DPP v Gardner

3 First, I need to set out the background to your offending.

4 In April 1977, another judge of this court sentenced you on 9 charges of indecently assaulting nine males aged under 16 years, to 5 years' imprisonment with a minimum sentence of 2 years[4].

5 Those offences occurred in the context of you being a scout leader in your late 30s; your much younger co-accused was assisting you with the troop. It is unclear from the transcript of the plea and sentence[5] exactly what the offending conduct was, but it appears to have involved "dacking"[6], which your counsel described as pulling down a person's pants. As it was conceded to be serious offending by counsel appearing for you in 1977, although also described as part of a game, and treated as serious offending by the sentencing judge, the actions of "dacking" may or may not have involved exposing genitals. This offending against nine boys under your care in the scout troop took place between 1974 and 1976, with most of the offences occurring in 1976. You had no previous convictions.

6 You were released from that prison sentence in August 1978. Although the first charge for which I am sentencing you, committed against your nephew Samuel[7], is alleged to have occurred on an occasion between 1977 and September 1979, the prosecution accept that you could not have committed the offence before your release date in August 1978. Further, while the dates in Charge 1 relate to Samuel being aged 10 - 12 years, in his statement[8], Samuel recalls the offence being committed when he was 12-13 years, which would make it between September 1979 - September 1981.

7 Because the exact date of the offending against Samuel is not known, the possibility exists that you re-offended in September 1978, immediately after your release from the prison sentence you received for sexual offences. However, the most favourable view is that you did not commit another sexual offence before September 1979, when Samuel turned 12, which is a year after your release. I take the view most favourable to you and sentence you on the basis that you committed Charge 1 at least a year after your release from the prison sentence you received for sexual offending against children.

8 Sexual offending against children is always serious. The fact that after your release you did sexually offend against a child again, not once, not twice, but three times, makes the crimes for which I am sentencing you even more serious. Even though the context and nature of the acts in the two sets of offending is different, both involve assaults of children in a sexual way when you were a trusted figure, and your experience of being charged and imprisoned would have made you well aware that to sexually molest any child was a serious crime which could lead to imprisonment.

9 I sentence you on the basis of the prosecution opening which was read out in court as an agreed summary.[9] I will outline your offending briefly.

10 Charge 1 is a charge of indecently assaulting a male under 16 years, relating to Samuel. He is the stepson of your wife's brother. Because this offence is subsequent to the sexual assaults committed by you in relation to the scout troop, the maximum sentence is 10 years' imprisonment.

11 Sometime after August 1978 and when Samuel was aged about 12, Samuel was at your home, which you shared with your wife. You and he were in the upstairs study area when you touched him on his penis on the outside of his clothes and asked him if he had "learned to play with that yet?". As I have explained, I sentence you on the basis that Samuel was aged about 12 and you were aged 40.

12 Charge 2 is a charge of indecently assaulting a girl under 16 years, relating to your niece, Jayne[10], who is Samuel's younger sister, and a stepdaughter of your wife's brother. This offence also has a maximum sentence of 10 years' imprisonment because it is subsequent to the previous sexual assaults on which you had been convicted.

13 On an occasion between February 1979 and February 1980, Jayne was at her grandparents' farm. Her grandparents were your parents-in-law. You were also at the farm on this occasion, and the two of you went for a walk. When you were positioned between two sheds, you pulled your penis out of your pants and asked Jayne to touch it. Your penis was erect. Jayne did as she was told, touched your penis and then pulled her hand away. You then told her to rub your penis, and she believes you had your hand on hers, making her rub your penis. Charge 2 is a rolled-up charge of these two indecent acts. Jayne was aged 10 years; you were aged 40 to 41.

14 Charge 3 is a charge of indecently assaulting a person under the age of 16 years, relating to your nephew, Raymond[11]. He is the biological son of your wife's brother, and Samuel and Jayne, along with an older sister of theirs, are his half-siblings. He also has a younger sister. The maximum sentence for this offence is 5 years' imprisonment. A change in the law before you committed this offence meant that your criminal history no longer operated to provide a higher maximum penalty for subsequent sexual offending against a child, unlike charges 1 and 2.

15 On Boxing Day, 26 December, 1983, Raymond was at his grandparents' farm along with other family members, including you. The two of you went for a walk. At one point, you stopped and approached Raymond from behind, putting your arms around him. You rubbed his groin for a couple of minutes. You then grabbed Raymond's hand and put it on your groin on the outside of your clothes and moved his hand around for about 10 seconds. Charge 3 is a rolled-up charge of these two indecent acts. Raymond was aged 11 years; you were aged 44.

16 I received victim impact statements from Samuel, Jayne and Raymond[12]. The prosecutor read out Jayne's statement in court in accordance with her wish. Samuel and Raymond did not want their statements read out in court. To protect their privacy as they wished, I will only refer in general terms to all three statements. However, I make it clear to each of them that I have carefully read their statements and take the impact on them very much into account in deciding the appropriate sentence.

17 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[13], and include future harm[14]. The courts have long recognised the dreadful impact on child victims of sexual offending. I quote from just one decision of the Victorian Court of Appeal which eloquently sets this out:

'It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve that that of the perpetrator. Frequently, the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.'[15]

18 All of these things apply to the lives of Samuel, Jayne and Raymond, ever since you sexually abused them. I add that in an effort to dull the pain you caused them, each has also suffered from drug or alcohol abuse and consequent mental health issues, each has suffered from a lack of trust in others, each has been estranged from their own and the extended family, each constantly lives with reminders of the trauma, and sadly, the next generation, their children, are also suffering the fallout from your abuse, through no fault of theirs, or their parent. As I will turn to later, you have rehabilitated yourself in that there is no suggestion of any sexual offending against children, or any offending at all, since the end of 1983, and since the offending you have led a productive life contributing to your community in significant ways. But Samuel, Jayne and Raymond have not been able to fulfil their life potential; their rehabilitation has been much more difficult to achieve than yours and is still a daily struggle for each of them to cope, 40 years on from your abuse of them. I do hope that with this sentence today closing this chapter, that there will be time to heal. I wish them well.

19 I want to say something more to Samuel, Jayne and Raymond, and to everyone in this extended family. It is not the fault of Samuel, Jayne or Raymond that you offended against them. It is your fault. It is not your nephews and niece who should feel guilty, ashamed and embarrassed. You are the one who has admitted you are guilty. You are the one who has caused this ripple effect on a number of families, your abuse of these children like a stone thrown into a still pond.

20 The crimes were committed by you against your nephews and niece when they were aged between 10 and 12. They were children. It is never, repeat, never, a child's fault when a sexual offence is perpetrated on them. The enormity of the betrayal of their trust when the sexual offences were committed by their uncle is not only a factor that makes each charge more serious but is fundamental to understanding why many children who are offended against do not tell.

21 The experience of the Royal Commission into Institutional Responses to Child Sexual Abuse was that the average time for a person to report sexual offences committed against them as a child is over 20 years[16]. Although the Commission was dealing with the institutional context, the burden of disclosure and the power dynamics with authority figures the Commission referred to are inherent in abusive familial relationships also. Some children grow up and never tell.

22 Raymond did speak up at the time, and it seems that no adult in the family considered the safety and protection of their children and asked questions of other children, or informed police, or encouraged you to re-engage with a psychiatrist. I well understand that 40 years ago, community understanding of child sexual abuse was very different to today. However, in this case, the community was your family, and your family knew you were a convicted sex offender in relation to children, and expert psychiatric evidence had been given in open court at your plea hearing in 1977 about what may stop further offending[17].

23 Despite this, it seems as if almost nothing was done by the adults in the family when Raymond bravely spoke up, other than to provide him with some counselling. That was an important first step, but the inaction thereafter, and the discovery by Samuel, Jayne and Raymond decades later of the abuse of each other has had a compounding effect on the trauma they suffered by your abuse. As a result of the adults' choices, it was not spoken of again by Raymond until 2018, almost 40 years later. This betrayal by the adults in the family has impacted significantly on each of Samuel, Jayne and Raymond, and should bear reflection by those adults who did not act as I think they should have. I need to point out however that in sentencing you, the inaction of other adults in the family is not something that I can consider as a factor making your offending more serious, despite its effect on the complainants.

24 To summarise, the features that make your offending serious examples of indecent assault of a child are:

• Next, the familial relationship between you and the complainants;

• Next, the difference in ages between you and the complainants (28 years, 31 years and 33 years respectively);

• Next, the exploitation by you of their vulnerability as children when you were alone with each of them;

• Next, the fact that the offending occurred in places in which they were entitled to feel safe - your own home, and their grandparents' farm;

• Next, charges 2 and 3 are rolled-up charges of two indecent acts you committed in each instance, and you were persistent in the offending in each of those two charges;

• Next, I am satisfied that the offences were committed for the purposes of you receiving sexual gratification when the opportunity presented itself; and

• Lastly, the fact that you offended again shortly after serving a term of imprisonment for sexual offending against children.

25 After assessment of all the relevant factors, including the facts that each offence was of relatively short duration and, for charges 1 and 3, involved touching over clothing, I nevertheless find the offending in all charges is serious, and your moral culpability was high.

26 To be weighed against this serious offending, there are a number of mitigating factors that I must take into account, as was pointed out by counsel on your behalf.

27 The first, and most important, of these is the fact that you pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your pleas, the community has been spared the time and cost of a trial. Further, you have spared the complainants from the ordeal of giving evidence at a trial, which is always important in a case of sexual offending, particularly against family members. However, as your plea was entered after the case was committed to this court for trial, you did not spare them from ever giving evidence, because they were cross examined at committal, and this significantly impacted on at least one of them. To the extent that your plea avoided them having to give evidence again, and in light of your indication of your intention to plead guilty after the committal following the withdrawal of more serious charges, and your current cognitive difficulties, I treat your plea of guilty as a sign of remorse. I also accept that your plea shows an acceptance of responsibility, and a willingness to facilitate justice.

28 I have been told something of your personal history and current circumstances, which I take into account. You are now aged 80, and other than your criminal offending between 1974 and 1983, have led a productive life and contributed to the wider community. You have a good work history, as a qualified plasterer and as a concreter, retiring at age 60. You have been married for 55 years to the woman you met when you were teenagers. She is the aunt of the complainants as I mentioned earlier. You are both pensioners and live in the home you owned until you became involved with Storm Financial and on their advice, re-mortgaged your home. That disastrous advice backfired when your loan became subject to margin calls during the global financial crisis, and 10 years later, your mortgage is still being paid by deductions from your pensions. You are concerned as to how your wife would cope with the payments and remain in your home if you are imprisoned. As I said at the beginning, you will not be going to prison today.

29 You have physical and cognitive difficulties and illnesses that reaching the age of 80 often brings. Your counsel described your physical health as currently stable, but it may deteriorate with increased stress. In summary, you have health issues involving your heart, prostate, and gall bladder as well as diabetes[18] and there are ongoing investigations into the possibility of lymphoma. With respect to your cognitive functioning, that has been assessed as being at a generalised low level, such that a neuropsychologist was of the opinion[19] that you did not meet all the criteria for being fit to stand trial. Despite this opinion, after discussion with your counsel on the day of the plea, I am satisfied that you were able to enter your plea of guilty in full knowledge of what that meant. I accept that your physical and mental health decline is a factor that would make a sentence of imprisonment more onerous for you, and also reduces the weight to be given to deterring you from offending and the current need to protect the community from you.

30 I accept that you have made significant contributions to the community over a long period, including to local shows and fairs, to the Filipino Australian Friendship Association of Geelong (for which you received a Community Service Award) and the Bellarine Historical Society. I take those contributions into account, although good character and good works carry less weight in cases of sexual offending. In your case, I accept the good character has been exhibited subsequent to your period of offending and shows your commitment to rehabilitating yourself.

31 In turning to an assessment of your prospects for rehabilitation, it is necessary for me to try and understand why you reoffended in 1978-1983, so soon after undergoing a prison sentence for sexual offending, and why you have not reoffended since then. The answer may lie in the evidence given by a psychiatrist to the court on your plea in 1977[20], which is highly relevant because his assessment and treatment of you is close in time to the offending for which I am sentencing you.

32 The psychiatrist, Dr Wood, gave evidence that at that time, you told him you had been married for 12 and a half years but had never been able to have sexual intercourse with your wife. Dr Wood described you as "a rather curious naïve character", and, "perhaps in some ways, rather simple". He said you did not seem to have a very strong sex drive, but after he provided you with what he described as, "fairly direct but simple instructions", you and your wife reported the next time you attended him that you had achieved intercourse and you were both very pleased.

33 As all of the victims of that earlier offending were males, Dr Wood gave his opinion that common sense dictated that you must have some homosexual drive, but that it was possible to have both heterosexual and homosexual drives, and that in his opinion, having seen you a number of times, the marital sexual relationship was progressing and, "[he hoped] that this would prove sufficient outlet for [your] sexual needs". He thought that once this pattern of heterosexual behaviour was established, he saw no reason why it should be directed into other channels. He gave the further opinion that at the time of the plea, as a result of those criminal proceedings, you were, "a very frightened and a much wiser man", but also in some ways much happier as the marriage was happier, and that although Dr Wood had further appointments with you, he did not think that you required any further treatment at that stage.

34 As it turned out, there was no immediate further treatment because you were imprisoned on that day in April 1977, and of course, there could be no progress in the marital sexual relationship during your imprisonment. While I was told by your counsel that you were assaulted on one occasion while in custody, and were otherwise a model prisoner, doing kitchen duties, there is no evidence before me of the effect on you of that period of imprisonment, as a deterrent or otherwise, nor evidence of the resumption of your sexual relationship with your wife on your release in August 1978. In response to a question from me on the day of the plea, your counsel informed me that your wife said that you did not return to Dr Wood for further treatment.

35 On the material I do have available to me, and with the hindsight that the distance of 40 years can bring, it is possible that because of the interruption in the progress of your marital sexual relationship by your imprisonment, after your release from prison, your marital sexual relationship remained difficult for a period of time, and the reoffending occurred in that context, but Dr Wood's prognosis ultimately came to pass, and, "once this pattern of heterosexual behaviour was established", there was, "no reason why it should be directed into other channels" and progress in your marital sexual relationship eventually proved, "sufficient outlet for [your] sexual needs" after 1983.

36 Accepting all this as possibility only, it does however provide an explanation for the intense period of opportunistic offending against 11 boys and a girl all known to you between 1974 and 1983, and no offending for the almost 40 years since. On the material before me, there is no other conclusion than to find that you have successfully rehabilitated yourself, whatever the reason or basis for it, and in combination with your advanced age and ill health I also find there is no risk of you committing such offences again, and no need now to protect the community from you.

37 The last matter that I take into account is the time that has passed since the offending against your nephews and niece. As I explained before, the law accepts that there are good reasons why a person, especially a child, will not immediately report a sexual offence being committed against them[21]. In the whole of the circumstances, while that period of time is not, in itself, a matter I take into account in mitigation, I have not ignored what has occurred since you committed the offences.

38 Your counsel submitted that in all the circumstances of this unusual case, but particularly the factors in your favour, I should find that there is an alternative to a sentence of imprisonment, and that a community correction order, with unpaid community work as the punishment element, is an appropriate outcome.

39 The prosecutor submitted that this was a difficult sentencing exercise because of the factors in mitigation weighed against the fact that this offending occurred with a highly relevant recent criminal history, but ultimately submitted that a community correction order, alone or in combination with a term of imprisonment not required to be served, was within the range of appropriate sentences in this case.

40 It was also pointed out to me by the prosecutor that, whatever the start date of the offending in charge 1, that offence, and the offending in charge 2, occurred while you were on parole, which was until about 1982. As a result, the provisions of the Sentencing Act apply to require that any sentence of imprisonment on those charges must be wholly cumulative on any other sentence of imprisonment unless exceptional circumstances exist[22]. The prosecutor conceded that such circumstances do exist in your case, and I agree.

41 In sentencing you, I take into account that deterrence, especially general deterrence, is of the utmost importance in cases involving sexual offending against children. That means that by my sentence of you the court must seek to deter other men from committing sexual offences against children. Further, the court must impose a sentence that is just in all the circumstances, and that reflects the community's abhorrence of sexual offending, particularly against children, with the grave breach of trust, and damaging effect on family relationships that is caused. These principles apply, no matter how long ago the offending occurred.[23]

42 I can only sentence you to a term of imprisonment if that is the only alternative open to me. You were assessed as suitable for a community correction order, but the assessing Community Corrections Officer did not recommend an unpaid work condition because of your age, and the unsuitability of work placement where children may be present. For all the reasons I have outlined, despite your general suitability for a community correction order, I do not think that there is an alternative to a term of imprisonment, primarily because of the serious nature of the sexual offending against children, with your relevant and immediately preceding criminal history.

43 I have taken into account that you are being sentenced at the age of 80, with significant physical and mental health issues associated with your age, as well as a concern for your wife's ability to remain in your home should your pension not be available to her. All of these factors would make imprisonment more burdensome for you.

44 Before I finally turn to the sentence, there are three further matters I must deal with. The first is that an application has been made for an intimate forensic sample to be taken from you and you have, through your lawyers, not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the sample that will then be taken is a blood sample and the police may use reasonable force to enable such a procedure to take place.

45 The second matter I need to deal with is that as a result of my sentence today, you become what is described as a registrable sex offender. You will be required within 7 days of today, to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. Because of your cognitive difficulties, I will not require you to sign the acknowledgment of receiving the document outlining your reporting obligations. I will provide that to your lawyer who will explain it to you. I do recommend that Mr Gardner's lawyers attend his first report to assist him and to provide the authorities with the relevant information as to his cognitive difficulties.

46 The third and final matter is that if you are sentenced as a serious sexual offender on charge 1, you are to be sentenced as a serious sexual offender on all charges. That means the protection of the community from you is the principal purpose for which sentence is imposed. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. However, the prosecution do not seek that, and I do not intend to do that, as I have found that there is no need for the community to be protected from you for the reasons I have outlined.

47 It is also necessary for the sentences I impose on all charges to be wholly cumulative unless I order otherwise, because of your status as a serious sex offender, and for charges 1 and 2 because they were committed while you were on parole. Because of the factors that operate in your favour that I have already outlined, I have decided to order some concurrency. In saying that, I have also had regard to the limits the serious sex offender sentencing regime generally places on the application of the principle of totality[24].

48 As I said at the beginning of these remarks, in all the circumstances, I have decided that I have no alternative to a sentence of imprisonment on all charges, despite the factors in mitigation, but I do propose to suspend the whole of the sentence.

51 On Charge 2: 2 years 6 months' imprisonment;

53 The sentence on charge 2 of 2 years 6 months' imprisonment is the base sentence. I direct that three months of the sentences imposed on charges 1 and 3 be cumulative on the sentence imposed on charge 2.

54 That makes a total effective sentence of 3 years' imprisonment. I direct that the whole of that sentence be suspended for 18 months.

55 So let me make it clear, Mr Gardner, although I have sentenced you to three years' imprisonment, that sentence will be suspended for 18 months and after that period of time, the sentence will be finished without you needing to go to gaol, unless certain things happen and I will tell you about that now. First of all, I need to make some other remarks.

56 I am satisfied that the sentence I have imposed adequately manifests the denunciation by the court of the offending conduct, provides adequate deterrence, and adequately reflects the gravity of the offending. I think there is no risk of the offender committing an offence punishable by imprisonment during the operational period of the sentence.

57 The purpose of imposing a sentence of imprisonment is to indicate how serious these offences are, and to act as a deterrent to others who may think to commit offences against children, that there may be no alternative to imprisonment even if not dealt with until decades after the offending. The purpose of suspending it is to recognise the circumstances that exist in this case, which may be characterised as strong and special circumstances.

58 Coming back to you Mr Gardner, in the next 18 months you must not commit another offence of any sort which is punishable by imprisonment. If you do, you will come back to court, and you may be ordered to serve some or all of the prison sentence that I have suspended today. Your lawyer will explain that to you again after I have finished.

59 Lastly, it is difficult to say what sentence I would have imposed if Mr Gardner had not pleaded guilty but had been found guilty after a trial at this time of his life, especially as two of the charges rolled up more than one indecent act. Doing the best I can, the sentence I would have imposed after a trial is 5 years' imprisonment, with a minimum of 12 months.

60 I was just checking, but I do not seem to have the 464ZF order. I think we have that in Chambers, do we? Yes, all right. So I will sign that in Chambers and have that emailed to the parties.

62 HER HONOUR: The reporting obligations can be handed down to Ms Foley.

63 MS SWADESIR: May I clarify two matters, Your Honour?

65 MS SWADESIR: So you said as to cumulation for the parole purposes, it was charges 2 and 3, I am just querying whether you mentioned that a serious sex offender, he is registered as a serious sex offender for all three charges?

68 HER HONOUR: I did make a note that I said that second, well I referred to it secondly, but I did not say it correctly the first time and I've got a note here to change that, so thank you for correcting that Ms Swadesir. So, he is sentenced as a serious sexual offender on all charges. Yes, thank you, I had that in error in the first place.

69 MS SWADESIR: The other matter I query, Your Honour, I understand that many many sentences are published on the County Court website and this one is to be anonymised. I query whether you would make a direction that the victims in this matter could receive a transcript of the sentence?

70 HER HONOUR: Of course, yes. They are not excluded from that. The publication of the proceedings with pseudonyms means that it is not offending the legislation and it is always my intention that the complainants should have access to the sentencing remarks, if they wish to do so.

71 MS SWADESIR: I expect they will take quite some comfort from the words you have spoken today, Your Honour.

72 HER HONOUR: All right. Thank you. No further orders required?

74 HER HONOUR: Ms Foley, you are able to explain those necessary matters to Mr Gardner?

76 HER HONOUR: All right, thank you. So, Mr Gardner can be released from the dock and I will leave court now. Thank you.

[1] Section 4 Judicial Proceedings Reports Act

[3] For reasons which appear below, this is a different period to that on the indictment.

[4] Exhibit C - the Criminal History records a minimum of 3 years, but the parties are agreed that the judge's sentencing remarks state 2 years, and the back of the presentment is endorsed with a 2 year minimum term.

[13] R v Clarkson [2011] VSCA 157; (2011) 32 VR 361, 368 [26], 371 [33]

[14] Adamson v R [2015] VSCA 194, [56]

[15] DPP v Toomey [2006] VSCA 90, [22]

[16] Final Report - Volume 4, Identifying and disclosing child sexual abuse - Royal Commission into Institutional Responses to Child Sexual Abuse

[23] DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59

[24] HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]