R v Gillard - [2014] ACTSC 360

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Gillard
Citation:	[2014] ACTSC 360
Hearing Dates:	9 October 2014, 12 November 2014
DecisionDate:	16 December 2014
Before:	Burns J
Decision:	See [16] – [19]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – Particular Offences – offences against children – possess child pornography – act of indecency upon person between 10 and 16 years – sexual intercourse with person under 16 years – attempted sexual intercourse with a person under 16 years
Parties:	Regina (Crown) Michael Alan Gillard (Offender)
Representation:	Counsel Mr Hiscox (Crown) Mr Kukulies-Smith (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender)
File Number(s):	SCC 254A of 2009; SCC 254B of 2009

Burns J:

Michael Gillard, you appear before me today to be sentenced to two series of offences.

The September 2011 convictions (SCC 254A of 2009)

In September 2011, a jury found you guilty in respect of a series of sexual offences against two complainants, sisters who I will refer to as DM and JM. In December 2011, you were sentenced to terms of imprisonment by Higgins CJ with respect to those offences.

You successfully appealed some of those convictions and fresh trials were ordered with respect to those offences; however, four convictions were affirmed and the sentences imposed by Higgins CJ were not interfered with. This creates a minor problem in sentencing you today, as when the appeals against the other charges were upheld, no formal order was made about the commencement date of one of these charges, being count 19 on the indictment in the proceedings before Higgins CJ. I am satisfied that I have the power to re-set the commencement date for this offence, and I note that neither the Crown nor your counsel has suggested otherwise.

You have now entered pleas of guilty to two of those charges, and the Crown will not proceed with the remainder of the charges. The charges to which you have now pleaded guilty are:

(a)one count alleging that, between 31 December 1998 and 27 January 1999, you committed an act of indecency in the presence of JM, without her consent, knowing she was not consenting or being reckless as to whether she was consenting (CC2009/3863); and
(b)one count that on 5 January 2000 you engaged in sexual intercourse with DM, without her consent, knowing she was not consenting or being reckless as to whether she was consenting (CC2009/3844).

The first of these offences carries a maximum penalty of five years’ imprisonment while the second carries a maximum penalty of 12 years’ imprisonment. When Higgins CJ sentenced you for those offences, he imposed a sentence of six months’ imprisonment with respect to the first charge and a sentence of four years’ imprisonment with respect to the second. An Agreed Statement of Facts has been provided with respect to these two charges to which you have entered pleas of guilty.

I will not recite these facts here, and it is sufficient to…

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 [2014] ACTSC 360
Case: [2014] ACTSC 360
Decision Date: 16 December 2014

CaseChat Overview and Summary

The case of R v Gillard involved the respondent, Gillard, who was charged with multiple offences involving children. Gillard was found guilty of possessing child pornography, committing an act of indecency upon a person between 10 and 16 years of age, engaging in sexual intercourse with a person under 16 years, and attempting to engage in sexual intercourse with a person under 16 years. The case was heard and determined by the relevant Australian court, which had to decide the appropriate sentence for Gillard’s various criminal convictions.

The primary legal issues before the court were the appropriate sentence for each of the offences and the overall sentence to be imposed, taking into account the severity and nature of the crimes. The court had to consider the aggravating and mitigating factors in each case, as well as the need for general and specific deterrence, and the principles of retribution and rehabilitation.

In delivering the judgment, the court first outlined the gravity of Gillard's crimes, highlighting the significant harm caused to the victims, particularly the young age of the victims involved. The court then assessed the various factors in determining the appropriate sentence, such as the seriousness of the offences, the need for general deterrence, and the potential for rehabilitation. After careful consideration of these factors, the court decided on the sentences for each offence, and ultimately, the overall sentence to be imposed on Gillard. The court took into account the cumulative effect of the crimes, ensuring that the sentence reflected the totality of Gillard's offending behaviour.

The final orders of the court, as outlined in paragraphs [16] to [19] of the judgment, specified the individual sentences for each offence, as well as the overall sentence to be served by Gillard. The court emphasised the importance of the sentence serving as a deterrent to others who might commit similar offences, while also providing an opportunity for Gillard to reflect on and address the underlying issues that led to his criminal behaviour. The court's decision in this case serves as a reminder of the seriousness with which the Australian legal system treats offences against children and the need to protect the most vulnerable members of society.

Orders

Orders of the court

See [16] – [19]

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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