Director of Public Prosecutions v Gilliam (a Pseudonym)

[2016] VCC 209

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BERNARD GILLIAM (a Pseudonym)

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	29 April 2016
CASE MAY BE CITED AS:	DPP v Gilliam (a Pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 209

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Accused	Mr M.P.R. Turner

HIS HONOUR: 

1You, Bernard Gilliam[1], have pleaded guilty before me to two charges of sexual penetration of a child under 16 and four charges of indecent act with a child under 16.

[1]Bernard Gilliam is a pseudonym.

2These charges are set out in some considerable detail in the 12 page document entitled, "Summary of prosecution opening on plea".

3On the morning of 13 February 2015 you attended the Warrnambool Police Station and said and I quote, "I have a mental health defect of the sexual molestation of minors.  I want to be functional again".

4Apparently earlier in the day you had been told by your father that he was aware of the allegations that your nieces had been making regarding your behaviour and that the police were going to be informed, however, you were being given the opportunity of making disclosure before that occurred.  In due course you were interviewed and made broad admissions to your offending behaviour. 

5At the time you were 37.  The victim in this matter, Teresa Gilliam[2], was seven years of age.  Lily Gilliam[3] was aged between the ages of eight and 10 at the time the offence is committed against her and Jessica Gilliam[4] was aged between 12 and 13 at the time the offence is committed against her. 

[2]Teresa Gilliam is a pseudonym.

[3]Lily Gilliam is a pseudonym.

[4]Jessica Gilliam is a pseudonym.

6Charge 2 concerns your behaviour with respect to Teresa and there are three occasions particularised, the first of which was in October 2014, whilst during a card game you inserted your finger into her bottom on a number of occasions.  Subsequently whilst playing a different game with her you again inserted your finger into her bottom, and finally on a different occasion from the first two, when playing a game of Snakes and Ladders, you again put your hand down the back of her pants and inserted your finger into her bottom.

7With respect to the victim, Lily Gilliam, in addition to a number of uncharged acts which are there set out, there are two occasions described as relevant to Charge 3 which concern her.  On the first occasion you touched her on her bottom, on what she describes as, "in the middle of her cheeks".  Secondly, on a different occasion, whilst playing a game of Risk, you stuck your hand down her pants rubbing her skin in the middle of her bottom. 

8With respect to the victim, Jessica Gilliam, in addition to the uncharged acts there described, Charge 5 is described with respect to two particular occasions.  The first of which concerned when you touched her on the vagina, and then subsequently you again put your hand on her vagina on the outside of her clothing and rubbed there for about five minutes, before trying to pull her on to your lap, although on that occasion she resisted and you left her alone.

9Charge 6, concerns the occasion when you penetrated her anus with your fingers for about five minutes in circumstances where you had been playing a board game and her brothers and her sisters and their grandmother had gone out to get some fish and chips. 

10The further offences with which you are charged, and to which you have pleaded guilty, were matters which arose in the interview that was conducted between you and the police. 

11The third occasion, with respect to Charge 5, is made out by the questions and answers on 196 to 213, inclusive, when you said that you had fondled Jessica’s vagina on top of her clothes.

12With respect to Charge 4, that was established in questions and answers 412 to 425, when you describe a number of actions in which you rubbed up against Jessica's bottom with an erection whilst both of you were fully clothed.

13Finally, Charge 1 is established in the materials contained in questions and answers 465 to 480 when you touched Teresa's vagina with your foot in circumstances you there described. 

14I note with respect to matters where disclosure is made by an accused voluntarily in a record of interview, that as directed by the relevant sentencing authorities, you are to have the sentencing credit for that matter. 

15The complaints of the various girls to their mother are described in paragraphs 14 to 18, inclusive.  There were a number of Victim Impact Statements made in this matter and in fact the Victim Impact Statements of the mother and the father of the victims were read to court. It is clear that they have suffered significantly as a result of what you have done to them, as has the family as a whole, let alone the specific difficulties that the young girls will face now and in the future. It was clear that when they were read to the court they had a great impact on all those in court, and further it was said by counsel on your own behalf, that the reading of those Victim Impact Statements in the court has had a profound effect on you.

16As, of course was pointed out by your counsel, Mr Turner, there are a number of mitigating factors in addition to the one I have already mentioned.

17Firstly, you have pleaded guilty and you are entitled to have that fact taken into account in your favour and I will do so.  The community has by your plea been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial, and I can tell you the sentence I intend to impose is far less than would have been imposed, had you been found guilty after a trial. 

18Further, I take into account in your favour the circumstances in which you intimated your intention to plead guilty to these charges, explained to me by Mr Turner when he recounted the difficulties of getting instructions post-committal, given your circumstances in Warrnambool. 

19You made ready admissions to your part in the crime, although these admissions were forthcoming over time, but in the circumstances I do accept that in your case your pleas do indicate remorse, and indeed, true remorse for your actions and your remorse has been described in other circumstances as well.

20I have been told a significant amount about your personal history and your circumstances, both by Mr Turner, orally, and in the outline of submissions for plea which were helpfully tendered and which I marked as an exhibit.

21Further, of course, there is the Forensicare report dated 12 April 2016 which I have also marked as an exhibit and which also contains a very extensive personal history detailing your education and employment, your relationships and your social history as well as your drug and alcohol history with your medical and psychiatric history, and of course most significantly, your psycho-sexual history.

22I think it appropriate to simply quote from the submissions made on your behalf as they appropriately set out your personal history.

23Your mother and father, who are both present in court, both continue to support you and will support you on your release from prison.  Your father and mother are both from New Zealand.  Your father is employed as the managing director of Aware Business Systems and your mother is employed by the Office of Corrections.

24You were educated at various schools before attending Mount Waverley High School for Years 7 to 8 and the family moved to Sydney for Years 9 to 12. 

25Notwithstanding apparent difficulties at school, you did, with the assistance of tutoring, complete your HSC.  You completed an IT course at Monash University, however, you failed to complete that, although you did undertake further IT courses through the TAFE education system.

26Your employment included stints of plastering for a few months before you joined a circus for nine months and apparently you joined an employment agency where you did, what you described, as various odd jobs.  In Sydney you were employed by Techway, which was an IT company apparently, before you then became unemployed for a number of years and received social security whilst living in various communities. 

27In 2015 you went to the Northern Territory and there were employed by Finke River Mission as a commercial cook.  You also performed some other maintenance duties.  You described to the author of the Forensicare report, "A life time feeling disconnected from those around you".  You told the author of the report that you never felt you fitted in and that the family tended not to communicate on an emotional level with one another.  The report said that as a result, as an adult, your life could be described as transient and I agree with that description.

28Apparently you have had one significant relationship which started when you were 21 with a woman who was 15 years your senior and that lasted on and off for nine years.  Since that relationship concluded when your partner moved overseas for work, you said you have not been in any relationships lasting more than three months. 

29You identify strongly with being part of, what is called, a rainbow gathering which is a sub-culture apparently of, as it is quoted in the report,. "Gypsies, vagabonds and social outcasts".  You described that as a loosely organised network of individuals who occasionally pull together large gatherings to – and again I quote – "Respect the five elements and each other".

30As a result of your offending there is now a significant gulf between you and the father of the victims and I have no doubt that the consequences of your offending will, effectively, measure the relationship with your family when you are released, although hopefully as is presently the case, your mother and father, at least, will continue to support you.

31You have no relevant prior convictions. 

32There have been a number of reports tendered which describe your employment in the Hermansburg Store at the Finke River Mission and I understand you have been there for approximately a year.  It is clear that you have impressed the people there with your application and you are a valued employee.  You have also done some voluntary work at Stanley Chasm. 

33The Forensicare report dated 12 April 2016 is a report of significance, in my view, with respect to all relevant sentencing matters.  After reciting an extensive personal history I note the following at p.6 and I quote.  "Mr Gilliam has a tendency of diverting away from directly discussing his offending to sermonising on the wrongs of society placing a negative skew on sexual offending against children.  He was markedly more concerned with the consequences to himself than to his nieces noting that he felt unable to consider the potential impacts on the victims because he had never experienced such abuse".

34The author of the report noted that for the purposes of this report she utilised a combination of an actuarial tool, being the Static 99 test, and a structured professional judgment tool, being the Risk for Sexual Violence Protocol, the RSVP, to guide her judgment and recommendations for the management of that risk.  I note that for the Static 99 test, which is of course regularly employed in cases such as this, your score placed you in the low risk category for sexual recidivism. 

35With respect to the Risk for Sexual Violence Protocol, you evidenced a number of the 22 factors related to a risk of ongoing sexual offending and as a consequence, based on the presence of risk factors using the RSVP, your score on the Static 99 is likely to under-estimate your risk. 

36The author opined, and I quote, "Considering his present risk factors and likely risk scenarios you are considered to present as high risk in the medium to long term". 

37I note the author of the report says your risk to your nieces is currently ameliorated by a singularly important factor, specifically, you have no access to any children in your family at the present time, due to your family members' protective actions. 

38It was further the author's view that, and I quote, "Mr Gilliam’s offending appeared to be opportunistic, at least initially, but also predicated on forming a relationship with his victims.  Given his itinerancy and tendency to stay within vulnerable communities and those with sub-cultures potentially supportive of his views of sexual offending, he presents a risk to female children with whom he has established a relationship.  There is likely to be some element of grooming involved and it may appear that he has formed friendships with potential victims".

39It was the author's view, and again I quote, "There are a number of relevant factors that contribute to Mr Gilliam’s elevated risk of further sexual offending against children.  The most prominent of these relates to his chronic sexual deviance.  Using the DSM-5 Mr Gilliam meets diagnostic criteria for paedophilia, non-exclusive type attracted to females.  In this context Mr Gilliam appears to have developed an emotional connection with children whom he views as his emotional and sexual peers.  To this end he has developed a number of justifications for his behaviour that at once vindicate his actions whilst minimising the likely impacts on the victims.  He has little insight into the impact of his offending on the victims".

40There are various recommendations made in that report and I trust that report and its contents will be made available to the Parole Board in due course.  I am, on balance, satisfied the chance of your rehabilitation depend  entirely on your ability to successfully participate in the various course and counselling sessions that will be made available to you whilst you are in prison and I presume they will also be made available to you whilst you are on parole.

41I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed and then empowered, if necessary, in order to achieve that purpose, to impose a sentence greater than is proportionate.  However, in the circumstances of this case, I do not propose to do that given the number of sentencing options available to me.

42As well as those matters personal to you, to which I have referred to including the question of rehabilitation, I must take into account such matters as deterrence and especially general deterrence, which is of considerable importance in a case such as this, involving as it does, children of such a young age.  You were placed in a position of some responsibility as their uncle and clearly you were a trusted member of the family.  Specific deterrence is of some significance given the matters raised in the Forensicare report. 

43Tell me, Ms Parkes, was application made for an intimate forensic sample?

44MS PARKES:  Yes, Your Honour, yes.

45HIS HONOUR:  Mr Turner, you were going to get instructions.

46MR TURNER:  Sorry, I omitted to, Your Honour, but I ‑ ‑ ‑

47HIS HONOUR:  Perhaps if you could do that just for the moment, thank you. 

48MR TURNER:  Not opposed, Your Honour.

49HIS HONOUR:  Thank you.  Yes, I will make an order under s.464ZF for a forensic sample to be taken from you.  I am satisfied that it is in the interests of justice that I order that intimate forensic sample so it can be taken from you and that sample may be taken by a doctor or nurse or other authorised person.  It is taken by wiping a swab inside your mouth, and although you have consented, if you change your mind, I must inform you that the police may use reasonable force to enable that procedure to take place and I will sign that order when it is presented to me.

50Further, by virtue of my sentencing you today you become a registrable sex offender under the Sex Offenders Registration Act and you will be required within 28 days of your release from custody 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 remainder of your life.

51My associate will now hand to you that form which notifies you of your reporting obligation and Mr Turner, perhaps if you could attend with my associate in order that Mr Gilliam can sign that to indicate simply that he has received the form.  Thank you. 

52(Form signed and acknowledged.)

53Yes, thank you, if you would stand please, Mr Gilliam. 

54These are without doubt very serious offences, and in all the circumstances, I have no alternative to the imposition of custodial sentences in respect of each and every charge and you are convicted and sentenced as follows.

55On Charge 1, nine months imprisonment.

56On Charge 2, five years imprisonment.

57On Charge 3, two years imprisonment.

58On Charge 4, two years imprisonment.

59On Charge 5, nine months imprisonment.

60On Charge 6, five years imprisonment. 

61I direct that Charge 2 be the base sentence and I direct that three months of Charge 1, three months on Charge 3, three months on Charge 4, three months on Charge 5 and six months on Charge 6 be served cumulatively on the sentence imposed on Charge 2 and each other. 

62That give rise to a total effective sentence of six and a half years and I direct that you serve a minimum term of five years and three months before becoming eligible for parole. 

63As prescribed by the Sentencing Act, I declare the period of time you have already spent in custody as – how many days is that, Ms Parkes?

64MS PARKES:  Now 67 days, Your Honour.

65HIS HONOUR:  Sixty-seven days, thank you, and I direct that such be noted in the records of the court. 

66Pursuant to the provisions of s.6F of the Sentencing Act it should be entered into the records of the court that I have sentenced you in respect of Charges 3 to 6, inclusive, as a serious offender within the meaning of the Act, and for the purposes of s.6AAA, had you not pleaded guilty, the total effective sentence that I would have ordered would have been eight and a half years with a non-parole period of seven years.

67Yes, thank you, does that complete the matter?

68MS PARKES:  Yes, Your Honour.

69HIS HONOUR:  Yes, thank you.  Yes, thank you, Mr Gilliam, if you would go with the officers please.

70MR TURNER:  Your Honour, there is a matter that Mr Gilliam raised and that is in relation to security issues.  I am not sure ‑ ‑ ‑

71HIS HONOUR:  Pardon me, Officer, I will just deal with this.  Yes, Mr Turner?

72MR TURNER:  It appears that through the Internet fellow prisoners have become aware of the circumstances in which Mr Gilliam finds himself in custody. 

73HIS HONOUR:  Yes.

74MR TURNER:  He has concerns about his safety and he has asked me to arrange that with the court.  I am not sure whether Your Honour can do anything about it, but perhaps – he certainly asked me to raise the issue with you to see whether Your Honour ‑ ‑ ‑

75HIS HONOUR:  Yes, yes, well, I ‑ ‑ ‑

76MR TURNER:  The notation is on the court ‑ ‑ ‑

77HIS HONOUR:  All right, thank you for raising that, Mr Turner.  I have no doubt - Officers, I think that is part of what the Officers are seized of.  I certainly, I am sure, do not need to tell them their duty; they are well seized of it and no doubt matters such as this are appropriately drawn to their attention, but Officer; is that something that you are aware of and presumably the regular precautionary steps have been taken.

78PRISON OFFICER:  Yes, it's all – it will be all sorted.

79HIS HONOUR:  All right, thank you very much, I do appreciate that.  So, thank you, Mr Turner, for bringing that to my attention and I am confident that the situation is taken into account, and indeed has been, as the Officer indicates.

80MR TURNER:  If Your Honour pleases. 

81HIS HONOUR:  All right, again, thank you, Officer, I appreciate that and that obviously can be drawn to the attention of whomever it needs to be drawn to the attention of, and I am sure it will be.  Thank you, Officers, if you would please take Mr Gilliam.

82All right, so that completes that matter.

83MS PARKES:  Yes, Your Honour.

84MR TURNER:  Yes, Your Honour.

85HIS HONOUR:  Thank you both for your attendance and assistance in this matter.  It is always a very difficult matter to sentence, obviously, and I am very much aware of the concerns of the family, all of which needs to be considered, and I think in the circumstances, we can now turn off the line to Warrnambool and we will adjourn the court until Monday at midday.

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