R v Gillard - [2011] NSWDC 246

District Court

New South Wales

Medium Neutral Citation: R v Gillard [2011] NSWDC 246
Hearing dates: 11 November 2011
Decision date: 11 November 2011
Before: Nicholson SC DCJ
Decision:
Sentenced to imprisonment - see paras [75], [76], [77] and [78]

Catchwords: CRIMINAL LAW - Sentence - Sexual assaults (x4) - State offences - Serious impact upon victims -Time served for later offending against other victims - Baby sitter - Inveigled himself into family dynamics - background of other offending over three years - Showed excellent commitment to rehabilitation - Aged 65 at time of sentence - Well supported by partner - Changes in sentencing regimes
Legislation Cited: Crimes Act 1900 - Crimes (Sentencing Procedure) Act - Criminal Procedure Act
Cases Cited: AJB v The Queen [2007] NSWCCA 51
Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 (24 May 1990)
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 (31) NSW Court of Criminal Appeal 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 (2 July 1974)
R v Abookahled (CCA, 9 May 1991, unreported)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] 1SCR 688 [80].
Wu v R [2011] NSWCCA 102
Category: Sentence
Parties: The Crown
David John Gillard
Representation: The Director of Public Prosecutions

File Number(s): 2010/144868
Publication restriction: There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants

Sentence

HIS HONOUR: On 5 March 2003 Judge Shillingford sentenced David John Gillard to an overall sentence of eight years imprisonment with a five year nonparole period for twelve charges of indecent acts with four boys. Those offences had occurred in the Republic of the Philippines. Five days later he was also sentenced, as best I can tell, by a Local Court to a twelve month fixed term for the possession of child pornography. It would appear that sentence ran concurrently with the sentences imposed by his Honour Judge Shillingford.

The offences against the four Philippine boys occurred during a period May 1999 and April 2001. From my reading of the material before Judge Shillingford it is likely his Honour came to a view the charged offences were not isolated paedophile incidents in The Philippines.

In July 2007 the offender was released to parole. There seems little doubt his conduct during and response to parole was exemplary. However, criminal offending from a deeper past caught up with him. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gillard

Details

AGLC: R v Gillard [2011] NSWDC 246
Case: [2011] NSWDC 246
Decision Date: 11 November 2011

CaseChat Overview and Summary

In the case of R v Gillard, the defendant faced the court following multiple instances of sexual assault against children. The case was heard in the relevant court of criminal jurisdiction. Gillard's actions had significantly impacted his victims, who were under his care as a baby sitter. The severity of the crimes, coupled with the defendant's background of other criminal activities spanning three years, were critical factors considered in the sentencing process.

The court was tasked with determining the appropriate sentence, taking into account the profound impact on the victims, the defendant's history of offending, and his potential for rehabilitation. The sentencing judge also had to balance the need for punishment against the defendant's demonstrated commitment to rehabilitation and his age at the time of sentencing. The defendant, aged 65, had shown a commendable commitment to rehabilitation, which was supported by his partner.

The court found that despite the defendant's efforts towards rehabilitation and the support from his partner, the gravity of the offences warranted a custodial sentence. After thorough deliberation, the court sentenced Gillard to imprisonment, considering the seriousness of the crimes, the impact on the victims, and the defendant's history of offending. The specific details of the sentence were outlined in paragraphs [75], [76], [77], and [78] of the judgment.

Orders

Orders of the court

Sentenced to imprisonment - see paras [75], [76], [77] and [78]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Gillard [2011] NSWDC 246
Hearing dates:	11 November 2011
Decision date:	11 November 2011
Before:	Nicholson SC DCJ
Decision:	Sentenced to imprisonment - see paras [75], [76], [77] and [78]
Catchwords:	CRIMINAL LAW - Sentence - Sexual assaults (x4) - State offences - Serious impact upon victims -Time served for later offending against other victims - Baby sitter - Inveigled himself into family dynamics - background of other offending over three years - Showed excellent commitment to rehabilitation - Aged 65 at time of sentence - Well supported by partner - Changes in sentencing regimes
Legislation Cited:	Crimes Act 1900 - Crimes (Sentencing Procedure) Act - Criminal Procedure Act
Cases Cited:	AJB v The Queen [2007] NSWCCA 51 Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 (24 May 1990) 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 (31) NSW Court of Criminal Appeal 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 (2 July 1974) R v Abookahled (CCA, 9 May 1991, unreported)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] 1SCR 688 [80]. Wu v R [2011] NSWCCA 102
Category:	Sentence
Parties:	The Crown David John Gillard
Representation:	The Director of Public Prosecutions
File Number(s):	2010/144868
Publication restriction:	There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants