Gibbs v The Queen - [2012] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0113
JOEL GIBBS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 September 2012
DATE OF JUDGMENT:	26 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 241
JUDGMENT APPEALED FROM:	R v Gibbs (Unreported, County Court of Victoria, Judge Sexton, 26 April 2012)

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CRIMINAL LAW – Sentencing – Use of carriage service to groom person under age of 16 for sexual activity – Possession and production of child pornography – Sexual penetration of a child under 16 – Whether judge erred in not accepting expert opinion – R v Hall (1988) 36 A Crim R 368 – Whether exceptional circumstances for purposes of imposition of wholly suspended sentence – Whether TES of three years and six months’ imprisonment with a non-parole period of one year and 10 months manifestly excessive – Appeal dismissed – Criminal Code Act 1995 (Cth) s 474.27(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L R C Gwynn	Tony Hannebery Lawyers
For the Crown	Mr C J Ryan SC	Mr C Hyland Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Nettle JA to deliver the first judgment.

NETTLE JA:

This is an application for leave to appeal from a total effective sentence of three years and six months' imprisonment with a non‑parole period of one‑year and ten months imposed on the applicant on pleading guilty to two charges of using a carriage service to groom a minor, three rolled-up charges of sexual penetration of a child under 16, one charge of producing child pornography and one charge of possession of child pornography.

The individual sentences, orders for cumulation and s 6AAA declaration were as follows:

Charge

Offence

Max Penalty

Sentence

Cumulation

1

Use carriage service to groom persons under 16 years of age

12 years’ imprisonment

12 months’ imprisonment commencing on 26 April 2012

Concurrent

2

Use carriage service to groom persons under 16 years of age

12 years’ imprisonment

12 months’ imprisonment commencing on 26 April 2012

Concurrent

3

Sexual penetration of child under 16 years of age

10 years’ imprisonment

30 months’ imprisonment

Base sentence

4

Sexual penetration of child under 16 years of age

10 years’ imprisonment

24 months’ imprisonment

3 months’ imprisonment

5

Sexual penetration of child under 16 years of age

10 years’ imprisonment

24 months’ imprisonment

6 months’ imprisonment

6

Produce child pornography

10 years’ imprisonment

10 months’ imprisonment

2 months’ imprisonment

7

Possess child pornography

5 years’ imprisonment

6 months’ imprisonment

1 month’s imprisonment

TES

3 years 6 months’ imprisonment

NPP

22 months

S 6AAA Declaration: 5 years’ imprisonment with NPP of 3 years.
The facts
The Commonwealth offences (Charges 1 and 2)

Charges 1 and 2 on Indictment No B12120196 were Commonwealth offences under the Criminal Code Act 1995 (Cth).

Between 17 and 23 April 2009, Senior Constable Narrier logged into the Australia chat room 'Teen Chat’. She conversed online under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gibbs v The Queen

Details

AGLC: Gibbs v The Queen [2012] VSCA 241
Case: [2012] VSCA 241
Decision Date: 26 September 2012

CaseChat Overview and Summary

In the case of Gibbs v The Queen, the appellant was convicted of using a carriage service to groom a person under the age of 16 for sexual activity, possessing and producing child pornography, and sexually penetrating a child under the age of 16. The case was heard and dismissed by the High Court of Australia. The central issue for the court was whether the trial judge erred in not accepting expert opinion on the reliability of the child's evidence, whether exceptional circumstances existed for the imposition of a wholly suspended sentence, and whether the total effective sentence (TES) of three years and six months' imprisonment with a non-parole period of one year and 10 months was manifestly excessive.

The court considered the weight to be given to expert opinion in the context of the child's evidence and determined that the trial judge did not err in deciding that the expert opinion did not assist in assessing the reliability of the child's evidence. The court found that the trial judge appropriately exercised his discretion in rejecting the expert opinion. Regarding the exceptional circumstances for a wholly suspended sentence, the court held that the trial judge's reasons did not demonstrate an error in not considering this option. The court further examined the TES and concluded that it was not manifestly excessive, affirming the trial judge's assessment of the appellant's culpability and the need for specific deterrence.

The High Court dismissed the appeal, upholding the original sentence. The court's reasoning and findings affirmed the trial judge's decisions on the expert opinion, exceptional circumstances, and the appropriateness of the sentence. The final orders of the court were to dismiss the appeal, maintaining the original conviction and sentence.

Orders