R v Christopher Patrick Gibbs

[2013] NSWDC 187

District Court

New South Wales

Medium Neutral Citation:	R v Christopher Patrick GIBBS [2013] NSWDC 187
Decision date:	17 May 2013
Before:	Cogswell SC DCJ
Decision:	Convicted of offence of sexual intercourse without consent. Sentenced to 4 years imprisonment. Non-parole period 2½ years.
Catchwords:	CRIMINAL LAW - Particular offence - sexual intercourse without consent - victim suffered from developmental delay - aggravating under s 21A. Sentence - relevant factors - gravity of offence - offender reckless as to consent - spontaneous - short duration - offender did not use condom and ejaculated - top end of lower range of objective seriousness - psychiatric assessment of victim - sexual assault aggravated pre existing psychological and psychiatric problems - not specifically aggravating under s 21A - prior criminality - extensive criminal history - offences as a child - imprisonment as an adult for serious crimes involving personal violence - aggravating under s 21A - response to charges - relatively early plea - 20 per cent discount - some limited remorse - plea and letter to judge - nature and circumstances of offender - Aboriginal man with difficult upbringing - depression and suicide attempts - history of drug taking - using heroin at time offence committed - mild intellectual disability - general deterrence of less significance - special circumstances - need to address psychological and drug problems - totality - backdating sentence - relevance of standard non-parole period.
Legislation Cited:	Crimes Act 1900, s 61I. Crimes (Sentencing Procedure) Act 1999, s 21A.
Category:	Sentence
Parties:	Regina (Crown) Christopher Patrick Gibbs (Offender)
Representation:	Counsel: I H Nash (Offender) Solicitors: S J Modder, Office of Director of Public Prosecutions (Crown)
File Number(s):	DC 2011/199009

REMARKS ON SENTENCE

1. I am sentencing Christopher Gibbs for raping a woman. He has pleaded guilty to an offence which is called sexual intercourse without consent. That is made into a crime by the Crimes Act 1900, s 61I. Parliament regards it as a very serious offence and has fixed a maximum of 14 years imprisonment to the crime. Not only that, Parliament has in addition fixed a standard non-parole period of 7 years imprisonment for that crime.

1. What happened is set out in the agreed facts, which became part of exhibit A. The victim of the offence I will refer to as AM, so that she may not be identified. She was 27 at the time of the offence and suffered some form of developmental delay. She and Christopher Gibbs had met some years before in a church group.

1. AM was walking along the main street in Lithgow on 24 February 2011. She tripped and fell over. Mr Gibbs went to her assistance. Extraordinarily he also put his hand around her waist and started to kiss her. She objected to this. Mr Gibbs offered her some water and took her to his unit which was nearby. Inside he took her to the bedroom, pushed her onto the bed and started to sexually assault her. AM asked what he was doing, and said that she did not know him. She wanted to go. Instead, Mr Gibbs undid her jeans and took them off. He then sexually penetrated her. He in explicit terms put his penis into her vagina.

1. As if this was bad enough, he was not wearing a condom and he ejaculated. In fact the evidence is that his semen was detected in her vagina. AM was left with a sore vagina and was understandably in tears afterwards. She then left the unit.

1. The prosecution accepts that the assault was committed by Christopher Gibbs whilst he was reckless as to whether or not AM was consenting.

1. When she got home, AM complained to those that she was living with and she was taken to the police and to hospital.

1. Some months later, on 17 June 2011, Christopher Gibbs was arrested and charged. There is in fact also before the court a detailed assessment of AM by a forensic psychiatrist, Dr Bruce Westmore. It is unusual to have such an assessment of the victim of an offence. Dr Westmore concluded that while "any sexual assault is traumatic for the victim, [AM's] personality and intellectual problems would have potentially made the assault even more traumatic for her." He considered the assault "to be substantial in terms of its impact on her." He qualified that remark by explaining that he was not clear as to the legal definition of "substantial" and appropriately pointed out that it was for the court to decide. Dr Westmore had diagnosed that the victim had pre-existing post traumatic stress disorder and he thought it likely that that was exacerbated. Dr Westmore also had said that the sexual assault perpetrated by Christopher Gibbs on this woman "would have aggravated those pre-existing psychological and psychiatric problems."

1. I accept that what Dr Westmore said. It states in very articulate terms the impact which such a crime has on the victim. It explains why the community regards this as such a serious sexual assault. I do not regard it as being in the category where it could be said to be an exceptional impact and therefore should be taken into account specifically as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999. That is not in any way to diminish the impact which this crime has had on AM. It was a very serious crime and has had a significant impact upon her, as these crimes do have on the victims.

1. Mr Gibbs comes before the court with a very long criminal record, despite the fact that he is just short of 30 years of age. He had offences which were dealt with in the Children's Court and since he has become an adult, he has been sent to prison for crimes of violence, including maliciously inflicting grievous bodily harm and robbery in company. In fact since the offence was committed and whilst he was in custody bail refused on this charge, he was sentenced for some driving offences and spent some 11½ months serving a non-parole period in respect of those offences.

1. Mr I.H. Nash of counsel, who appears for Mr Gibbs, has tendered a psychological report by the forensic psychologist, Anna Robilliard.

HIS HONOUR: I will just pause there, there is no pre-sentence report is there here. There is? No?

NASH: No your Honour that's right.

HIS HONOUR: No, no, no that is right I have not missed anything.

Ms Robilliard set out some personal information about Christopher Gibbs which came from various sources, including her interview with him. He has had a history which involves a good deal of drug taking. In fact he has engaged in taking a wide range of different prohibited drugs. He admitted that at the time that he raped AM, he had been using heroin. Ms Robilliard noted in his report that he had been depressed for most of his life and she also noted that there was some history of suicide attempts.

1. Christopher Gibbs, who is an Aboriginal man, was raised by foster parents. He does not know the identity of his biological father. He has had, I accept - and in these terms I accept Mr Nash's description - a very difficult upbringing and, as Mr Nash said, on any view that was an appropriate description. The reason that I describe his upbringing in such general terms is that I regard his own history, as related to Anna Robilliard, as somewhat unreliable. His condition, it was noted, has produced inconsistent accounts of his own history and he was not called to give evidence. He has been living essentially on Centrelink benefits since 2000 - over about the last 10 years. He had a relationship for some 5 years with a woman, but that has now broken up since he has been charged with these offences.

1. After administering intelligence tests, Anna Robilliard concluded that his IQ was somewhere at the boundary between the upper end of the extremely low range and the lower end of the borderline range. She thought that his scores in that and other tests would place him into the mild mental retardation range. She noted that there was no indication that Christopher Gibbs has ever been diagnosed with a mental illness, but thought it "more likely that he suffers severe personality disorder of a borderline type." She noted a feature of such a diagnosis is "instability and unpredictability of moods and behaviour." He has longstanding emotional and behavioural instability and is liable to have seizures.

1. I have also considered the other material tendered by Mr Nash, including some school reports, which also noted a mild intellectual disability. I have seen his School Certificate results and certificates from a course which he undertook whilst he has been bail refused in custody.

1. Finally, Mr Nash tendered a letter from Mr Christopher Gibbs, addressed to 'The sentencing Judge' where he explained how he wishes to change his life and the impact of losing the relationship with his partner. He wants to change his outlook altogether.

1. I was assisted by submissions from Mr Nash and from Mr S.J. Modder, who appears for the Director of Public Prosecutions. Mr Nash argued that I should allow a discount of some 15 to 20 per cent, for his plea of guilty. A chronology provided helpfully by Mr Modder indicated that the plea was very late. But in fact, as Mr Nash pointed out, his client had been charged with a more serious offence and there were evidently negotiations and evidence gathering associated with whether that charge would proceed. Once the charge was fixed as the present offence, and not the more serious one, a plea of guilty was entered on 23 November 2012. I regard that as a reasonably recent plea and I would regard an appropriate discount as 20 per cent to acknowledge that plea.

1. Mr Nash pointed out - so far as the seriousness of the crime committed by his client was concerned - that it was committed recklessly as to the consent of its victim rather than with full knowledge and emphasised that it was spontaneous and short in a period of time. However, I also take into account, as Mr Modder point out, that Christopher Gibbs did not use a condom and ejaculated inside his victim. I regard that as a serious aspect of this crime. I would regard the crime as falling at the lowest end of the middle of the range, or at the top end of the lower range of seriousness for these kinds of crimes.

1. Mr Nash drew my attention to his client's intellectual disability and the diagnosis. I take into account that that means that general deterrence has a less significant role to play in the factors which I take into account in imposing the sentence. I do not accept that his impairment contributed to the offence. I do not regard there being sufficient evidence for me to reach that conclusion.

1. His plea of guilty is consistent with some remorse and he shows some willingness to rehabilitate himself. The letter to me also demonstrates some remorse. It is not as strong as it would be if he went into the witness box and I was able to see and hear him express his remorse, nevertheless it does constitute limited evidence of remorse.

1. Mr Nash addressed me on the commencement date of his client's sentence, because of the period of some 11½ months which his client had spent under sentence, whilst at the same time bail refused for this case. On one view that period of time should not be counted at all in my reckoning of this sentence which I impose. The sentence I impose obviously should be back-dated to take into account time which he has spent in custody on this offence alone.

1. Mr Nash argued however that I should make some allowance for the time which his client spent under sentence for the driving offences. He argued that, as a matter of totality, there is some risk of his client, who is still under 30, becoming institutionalised because of the lengthy periods of time which he has spent in custody. I accept Mr Nash's argument and will make an allowance for about half of that time which he has spent in custody. I will also count the whole of the period of the previous sentence.

1. Mr Nash argued that the sentence which I impose can have a non-parole period which would be less than the statutory 75 per cent of the full sentence. He said there are special circumstances which would warrant me reducing the non-parole period. His client needs to build up support in the community and has a psychological problem which needs to be dealt with. He is without his partner and will face challenges because of his intellectual disability and his personality disorder. He has drug problems which need to be dealt with. Mr Modder acknowledged that the psychological evidence did form a basis for there being special circumstances for such an adjustment.

1. The victim of this offence was herself under a disability and I take that into account as a factor relevant to sentencing Mr Gibbs. He also has a previous criminal record although, as Mr Nash pointed out, he has not had convictions for crimes such as this before. He has convictions for very serious crimes involving personal violence. I regard that as an aggravating feature under s 21A of the Crimes (Sentencing Procedure) Act.

1. Mr Modder also pointed to the significance, amongst the many other factors which I need to take into account, of the standard non-parole period fixed by Parliament. He pointed out that it was a matter for my discretion as to back-dating the sentence, but submitted that I need to take into account that serving time which is concurrent obviously reduces the effect of any particular sentence.

1. Taking these factors into account, I would regard an appropriate sentence to impose as one of 5 years imprisonment. However, because Mr Christopher Gibbs pleaded guilty when he did, I would discount that by 20 per cent, so that the sentence which I will fix is 4 years imprisonment. The non-parole period which the Crimes (Sentencing Procedure) Act would regard as appropriate for a 4 year sentence is 3 years imprisonment. Because of the special circumstances which I have referred to, I am going to reduce that from 3 years. Mr Nash suggested that an appropriate non-parole period might be on either side of 2 years. I regard that as a little too low, particularly given that Parliament has fixed a standard non-parole period of 7 years to this crime. I propose to fix a non-parole period of 2½ years. That represents just over 60 per cent of the overall sentence of 4 years, when 75 per cent would be a 3 year non-parole period. So the non-parole period which I will fix is 2½ years. I am going to sentence you now Christopher Gibbs.

1. In respect of this crime, first I convict you of the offence of sexual intercourse without consent. I fix a non-parole period of 2½ years, which commenced on 1 December 2011 and will expire on 31 May 2014. The balance of the term is 1 year and 6 months which commenced on 1 June 2014 and will expire on 30 November 2015. The first date on which you are eligible for parole will be 31 May 2014, just over 1 year from now. Have a seat Mr Gibbs.

HIS HONOUR: Now Mr Nash, Mr Modder, the mathematics first. Take your time, there is no rush. It's better than having to come back and correct. And secondly, any matters of law or fact which perhaps I could fix under s 43 if needed - if there are things which I have overlooked or misstated so when you are ready let me know.

NASH: There is nothing from my part your Honour.

HIS HONOUR: And the sums are correct?

NASH: Yes your Honour the best I can tell.

HIS HONOUR: Yes.

MODDER: Yes the maths look okay to me your Honour.

HIS HONOUR: Thanks Mr Modder. Christopher Gibbs I have given you a 4 year sentence for this crime which you committed against this woman. It would have been a 5 year sentence, but because you pleaded guilty once the prosecution dropped the charge to the less serious one, I have discounted that by 20 per cent so it goes from 5 years to 4 years. That is your sentence, 4 years. I fixed a non-parole period of 2½. Parliament says normally the non-parole period should be 3 years, but in your case I have reduced it to 2½ years. I back-dated the sentence so it commenced on 1 December 2011. In fact I could have back-dated it less than that, and made it start so that you would be spending more time in gaol. But I back-dated it in accordance with Mr Nash's argument to 1 November 2011. That means your non-parole period of 2½ years expires on - sorry 1 December 2011 is when it starts. Your non-parole period expires 31 May 2014, just over 1 year from now. That is the first date that you will be eligible for parole. Whether you get parole or not, as you probably know, does not depend upon me, it depends on the Parole Authority.

Okay now do you understand all that?

OFFENDER: I do.

HIS HONOUR: You do, all right. Well good luck, okay.

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Decision last updated: 11 October 2013