Director of Public Prosecutions v Gillespie (a pseudonym)

[2015] VCC 1023

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUCILLE GILLESPIE (A pseudonym)

---

JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 July 2015
CASE MAY BE CITED AS:	DPP v Gillespie (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1023

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms J. Piggott
For the Accused	Ms R. Haylock

HER HONOUR:

1Lucille Gillespie[1], you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16.  The maximum penalty for that offence is 25 years' imprisonment.  The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A.  The period covered by the charge is between 1 April 2012 and 6 May 2014.  The complainant was 12 years old when the offending commenced and he was 14 years old when the offending ceased.  You are 24 years older than him.  During the time of this offending you were married with three children. 

[1] Lucille Gillespie is a pseudonym.

2In 2010 the complainant began a friendship with your daughter who was about the same age.  Towards the end of 2011 you began taking the complainant to school.  This arose because the complainant's mother had become friendly with you as a result of her son's friendship with your daughter.  The complainant's mother had to start work early so an arrangement was made whereby you would drive the complainant to school.  You and the complainant became very close.

3In 2011 you commenced a sexual relationship with the complainant.  He was 12 years old and you were 36 years old.  He says that you had sexual intercourse about once a week, more than 20 times, and never used condoms.  There are three specific occasions which are particularised in the charge to which you have pleaded guilty.  The first occasion was when he was 12 years old and in Year 7 at your home.  The second occasion was when you and the complainant had sexual intercourse in your old car.  This occurred on a day in school holidays whilst the complainant was in Year 8.  The third occasion is the occasion which resulted in the conception of your baby daughter, who was born in May 2014.  The complainant says that you had told him that you were pregnant and thought the baby was his.  DNA evidence provides extremely strong support for the complainant being your daughter's father.

4Your offending came to light in the following circumstances.  You and your husband separated in January 2013.  On 6 May 2014 you gave birth to your daughter.  The complainant's mother came to hospital to support you.  In June or July 2014 the complainant's mother was advised that there had been a notification to the Department of Human Services in respect of some type of relationship between you and the complainant.  She asked you if your baby was the complainant's baby.  You denied that. 

5In August 2014 a police investigation was commenced.  Police spoke to the complainant who did not disclose any offences.  There were further discussions within the complainant's family.  You consented to DNA samples being taken from you and your baby.  On the same day you went to the complainant's home and spoke to him in the car for about 20 minutes.  After that, the complainant told his mother there was a chance that he was your daughter's father.  The complainant's mother's partner went to your house and spoke to you about contacting the police.  You agreed to attend the police station with him.  You said you had come about the possibility that the complainant was the father of your baby.  You were arrested then.

6On 28 August 2014 the police again spoke with the complainant who made a recorded statement about what had occurred between you and him. 

7You were charged on 19 December 2014.  On 26 March 2015 the committal proceeded by way of straight hand‑up‑brief with you pleading guilty to a charge of persistent sexual abuse of a child under the age of 16. 

8You have no prior convictions and there are no matters pending. 

9The complainant has not made a victim impact statement. His mother provided a victim impact statement, part of which she read during the plea hearing.  In her victim impact statement the complainant's mother explains how your relationship with the complainant has affected him and their family.  It is clear that the complainant's daughter is regarded very much as part of their family.  The complainant's mother describes his childhood as having been taken away and the difficulties he has had in adjusting to fatherhood and to what has happened to him.  The complainant's mother describes very distressing incidents that have occurred since the police became involved.  The situation clearly has had an adverse impact on the complainant's mother and sister.  It has also caused difficulties in the complainant's mother's relationship.  It is clear that despite her difficulties and feelings of betrayal, the complainant's mother is doing her best to support her son and granddaughter.

10It is clear that the complainant was suffering from some difficulties prior to the commencement of your relationship.  For that reason I cannot conclude that all of his current state is due to your offending.  But it is clear that he was a vulnerable child and what you did, including getting pregnant and having a daughter, has made his situation considerably more complicated, difficult, and distressing.  It is clear from the reports of a psychologist attached to the victim impact statement that your offending has caused anger and confusion for the complainant and a deterioration in his relationship with his mother.  The psychologist describes potential harm that may arise in the future for the complainant but says that there is positive progress for the complainant, whose situation has improved with counselling.

11In sentencing you I have taken into account your personal history which was set out by your counsel in the Outline of Submissions for Plea, Exhibit 1, and the psychological report from Professor James Ogloff, dated 23 June 2015, Exhibit 2.  You are now 40 years old.  You were born in South Australia and your parents still live there.  You suffered some abuse as a child by your maternal uncle.  You undertook psychological counselling in relation to that in 2000.  You completed high school and then commenced a visual arts course.  You had been an officer in the Army Cadets.  You met your ex-husband through Cadets whilst you were still at school.  You married in July 1996.  At that time you were living in Queensland.  You continued to study but did not complete your course as you became pregnant with your son who is now 18.  He lives independently.  Your 16 year old daughter and 7 year old daughter have lived with their father since November 2014 as a result of you surrendering care of them to him.  You have not seen your daughters since March 2015.

12After moving to Victoria in 2000 you obtained qualifications and worked as a personal care assistant.  You have said that you and your then husband were experiencing emotional difficulties in your marriage in 2011 when he began working in Canberra.  There are currently family law dispute issues concerning property matters between you and your ex-husband.  Your baby daughter has been living with you, although she has had flexible contact arrangements with the complainant and his mother.  You have a new partner who was present in court to support you, as were a number of your family and friends.

13In sentencing submissions your counsel conceded that aggravating factors were present in the offending, including the disparity in age and breach of trust.  Your counsel relied on a number of matters in mitigation of sentence including your remorse, your prospects of rehabilitation and lack of "any appreciable risk for re-offending sexually", your plea of guilty, your lack of prior criminal history, the application of Verdins principles in respect of the impact of the difficulties you will face in prison given your mental health and the impact of separation from your daughter on you. 

14Your counsel submitted that specific deterrence ought not be given weight in sentencing you.  Your counsel relied on Professor Ogloff's opinion that you did not suffer from a paedophilic disorder and were unlikely to offend again.  Your counsel submitted that an appropriate sentencing disposition would be a Community Correction Order, relying on the decision of the Court of Appeal in Boulton v The Queen [2014] VSCA 342.  Alternatively, your counsel submitted that an order combining a term of imprisonment with a Community Correction Order could be considered. 

15Your counsel placed considerable reliance on the contents of Professor Ogloff's report.  Professor Ogloff said you did not currently meet a diagnosis of major depression but would meet the criteria for a depressive disorder.  This is characterised by a low grade chronic depression of symptoms.  He says that you also have a tendency towards anxiety and are clearly distressed by your present situation.  He says you do not present with the symptoms of any major mental illness. 

16Professor Ogloff in his report addresses the difficult area of the motivation for your offending.  You are a person of prior good character who appears to have been well-regarded by others and a supportive and caring parent.  Despite that, you failed to recognise that your feelings for the complainant were completely inappropriate.  You commenced and continued an abusive sexual relationship.  Professor Ogloff says at paragraph 82: "Experience and research shows that some male victims of sexual offending by females do not perceive the behaviour initially as abuse.  As such, they may not resist the sexual offending.  This makes it even more important for adults to maintain strict boundaries.  Because of her own desperation brought about by her emotional state, emotional and physical needs, Ms Gillespie appears to have entered into and continued the sexual relationship with the victim."

17Professor Ogloff says at paragraph 88: "In conclusion Ms Gillespie appears to be a prosocial and rather naïve woman who proceeded to engage in offending in a context of meeting her own emotional and physical needs.  I believe the progression from carer/nurturer to sexual offender was not intentional, predatory or driven by deviant sexual desire."  He says that you downplayed the behaviour even to yourself and the true consequences of your behaviour.

18Professor Ogloff says at paragraph 84 in relation to the risk of you re-offending: "Ms Gillespie's behaviour, the characteristics of the offending and her motivation appears to fall into the category of heterosexual nurturer.  Female sexual offenders in this category are typically in their 30s and abuse boys on average age 12 years.  The motivation for the sexual offending arises out of the displacement of feelings of care and nurturing that develop into sexual behaviour.  Typically, this group of female sexual offenders have rates of sexual re-offending that are even lower than the average recidivism rates of 1 percent to 3 percent."

19Professor Ogloff does not believe that treatment for sexual offending in itself would be indicated, rather he suggests that you would benefit from continuing psychological treatment to cope with depression, anxiety and stress.  Professor Ogloff says you appear to be full of regret for your behaviour and that you do not attempt to minimise your offending.  You presented as ashamed and guilty-ridden and very concerned about the impact of your offending on your children and the complainant.  Professor Ogloff is of the opinion that your mental health needs could be addressed in prison.  He suggests that your personality and background are likely to make imprisonment more difficult for you.  Professor Ogloff also says that you would be expected to experience difficulties in prison given your generally naïve and prosocial disposition.  Professor Ogloff says that incarceration and the separation from your daughter would in all likelihood exacerbate your mental health symptoms. 

20The prosecutor in sentencing submissions referred to some cases involving similar offending, although not identical offending.  The prosecutor submitted that there were a number of factors which made your offending very serious, including the period of time over which it occurred, the age of the complainant, the disparity in age, the vulnerability of the complainant and your awareness of that, your ignoring of the attempts by your ex-husband to bring your inappropriate conduct to attention and your somewhat blatant behaviour in front of your children.  The prosecutor also referred to the fact that a condom had not been used, resulting in your pregnancy, as an aggravating feature.  The prosecutor submitted that given your background and educational level, it was incredible that you were not aware of the risk of pregnancy. 

21The prosecutor described your offending as an extreme abuse of your position of trust and friendship in relation to the complainant and his mother.  The prosecutor accepted that this was a case where specific deterrence would not loom large.  She submitted that general deterrence was a very important factor in this case.  The prosecutor submitted that you had a high degree of moral culpability.  She submitted that the harm caused by your offending to the complainant and his family and your family was huge.  The prosecutor submitted that a sentence was required in order to protect children from themselves and those who are in a position to take advantage of them.  The prosecutor submitted that there may be some application in respect of Verdins principles in terms of jail being more difficult for you or incarceration worsening your mental health situation.  The prosecutor submitted that it should be taken into account that it should be taken into account that this would be your first time in prison.  The prosecutor said she would follow up whether you would be in protective custody. 

22Lucille Gillespie, your offending is very serious.  The maximum penalty reflects the seriousness with which Parliament, on behalf of the community, regards this type of offending.  The protection of children is an extremely important matter and the child sex offence provisions are designed to protect children against those who would exploit their vulnerability and also against their own decisions.  An adult who engages a child between 12 and 14 in a sexual relationship over a period of two years behaves in a way that is abhorrent and shocking.  Such behaviour must be strongly denounced.  It must be made clear that severe punishment will be imposed on those who offend in this way in order to deter others from giving way to their impulses.  I consider that your moral culpability was very high.  You are much older than the complainant.  You were in a position of trust and friendship in relation to him and his family.  He was also a friend of your daughter.  You abused all of their trust.  You ignored your husband's expressed concerns about the nature of your relationship with the complainant.  You knew the complainant was experiencing feelings of being depressed.  You regarded him as a "troubled child."  You ignored what should have been the warning conversations with your then-husband.  You had no psychiatric, psychological, drug and alcohol or other issues which provide any basis for concluding that you were not able to exercise proper judgment in this situation.  Despite all this, you allowed your own emotional and physical urges to overcome what ought to have been your proper adult response which was to respect the appropriate boundaries and to do whatever was needed to be done in order not to transgress those boundaries.  Indeed, you were supposed to be taking care of this boy.  Instead of doing that, you continued an utterly inappropriate, emotional and sexual relationship with him.

23You exposed the complainant to extremely serious, physical and emotional psychological consequences which a child of his age should not have had to have borne.  Adolescence can be a difficult time for any child but you have made that period of his life much more difficult for this child.  You allowed yourself to become pregnant.  It appears that you downplayed this potential consequence as with other consequences.  Clearly, your daughter is much loved but her birth has made this young man's life very much more difficult than it what otherwise have been.  He will continue to have to deal with the consequences of your offending and reminders of it and you for the rest of his life in a very immediate and practical way.  He should not have had to deal with these kinds of issues at such a young age.  Your offending has had a devastating impact on the complainant's family and on your own family.  It is to be hoped that with further time, support, positive interaction with his daughter and counselling the complainant's mental state will improve. 

24I have considered your counsel's submissions in respect of a Community Correction Order but I am of the view that your offending is so serious that only a sentence of imprisonment can appropriately reflect the sentencing considerations of denunciation, just punishment and general deterrence.

25You have no prior criminal history and have previously been a person of good character.  I accept that you are genuinely remorseful and that the risk of you re-offending is extremely low.  You have engaged in counselling.  In views of those matters and the matter set out in Professor Ogloff's report, I do not consider that specific deterrence need be given weight in sentencing you.  I consider that your prospects of rehabilitation are very good.  Those conclusions are supported by the many positive comments that are made about your character in the references that were tendered on your behalf.

26There are a number of other matters which operate in mitigation of sentence, including your plea of guilty.  Your plea of guilty has saved the trauma and expense of a trial.  I accept that it is an expression of your remorse, as was you going to the police with the complainant's mother's partner and what you said to Professor Ogloff.

27I have taken into account that the likely separation from your daughter will mean that incarceration will be considerably more burdensome for you.  I have also taken into account that the separation from your other children will be burdensome for you.  I accept Professor Ogloff's opinion that incarceration is likely to impact negatively on your mental health but consider that there ought only be very slight moderation of the sentence to reflect the application of the fifth and sixth Verdins principles in the light of Professor Ogloff's other remarks about treatment being available to you and the relatively low levels of depression, anxiety and stress. 

28Inquiries have been made as to whether you will continue to be held in protection.  The prosecutor has tendered an affidavit from the assistant manager of the sentence management branch of Corrections Victoria, dated 24 July 2015 (Exhibit E).  The prosecutor also tendered an email dated 24 July 2015 setting out other details of the circumstances in which female protection prisoners are held (Exhibit F).  You have been held in protection thus far with limited access to visits and other restrictions but it is not possible to say whether that will continue or whether you will moved into mainstream.  I have taken into account that you are currently in protection and that the prospect of continued imprisonment in protection will make imprisonment more difficult for you.

29I have taken into account the matters in mitigation and your prospects of rehabilitation into account in setting a lower non-parole period than I otherwise would have.  As a result of committing this offence you will be required to comply with the provisions of the Sex Offenders Reporting Act [2004] for the remainder of your life.  After I have sentenced you, my associate will come with Ms Haylock.  You will be provided with paperwork and asked to sign a document saying you have received that paperwork about your obligations.

30By virtue of Part 2A of the Sentencing Act 1991 on being sentenced to a term of imprisonment you will be sentenced as a serious sexual offender.  Section 60 of the Act requires community protection to be the principal purpose of the sentence imposed.  The prosecution does not seek a disproportionate sentence for that purpose.  In view of your prospects for rehabilitation I do not consider a disproportionate sentence is required for the purpose of community protection.

31In considering current sentencing practices I note that the offence to which you have pleaded guilty would be subject to the baseline sentencing legislation if it had occurred on or after 2 November 2014.  It is not yet possible to say how this legislation will impact on current sentencing practices as no sentences have yet been imposed for this offence under that legislation. 

32Lucille Gillespie, you are convicted and sentenced to a term of imprisonment of six years.  You are sentenced as a serious sexual offender in respect of that offence.  You are required to serve three years and six months of that sentence before being eligible for release on parole.  I declare that you have served 26 days of this sentence by way of pre-sentence detention.  But for your plea of guilty I would have sentenced you to a term of imprisonment of eight years with a non-parole period of six years. 

‑ ‑ ‑