Gibbs v The Queen [2012] VSCA 241

1 I will ask Nettle JA to deliver the first judgment.

2 This is an application for leave to appeal from a total effective sentence of three years and six months' imprisonment with a nonparole period of oneyear 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.

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

Use carriage service to groom persons under 16 years of age

12 months' imprisonment commencing on 26 April 2012

Use carriage service to groom persons under 16 years of age

12 months' imprisonment commencing on 26 April 2012

S 6AAA Declaration: 5 years' imprisonment with NPP of 3 years.

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

5 Between 17 and 23 April 2009, Senior Constable Narrier logged into the Australia chat room 'Teen Chat'. She conversed online under the name of 'Emily' as a 12 year old female from Kinross, Western Australia using the Windows Live Messenger username princess_emily_96@live.com.au. During that time, the applicant logged into the chat room using the name of 'Jayee' and the Windows Live Messenger username of sexyfitboy69er@hotmaiI.com.

6 On Friday 17 April 2009, the applicant contacted Emily through MSN Messenger. He stated that he was 17 years of age, although in fact he was 19 years old at the time. He then engaged in an online conversation using Windows Live Messenger. During the conversation, the applicant sent 'Emily' a pornographic image of an erect penis purporting to be his penis, two pornographic videos and a link to a pornographic website which he encouraged Emily to visit so she that could learn how to masturbate.

7 On 23 April 2009, the applicant and Emily were both online again. The applicant engaged Emily in a further sexual conversation in which he told her that he was 18 years of age. The applicant sent her a link to a pornographic website which he said would show her how to masturbate, and he sent her two photographs, of which one showed an erect penis purporting to be his penis. During the conversation, the applicant asked Emily about having sex with one of her friends, and whether she had any friends online that he could add to his list of Windows Live Messenger friends (Charge 1).

8 On the 23 April 2009, Emily sent the applicant the e-mail address of sunny_sarah_96@hotmail.com. That was the username of another online operative, First Constable Andrea Gardiner. Constable Gardiner portrayed Sarah as a 12 year old female named Sarah Dawson from Cannington, Western Australia.

9 On the same day, the applicant contacted Sarah while she was online using the sexyfitboy69er@hotmaiI.com username. Following a text based conversation, they engaged in an online conversation using Windows Live Messenger. During that conversation, the applicant sent Sarah a pornographic image of an erect penis purporting to be his penis. He asked Sarah if she had ever been 'fingered' and whether she wanted to be touched. The applicant told Sarah that she should try masturbating and that he had taught Emily to masturbate (Charge 2).

Sexual Penetration of a Child under 16 (Charges 3 - 5), Produce Child Pornography (Charge 6)

10 Charges 3, 4, 5 and 6 were state offences and related to a complainant, JG, who was 14 years of age at the time of the offending. By then the applicant was 21 years old.

11 The applicant and the complainant met online when the applicant sent a friend request to her Facebook account. They spoke online and via telephone. The conversations were often sexually explicit. The complainant's Facebook account displayed her date of birth as 16 August 1992 but the applicant was aware that the applicant's true age was 14.

12 The applicant and JG agreed to meet in person. They did so on three occasions between December 2010 and February 2011, and on each occasion had sexual intercourse.

13 Charges 3, 4 and 5 rolled up a number of offences according to the manner by which the applicant sexually penetrated JG on those occasions. Charge 3 related to four instances where the applicant penetrated JG's vagina with his penis. Charge 4 related to two occasions where the applicant penetrated JG's mouth with his penis. Charge 5 concerned two occasions where the applicant penetrated JG's vagina with his tongue. Charge 6 related to the applicant's use of a camera to record the sexual activity with JG on one of those occasions.

14 On the first occasion, the applicant met JG at a shopping centre and took her to a nearby Country Fire Authority station. He was a volunteer member and had access to the station which was unoccupied at the time. He took JG to the disabled to toilets and there had sex with her on the floor by penetrating her vagina with his penis. Those are the facts which comprised Charge 3, offence 1.

15 They then went into the meeting room where the applicant sat on a chair and he once again penetrated JG's vagina with his penis. They are the facts which comprised Charge 3, offence 2.

16 The second occasion was on 31 January 2011. The applicant collected JG from a 7Eleven store and drove her to his home. There he penetrated her vagina with his penis while in the bedroom. That comprised Charge 3, offence 3. He also penetrated JG's mouth with his penis, which comprised Charge 4, offence 1, and he penetrated her vagina with his tongue, which comprised Charge 5, offence 1. On the same day, the applicant recorded the sexual intercourse with JG with his Sony digital camera. That was Charge 6.

17 The third occasion was at JG's home in February 2011. There the applicant sexually penetrated JG's vagina with his penis while in her bedroom. That was Charge 3, offence 4. He also penetrated JG's mouth with his penis, that was Charge 4, offence 2, and penetrated her vagina with his tongue, which was Charge 5, offence 2.

18 At 7.20pm on 21 March 2011, police from the Sexual Crimes Squad in Melbourne, acting on information received from the Western Australian Police, executed a search warrant on the applicant's home. From there, they seized an HP laptop computer, computer tower, two mobile telephones and a Sony digital camera belonging to the applicant. Stored within those items were the following images:

(i) On the computer tower, an image of an erect penis, being the same image sent by the applicant to Emily on 17 and 23 April 2009;

(ii) On the Sony digital camera, four images depicting the complainant naked and a video film depicting JG and the complainant having sexual intercourse in the applicant's bedroom; and

(a) the images of Emily sent to the applicant by Senior Constable Narrier on 17 April 2009;

(b) the image of Sarah sent to the applicant by Constable Gardiner on 23 April 2009;

(d) a pornographic image of a naked female teenager;

(e) a pornographic video film of two teenage females performing sexual acts on each other; and

(f) a pornographic video film of a teenage female performing sex on a male.

19 Those are the acts and facts which comprised the offence of possess child pornography, the subject of Charge 7.

20 The applicant was interviewed on 21 March 2011 and he gave a further interview on 20 and 27 July 2011. During those interviews he admitted engaging in chat with girls online, having sex with JG, filming the sex with JG and possessing child pornography.

21 The first proposed ground of appeal alleges that the judge erred in rejecting the expert opinion of Mr Ian Joblin, a forensic psychologist, that there was 'no necessary strong link between the 'three sets of offences'. In that opinion, Mr Joblin stated that:

In is my opinion that there is no necessary strong link between these three sets of offences. It may be accommodating to indicate that the offences from Western Australia, any child pornography found and the offences with [JG] were interrelated. I have some difficulties with that from a psychological perspective. One difficulty relates to the dates as one notes that the Western Australia offences occurred in 2009. Mr Gibbs had adult pornography and child pornography prior to and over that time. Subsequently the offences of 2011 with [JG] occurred at a time when he was having problems in his relationship.

Having reviewed that in detail, in my opinion there is no automatic link between the offences at all. It is highly probable that the offence with [JG] would have occurred regardless of the other material. Further Mr Gibbs reported that the basis of the other offences ended well prior to the offences with Ms Griffiths. One would expect that had the offences been interrelated, then there [sic] would have been continued offences similar to those in Western Australia or there would have been more evidence of child pornography but that does not seem to be the case.

Indeed, from a review of the context of the offences it is apparent that each has a discreet individual context. It is, therefore, my opinion that it is extremely difficulty [sic] and perhaps inappropriate to link the seven charges from which he is before this Court.

22 In her sentencing remarks, the judge said that she allowed that the offences with JG could have occurred without previous offending but she said that, in her view, there was a link between the pornographic material which the applicant transmitted to the undercover police officers in Western Australia in 2009 and the child pornography which was found still to be in his possession two years later. As her Honour put it:

While I accept his opinion that the offences with JG could have occurred without the previous offending, I am no so sure that there is not a link between the three categories. In my view, there is a link between accessing the pornographic material which was transmitted to the police officers you then believed to be 12 year old girls, and the child pornography, including that material, which was still in your possession two years later.

Further, you initiated contact online with what you believed to be 12 year old girls when you were aged 19 (a [7] year difference) and you initiated contact online with a girl whose published and actual age was 14 when you were aged 21 (again a seven year difference). While the first category of offending could be considered to be sexual exploration in an immature young man, the third category of offending demonstrates a continuation of the illegal behaviour beyond an age and life experience for which sexual exploration would provide an explanation. You had the same girlfriend, of your own age, since you were 16.

...

As to Mr Joblin's opinion that you do not have a significant psychosocial disorder, as I have no other evidence or opinion before me, I cannot consider concluding that you do have a psychosocial disorder. However, I remain concerned that there is more to your offending that you being an immature young man.[1]

23 Her Honour went on to observe that the applicant had initiated contact online with what he believed to be 12yearold girls when he was aged 19 and that he had initiated contact online with a girl whose published and actual age was 14 when he was 21, two years later. Her Honour said that whilst the first category of offending could be considered to be sexual exploration in an immature young man, the third category of offending demonstrated a continuation of the illegal behaviour beyond an age and life experience for which sexual exploration would provide an explanation and particularly since, at the time, he had had the same girlfriend of his own age since he was 16.

24 The judge said that, as she had no other evidence or opinion before her to contradict Mr Joblin's opinion that the applicant did not have a significant psychosocial disorder, she could not consider concluding that the applicant did have a psychosocial disorder, but her Honour added that she remained concerned that there was more to the applicant's offending than merely being an immature young man.

25 The applicant complains that given that the Crown did not contest Mr Joblin's opinion on the plea or require him to attend for crossexamination, it was not open to the judge to reject the substance of Mr Joblin's opinion or to doubt that there was no psychosocial disorder.

26 Counsel for the Crown submitted that judge had not been guilty of any such error. He argued that it was apparent that the judge accepted Mr Joblin's opinion as far as it went - which is to say that there was no underlying psychosocial disorder or necessary link of a psychosocial kind - but that there plainly was a link between the email images which were sent to the police women in Western Australia in 2009 and those which were found on the applicant's computer when his home was searched in 2011. Indeed they were the same images together with the other images to which I have referred.

27 There was also a link, counsel submitted, to the extent that, just as in 2009, the applicant had sexually oriented conversations with young women whom he believed to be 12, when he was 19 in 2011. He had initiated online sexual activities with a woman whom he knew to the 14 when he was then 21.

28 Moreover, in counsel's submission, the judge was entitled to conclude, as she said that, although there was not evidence sufficient to ground a finding of underlying psychosocial disorder, or that the applicant would necessarily be influenced by such a condition to reoffend again, there was a risk which inhered in the fact that he had offended more than once, supported by a psychological assessment which concluded that he was at moderate risk of reoffending generally, that he might commit offences of the subject kind again and, therefore, that there was a need for specific deterrence and community protection.

29 There is considerable force in the submissions put by counsel on behalf of the Crown. Nevertheless, in my view it is reasonably arguable that the judge erred in not disclosing that she was not inclined to give Mr Joblin's opinion its full apparent affect. Although the judge was not bound to accept Mr Joblin's opinion,[2] this court has said repeatedly that:

... It is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of a fair opportunity to a party to correct or contradict any prejudicial or adverse finding which the judge may make unless the risk necessarily inheres in the issues to be decided.[3]

30 In my view, it was not necessarily inherent in the undisputed facts of this case that the judge would take a significantly qualified view of Mr Joblin's opinion, or in effect find that there was a significant connection between the three sets of offences. This is a case where, if the judge were disposed to reject Mr Joblin's opinion, I consider that it was incumbent on her Honour to inform defence counsel of her reservations and thereby afford counsel the opportunity to attempt to correct or contradict such a possible prejudicial adverse finding.

31 For reasons to which I shall come, however, I am not persuaded that any of the individual sentences, total effective sentence or non-parole period are in any way inappropriate and, consequently, I do not consider that there would be a reasonable prospect of this court imposing a less severe sentence by reason of Ground 1.

32 Under the heading of Ground 2, it was contended that the sentencing judge erred by imposing a term of imprisonment on charges 1, 2, 6 and 7. The applicant argued that, in view of the applicant's age at the time of offending and the absence of aggravating circumstances, such as a significant discrepancy in age of more than the seven years which separated the applicant and his victims or abuse of a position of trust or particular advantage being taken of a victim or the imposition of other harm, there was not here present any feature which it might reasonably be considered placed the gravity of the offending at a level sufficient to attract custodial sentence.

33 Counsel acknowledged, as he had to, that the judge wholly suspended the sentences imposed on charges 1 and 2 but he submitted that the imposition of the sentence of imprisonment, even wholly suspended, for those offences was in this case unduly severe.

34 Counsel also pointed to the fact that the judge accepted that the gravity of the offending involved in charges 6 and 7, which was the possession of pornography found in 2011, was at the lower end of the scale and he submitted that in those circumstances, sentences of imprisonment reflected improper rejection of Mr Joblin's opinion.

35 I do not accept those submissions. In my opinion it is not reasonably arguable that the wholly suspended sentence of imprisonment imposed on charges 1 and 2 were excessive. Despite the findings that they were acts of sexual exploration by a young man of 19 years of age, they were plainly acts of attempting to debauch 12yearold girls. In those circumstances, the sentences imposed appear to me to reflect a logical, reasoned synthesis of the objective gravity of the offending against the relative immaturity and consequent reduced moral culpability of the applicant.

36 The sentences imposed on charges 6 and 7 are not excessive either. As was said in DPP v Smith,[4] there are three principal considerations applicable to the sentencing of offenders for the possession of child pornography. The first is the nature and gravity of the offending which generally falls to be determined by reference to the nature and content of material, the number of images and the like. The second is general deterrence which, because of the public interest in stifling the provision and use of child pornography, is the paramount consideration. The third, which is really a corollary of the second, is that a sentence of imprisonment is ordinarily warranted albeit that there is sometimes some exceptions.

37 Although the offences comprised in charges 6 and 7 might have been towards the lower end of the scale, at least in terms of objective gravity, the importance of

general deterrence dictates that the individual sentences and orders for cumulation were well within the range. Although it was urged by counsel on behalf of the applicant that the applicant stood to be sentenced as a young man without prior convictions, the fact is that the offences comprised in charges 6 and 7 were offences for which the applicant stood to be sentenced in light of the previous offending comprised in charges 1, 2, 3, 4 and 5.

Ground 3 - Sentences on charges 3, 4 and 5 are excessive

38 Under Ground 3, it was contended that the sentences imposed on the offences the subject of charges 3, 4 and 5, being the three rolled up counts of sexual penetration of a child under 16, were excessive. In my view that proposition is untenable.

39 Finally, under Ground 4, it was said that the judge had erred in failing to be satisfied that there were exceptional circumstances such as would warrant the imposition of a wholly suspended sentence.

40 For the reasons already given, I do not think that ground to be reasonably arguable either.

43 The order of the Court is that the application for leave to appeal against sentence is dismissed.

[2] R v Hall (1988) 36 A Crim R 368, 371.

[3] R v Lowe [2009] VSCA 268, [20]; R v Fisher [2009] VSCA 100; (2009) 22 VR 343, [65]; R v Lowe ; Humphries v R [2010] VSCA 61, [10].

[4] [2010] VSCA 215, [23].