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District Court 11 November 2011

R v Gillard

[2011] NSWDC 246

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL ASSAULTS (X4) STATE OFFENCES SERIOUS IMPACT UPON VICTIMS BABY SITTER

Citation: R v Gillard [2011] NSWDC 246
Court: District Court of New South Wales
Date: 11 November 2011
Judge(s): Nicholson SC DCJ

Background

The offender, a man aged 65 at the time of sentencing, had previously been sentenced in 2003 to eight years imprisonment (with a five-year non-parole period) for twelve charges of indecent acts against four boys in the Philippines. He was released to parole in July 2007 and, by all accounts, performed exemplarily on parole.

In June 2010, however, the offender was arrested for historical sexual offending that predated the Philippines convictions by many years. Between May 1984 and December 1988, he had acted as a babysitter to two brothers, SB and BB, insinuating himself into the family's domestic routine through a pattern of calculated trust-building before subjecting both boys to repeated sexual abuse.

The offender faced four charges before the District Court: two counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent against SB (then aged between ten and thirteen), and one count of sexual intercourse without consent against BB (then aged twelve). Three additional matters involving indecent acts on both boys were placed before the court on Form 1s to be taken into account on sentence.

  • What was the objective seriousness of the offences, having regard to the nature and pattern of the abuse?
  • How should the significant delay between the offending (1984 to 1988) and sentencing (2011) affect the sentence?
  • What weight should be given to the offender's demonstrated rehabilitation and age?
  • How should time already served in custody for the unrelated Philippines offending be factored into the sentence?
  • What discount applied for early pleas of guilty?
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence.
  • How the principles of totality applied across multiple offences sentenced together.

Decision

Nicholson SC DCJ assessed the objective criminality as serious. The offender had groomed a single-parent family over years, establishing himself as a trusted carer before abusing two young brothers across an extended period. The court found the offending was not opportunistic but represented a sustained pattern of predatory conduct, framed against a broader background that included the later Philippines offending.

The court considered the delay between offending and sentencing at length. Because the offences occurred in the 1980s, the sentencing regimes then applicable were relevant, though the court applied current sentencing principles. The court also acknowledged that the victims had lived with the consequences of the abuse for decades without any accountability being visited upon the offender during that time.

The offender's rehabilitation was treated as genuine and significant. He had responded well to programs during his earlier imprisonment, maintained a stable and supportive relationship with his partner, and shown consistent commitment to addressing his offending behaviour. His age of 65 and the time he had already served on the Philippines sentence were also weighed as part of the overall sentencing calculus.

A 25 per cent discount was applied across all counts to reflect the early pleas of guilty. The court found special circumstances existed, justifying adjustments to the standard non-parole period ratios, given the extended period of supervision the offender would require and his age and rehabilitation needs. All sentences were structured to run from 9 June 2010, the date the offender went into custody on arrest for the present charges, with substantial time served already credited against the terms.

Orders Made

  • Count relating to sexual assault of SB (representative of the most serious conduct): head sentence of 40.5 months, non-parole period of 21 months, commencing 9 June 2010 and expiring 8 March 2012, with the balance of sentence expiring 23 October 2013.
  • Two counts relating to fellatio upon SB (covering different periods): head sentence of three years each, non-parole period of 18 months each, commencing 9 June 2010, expiring 8 December 2011, with balances of term expiring 18 months later.
  • Count relating to sexual assault of BB: head sentence of three years and three months, non-parole period of one year and nine months, commencing 9 June 2010 and expiring 8 March 2012, with balance of term expiring 8 September 2013.
  • Charges taken into account on the Form 1s ordered to be withdrawn and dismissed pursuant to s 166 of the Criminal Procedure Act.
  • The Crown was directed to ensure victims were informed of the victims compensation provisions.

Key Takeaways

  • Historical child sexual assault sentencing requires the court to grapple with the sentencing framework applicable at the time of the offending, even where current principles are ultimately applied, and to assess the impact of substantial delay on the overall disposition.
  • A pattern of grooming, including insinuating oneself into family life as a trusted carer, constitutes an aggravating feature that elevates the objective seriousness of sexual offences against children.
  • Demonstrated rehabilitation, while significant, does not displace the primacy of community protection as a sentencing purpose in serious sexual offending cases; the District Court weighed these considerations alongside age and time already served.
  • Where an offender is already serving or has served a substantial sentence for unrelated offending, the sentencing court must apply totality principles carefully to ensure the overall outcome is not crushing, particularly where the offender is elderly and has made genuine rehabilitative progress.
  • An early plea of guilty attracted a 25 per cent discount across all counts, reflecting the utilitarian value of the pleas and the consequential benefit to the victims of being spared from giving evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- AJB v The Queen [2007] NSWCCA 51
- Bugmy v R [1990] HCA 18; (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 367
- Field v R (NSWCCA, unreported, 18 August 1988)
- Garman v R (NSWCCA, unreported, 9 March 1989)
- Harris v R (NSWCCA, unreported, 25 July 1987)
- Marwick v R (NSWCCA, unreported, 17 March 1983)
- Matthews v R (1991) 56 A Crim R 23
- McDonald (1990) 52 A Crim R 349
- Power v R [1974] HCA 26; (1974) 131 CLR 623
- R v Abookahled (CCA, unreported, 9 May 1991)
- R v MJR (2002) NSWLR 368
- R v Cuthbert [1967] 2 NSWR 329
- R v Hayes [1984] 1 NSWLR 740
- R v Rushby [1977] 1 NSWLR 597
- R v Shore (1992) 66 A Crim R 37
- R v Todd [1982] 2 NSWLR 517
- Ristevski (1989) 39 A Crim R 11
- The Queen v Gladue [1999] 1 SCR 688
- Wu v R [2011] NSWCCA 102