Director of Public Prosecutions v Gilmore (a pseudonym)

[2023] VCC 1818

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

V

LYLE GILMORE (A PSEUDONYM)

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Warrnambool
DATE OF HEARING:	Trial – 30-31 May 2023, 1-2 June 2023, 5-7 June 2023, 9 June 2023, 14 June 2023; Plea – 11 September 2023; Sentence – 15 September 2023.
DATE OF SENTENCE:	15 September 2023
CASE MAY BE CITED AS:	DPP v Gilmore (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1818

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — found guilty by jury verdict – two charges of sexual penetration of a child under and 16 two charges of indecent act with a child under 16.

Legislation cited:       Sentencing Act 1991

Cases cited:Fichtner v The Queen [2019] VSCA 297; Dennis McCray (A pseudonym) v The Queen

[2017] VSCA 340, Harris Crawford ( a pseudonym) v The Queen [2018] VSCA 113, James Pickford (a pseudonym) v The Queen [2019] VSCA 195; Hall (a pseudonym) v The King [2023] VSCA 221 Buckley v The Queen [2016] VSCA 222; Burgess v The Queen [2017] VSCA 59

Sentence:                  Total effective sentence: 9 years imprisonment, with a non-parole period of 6 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F Martin	Solicitor for the Office of Public Prosecutions
For the Accused	Mr F Cameron	Gallant Law

HER HONOUR:

Introduction.

1Lyle Gilmore[1], you have been found guilty by jury verdict of two charges of sexual penetration of a child under 16 for which the maximum penalty is 10 years imprisonment and two charges of indecent act with a child under 16 for which the maximum penalty is also 10 years imprisonment. All charges are course of conduct charges.

[1] A pseudonym.

2The jury acquitted you of five further charges of sexual penetration of a child under 16 and one further charge of indecent act with a child under 16 and one charge of attempted sexual penetration of a child under 16.

3It is now my responsibility to sentence you for these crimes.

Circumstances of Offending.

4In accordance with the verdicts of the jury I find the facts of your offending to be as follows.

5The victim, Rebecca Cotterill[2] was born in June 1986. Her father was Sam Cotterill[3] who died in 1990 when Ms Cotterill was only 4. After her father’s death she lived in Portland with her mother, Sally Rose[4] and her brothers and sister. Ms Rose was psychiatrically very unwell and, in the years following Mr Cotterill’s death she was on occasions an inpatient in psychiatric units at local hospitals.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

6You were a neighbour of the family. Shortly after Mr Cotterill’s death you began a relationship with Ms Rose. You became a father-figure to the two younger children, Rebecca, and her brother Ryan[5]. You would care for them when their mother was unable to do so. But there was a more sinister side to your involvement with the family and that was your sexual abuse of Rebecca.

[5] A pseudonym.

7When Rebecca was aged between 5 and 14 years old and you were at her home you would go into her bedroom and penetrate her vagina with your fingers (charge 6) and you would make her touch your penis (charge 7). Rebecca’s mother would be at home in her own bed. This would happen on a nightly basis.

8When Sally Rose was in hospital and Rebecca was aged between 11 and 12 you would tell her to come with you to her mother’s bed where you would penetrate her vagina with your fingers (charge 10) and made her touch your penis (charge 11). This occurred on a nightly basis.

9On 11 February 2000 there was a Department of Human Services Notification indicating there were concerns that Rebecca was at risk of harm due to sexual abuse and that her mother was unable to ensure her safety. On 14 February 2000 DHS notified the police. Rebecca and her brother were taken into care.

10Ms Cotterill made disclosures at this time to police sergeant Pamela Nix, and in April 2000 to Dr Bronwyn Francis, a consultant paediatrician who examined her.

11Relevantly Ms Cotterill told Ms Nix that you touched her vagina inside her knickers and that it happened more than once, and it occurred at night time when her mother was in hospital.

12Relevantly Ms Cotterill told Dr Francis that you would go into her bedroom and that you would remove your clothes and her clothes and that you would lie on top of her and squash her. She told Dr Francis that she could feel your penis. She told Dr Francis that “as a result of these incidents she sometimes has blood on her underwear and wet spots on her bed and on her fanny and on her underwear”. She told Dr Francis the last occasion was in February and that she had been in foster care ever since. When Dr Francis asked her to point to the area where you hurt her body, she pointed to the area corresponding to the vulva on a doll model.

13I set out these disclosures because it is clear that the jury were satisfied beyond reasonable of your guilt on charges about which they concluded there were relevant disclosures made by Ms Cotterill back in 2000, and on the other hand, the jury were not so satisfied in respect of the charges about which Ms Cotterill complained at a later date.

14On 11 May 2000 the police investigation was “pended”.

15On 26 June 2000 a DHS interim protection order was granted. The order expired on 27 September 2000.

16On 27 September 2000 a Custody to the Secretary Order was granted with the condition that you were not to have any contact with Ms Cotterill and her brother. That order expired on 29 September 2001.

17Ms Cotterill and her brother were returned to their mother’s care in December 2000.

18Ms Cotterill made a police statement about your offending against her in July 2018.

19You denied the offending in a record of interview with police on 8 August 2018 and in your sworn evidence before the jury. You claimed Ms Cotterill was trying to extract money from you.

20I turn now to the victim impact statement of Rebecca Cotterill. Ms Cotterill speaks at length of her traumatic childhood and the profound and ongoing effects of your abuse of her. She says, “I will never know what a life would have been like, free of abuse, untouched by such an egregious breach of trust so early in life”.

21Ms Cotterill makes the exact point which is made in so many of the authorities when discussing the pernicious effects of childhood sexual abuse, which is that victims will never know what life could have been and who they would have grown up to be, if they had not been subject to childhood sexual abuse which, as the Courts have regularly observed, destroys the opportunity of healthy and natural development and transition into adulthood.[6]

[6] Fichtner v The Queen [2019] VSCA 297 at [66] – [67]

22The seriousness of your offending cannot be overstated. Ms Cotterill was only 4 -5 years old when you began abusing her. She was a mere infant. You were aged around 43. Her father had died, and her mother was a seriously unwell woman unable to protect her. Ms Cotterill was an utterly defenceless child when you preyed upon her for your own sexual gratification. You were a father figure to her, and you should have cared for her and supported her during her childhood which was already marred by parental loss and parental absence and illness. Charges 6 and 7 occurred nightly when Ms Cotterill was aged 5 to 14 and these charges therefore encompass numerous acts of digital penetration, and of forcing Ms Cotterill to masturbate your penis. Charges 10 and 11 also encompass regular sexual abuse when Ms Cotterill was aged between 11 and 12. The offending occurred in Ms Cotterill’s own home where she was entitled to feel safe and involved a very grave breach of trust. You threated her that if she told anyone her mother would have to go back to hospital. The offending involved in charges 10 and 11 occurred when Ms Cotterill’s mother was hospitalised. It is hard to imagine a child in a more vulnerable and distressing situation than Ms Cotterill when this offending occurred. Your moral culpability is very high.

23I turn now to consider your personal circumstances.

24You were born in March 1947. You are 76 years old.

25You were born in Portland into a loving and stable family.

26You completed your schooling up to year 10.

27You did two years of military training and served 10 months in active service in the Vietnam war in 1968/9. After your discharge from service, you worked briefly on a cattle station in Queensland. After your return from Queensland, you have worked on the family farm in Portland until your bail was revoked for this offending as a consequence of the jury verdict.

28You have the ongoing support of family members many of whom provided character references on your behalf. Your sister-in-law Pamela Sid[7] says that you have worked hard all your life. She says you have never abused alcohol, drugs, or tobacco. She says you are a quiet and unassuming person who lives for your farm.

[7] A pseudonym.

29Your brother says that you have a good circle of friends in the community. He says during the last years of your mother’s life you cared for her at your farm.

30Ryan Cotterill, who is Rebecca’s younger brother says he considers you to be his Dad. He says he was cared for by you and your mother. He says he knows you to be a hard-working, strong, independent, and loyal person who has served your country.

31Finally, Richard Plough[8] writes that he got to know you as part of the local farming community.  He says you are a hardworking, quiet, honest, and reliable friend and you get along well with others in the community.

[8] A pseudonym.

32Medical material tendered on your behalf disclosed you have had  polycystic kidney disease and reduced kidney function. You also suffered a cardiac arrest in 2017 and had a triple bypass operation at the Geelong hospital. Both these conditions are managed with medication.

33Upon the verdicts being delivered by the jury at this trial you ate a chocolate laced with poisonous bait. You collapsed in the cells and dislocated your finger and injured your shoulder. These injuries have resolved.

34You were assessed by Dr Mathew Staios, clinical neuropsychologist on the 8 August 2023 and a report dated 24 August was tendered at your plea.

35You told Dr Staios that you had been working on your farm the day before and had forgotten you had poisonous bait in your pocket. You denied being suicidal, although you told Dr Staios you were in disbelief and fear. Your counsel urged me to reject your account and to conclude that this incident was most likely a pre-planned attempt at self-harm and consistent with suicide ideation at the time of the verdict. I accept that submission. However, having said that, you have recovered mentally, and you present generally as a stoic and resilient individual, although I note Dr Staios’ concern that you may be minimising your distress and trauma.

36You have no prior criminal history and have otherwise been a person of good character.

37I turn now to the submissions of the parties, and I begin with the submissions made by your counsel Mr Cameron in mitigation of sentence.

38Mr Cameron relied upon the following matters.

39First, your lack of a  prior criminal  history and your good character.

40Secondly, given your age and that you have not re-offended since these offences which occurred over 25 years ago, and further it is also now inevitable that you will spend a significant period in custody, Mr Cameron submitted your risk of re-offending is low and you are unlikely to re-offended. He further submitted that although you are without remorse or insight nevertheless your prospects of rehabilitation are good. In fact, you are demonstrably rehabilitated not having reoffended in over 25 years. He submitted you have led an otherwise blameless and exemplary life. Mr Cameron submitted community protection and specific deterrence carried little weight in sentencing you.

41Thirdly, and still on the topic of delay Mr Cameron submitted there had been some unfairness occasioned to you by the failure to prosecute this matter back in 2000 when it came to the attention of the police.

42Fourthly, Mr Cameron submitted you were an elderly person going into custody. He acknowledged that you were a relatively robust 76-year-old but submitted the sentence I impose still must take into account the likelihood that you will be spending some of the final years of your life in custody.

43Finally, Mr Cameron properly acknowledged the seriousness of your offending and accepted that the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period.

44Ms Martin who prosecuted relied upon the very serious nature of your offending and its very many objectively serious features. She submitted all charges were course of conduct charges and referred me to authorities which make it clear that when sentencing for course of conduct offences although there is a single maximum penalty which the same as that set for the offence had it been charge as a single offence,  the sentence imposed on a course of conduct charge must reflect the overall gravity of the offending. The authorities make it clear that sentences for stand alone charges are not of assistance in formulating an appropriate sentence.

45She referred me to a number of comparator cases[9] dealing with course of conduct offences which all involved charges of incest, but she submitted given your role as a father figure to Ms Cotterill, these cases remained useful as comparators.

[9] Dennis McCray (A pseudonym) v The Queen [2017] VSCA 340, Harris Crawford ( a pseudonym) v The Queen [2018] VSCA 113, James Pickford (a pseudonym) v The Queen [2019]  VSCA 195

46She submitted you fall to be sentenced as a serious sexual offender on charges 7, 10 and 11.

47Ms Martin did not dispute the relevance of delay and your advanced age in the sentencing exercise. She accepted the defence submission that you are now a low risk of reoffending, but she urged me not to place undue weight on these considerations in a case involving such grave conduct with such devastating effects on the victim. She submitted specific and general deterrence were the prominent sentencing considerations. She submitted the offending warrants strong denunciation by the Court.

48She submitted the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period.

Application of Sentencing Principles

49I turn now to consider the applicable sentencing considerations in your case and my conclusions.

50I have already in these remarks referred to the objectively very serious nature of your offending and your high moral culpability.

51I take into account also the effects of your offending on Ms Cotterill. The Courts now well recognise the enduring harm childhood sexual abuse causes and that it “constitutes an egregious breach of the moral standards of the community”.[10]

[10]  Hall (a pseudeonym) v The King [2023] VSCA 221 at [43]

52The sentencing principles of general deterrence and denunciation are the predominant sentencing consideration in a case involving child sexual abuse. I must denounce your conduct on behalf of the community and the sentence I impose must send a clear and unequivocal message that the sexual abuse of children will not be tolerated by the courts.

53I accept the submission of your counsel for the reasons he articulated that you now pose a low risk of re-offending and that your rehabilitation has been demonstrated.  I accept the submission that the sentencing principles of specific deterrence and community protection carry very little weight in sentencing you.

54Your age is an important consideration.[11] In sentencing you I must take into account that notwithstanding you are indeed a relatively robust person, you are 76 years old and a sentence of imprisonment may therefore involve the last years of your life, having said that, your advanced age at the time of sentence cannot be given undue weight in a case of such serious and prolonged sexual offending against a vulnerable child. Nor too, given your abhorrent and morally deviant conduct, can too much weight be placed upon your lack of a criminal history and otherwise good character.

[11] Buckley v The Queen [2016] VSCA 222; Burgess v The Queen [2017] VSCA 59

55You fall to be sentenced as a serious sexual offender on charges 7, 10 and 11. The sentences on these charges must be served cumulatively unless otherwise ordered. Your serious sexual offender status must be entered into the Court records. The serious sexual offender provisions do not displace the principle of totality. I do not intend to order full cumulation between charges that would produce an entirely unrealistic outcome, but I do intend to order some cumulation between the two sets of charges.

56I take into account the maximum penalty for the offences as they were at the relevant time.

57The authorities provided to me have been of some assistance in formulating a sentence for you, ultimately however I must sentence you on the facts and circumstances particular to your case.

58Taking into account all matters I am required to under the Sentencing Act 1991 and matters personal to you I intend to sentence you as follows.

59On charge 6 – you are convicted and sentenced to 7 years imprisonment.

60On charge  7 – you are convicted and sentenced to 3 years imprisonment.

61On charge 10  – you are convicted and sentenced to 5 years imprisonment.

62On charge 11 – you are convicted and sentenced to 2 years imprisonment.

63Charge 6 is the base charge. I direct that that 2 years of the sentence on charge 10 be served cumulatively upon it. That makes a total effective sentence of 9 years imprisonment. I direct that your serve a non-parole period of 6 years imprisonment.

64I sentence you as a serious sexual offender on charges 7, 10 and 11.

65The pre-sentence detention you have served is 98 days and I direct that be entered into the records of the Court,

66You are a registered sex offender for life.