Director of Public Prosecutions v Gilmore (a pseudonym)
[2025] VCC 862
•20 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCO GILMORE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4, 5, 6, 7, 10 February 2025 for trial | |
DATE OF SENTENCE: | 20 June 2025 | |
CASE MAY BE CITED AS: | DPP v Gilmore (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 862 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual penetration of a child under 12, course of conduct
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:DPP v Sutcliffe (a pseudonym) [2024] VSCA 63, DPP v Agresta (a pseudonym) [2022] VCC 1541, McPherson v The Queen [2021] VSCA 53, DPP v Penning (a pseudonym) [2021] VCC 62.
Sentence: TES: 15 years 6 months imprisonment, NPP 9 years 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Petric | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms A Beech with Mr C Glerum | Ferraro & Singh Lawyers |
HER HONOUR:
1Marco Gilmore,[1] on 10 February 2025 you were found guilty of 2 charges of sexual penetration of a child under 12 years.
[1] A pseudonym.
2The maximum penalty for sexual penetration of a child under 12 years is 25 years imprisonment in each instance. I note that this is a standard sentence offence with a standard sentence of 10 years. I will return to this shortly.
Circumstances of offending
3Between February 2021 and August 2022 when you were aged 46-47 years, you were living at an address in Point Cook with your wife, Tasha,[2] who ran a family day care business from the home. Your daughter and mother-in-law also lived at the property.
[2] A pseudonym.
4Your victim, Ella Walls,[3] was then 7-8 years of age and enrolled in your wife’s family day care business. You and your wife were Ella’s god parents and she referred to you as Uncle and your wife as Aunty.
[3] A pseudonym.
5Ella lived with her mother, Kristina Castle,[4] her mother’s de facto partner, Hector Barnett,[5] and her older sister, Rhonda Cannon.[6]
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
6Ella had been enrolled in the family day care since May 2016 when she was 2 years of age and attended regularly. She initially attended 5-6 days per week between 7am and 6pm while her mother was a work.
7She then attended pre-kindergarten when she was 4, kindergarten at age 5 and commenced primary school aged 6. She would attend family day care on occasions after school and on weekends and would sometimes stay overnight.
8Between 10 February 2021 and 5 August 2022, on more than one occasion, you penetrated Ella’s vagina with your penis.
9Between 10 February 2021 and 5 August 2022, on more than one occasion, you penetrated Ella’s anus with your penis.
10While she was sitting in the loungeroom you would pull your pants down and pull her pants down to her knees before inserting your penis into her anus or her vagina.
11Ella did not attend childcare between 6 August and 25 November 2022.
12On 26 November 2022, Rhonda Cannon dropped her sister Ella at your home address for childcare. She left Ella with your mother-in-law and went to work, arriving back at your address about 8pm to collect her.
13They returned home. At about 10pm that night Ella complained to her sister of an itchy vagina. Rhonda examined her sister’s vagina and observed it to be red. Ella said it had been itchy since Friday so Rhonda booked a doctor’s appointment the next day.
14At midday on 27 November 2022 Ella and Rhonda met their mother at the GP clinic and all entered the consulting room. Hector Barnett waited in the waiting room.
15The GP observed a raw area on Ella’s right labia majora and whilst being examined, Ella disclosed to the doctor that somebody at her childcare did the same thing to her as what her mother had previously described to her about how women fall pregnant and that she felt scared to tell her mother.
16Ella disclosed to her mother and sister that it was you who had sexually assaulted her.
17Ella was referred to the Royal Children’s Hospital. Her mother became distressed so Mr Barnett took them to the car where Ella made further disclosures about you putting your penis in her vagina.
18Ella was taken to the Royal Children’s Hospital and examined. She was then referred to police the following day when she participated in a VARE. During that recording she stated:
(a) A guy did something ‘really wrong’ to her. He used to be her godfather and his name is Marco and he has a wife called Tasha.
(b) Her first memory of him putting his naughty spot in her naughty spot was when she was 7 years of age.
(c) His naughty spot was his penis and her naughty spot was her vagina or anus.
(d) The offending occurred in the loungeroom.
(e) It always occurred in the day time.
(f) He did not usually penetrate her vagina, he would usually penetrate her anus.
(g) He would ask if she liked it and had a weird smile.
(h) She would ask if what they were doing was ok. She felt scared and felt tricked.
(i) She would go on her iPad after the offending.
(j) She saw his penis once and it looked like a thick stick, it also looked a bit red.
(k) She believed Tasha was aware of the sexual assaults as there was a camera in the loungeroom connected to her computer.
(l) The offending stopped when she was starting to turn 8.
19On 30 November 2022 Ella was subjected to a forensic medical examination which noted that the genital examination findings were within the normal range and neither confirm nor refute the allegations made.
20Police located a CCTV camera in the loungeroom of your home. No recordings from the period of offending had been retained.
21You were arrested and during a recorded interview stated that:
(a) You have never been in contact with the children as it’s not part of your job. The children are your wife’s responsibility.
(b) You and your wife were Ella’s god parents.
(c) You first met Ella around 3 years ago.
(d) You last saw Ella the weekend prior when you got home from work.
(e) You interacted with Ella when your wife asked you to look after her, for example painting or playing games in the backyard.
(f) Ella loved watching TV, Peppa Pig. You were not present when they were watching, you would just pass by the room.
(g) You worked an alternating roster of 2 weeks in the morning and 2 weeks in the afternoon. You would get up at 10am and go to work for a 1pm start.
(h) You have never been alone in the house with children.
(i) Sometimes you sit on the couch playing on your phone and the children play near you.
(j) Ella wanted to call you ‘Uncle Daddy’.
(k) Ella sat on your lap once and hugged you but you told her not to and to play on the floor with the other children.
(l) You denied all allegations of sexual offending.
22By its verdict, the jury has accepted that on more than one occasion you penetrated Ella’s vagina with your penis and that on more than one occasion you penetrated her anus with your penis.
23True though it may be that that Ella’s evidence was at times contradictory in terms of which orifice was penetrated, it seems clear that on her evidence the offending happened when she was 7. I accept that within the charge period, the offending must have been between 10 February 2021 and 10 February 2022 when Ella was 7 rather than up to the 5th of August 2022, after she had turned 8.
24The matter of how many times she was penetrated is more complex but I am satisfied beyond reasonable doubt that while the vaginal penetration may have been on only 2 occasions, the anal penetration happened more frequently.
25Ella did describe an incident where your penis was “just in her butt cheeks,” and “not in the hole where the poop comes out,” however she also estimated the depth of penetration to be less than 4cm.
26While she was not specifically asked how many times she was penetrated, Ella stated that “It’s really – it’s a lot of times” and “He’d do it to me, like, every day I went there when I went there every day.” While I do not accept the abuse happened every day, I do accept that anal penetration happened more than twice. She stated “he always does the butt” and “it’s only rare for him to do the vagina,” and he “does the butt a lot of times, so then he gets used to it, he wants to try the vagina.”
27I find, to the requisite standard, that the anal penetration occurred on more than 2 occasions while the vaginal penetration occurred more than once.
Objective gravity
28Child sexual offending is particularly grave. You breached the trust of your victim and her family and led her to believe your wife knew of the offending so it was alright. Your offending was opportunistic, committed on occasions where your wife was not in the vicinity.
29Your victim was only 7 years of age. Your actions were abhorrent and as conceded by your counsel, the offending was humiliating, demeaning and objectifying.
30You offended against Ella on more than 2 occasions over a 12 month period, involving more than one vaginal penetration and more than 2 anal penetrations. The effect of child sex offending is far reaching cannot be underestimated. It causes irreparable damage to individuals, families and the community.
31I consider your offending to fall within the mid-high range for offences of this type, given the factors I have identified.
Victim Impact
32I received Victim Impact Statements from Ella Walls, her mother, Kristina Castle, her mother’s partner, Hector Barnett, and her sister, Rhonda Cannon. Each eloquently articulated the effect of your offending on them.
33Ms Castle stated that she “live[s] in a constant state of guilt and internal pain…I blame myself for what happened…The anxiety, the helplessness, the fear that I failed her is like running a marathon I never signed up for. And it just never ends.”
34She spoke of betrayal and the loss of her daughter’s innocence. Ella insists on having a camera in her room for safety, is afraid of the dark and has nightmares and difficulties at school. As Ms Castle said, “These are not things a child should ever have to worry about or fear.”
35Ms Castle lives in fear for her children and cannot put them in daycare given what you did to Ella while she was in daycare. She does not trust anyone to care for her children.
36Mr Barnett stated that “The emotional toll has been immense. Every day I’ve struggled to stay strong for others, even when I felt like I had nothing left to give.” He has struggled to form a strong bond with Ella but “feels a lot of pressure to make this happen so she knows I am here for her and she knows she can trust me.”
37Mr Barnett’s relationship with Ms Castle has suffered and he stated that “I no longer trust others the way I used to”…“The crime has made me feel isolated, like I’m living behind a barrier even when I’m around people. It has taken away my openness and left me guarded.”
38Ms Cannon stated that “Emotionally, this crime completely broke me. I had never experienced such intense, raw emotions of hurt, betrayal, anger, fear, disgust, guilt, anxiety and depression all crashing down at once.”
39Ms Cannon felt as if she had failed Ella. She stated that “I withdrew from my friends, stopped seeing them altogether, and even found it hard to trust those closest to me.” She has felt isolated from her family and experiences ongoing anxiety.
40Ella herself provided a statement that was not read aloud. While I will not repeat its contents here, the impact on Ella is ongoing.
Personal circumstances
41I turn now to your personal circumstances.
42You were born in February 1975 in Baler in the Philippines and are now 50 years of age. You were one of 7 children and attended a Catholic school, Mt Carmel College.
43Your father died when you were in year 7, leaving your family in a difficult financial position however you were able to complete year 12. You then completed 3 years of a 6 year accounting course before leaving university to work as a laboratory assistant in a paint company. It was here that you met your wife, Tasha.
44You and Tasha migrated to Australia in 2002 and your daughter was born in 2004.
45You studied to become a personal care assistant and worked in this position while studying nursing. You became an enrolled nurse in 2007 before completing a Bachelor of Nursing in 2011. You were then employed as a Division 1 nurse at various nursing homes and hospitals.
46In 2014 you injured your back and were physically unable to carry on nursing. You were promoted to work as a neuropsychiatry clinician.
47In 2016 you obtained a job at Nufarm in a laboratory in the production area. You worked there until your remand.
48I note you suffer from several ongoing medical conditions namely diabetes, gout and high cholesterol.
49I received a bundle of 14 character references from your wife, daughter, extended family and friends. All consider you to be a hardworking, kind and compassionate man, dedicated to your wife and daughter. You are clearly much loved and well respected by those who know you and I take your previous good character into account.
50Your referees write that they consider your offending to be extremely out of character but that is the insidious nature of child sexual offending – it takes place secretly, behind closed doors and unbeknownst to those closest to you.
51Your time in custody has been difficult and you have only had box visits with your family. You were recently moved into protection after you were attacked by another prisoner. You consequently lost phone contact with your family, furthering your isolation.
Sentencing principles and considerations
52Mr Gilmore, this was despicable offending, a gross breach of the trust placed in you by Ella and her family which will no doubt affect them for the rest of their lives.
53General deterrence is the primary consideration in offending such as this. The harm caused to child victims of sexual offending is grave and others minded to act as you have done must know that they will be subjected to lengthy terms of imprisonment should they do so.
54Specific deterrence is relevant. I note you have no prior convictions. I must nevertheless make it clear to you, by the sentence I impose, that you cannot act in this way.
55While I have not received a professional risk assessment as to your risk of recidivism, I do consider your prospects of rehabilitation to be good. You will spend a significant period of time in custody and will be required to do a sex offenders treatment program.
56Community protection is always relevant in matters of this nature but I understand that the Family Daycare business has ceased to operate, removing your access to young children in the family home.
57Denunciation and just punishment are also relevant sentencing considerations.
58Charges 1 and 2 are both category 1 offences, meaning I must impose a sentence of imprisonment, comprising a head sentence and non-parole period unless special reasons exist. No such reasons were submitted here.
59I also note that both charges 1 and 2, sexual penetration of a child under 12 years, are standard sentence offences with a standard sentence of 10 years in each case. The standard sentence for an offence is a sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness. I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement is to be treated as a legislative guidepost having the same function as the maximum penalty. It does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing.
60The Court must only have regard to sentences imposed in cases where the standard sentence regime applies.
61I have taken the standard sentence for sexual penetration of a child under 12 years into account as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case. I consider your offending to fall at the mid-high range of seriousness.
62Pursuant to s.11A of the Sentencing Act 1991, the non-parole period I impose for a standard sentence offence must be at least 60% of the total effective sentence, unless I consider it in the interests of justice not to do so.
63While as I have stated, I consider your prospects of rehabilitation to be good, nothing I have heard persuades me that it is in the interests of justice to impose a non-parole period below the prescribed 60% of the head sentence.
64Pursuant to s.6E of the Sentencing Act1991, the serious offender provisions apply to charge 2. I note that the prosecution does not call for a disproportionate sentence and I do not intend to impose one.
65Both charges 1 and 2 are ‘course of conduct’ charges. I have made findings of fact, outlined above, that the vaginal penetration took place on more than one occasion and the anal penetration took place on more than two occasions. I take this into account in passing sentence upon you.
66As to totality, given the offending is similar in nature, both charges involving the sexual penetration of a child under 12, I intend to impose substantially concurrent sentences.
Submissions
67Ms Beech, appearing with Mr Glerum for you, conceded that a head sentence and non-parole period must be imposed. She accepted that this was opportunistic offending but submitted that while there was manipulation, there was no violence, aggression or overt threats to your victim.
68Ms Beech highlighted what she called your excellent prospects of rehabilitation and submitted that your rehabilitation would be best served by a disparate non-parole period allowing your early return to the community.
69I was provided with several ‘comparable’ cases by your counsel, namely DPP v Sutcliffe (a pseudonym) [2024] VSCA 63, DPP v Agresta (a pseudonym) [2022] VCC 1541, McPherson v The Queen [2021] VSCA 53 and DPP v Penning (a pseudonym) [2021] VCC 62. I note that McPherson was the only one of those cases that involved a plea of not guilty. While each case of course turns on its own facts, I take these matters into account by way of current sentencing practices insofar as each is relevant.
70Mr Petric, appearing for the prosecution, also submitted that a head sentence and non-parole period must be imposed. He submitted that the offending is objectively very serious and involved a gross breach of trust. He highlighted the young age of the complainant, the disparity between her age and yours and the difficulty in detecting offending such as this.
71Mr Petric also noted the length of time over which you offended, the frequency and the fact that your moral culpability is high.
Disposition
72On charge 1, sexual penetration of a child under 12 years, you are sentenced to 10 years imprisonment.
73On charge 2, sexual penetration of a child under 12 years, you are sentenced to 12 years imprisonment.
74I direct that charge 2 be the base sentence.
75I direct that 3 years 6 months of the sentence on charge 1 be served cumulatively on the sentence imposed on charge 2.
76That makes a total effective sentence of 15 years 6 months imprisonment.
77I direct that you serve a minimum non-parole period of 9 years 9 months before becoming eligible for release on parole.
78Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 131 days by way of pre-sentence detention, excluding today.
79Pursuant to s.34(1)(c)(i) of the Sex Offenders Registration Act 2004, having committed 2 class 1 offences, you are to be placed on the Sex Offenders Register for the remainder of your life.
80Pursuant to s.6F of the Sentencing Act 1991, I direct that the record note that you are to be declared a Serious Sexual Offender on charge 2.
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