CRIMINAL LAW - Sentence - Particular Offences - offences against children - possess child pornography - act of indecency upon person between 10 and 16 years - sexual intercourse with person under 16 years - attempted sexual intercourse with a person under 16 years

SCC 254A of 2009; SCC 254B of 2009

1. Michael Gillard, you appear before me today to be sentenced to two series of offences.

The September 2011 convictions (SCC 254A of 2009)

2. In September 2011, a jury found you guilty in respect of a series of sexual offences against two complainants, sisters who I will refer to as DM and JM. In December 2011, you were sentenced to terms of imprisonment by Higgins CJ with respect to those offences.

3. You successfully appealed some of those convictions and fresh trials were ordered with respect to those offences; however, four convictions were affirmed and the sentences imposed by Higgins CJ were not interfered with. This creates a minor problem in sentencing you today, as when the appeals against the other charges were upheld, no formal order was made about the commencement date of one of these charges, being count 19 on the indictment in the proceedings before Higgins CJ. I am satisfied that I have the power to re-set the commencement date for this offence, and I note that neither the Crown nor your counsel has suggested otherwise.

4. You have now entered pleas of guilty to two of those charges, and the Crown will not proceed with the remainder of the charges. The charges to which you have now pleaded guilty are:

(a) one count alleging that, between 31 December 1998 and 27 January 1999, you committed an act of indecency in the presence of JM, without her consent, knowing she was not consenting or being reckless as to whether she was consenting (CC2009/3863); and

(b) one count that on 5 January 2000 you engaged in sexual intercourse with DM, without her consent, knowing she was not consenting or being reckless as to whether she was consenting (CC2009/3844).

5. The first of these offences carries a maximum penalty of five years' imprisonment while the second carries a maximum penalty of 12 years' imprisonment. When Higgins CJ sentenced you for those offences, he imposed a sentence of six months' imprisonment with respect to the first charge and a sentence of four years' imprisonment with respect to the second. An Agreed Statement of Facts has been provided with respect to these two charges to which you have entered pleas of guilty.

6. I will not recite these facts here, and it is sufficient to note that the charge of committing an act of indecency in the presence of JM without her consent was constituted by your act of engaging in an act of fellatio with DM while JM was in the same room and when JM was not consenting to you engaging in that conduct in her presence. At that time, DM was 18 and JM was 16. The offence of sexual intercourse with DM without her consent is constituted by you inserting a finger into the complainant's vagina without her consent.

7. Your pleas of guilty to these charges demonstrate a limited degree of remorse for your actions, but also have a utilitarian value. Your pleas may also indicate the beginning of an understanding of how your conduct has affected your victims. Your pleas, however, cannot be said to be early pleas. I would reduce the appropriate sentence by 15 per cent to reflect these pleas. Having said that, I would have started at a higher initial sentence than that imposed by Higgins CJ. He approached your sentencing on 2 December 2011 on the basis that you were a person of prior good character. The offences for which he sentenced you occurred in the period from late 1998 to early 1999. On 30 November 2011, you were convicted in a separate trial of two further sexual offences against JM which occurred in late December 1995 or early January 1996. I will refer to those charges in greater detail in a moment. It is therefore clear that you were not a person of prior good character at the time that you committed the offences for which you were sentenced by Higgins CJ on 2 December 2011. However, I accept that it would be inappropriate to impose a sentence of greater severity than that imposed by Higgins CJ, and accordingly I will reimpose the sentences that he imposed for those offences.

The November 2011 convictions (SCC 254B of 2009)

8. As noted above, you were also convicted by a jury on 30 November 2011 in a separate trial of two offences, being:

(a) one count alleging that, between 31 December 1995 and 30 January 1996, you committed an act of indecency upon JM, being a person under the age of 16 years (CC2009/3858); and

(b) one count that, between 31 December 1995 and 30 January 1996, you attempted to engage in sexual intercourse with JM, being a person under the age of 16 years (CC2009/3855).

9. With respect to these offences, I am satisfied that on a night during the period referred to in the indictment, you touched the complainant JM to the area of her vagina. That is the act of indecency of which you were convicted. The maximum penalty for that offence is 10 years' imprisonment.

10. You subsequently left the room where this occurred, went to the bathroom and then returned naked but wearing a condom on your erect penis. You then walked over to JM, grabbed her by the thighs and pulled her off the lounge where she was seated. You then spread her legs open, partially placed your body on top of hers and started rubbing your penis on her vagina. JM managed to extricate herself from this position and left the room. That is the offence of attempted sexual intercourse without consent. The maximum penalty for that offence is 14 years' imprisonment.

11. At the time of the events that constitute the November 2011 convictions, JM was 13 years old. You maintained pleas of not guilty to these charges, as you were entitled to do, and the appropriate sentences are not to be increased because you chose to maintain those pleas. You are not, however, entitled to the leniency that would have been shown to you had you entered pleas of guilty at an early time.

12. I am satisfied that you have demonstrated no remorse for the November 2011 convictions. Your conduct with respect to each of the offences was a gross breach of trust. You were a long-term friend of the complainants' parents who trusted you to protect and care for their daughters when they visited Canberra in order to spend some time with their disabled brother. You knew of the awful family tragedy which had resulted in permanent disability to the complainants' brother, and you knew that the complainants were keen to spend time with him. You threatened that they would no longer be able to come to Canberra to visit their brother if they told anybody what you had done to them. You cynically and evilly took advantage of the complainants' family tragedy and their love for their brother to sexually abuse them. Your moral culpability for these offences is extremely high. Victim Impact Statements were provided by both of your victims speaking of the lasting harm you have done to them through your offending.

13. A number of Pre Sentence Reports were tendered in the sentence hearing. You are currently 61 years old. You were an only child and you do not know your father. When you were six or seven years old, your mother formed another relationship but you apparently did not relate well to your stepfather. You do not have a continuing relationship with your mother. You were married in 1972 but you and your wife separated in 1975, at which time you joined the Army. You apparently reunited with your wife sometime later, but the relationship finally ended in April 1982.

14. You have three children by this relationship but I understand that you have little contact with them. You have a history of denial and minimisation with respect to your offending. In the most recent Pre Sentence Report you were assessed as a moderate to high risk of sexual reoffending, although that risk may be reduced if you engage in and complete the Adult Sex Offender Program in the Alexander Maconochie Centre (AMC), for which you have been assessed as suitable. You have not been subject to any disciplinary action in the AMC and you reportedly relate well to staff and other detainees in that institution.

15. It is a matter of concern that you continue to either deny your responsibility with respect to these offences, or to minimise that responsibility. It may be, as suggested by your counsel, that participation in the Adult Sex Offender Program will address this process of denial and minimisation. At the present time, it is difficult to describe you as having good prospects for rehabilitation, although I accept that rehabilitation remains a relevant sentencing consideration. The predominant sentencing considerations for these offences must be punishment and deterrence. Nothing less than immediate terms of imprisonment will be adequate to satisfy the requirements of sentencing for these offences.

16. I will start out by detailing the sentences that you are already serving by virtue of the orders made by Higgins CJ, but including a new commencement date for the sentence imposed for the offence of possession of child pornography, which was count 19 on the indictment before Higgins CJ. I will refer to these charges by the count numbers on the indictment that was before his Honour:

(a) on count 2, which is an act of indecency on a person under the age of 16, I note that his Honour imposed six months' imprisonment commencing on 2 December 2011 and expiring on 1 June 2012;

(b) on count 3, an act of indecency on a person under the age of 16, his Honour imposed a 12 month sentence of imprisonment commencing on 2 December 2011 and expiring on 1 December 2012.;

(c) on count 4, an act of indecency on a person aged under 16, his Honour imposed six months' imprisonment commencing on 2 December 2012 and expiring on 1 June 2013; and

(d) on count 19, a charge of possession of child pornography, his Honour imposed a sentence of three months' imprisonment, and I direct that that sentence commence on 2 June 2013 and expire on 1 September 2013.

17. I will now deal with the two charges to which you have pleaded guilty in the indictment dated 25 July 2014 in the proceedings SCC 254A of 2009, which relate to the September 2011 convictions from which you successfully appealed:.

(e) on count 2 (CC2009/3863), I record a conviction and you are sentenced to six months' imprisonment commencing on 2 September 2013 and expiring on 1 March 2014; and

(f) on count 3 (CC2009/3844), I record a conviction and you are sentenced to four years' imprisonment commencing on 2 March 2014 and expiring on 1 March 2018.

18. I will now deal with the two charges upon which you were found guilty by the jury on 30 November 2011 in proceedings SCC 254B of 2009:

(g) on count 1, I record a conviction and you are sentenced to 12 months' imprisonment commencing 2 September 2017 and expiring on 1 September 2018; and

(h) on count 2, I record a conviction and you are sentenced to four years' imprisonment commencing 2 September 2018 and expiring on 1 September 2022.

19. The effect of the sentences imposed by Higgins CJ on 2 December 2011 and by myself today is that you are liable to serve an aggregate term of imprisonment of 10 years and nine months. I set a non-parole period of seven years, commencing on 2 December 2011 and expiring on 1 December 2018.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.