R v Gibbons[2013] QCA 201

SUPREME COURT OF QUEENSLAND

1. MUIR JA:  I agree with the reasons of Gotterson JA and with the orders proposed by him.

2. GOTTERSON JA:  On 8 February 2013, the applicant, Jason Mark Gibbons, was sentenced at the District Court Southport on pleas of guilty to some 12 counts and to several summary offences.  The counts fall into two categories.  Counts 1 to 10 on indictment 327 of 2012 arise out of a sexual relationship between the applicant and a female child when the latter was aged 14 and then 15 years old.  Counts 1 and 2 on indictment 409 of 2012 relate to separate assaults causing bodily harm each with a circumstance of aggravation.  It is convenient in these reasons to refer to them as Counts 11 and 12.  The summary offences involve wilful damage, obstructing a police officer in the execution of his duties and contravening a lawful direction.

3. Counts 1 to 10 were comprised of three counts of unlawfully and indecently dealing with a child under 16 years of age: Criminal Code s 210(1)(a); three counts of permitting himself to be indecently dealt with by a child under 16 years of age: Criminal Code s 210(1)(b); three counts of having unlawful carnal knowledge with a child under 16 years of age: Criminal Code s 215(1); and one count of sodomising a person under 18 years of age: Criminal Code s 208(1)(a).  Counts 11 and 12 each alleged offences against s 339(1) and (3) of the Criminal Code.

4. The applicant was sentenced to three years imprisonment for each of Counts 1 to 10, all terms to be served concurrently. A declaration was made that 275 days of pre-sentence custody be time already served.

5. For each of the two assault counts, the applicant was sentenced to 18 months imprisonment, those terms to be served concurrently with each other but cumulatively with the term of three years. A like declaration was made with respect to the pre-sentence custody. The parole eligibility date was fixed at the point at which the applicant will have served one-third of the combined sentences of three years and of 18 months.

6. The wilful damage and obstruction offences attracted a sentence of one month imprisonment each, these to be served concurrently with the 18 month sentence. A monetary fine was imposed for the other summary offence.  A knife used by the applicant to inflict wilful damage was the subject of a forfeiture order.

7. Some of the applicant’s offending breached a good behaviour bond which he had been required to give in respect of certain prior offending by him. The recognisance of $500 was forfeited and the applicant was ordered to pay that amount into court.

The application

8. By an application filed on 14 February 2013, the applicant has applied for leave to appeal against sentence. At the hearing of the application, his counsel indicated that the applicant wished to base his proposed appeal on two grounds, namely:

1. that the sentence for Counts 1 to 10 was manifestly excessive; and

2. that the application of the totality principle required that there be a moderation of the sentences overall which had not been undertaken.

Counsel confirmed that no issue was taken with the sentences for Counts 11 and 12 or with the penalties and sentences imposed in respect of the summary offences.

Circumstances of the offending

9. The applicant was born on 22 November 1984. In 2001, when he had just turned 17 years of age, he committed an offence of unlawful carnal knowledge against a 13 year old girl.  He thought that she was older.  The event was unplanned but opportunistic.  He pleaded guilty to the offence.  No conviction was recorded.  However, he was released upon the good behaviour bond to which I have referred.  Counts 1 and 2 occurred during the conditioned period of good behaviour.

10. The applicant met the complainant in late 2008 when he was 23 years of age and she was 14 years and nine months old. He was aware of her age and that she attended school. Later, they exchanged messages through a social media website and by texts. The offending, the subject of Counts 1 to 10, occurred on four separate occasions in which consensual sexual activity took place between them.

11. On the first occasion, the child went to the applicant’s apartment on his invitation. He had sent her a text message when she was at school. He led her into his bedroom and mutual kissing took place. He fondled the child’s vagina through her clothing (Count 1). At his request, she fellated him (Count 2). The applicant ejaculated.

12. On the second occasion, in mid November 2008, the child again went to the apartment from school on the applicant’s invitation. She fellated him (Count 3). The applicant digitally penetrated the child’s vagina (Count 4). He then engaged in consensual unprotected sexual intercourse with the child and withdrew before ejaculation (Count 5).

13. The third occasion occurred in late December 2008. The child again went to the applicant’s apartment upon invitation. Again, she fellated him (Count 6). He fondled and digitally penetrated her vagina (Count 7). The applicant engaged in consensual unprotected sexual intercourse with the child and withdrew before ejaculation (Count 8).

14. On the final occasion, in late March 2009, the applicant contacted the child to advise her of a change in his mobile phone number. They agreed to meet. She skipped school. Their rendezvous was near his workplace. He directed her to a toilet for disabled persons.  He told her to lean against the toilet and inserted his penis into her anus and he withdrew when she complained that it was hurting (Count 9).  The applicant again engaged in consensual unprotected sexual intercourse with the child and withdrew before ejaculation (Count 10).

15. The assault counts occurred several years later at a time when the applicant was on bail for the Counts 1 to 10 offences. The obstruction and contravention summary offences were also committed during this bail period.

16. Count 11 occurred in July 2011 at a time when the applicant was also the subject of an 18 month probation order which had been imposed upon him in August 2010 upon summary conviction on several fraud offences. In company with a friend, he assaulted a taxi driver who was driving him to a police station after an altercation concerning payment of a $20 taxi fare. The applicant wrapped his arm around the driver’s head and covered the driver’s eyes. The applicant pulled the seatbelt around the driver’s throat and punched him in the back of the head. Blows were exchanged between them outside the cab after the driver brought it to a stop.

17. The Count 12 assault occurred late in February 2012 when the applicant threatened with a 30 cm kitchen knife a prostitute whom he had called to his apartment but had refused to pay for the services that she had rendered to him. He then punched her in the left eye causing pain, dizziness and bleeding. She suffered a 3 cm superficial cut above her eye.

18. I now turn to consider each of the proposed grounds of appeal.

Manifestly excessive

19. Counsel for the applicant referred to several sentencing decisions for comparative purposes. He submitted that the one most factually comparable to the present is R v AS.^[1]  There, the offender was 39 years old when he committed offences against a 13 and then 14 year old child.  On one occasion, an offence of unlawful carnal knowledge and two offences of unlawful and indecent dealing were committed; and on another, there were two offences of unlawful and indecent dealing.  On the first occasion, both offender and complainant had consumed alcohol.  All sexual conduct between them was consensual.  The offender knew what he was doing was wrong and later expressed remorse.  His sentence of 12 months imprisonment was moderated by this Court on appeal by ordering that the term be suspended after six months for an operational period of two years.  The circumstances of the case were regarded by the learned judge who sentenced the offender as being “somewhat unusual” compared to the norm in that the complainant was very much a willing party and the offender was neither forcing himself upon her, nor threatening her, nor using his position to cajole her into committing such acts.^[2]  The learned sentencing judge considered that an appropriate head sentence for the unlawful carnal knowledge offence would have been 18 months which he discounted to 12 months to allow not only for the pleas of guilty but also for the offender’s lack of relevant convictions.

20. The applicant characterised three other cases referred to at sentence as being factually more serious than in his case. In one of them only, was a sentence of three years imprisonment imposed. In R v T; ex parte Attorney-General of Queensland^[3] the offender was 43 years old and the complainant 12 years and ten months old at the time of the offending.  He committed two offences of unlawful carnal knowledge with a circumstance of aggravation (under care) and two offences of unlawful and indecent dealing.  The offences occurred on two occasions when the complainant stayed for sleepovers with his daughter.  He gave the complainant alcohol and approached her on the first occasion.  She was very scared and froze.  On the second occasion, he entered the room in which she was sleeping and took her to his room.  The complainant did not disclose the first occasion because she was fearful that it would get her into trouble.  She told her mother eight days after the second occasion.  The learned judge who sentenced the offender proceeded on the basis that the complainant was emotionally scarred by the offences and that her consent amounted to no more than “putting up with what was occurring”.  This Court increased the sentences for the unlawful carnal knowledge offences from two years with a parole recommendation after eight months, to three years with no recommendation.

21. The other two cases were R v Carmichael and Armbruster^[4] and R v Richie ex-parte Attorney-General.^[5]  In Carmichael, the offender was 22 and then 23 years old at the time of the offending and the complainant 15 years of age.  A second complainant was 14 years of age.  Carmichael had no prior sexual offence convictions but was subject to nine months imprisonment wholly suspended for offences of entering premises and committing an indictable offence and of stealing.  The offences concerning the 15 year old girl were six of unlawful carnal knowledge and two of unlawful and indecent dealing.  Those concerning the 14 year old girl were one of unlawful and indecent dealing, one of exposing a child to indecent printed matter and one of making child exploitation material.  The older complainant was living on the street before moving into a caravan with Armbruster who became her de facto father.  Carmichael was also living there at the time.  The complainant described him as her boyfriend.  He was given a sentence of two years imprisonment for the unlawful carnal knowledge offences and a concurrent sentence of 12 months for the other offences.  They were cumulative upon the activated suspended imprisonment.  The sentences were suspended after 14 months.  This Court determined that having regard to the suspension, the sentences were “far from excessive, let alone manifestly excessive.”^[6]

22. In Richie, the offender was 31 years old.  He committed one offence of unlawful carnal knowledge against a 14 year old girl and two offences of unlawful and indecent dealing against a 13 year old girl.  The offender was a boarder in the younger girl’s home and the older girl was her friend.  The offender asked the older girl for sexual intercourse several times but she did not comply until the last occasion when both had taken alcohol.  The experience hurt the girl and she provided a victim impact statement detailing the dreadful impact of the offence upon her.  The offender also asked the younger girl for sex several times.  She refused but on one occasion he squeezed her breast outside her clothing and on another he rubbed her vaginal area outside her clothes.  On the second occasion she was “a little scared”.  The offender had an extensive criminal history including three sentences of suspended imprisonment.  He was sentenced to 12 months imprisonment wholly suspended for 18 months for the unlawful carnal knowledge offence.  This Court varied the sentence by requiring him to serve two months imprisonment before suspending the balance of it for an operational period of three years.

23. Counsel for the respondent made submissions with respect to these cases and also referred to R v Phillips.^[7]  There, the offender was 21 years old and the complainant 13 years of age.  The offending conduct concerned three episodes where the appellant had entered the bedroom of the slumbering complainant uninvited.  He had effected penile penetration of the complainant’s vagina on each occasion.  After a trial, he was convicted on three counts of unlawful carnal knowledge.  After intervention by this Court, the sentences were set at two years imprisonment for each count to be served concurrently.  Holmes JA observed that “the appellant and (the complainant) were more or less in the same social group through the medium of (a step-brother)”.^[8]

24. At the hearing of the application, counsel for the respondent submitted that the sentence imposed here for the sexual offences “represented a high sentence, but a high sentence still remaining within the appropriate range.”^[9]  He contended that of the authorities referred to, the most comparable are R v T and R v Phillips.  He submitted that there are several features of the applicant’s offending history overall which set his circumstances apart, even from those in these two authorities.  He identified the prior conviction for the index offence of unlawful carnal knowledge of a child as the most important of these features.^[10]  To my mind, this submission tends to place undue emphasis on the prior conviction given the applicant’s youth at the time, his mistaken belief that the child was of age, and the unplanned nature of the offending.

25. The learned sentencing judge regarded the applicant’s conduct as having an element of grooming to it.^[11]  What that may have entailed was not particularised; nor was it described by him as being of a deliberately calculated kind.  The applicant’s conduct in fostering the relationship with the complainant does have parallels with that of the offending in R v Carmichael.  It was reciprocated from the outset with a willing engagement on the complainant’s part in robust sexual activity.

26. Of the cases to which this Court was referred, R v T is the only instance in which a sentence of three years imprisonment for sexual offending was imposed.  I consider that the circumstances of that case are distinctly different from, and very considerably worse, than those in this case.  There, the gravity of the offending was compounded by a much greater difference in age, the position of trust reposed in the offender, the fear instilled in the complainant, and the emotional scarring sustained by her.  The present case cannot be regarded as attracting the same sentence range as was applicable for R v T.  The applicable range here did not extend to three years.  Hence, the sentence imposed for Counts 1 to 10 is manifestly excessive.

27. The circumstances in R v Phillips and R v Carmichael are comparable in terms of the frequency and degree of offending.  In both, the sentence for the unlawful carnal knowledge offending was set at two years imprisonment.  But for the aspects of the prior conviction and that Counts 1 and 2 were committed whilst the applicant was on a bond, a similar sentence might have been imposed here.  Those aspects, however, warrant reflection in the sentence that the applicant is to serve.  In my view, the appropriate sentence for Counts 1 to 10 is imprisonment for two and a half years.  I note that this is the head sentence for these counts for which the prosecution first contended at the sentence hearing.^[12]

The totality principle

28. The totality principle requires a sentencing court to review sentences proposed for several offences with an eye to the totality of the criminal behaviour they encompass and to ask itself whether the aggregate is just and appropriate.^[13]

29. Here, the question posed by the principle is whether the aggregate of the separate cumulative sentences of two and a half years for Counts 1 to 10 and eighteen months for Counts 11 and 12, in total four years imprisonment, is appropriate for the applicant’s offending overall. In my view, it clearly is. In particular, the assault offending was egregious; it was committed quite separately from the sexual offending. The separate punishment for it need stand undiminished. No moderation of the aggregate is called for in order to comply with the totality principle. This ground of appeal could not succeed.

Disposition

30. Consistently with these reasons, the applicant will be required to serve four years of imprisonment for all counts. Allowing for the pre-sentence custody for which declarations have already been made, the applicant’s parole eligibility date will become 8 September 2013.

Orders

31. I would propose the following orders:

1. Grant leave to appeal against sentence.

2. Allow the appeal against sentence.

3. Substitute a sentence of two and a half years imprisonment for the sentence of three years imprisonment for each of Counts 1 to 10 on indictment 327 of 2012.

4. With respect to the parole eligibility date substitute 8 September 2013 for 7 November 2013.

5. Otherwise confirm the orders imposed by the sentencing judge.

32. MULLINS J:  I agree with Gotterson JA.