father worked as a dairy farmer and carpenter, your mother came from a farming family. You describe your upbringing as positive and supportive. You attended school in New Zealand. Your parents valued education. You commenced a year of teachers’ training but did not complete this.
36 Your father was a heavy drinker. You were exposed to this and to sexual behaviour within your family with your cousins.
37 When you were approximately 31 years old, you met Jenny who you would marry in 1982. You moved to Australia as a couple in 1979, and in 1981 your son Alan was born. Three daughters, Cathy, Judy, and Sue were born between 1982 and 1988.
38 You have worked in various jobs: in a bottle shop, in meatworks, and as an untrained social worker. In Australia you have worked as an overnight orderly, a mail worker, and as a warehousing worker.
39 You have been educated in Maori cultural practices, in particular dance. It was in this cultural context that you met your wife Jenny. You have performed marriage and funeral services as a registered celebrant during your working life and have performed these ceremonies in both English and Maori.
40 You have been a member of the Ratana church for around five years. You identify strongly with your Maori heritage.
41 You retired at around 65 years of age, partly because of your poor health.
42 Despite your offending, you still have good relationships with your daughters. Until recently you have lived with one of them.
Health
43 On the plea a letter from your general practitioner, Dr Shahzad, set out a number of serious health complaints that you suffer from: asthma, cataracts, Type II diabetes, renal failure, liver dysfunction, ischemic heart disease, hypertension, gastroesophageal reflux disorder, and gout. This document became Exhibit 3 on the plea and I take its contents, with the letter of Dr Grill (Exhibit 2) into account. The combination of these conditions means that your walking is slow and unsteady (you need the use of a walking frame or stick), you have poor eyesight and shortness of breath. Your doctor notes the chronicity of these conditions and that they are likely to deteriorate. Your doctor is also of the opinion that you are at greater risk of complications in the event that you contract COVID-19.
44 These conditions also require you to have continual medication and tests and monitoring.
Impact on the victims
45 I must consider the impact of your offending on your victims. Each of your victims, as well as the mother of Ian, made victim impact statements which were read at the plea. I take their contents into account. Alan has struggled with substance abuse and anger issues. His ability to work has been affected, as has his ability to find stability in his life.
46 Travis has struggled with mental health issues and writes that you took away his capacity to trust. Ian's mother writes that her family could not stay in the house that they were living in after what happened to her son there. They moved in with her parents. Sadly, and I suggest without basis, she feels that she let her son down. Her son feels hurt and betrayed. Your offending has left a trail of destruction in your family. I take that into account.
Matters in mitigation
47 You entered a plea of guilty to these charges and by doing so saved the community, but most particularly the witnesses, from the costs, both human and financial, of conducting a trial. Your plea is particularly important during the COVID-19 pandemic when it is particularly difficult to conduct criminal trials. This entitles you to a very significant discount on your sentence.
Effect of ill-health upon the burden of imprisonment
48 I have noted the details of your ill health. You are very unwell and very frail. I accept that these problems detach you from your regular health practitioners and that causes you anxiety. As I deliver this sentence the first vaccinations against COVID-19 are being administered, however there is quite some time to go before the disease is under control in this country.
49 I accept the medical evidence that you are in a higher risk category of serious illness or death if you were to contract COVID-19. Your experience of custody will be more burdensome than for a prisoner without these conditions.
50 Moreover, pandemic restrictions continue in custody. You will be placed in 14 day quarantine at the beginning. At least for a time your access to time outdoors and other activities is likely to be limited, and I take that into account.
Age and prospect of dying in custody
51 You are an old man at the beginning of your very first sentence of imprisonment. It is a weighty consideration on me and for this sentence that you are likely to spend the whole, or a very substantial portion of the remainder of your life in custody.
Impact of concern for your wife upon the burden of imprisonment
52 In addition to these problems you are concerned about your wife, who is also elderly, during your incarceration and I take that into account.
Prospects of Rehabilitation
53 I am obliged to have regard to your prospects of rehabilitation. You have a history of similar offending. You are unlikely to have similar opportunities for offending in the future. Your age and ill health may also tell against your re-offending and I take this, albeit limited form of rehabilitation, into account. You are fortunate to have the continued support of your wife and daughters.
Delay: Charges 1-3
54 The consequence of the passage of time between the commission of Charges 1 - 3 and their prosecution is that to give effect to the principle of equal justice, I am required to have some regard to sentencing practices as they were at the time of the offending in relation to those charges, being 1991 and 1994. Helpfully I was provided with sentencing statistics from these periods. I was also assisted by submissions from the Prosecutor in relation to what relevance the change in maximum penalty and the scope of offending contemplated by the change has in this process. I have had some regard to those statistics, noting their limitation.
Relevant Sentencing Principles
55 Given your criminal history, specific deterrence does have a role to play, though I have some hope that your lack of opportunity and incapacity to re-offend will assist in this regard.
56 You must be punished for what you did to these children. Through me the community denounces your conduct. I am very conscious of the need for your sentence to deter others from behaving in similar ways.
Standard sentence: Charges 4 and 5
57 Charges 4 and 5 on the Indictment attract the standard sentence provisions of s.5A(1) of the Sentencing Act. The standard sentence for the offence of sexual assault of a child under 16 is 4 years. This is my legislative guidepost. I have limited my consideration of current sentencing practices in relation to these two charges to those imposed under the same framework. This task was made immeasurably easier by the provision of summaries of those cases and Mr Van Arkadie’s written submissions.
Serious offender provisions and totality
58 Because I am imposing imprisonment on Charges 1 and 2, you will be sentenced as a serious sexual offender for Charges 3, 4, and 5. I have regard to the protection of the community as the principle purpose of the sentence on these charges. No submission was made in favour of my imposing a disproportionate sentence. I will be making orders that displace the presumption of full cumulation on these charges in favour of imposing a sentence that gives proper regard to the principle of totality.
59 I note the requirement that the sentences on Charges 4 and 5 require me, unless I otherwise order, to impose a non-parole period that is at least 60% of the head sentence on these charges.
Disposition
60 I now come to the disposition. Mr Gibson, you can remain seated.
61 On Charge 1, you are convicted and sentenced to 12 months' imprisonment.
62 On Charge 2, you are convicted and sentenced to 4 years and 6 months' imprisonment. This is the base sentence.
63 On Charge 3, you are convicted and sentenced to 6 months' imprisonment.
64 On Charge 4, you are convicted and sentenced to 18 months' imprisonment.
65 On Charge 5, you are convicted and sentenced to 22 months' imprisonment.
66 I direct that 6 months of the sentence on Charge 1, 3 months of the sentence on Charge 3, 8 months of the sentence on Charge 4, and 10 months of the sentence on Charge 5 are to be served cumulatively on the sentence on Charge 2 and upon one another.
67 This results in a total effective sentence of 6 years and 9 months.
68 I direct that you serve 4 years and 1 month before becoming eligible for parole.
Pre-sentence detention
69 Pursuant to s.18 of the Sentencing Act I declare that 10 days pre-sentence detention has been served on this sentence.
S6AAA reduction
70 Pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty but been found guilty after a trial, I indicate that I would have imposed a total effective sentence of 8 years and 9 months' imprisonment, with a non-parole period of 5 years and 6 months' imprisonment.
71 In relation to Charges 3 and 5, I direct that the record reflect that you have been sentenced as a serious sexual offender on these charges. Pursuant to the Sex Offenders Registration Act 2004, you are, as a result of these convictions, a registerable offender and the reporting period is mandated. Having pleaded guilty to one Class 1 offence and four Class 2 offences, the period of reporting is for the remainder of your life.
72 HER HONOUR: Are there any ancillary orders that I have not addressed, Ms Maikousis?
73 MS MAIKOUSIS: No, Your Honour, there are no applications.
74 HER HONOUR: In terms of sex offender registration, Mr Gibson is not present here in court. Ms Low, have you had an opportunity to explain to Mr Gibson that he has obligations pursuant to the Sex Offenders Registration Act 2004?
75 MS LOW: I believe those have been explained to him.
76 HER HONOUR: I'll just confirm what I need to do in terms of this procedure given that we're having a remote hearing. What I propose to do is to leave the bench for a short period because I need to make sure that Mr Gibson understands that he has certain obligations under the Sex Offenders Registration Act 2004. They are complex and lengthy and we're not capable, at this moment, of handing him the paperwork to do that, but what I need you to do, Ms Low, before I conclude today is have a brief conversation with Mr Gibson, explain to him that the full orders will be sent to him in custody for him to read, get advice from his lawyers on, and sign an acknowledgement that he accepts those obligations, so I'm just going to arise so that can occur. Just before I do, Ms Maikousis, is that sufficient from your perspective in terms of the registration obligations process?
77 MS MAIKOUSIS: Yes, Your Honour. That's sufficient.
78 HER HONOUR: All right. I'll rise briefly for that to occur and then come back to adjourn.
(Short adjournment.)
79 HER HONOUR: Ms Low, have you had an opportunity to explain to your client that he now has obligations pursuant to the Sex Offenders Registration Act 2004?
80 MS LOW: Yes, I have. Thank you for that time.
81 HER HONOUR: Is there anything else arising before I adjourn the court?
82 MS LOW: No, Your Honour.
83 MS MAIKOUSIS: May I clarify something, Your Honour, with the Serious Sexual Offender Declaration?
84 HER HONOUR: Yes.
85 MS MAIKOUSIS: Initially I heard Your Honour to refer to the declaration being made in respect of Charges 3, 4, and 5, but ultimately when the declaration was made you referred to Charges 3 and 5.
86 HER HONOUR: I meant to refer to 3, 4, and 5. A slip of the tongue.
87 MS MAIKOUSIS: Thank you, Your Honour.
88 HER HONOUR: Thank you for that.
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