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[2011] NSWDC 246
District Court of NSW
2011-11-11
Original judgment source is linked above.
Sentence 1HIS HONOUR: On 5 March 2003 Judge Shillingford sentenced David John Gillard to an overall sentence of eight years imprisonment with a five year nonparole period for twelve charges of indecent acts with four boys. Those offences had occurred in the Republic of the Philippines. Five days later he was also sentenced, as best I can tell, by a Local Court to a twelve month fixed term for the possession of child pornography. It would appear that sentence ran concurrently with the sentences imposed by his Honour Judge Shillingford. 2The offences against the four Philippine boys occurred during a period May 1999 and April 2001. From my reading of the material before Judge Shillingford it is likely his Honour came to a view the charged offences were not isolated paedophile incidents in The Philippines. 3In July 2007 the offender was released to parole. There seems little doubt his conduct during and response to parole was exemplary. However, criminal offending from a deeper past caught up with him. In June 2010 he was arrested in respect of his sexually abusive conduct towards two brothers when babysitting them between May 1984 and December 1988. 4Today he is to be held accountable for two acts of sexual intercourse without consent and one of attempted sexual intercourse without consent upon or against one, SB, then aged between ten and thirteen. There is also a final charge of his having sexual intercourse with BB without his consent knowing that he was not consenting at a time when that boy was then aged twelve. 5I am asked to take into account three further matters that have been placed on two Forms1. The first Form 1 contains admissions of guilt in respect of two offences of committing indecent acts on SB during the same period. The other contains an admission of guilt in respect of an offence of committing an indecent act upon BB during that period. 6As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this Court committed by this offender harming these victims in their community; The Queen v Gladue [1999] 1SCR 688 [80]. My initial task requires an assessment of what is called the objective criminality of the offences before the Court. I will also need to have regard to matters personal to this offender, subjective matters they are called. The starting point for such assessment requires the sentencing judge to make findings of fact from the evidence before the court relating to the offences and to the offender. 7My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the court a judge is not a party to the agreed set of facts. The tender of agreed facts does not relieve the judge from his, in my case, fact finding responsibility, it simply limits the material from which the facts may be found. To the extent if it be the case that the facts as agreed do not reflect the actual events that occurred, it must be remembered the court can only find facts from the evidence placed before it. 8An unusual feature of this case is the delay between the offending conduct and the sentencing disposition. That delay which causes an impact will need assessing. The offender's rehabilitation prospects will have to be assessed even if looking through a glass darkly. 9Before any sentence can be made there are other technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality, the role of the Form 1 matters, the length of the parole periods and the non-parole periods and finally of course the ultimate term of imprisonment or other penalty to be imposed. None of those can be commenced until the primary facts are determined. 10What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined; see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740. FACTS 11Towards the end of 1981 the victims, SB aged seven and BB aged five, moved into Ravensworth Avenue, Airds, residing with their mother CB and their young sister KB. Some time in 1984 the mother met the offender, David Gillard, through a mutual friend who was receiving assistance from the offender. Soon after CB met the offender he offered to look after the boys and their sister on Thursday nights thereby allowing the mother to attend Campbelltown RSL Club to play bingo. 12Within a short period of time he commenced attending their home arriving between 6.30 and 7pm. He would drive the mother to the Campbelltown RSL with the victims and their sister in the vehicle. She was dropped off there. At this point the boys with their sister would attend Mawson Park with the offender where they would play in the park or attend the Time Zone amusement centre where he would give them money to play the machines. He never gave the sister any money. However, on some occasions the offender would buy lollies for the children at the supermarket. About 9pm on those nights he would take the children or the boys and their sister to their residence whilst the mother stayed at the Campbelltown RSL. It was during this time that the offender would subject the boys to a number of sexual assaults/acts. 13Sequence 1, sexual assault indecent act with person SB this is one of the Form 1 matters. On Thursday nights between 26 August 1984 and 26 August 1985, the offender attended the victim's home. In accordance with the routine established he took the mother to the Campbelltown RSL, the children to the Campbelltown Mall where he bought them lollies and then on to Time Zone amusement centre. After Time Zone he took the children to their home. At all relevant times the children were in his care. Shortly after they arrived home he said, "It's bed time". He put the sister to bed in her room. He told SB, "I will be back to read you a book", left the room and returned shortly. 14He sat on the bed with SB, reading him a book. Upon finishing the book he laid down on the bed next to SB. Both were fully clothed with SB lying with his back to the offender. The offender reached around unzipped the boys pants pulling out and exposing his penis. The boy sat up and the offender pulled out a ten dollar note handing it to his victim. The offender pulled out his own penis and began rubbing and masturbating SB with his left hand and his own penis with his right. The offender let go of SB's penis and grabbed the boy's hand taking it to his own penis. SB immediately pulled his hand away from the offender. The offender pulled out a handkerchief from his pockets and wiped what was described as something white and can only have been ejaculate, from his stomach and penis. He left the bed and gave SB another ten dollar note then left the room. 15The second offence occurred, this is one of the offences I am dealing with from the committal document, it is the first of those offences, again on a Thursday night between August 1984 and August 1985. Again the mother had been taken to the Campbelltown RSL. On this occasion the children were taken to Mawson Park where they played on a merry-go-round and subsequently went to McDonald's where they had dinner before returning to their home. Again the children were in his care. Again he put, it is said, SB into his sister's bed. 16The boy was lying down on the bed with the offender sitting next to him reading a book. The offender put the book down. At this point he was on the right side of the boy. The offender unzipped the boy's pants, took out and exposed the lad's penis. The offender commenced to masturbate the boy. He then pulled his own pants down and commenced to masturbate himself simultaneously with masturbating the boy. The child put a pillow over his head and then felt something warm on his penis. The child removed the pillow and looked up and saw the offender had his mouth on the child's penis. This caused SB to jump up in shock. The offender immediately pulled his pants up, took a twenty dollar note from the wallet and gave it to the child. He then left the room closing the door behind him. 17The next offence, sequence 3, is the second offence that the offender was committed for. Again it occurred on a Thursday night between 1984 and 1985. The routine was as before with the mother going to the Campbelltown RSL and the children with the offender to the Campbelltown Mall. Again they were bought lollies and taken to the Time Zone. After the Time Zone they were taken home. They were at all relevant times in the care of the offender. SB was aged ten at this time. 18The offender put the child to bed in his own room. Shortly the offender entered the room closing the door behind him. The boy was lying on his bed and the offender came over and gave him a twenty-dollar note. The offender removed the boy's jeans and underwear. He then removed his own trousers and underwear. He entered the bed with the boy still there and with his right hand began rubbing and masturbating the child. He said to the boy, "Roll over onto your side". The child rolled over facing away from the offender and the offender attempted to insert his penis into the child's anus. The child clenched up and the offender stopped. The offender said to the child, "Turn over and lay on your back" and the boy did as he was told. The offender commenced to masturbate the child with his left hand and himself with his right. He ejaculated on himself, cleaned himself with a hanky, dressed, gave the child a further ten dollars and left the room. 19From that point on the child was subject to numerous assaults by the offender where he would assault the child and regularly give him money once he had finished assaulting the child. 20The fourth offence occurs against the same child and this is offence number 3 on the committed offences. Between 1 August 1986 and 1 August 1987 SB was by this time aged twelve. The offender attended their home. It was either a Friday or a Saturday night. He took the children back to his home address in Moorebank. The drive from their home caused them to fear. At his own home there were no other persons present. After a short while SB was put into bed in a room of his own. He fell asleep and during the night he woke with the offender sucking his penis. Upon him waking the offender stopped, left the room and in the morning gave the boy a twenty dollar note. 21The final offence that is before the Court in respect of SB is the second offence on the Form 1. Between August 1984 and December 1988 in the same circumstances as SB the victim BB suffered similar assaults by the offender. The offender put the boy to bed on his own as he would not let the other brother be in the same room at the same time. The offender sat on the bed next to the boy and started to massage his stomach and then would lower his hand down to the groin area of the child. The offender removed the victim's pants and commenced rubbing and masturbating him. The offender then gave him money, which would be made up of coins and/or notes and said, "Let's keep this between us." 22The next offence, which is called offence number 6, is count 4 on the committal document. It is in respect of BB and it occurs on a Thursday night between August 1984 and December 1988. On at least two occasions the offender entered this child's room. There he removed the pants and underwear of the child and commenced to suck the boy's penis for about five minutes. This is said to happen on two occasions. I am in that sense dealing with that offence as a representative offence of two offences. 23The other matter is an offence numbered 7 which is the Form 1 offence. By this time BB had commenced high school. He was put to bed by the offender and the offender entered the room and placed his own penis in the hand of the child and said, "Play with it". The boy did as he was told for about five minutes but stopped after that. The offender said to the child, "Why did you stop for?" The child rolled over hoping the offender would leave and shortly he left. 24On 9 June 2010 the offender attended the Campbelltown Police Station, I understand by arrangement. He was placed under arrest and introduced to the custody manager. A short time later he participated in an electronically recorded interview. He made admissions to being a regular visitor to the family home of these folk during the stated period but at that time denied any sexual involvement with either boy. He was charged with the matters before the Court. OBJECTIVE CRIMINALITY
25From the facts as he finds them to be, a sentencing judge is required to assess what is called objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour undertaken by the offender. That is done by comparing objectively the criminality exhibited in the present cases with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome. 26The relevant provisions of the Crimes Act 1900 (NSW) create offences specifically designed to protect children from offending adults. The purpose of the sections is the protection of young children from a range of unwelcome sexual experiences while their physical, emotional and psychosexual development is patently immature and the power of imbalance between the child on the one hand and the adult grossly favours the adult. Although I am dealing with offences in an absence of consent, in some of the sections consent of the victim is no defence. That is to highlight the importance of the protection of children. The absence of consent of course makes the offences worse. 27Mr Justice Lee in describing what is called the jurisprudential philosophy behind the sections said this: "One begins with a proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledged in the legislature by providing for greater penalties when the victim is under sixteen years of age. That acknowledgement has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk from psychological upset, confusion and difficulties in later life caused by such conduct". 28These cases against these two boys are cases where there has been serious risk of and damage to the psychological equilibrium of both these boys, confusion and personal difficulties caused in their later lives. His Honour also made this observation highlighting the law's focus upon the power in-balance between adult males and younger children: "The law has always sought to protect young children against sexual predators, particularly adult men. The law recognises...when it comes to a case of an adult male past middle age tampering with" - and in his case his Honour was dealing with girls, in the case I am dealing with boys - "of twelve and thirteen years of age" - indeed of ten years of age in the case of SB - "the crimes become crimes of enormity", R v Zapella unreported NSWCCA 5 November 1991." 29The sexual encounters that I am dealing with were without the complainants' consent. The children submitted because of the offender's persistence and the tidal wave of power imbalance. The power of an adult put in authority over children illustrated not just the offender's decision to have intercourse but the expectation that this offender entertained that his demands and actions would be met with acceptance and without show of resistance. 3030.These offences are gross invasions of the young children's right to privacy and their right to healthy sexual development. It is clear from the agreed facts that even at their tender age they were still distressed by and unwilling to be involved. They represented breach of trust by the babysitter towards those in his charge. 31Both the victims were closer to ten, indeed SB was ten. Both victims were closer to ten than to sixteen when the sexual offending began. In respect of SB the offences I am dealing with were not the totality of sexual contact. In respect of BB the position is less clear. In his victim impact statement he makes it clear that there was significantly more offending than would appear from the agreed facts. 32The offender's payments, sometimes before and sometimes after and sometimes both before and after, are to be seen as part of an ongoing grooming process. The money was a reward for participating in the sexual conduct. Clearly a condition of that ongoing contact was an expectation of silence by the boys verbalised on one occasion with SB. 33There was a realisation by the offender his criminal conduct may have been impacting adversely upon his victims and a decision to continue because he believed no harm would be long term harm. Such a decision was callous. But it also represented a rationalisation by him to justify his behaviour and a refusal to face the reality of real deep seated long term harm upon the psychosexual development of these boys for purposes of his own sexual gratification. 34It is suggested by the Crown he occupied a "father" role towards these boys. While I accept his conduct was a serious breach of trust and made hypocrisy of his kindness to the mother, I reject that his role within the family ever amounted to that of a surrogate father. The evidence discloses the role of a regular babysitter who facilitated the mother's absence from the home. It is only in the last offence against SB that there is any suggestion of the boys leaving the home. 35The Crown submitted the offences were forced upon the children. It is important to identify the nature of force. It is not suggested any threat or physical menace was used or required. The nature of the force was the callous exercise of adult willpower, authority and influence to overcome the bewilderment, apprehension and uncertainty of the child. In fairness to the offender whenever rejection was expressed appears to have desisted. But rejection is a position that can be reached long after an absence of consent. Bewilderment, apprehension and uncertainty are hallmarks of an absence of juvenile consent. Rejection is an expressed and certain declaration of the absence of consent. A belief that a victim may not mind what I do does not constitute consent, but rather a rationalisation devoid of reality permitting a paedophile to swage his conscience while he gratifies his deviant sexual urges. 36Both parties regarded the attempted penetration of SB's anus as the worst of the offending. Certainly had the penetration succeeded there could be little doubt about the intrusion into the body of the boy would have constituted a far more serious offence then the fellatio performed upon him. One measure of criminality associated with attempts is the steps taken and the steps remaining to have completed the relevant offence. In this case the major steps of penetrating the anus still remained to be done. Consequently the duration of the offending conduct was cut short. No doubt the attempt created seriously heightened bewilderment, apprehension, fear, trauma and uncertainty. By contrast several minutes were spent fellating him on each occasion prolonging the alarm and confusion for a young SB. 37In accepting both parties submissions it should not be thought I am minimising the seriousness of the fellatio offences. In the cases involving the boy SB it should be recognised that the course of conduct appears to have run from 1984 to 1987. As earlier noted in the agreed facts it also appears more prolific than the offending against BB, although as I said earlier BB's victim impact statement a different conclusion would have been available. 38While it is not appropriate to seek to punish that offending when dealing with individual offences, that is the non-charged offending when dealing with the individual offences that have been charged, those individual offences do become aggravated because each, but for the first, is committed against a background that each falls into an ongoing course of conduct. The offending can be regarded as predatory in that the offender encouraged and facilitated the absence of the mother so that he could have sole access to the children for extended periods on a regular basis. Part of the power source exploited by the offender to perpetrate these offences was the authority vested in him by the mother as a responsible babysitter. 39These are not offences falling at the low end of the criminality spectrum, nor do they have characteristics that place them at the high end of the spectrum. The full gamut of criminal offending if viewed as a bell curve graded against measures of minimum to maximum penalty would present as a bell curve with the vast bulk of the bell curve to the left of the mid point of a five year penalty. Each of these offences I am dealing with would likely be located among the bulk of these offences falling just slightly to the left of that mid point of five years. VICTIM IMPACT STATEMENT'S 40I have received victim impact statements from each of the gentlemen who were once young boys. The material contained in the victim impact statement is not sworn evidence and has not been subject to crossexamination. To the extent that opinions are expressed in the statements I recognise they are not opinions of qualified experts. A victim impact statement coming as it does from the primary victim, may if I accept it is reliable provide some unsworn evidence as to the facts of the offences and their effect upon each of the children. 41The functions of statements such as these are firstly to give the victims an opportunity of being heard in the sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender. Secondly, they enable the sentencing proceedings hopefully to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender. Thirdly, they contribute to the offender at least hearing first hand and perhaps gaining an insight into the impact his offending conduct had upon the children, and finally, of course, they constitute a reminder to persons sitting in judicial positions such as myself of the impact that crime can have upon the ordinary men and women who are so frequently its victims. 42The first of the victim impact statements comprises two documents and they relate to SB. This is a form more than any that he has filled out or has had filled out for him. He speaks of the physical bodily harm, being heavy smoking due to anxiety. He speaks of the mental illness or nervous shock as being post-traumatic stress disorder as a victim of sexual abuse, paranoia, anxiety and panic disorder. He has a discharge summary from a mental health service, which constitutes the second part of what he wished to say. This is a letter from doctor who says: "Mr SB has been a patient of this practice for the past two years. He gives a history of childhood sexual abuse from the age of approximately eleven years inflicted upon him by an adult male. He is now thirty-five years of age and has been adversely affected by this experience. He suffers from severe panic and anxiety disorder and paranoid schizophrenia. He has extreme distrust of authoritarian males and cannot sustain a relationship that has adult males. He has held numerous jobs which he could not sustain as he was unable to deal with men in authority. His chances of maintaining a job to live a normal life are slim. He is now on a disability pension. He is paranoid of anyone encroaching into his space. He ventures out into public places only in the company of his wife who is also his carer. His relationship skills are poor and he is fairly isolated socially. He lacks confidence in himself and hates himself. As an inpatient and outpatient of psychiatric units he has been receiving continuous treatment in the form of counselling and psychotropic medication. This will continue for a large part of his life. He attributes his current state of mind and his life to the adverse events of abuse that robbed him of his childhood." 43In fairness to the offender I would have to say that in respect of the schizophrenic part of the paranoid schizophrenia, on the material before me I cannot be satisfied that is directly caused, but all of those other matters, the severe panic, the severe disorder and the paranoia, I can accept as coming from the repeated sexual abuse. 44The second is a narrative written by BB. He says: "I have fully prepared and written this statement myself. I am aware that this statement will be read out in Court and I have no objection to that. I would like to start by saying that this impact statement will not be lengthy in nature as there are not enough words to describe the impact this crime had upon my life. It is one of those things that unless you have experienced it, lived it, breathed it, nobody will ever fully understand the total impact on the individual and comprehend what it was like back then and what it continues to be like to this day. As a younger child I was typically trusting, honest, fun and outgoing. My family was my foundation, my rock, it was my safe haven. Our family home wasn't anything flash but it was where I felt safe and loved. I had good relationships with my mother, brother and sister. My father wasn't on the scene, but everything started to change the day I began to be a victim of a crime, a crime that would continue for many years, a crime that would change everything from that moment until this day. From the time I was little I had always dreamt of becoming a police officer. I was interested in my schooling and had good grades. I attended school regularly and got on well with my peers. Once again things changed. I began skipping school, I began not caring, my grades fell and I left school when I was fifteen years old and I have not furthered my education since then. Along with this my dreams of becoming a police officer were crushed. I also left my family home around the same time when I was fifteen years old. I had to get out. If this man kept coming into my house then I decided I had to get out, I had to try and protect myself from any further hurt. Obviously it was very difficult to be so independent at such a young age and it affected the good relationships I had with my mother and siblings. The day I left home, the day I got out, I thought I was free but I'm never free. Prior to leaving home and school whilst the crimes were being committed against me was very difficult, confusing and turbulent time for me both physically and mentally. I could not understand why these things were happening. I just knew it wasn't right and at the time due to my age mostly I didn't know how to put a stop to it. I was only a young boy. As I have grown up I now know that everything was sinisterly wrong. I felt dirty all the time. I had nightmares, I began to withdraw. I was scared. I was frightened. I started suffering from anxiety and panic attacks, although I didn't realise the actual name for these symptoms until I was older. I started to lose all trust in everybody. I started to get moody, depressed, another symptom I wasn't aware of until I was a lot older. But I can definitely look back and relate these emotions/symptoms as starting around the time of the crimes and worsening as the crimes kept repeating as the years went on. I started questioning my sexuality. I needed people around me all the time so I felt protected from him as a security I guess you could say. I didn't like to be left alone as it made me feel very vulnerable and I couldn't settle. Looking back I think I had the typical fight or flight response and I chose the flight option and I ran and kept running for many years only slowing and learning to settle in my late twenties. Upon leaving home and school I quickly formed relationships with many girls, as men were not to be trusted. At this stage of my life due to what happened to me I could not comprehend that love and sex were interlinked and this got me into a lot of trouble. I soon found myself welcoming a daughter at the age of seventeen. I wasn't ready but I also wasn't concerned at the time because consequences were not something I even gave a thought to. Not being able to settle until I was off again. In my mind if I didn't stay in one place too long then nobody could hurt me. I had to keep running so that I was safe. Another girl, a few more girls and I was welcoming my son shortly after. I never had relationships in the real sense with these women, as all sense of normality in these situations had been stripped off me. There was sex but never love as that was all I had experienced through the crimes that occurred. We live what we learn and what we are shown. Shortly after my son was born another daughter was on her way and then another son, all to different mothers as I was still running, still trying to protect myself. All this responsibility but I was still unable to settle. I can see now looking back that in trying to protect myself I was hurting others and doing long-term damage, but at that time I wasn't able to understand this. It wasn't also until my late twenties that I would unpack my belongings where I was living. I kept everything in boxes and lived out of them just in case someone tried to hurt me again or if I suddenly felt threatened. It was quicker and easier to run with all my life packed up in little boxes in front of me. Due to my lack of understanding of the relationship between love and sex, my life has long-term consequences. I'm doing the best I can now with the children I had with these women. However through my many years of what some would call promiscuous behaviour, I contracted genital herpes. This will also have an impact on me until the day I die, but also on the relationship I now have with my wife. During all these years I also suffered from everything I mentioned earlier, but around this time I also started suffering from flashbacks which felt so real, like I was back there and it was happening all over again. I could smell him. I could feel him. I could hear his breath over me. I have come to accept that I will have to cope with these flashbacks until the day I die. My life, now being in my mid thirties, is somewhat more settled. I am married with a child, the first conceived out of love. My wife was the first and only person I had ever told about these crimes prior to walking into my local police station. I had made many earlier attempts to report this but could never bring myself to actually walk through the doors of the police station as I knew this journey would be a very traumatic one. But with the support of my wife I finally did it, and with her help I am now able to settle into a home environment, unpack the boxes of my life and live my live with love, respect and integrity. Sometimes still it is not easy. I have very little male friends and of those I keep my distance, and these relationships are affected by my refusal to open up and get close to them. My life in general now I go to work, I look after our daughter and my wife's two children from her previous marriage. I talk to my mates mostly over the phone, we don't catch up often. All these years later I never put myself in a situation where I could be alone with one of my mates or any male regardless. I have a complete and utter disgust for gay men and cannot handle being around them, it sickens me. I still have periods for up to six months at a time, particularly after nightmares and flashbacks where I go off sex. This has a huge impact on both myself and my wife. I just can't explain it. I don't want to be touched or loved, I just want to be left alone to deal with things my way. I sometimes wake up in the night sweating, my heart rate is increased and I can see and feel him again. I can be out in public and hear somebody shout out the same name as his and I freeze and all the emotions come flooding back and it takes a while to suppress the thoughts and feelings and keep going on. Everything takes time, it will take time forever and I know it will take until my last breath until I am truly free of this man. I have problems with authority. I still suffer from the relentless emotional strain from it all as does my family and my wife to a degree. I trust nobody with my children and besides whilst I am at work they never leave my sight. In my eyes everybody is a potential abuser. In times I have depended upon alcohol as a means to cope when things get really tough emotionally for me. There is so much more I could write down and explain how this crime affected my life back then, now and in the future But I am going to leave it at that as this has been really painful for me to have to do. I wrote a draft out by hand which sat there for about a month before I asked my wife if she would be able to type it up for me as I wasn't able to do it. As it was, this impact statement was nearly late in its submission due to my lack of commitment to it, due to the strain it put upon me. It really does take you right back sitting down here and writing all this out. It's like I'm that young child, I am living at home, I'm attending school, these crimes are happening all over again and I am scared and I am frightened, it's almost too much to bear. The next few months in particular will be horrendous just having done this, having written it all down and knowing the final court date is approaching fast, then things will probably improve a little for a while and then it will be bad again, then things will probably improve a little again, it is a cycle that will continue for the rest of my life and I will never be completely free." SUBJECTIVE MATTERS 45That completes the reading of the victim impact statements. I turn now to the subjective matters relating to this offender. 46I am both entitled and required to do that. Not only am I sentencing for the criminal offences, but I am also sentencing this particular man for them. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into the commission of this offence by him or some reason why a more or a less sentencing outcome is appropriate. BACKGROUND, FAMILY AND RELATIONSHIPS 47David Gillard is now aged sixty-five. He is the eldest of four siblings. All his siblings are sisters. His was a difficult and dislocated upbringing. His mother was an alcoholic with mental health problems. She was committed to Bloomfield Hospital in Orange. His father was a soldier unable to care for the children, no doubt because of his deployment. He was fostered out to his aunt and uncle until aged twelve. By that time the father had re-married. There were tensions between the stepmother and son. He felt bullied by her. He left home and married his current wife in 1966. His first adult sexual experience was with her. Sexual intimacy apparently for him was enjoyable but infrequent. 48He disclosed sexual abuse of himself by an uncle to Ms Jenny Howell, a forensic psychologist in August 2011. This was something he had hinted at in March of 2003 to Dr Westmore when he complained that he was aged seven or eight when his uncle inappropriately rubbed himself against him on two occasions. He told Anita Duffey, a forensic psychologist also handling his situation in 2003, that whilst with his uncle and aunt they did not sleep together and he shared a bed with his uncle for a few years until his cousin moved out when he was given that person's bed. The offender claims his uncle interfered with him when he was about eight, the uncle rubbing his adult penis against the eight year old. It is likely this constitutes an under-reporting of the sexual activity of the uncle. 49Environmental factors such as described to Ms Duffy can be a very powerful learning experience of deviant adult behaviour and should be fully disclosed to therapists so that the therapists know exactly what background factors need to be addressed. I suspect that has not yet happened. 50The offender and his wife are practising Christians. She is supportive of him. He claims their relationship is stronger and more intimate than was the case prior to 1999 when he went to The Philippines. EDUCATION SKILLS AND WORK EXPERIENCE 51Notwithstanding early dislocation and departure from school, Gillard attained double degrees through distance learning. He completed the old Intermediate Certificate at Cleveland Street High School. Post secondary school he completed the Higher School Certificate. Then a Bachelor of Arts majoring in Psychology and Education from Macquarie University, followed by a Bachelor of Science in Applied Science with a major in Bio-Technology from Charles Sturt University. 52At the time of his marriage he was working in Australia Post where he remained for thirty-two years. He was used there in clerical type duties reaching an AO Grade 5 level. He took a redundancy package in 1998 then aged forty-three if my maths is correct. He worked at Wattyl Paints and later at Fauldings where he was employed at the time of his arrest in July of 2002. He did a number of self-betterment courses during his time in custody. GENERAL HEALTH 53The offender has had his share of general health issues. He was malnourished from the age of, I think, five at a time when he was living with his mother. He suffered from boils and sores when later taken to his aunt's. In the 1970s he suffered a pericarditis and was hospitalised for six weeks. There is no residual heart damage, recovery seems to have been full and complete. There was a venous malformation of the frontal lobes of the brain discovered in 1992. This required brain surgery to address the malformation. That resulted in slight cognitive and memory deficits. However the offender was able to return to Australia Post and gradually achieved fulltime employment there. DRUGS AND ALCOHOL 54Neither of these appears present as any issue for this offender. PSYCHOSEXUAL HISTORY 55The offender denied any prior sexual offending other than The Philippine offences to Ms Duffy in 2003. That is to say he did not disclose these offences I am dealing with to either Dr Westmore or Ms Duffy. It is likely he minimised the extent of sexual contact between his uncle and he prior to puberty and his attitude to that sexual contact. In those circumstances the assessment of his likelihood of re-offending by those two expert witnesses is likely to have been more favourable than it otherwise should have been. 56Ms Duffy recorded some psychosexual cognitive distortions, justifications and rationalisations placing him in the higher range. Dr Westmore's opinion was that Mr Gillard is likely to maintain a lifelong sexual attraction towards children, specifically prepubescent males although he may have a capacity to contain and control the sexual urges and impulses which arise from his paedophilia. For my own part I note the coincidence between his interest in prepubescent males and his own time of sexual abuse. It is also important however to note his interest in these two boys who were passing through puberty when he was abusing them. That fact appears contrary to the history he gave to Dr Westmore. CHARACTER AND CRIMINAL HISTORY 57At the time of this offending the offender had no prior criminal conviction. Had the matters been dealt with in 1989 he would have come to the Court as a person of prior good character. There has been offending since these offences. The only real relevance of that subsequent offending is the insight it gives into his level of contrition for these offences and his prospects of rehabilitation. This inclination to assess negatively his rehabilitation prospects must be checked by his attitude as demonstrated in circumstances of his last incarceration to progress his rehabilitation as best he could without full disclosure of these offences and other matters I have referred to. 58He has committed to the Christian religion, although his offending conduct can only have happened in the light of a substantial suppression of the moral limits put upon Christian behaviour. There is no reason to doubt the sincerity of his desire to improve the lot of the Filipinos when he first volunteered for mission work. Regrettably it would appear his continual attendance in The Philippines was not so idealistically motivated. 59He has shown courage and determination in achieving the education standards he has attained. He has an excellent work ethic until his last incarceration. He appears to have handled his prior incarceration and indeed his present incarceration with realism and some dignity. He made effective use of the scant rehabilitation opportunities gaol life offers. ATTITUDE TO THIS OFFENDING CONDUCT 60There was no requirement for him to disclose these past offences. However, the reality is he went further, he denied them initially to Ms Duffy and later to police. Nor did he disclose them to those who were assessing his psychosexual profile. These are all matters that come into play when assessing the depth of his contrition. 61Having been charged with the offences he has adopted a more pragmatic and realistic attitude. He has readily acknowledged his guilt, accepted full responsibility for his offending and in so doing he has spared his victims the torment and trauma of publicly identifying in detail his disgusting conduct towards them. The other positive measure of his contrition is the effort, and a strong effort it must be acknowledged, into his rehabilitation. REHABILITATION PROSPECTS 62The offender self assesses his chances of re-offending as extremely low. He acknowledges he cannot guarantee he will not re-offend because of the nature of the offence. But he has put in place a number of strategies to minimise the chances of re-offending. These include:
CONCURRENT OR CUMMULATIVE 74The Crown sought partially cumulative sentences. Technically such an approach may have been correct if sentencing in the late 1980s or early 1990s. But this offender returned to custody during a parole period for the Philippine offences. When sentencing this distance from the offending conduct the primary aims of the sentencing exercise are to address what I might call the core purposes of sentencing without undue regard for technical precision. Those core purposes relate to denunciation of criminal conduct, holding an offender accountable by punishment and the requirement that he confirm and ensure his rehabilitation and finally the protection of the community from further offending by him. For this reason all sentences will be concurrent.
SENTENCING 75As I said at the outset there are four sentences before me. Three relate to SB and one relates to BB. You are convicted of all of those offences. There are two Form 1s. One in relation to further offending against SB. I will take that into account when sentencing for the attempted anal intercourse offence. In respect of the second Form 1 I will take that into account when sentencing for the offence against BB. 76The first offence that I am going to sentence you for is the second offence against SB. This is an offence which is said to have occurred between 26 August 1984 and the same date 1985 at Airds and you are being sentenced for attempting to have sexual intercourse with SB without his consent knowing that SB had not consented to your attempted sexual intercourse. I take also into account the matters on the Form 1. But for your plea of guilty I would have set a sentence of four and a half years imprisonment. I have discounted that by twenty-five per cent, resulting in an overall discount of thirteen and a half months. The overall sentence becomes one of forty and a half months. In respect of that offence I set a non-parole period of twenty-one months, that is one year and nine months to commence, on my maths, on 9 June 2010 when you went into custody and to expire, if I am correct, on 8 March 2012, with the rest of the sentence expiring 23 October 2013, I think. 77In respect of the other two offences, but for your plea of guilty I would have set a sentence of four years. That has been reduced by one year to make a total sentence of three years. In respect of each of those the first said to have occurred between those same dates, that is the first year August 1984 to August 1985 and that was fellatio upon SB and the other was also fellatio and that was between August 1986 and August 1987 at Moorebank. In respect of that I set a non-parole period of eighteen months to date from 9 June 2010 and to expire on 8 December 2011 and the balance of term to expire eighteen months later. 78In respect of the offending against BB which is in a much wider time frame, and I am only dealing remember with one offence between 26 August 1984 and 31 December 1988 as I said earlier one offence taking it as representative of two and the Form 1, I would have set a sentence of four years and four months. It is likewise discounted by twenty-five per cent on account of your early plea and it becomes a sentence of three years and three months. In respect of that I also set a non-parole period of one year and nine months to commence from 9 June 2010 and expire on 8 March 2012 and a balance of term of eighteen months to expire on 8 September 2013, if my maths is correct. They are all subject to my mathematics. 79HIS HONOUR: Mr Crown you should make sure that the victims know of the compensation to victims of crimes provisions. 80KO: I'll give them that information. Your Honour some charges were on a s 166 certificate but now they've been taken into account on the Form 1. If your Honour just makes orders that those charges that have been taken into account on the Form 1 be withdrawn and dismissed. 81HIS HONOUR: Yes pursuant to 166 of the Criminal Procedure Act, the charges, which have been acknowledged on the Form 1s are to be withdrawn by the prosecution.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2013
R
Gillard
(1990) 169 CLR 525
(1984) 58 ALJR 367
(1974) 131 CLR 623