Michael Alan Gillard(Appellant) v The Queen

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge ACJ,Penfold,North JJ
• Judgment Date: 30 September 2016
• Court: Court of Appeal of ACT
• Docket Number: File Number: ACTCA 1 of 2015
• Date: 30 September 2016

[2016] ACTCA 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Before:

Refshauge ACJ, Penfold and North JJ

File Number: ACTCA 1 of 2015

Michael Alan Gillard

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

Mr T Game SC (Appellant)

Mr J White SC (Respondent)

Cases Cited:

AB v The Queen [1999] HCA 46 ; 198 CLR 111

Allred v The Queen [2015] ACTCA 21 ; 10 ACTLR 325

Attorney-General v Tichy (1982) SASR 84

Coggan v The Queen [2013] ACTCA 49

Drayton v The Queen [2013] ACTCA 44

Johnson v The Queen [2004] HCA 15 ; 205 ALR 346

Kentwell v The Queen [2014] HCA 37 ; 252 CLR 601

Markarian v The Queen [2005] HCA 25 ; 228 CLR 357

R H McL v The Queen [2000] HCA 46 ; 203 CLR 452

APPEAL — JURISDICTION, PRACTICE AND PROCEDURE — Appeal against sentences — sexual offences — principle of restraint in re-sentencing following successful appeal against conviction — whether sentence manifestly excessive — whether primary judge erred in accumulation of sentences — whether ‘crushing’ sentence amounts to error — whether discount provided for plea of guilty — impact of delay in finalisation of proceedings on appellant's eligibility for parole — discretion to re-sentence following finding of specific error — appeal upheld — appellant re-sentenced.

Decision:

• 1. The appeal will be upheld.

• 2. The convictions for offences of committing an act of indecency in January 1999, committing an act of indecency on a person under the age of 16 years in January 1996, engaging in sexual intercourse without consent on 5 January 2000 and attempting to engage in sexual intercourse with a person under the age of 16 years in January 1996 be confirmed.

• 3. The sentences for those offences be set aside and in lieu Michael Alan Gillard be sentenced as follows:

  • a. For the offence of committing an act of indecency in January 1999, he be sentenced to imprisonment for five months to commence on 2 September 2013;

  • b. For the offence of engaging in sexual intercourse without consent on 5 January 2000, he is sentenced to imprisonment for three years and eight months to commence on 2 December 2012;

  • c. For the offence of committing an act of indecency on a person under the age of 16 years, he is sentence to imprisonment for 12 months to commence on 2 February 2016; and

  • d. For the offence of attempting to engage in sexual intercourse with a person under the age of 16 years, he is sentenced to imprisonment for four years to commence on 2 February 2017.

• 4. The adjustment made to the commencement of the sentence imposed by Higgins CJ for the offence of possession of child pornography of three months imprisonment to be 2 June 2013 be confirmed.

• 5. A non-parole period of five years and three months be set to commence on 2 December 2011 and to expire on 1 March 2017.

THE COURT:

Introduction

1 Michael Alan Gillard has appealed against the sentences imposed on him by Burns J for sexual offences committed between late 1995 and early 2000 against two complainants, identified only as DM and JM, who were the daughters of a friend and colleague of the appellant.

2 The offences were dealt with in two separate trials, one before Higgins CJ and the other before Burns J. All the charges arose out of the same general circumstances (described at [3] below) but, with one qualification, involved a different complainant in each trial. The qualification is that the trial before Higgins CJ involved one offence against JM, the complainant in the trial before Burns J, being an offence against JM constituted by the commission in her presence of a sexual act with her sister DM, the complainant in relation to all the other charges tried before Higgins CJ.

3 The factual background to this matter was set out in Gillard v The Queen [2013] ACTCA 17 at [8] as follows (that judgment referred to DM and JM as DD and JL respectively):

Between January 1990 and 1991 or 1992 [X] and [Y] and their four children [A, DD, JL and B] resided at [an army base in the ACT]. [X] was in the armed services at this time. It was through the armed services that he met [the appellant], who became a family friend.

In around 1991 or 1992 the … family relocated from the ACT to [T, in Victoria]. [B] did not move with the family as he [suffered a severe disability] and required 24 hour care. [B] remained in the ACT in a care facility.

Between December 1992 and January 2000 [DD] and [JL] and occasionally their older sister [A], would visit [B] during the Christmas school holidays. Whilst in the ACT they would stay with [the appellant] at his home … in the ACT. [The appellant] resided in the unit alone and [the victims] considered him to be an uncle type figure and an unofficial godfather. [The appellant] would drive to [T] to pick them up and take them to Canberra. They would leave [T] sometime from New Years Day onward and stay with [the appellant] for a week. The visits took place during the summer school holidays.

When [DD], [JL] and [A] stayed with [the appellant] they slept in the spare bedroom located at the rear of the premises, which contained a standard single bed and a fold out single bed.

4 It is convenient to outline the somewhat complex procedural background to this appeal by means of a table providing a chronology of the sentencing processes that led to the current position.

Chronology

Date [Supreme Court file]	Event	Details
22 September 2011 [SCC254A]	1. Jury finds the appellant guilty of eight sexual offences against two complainants DM and JM. Jury acquits the appellant of eight other charges.	Guilty verdicts were returned on counts 2, 3, 4, 13, 14, 16, 18 and 19.
30 November 2011 [SCC254B]	2. Jury finds the appellant guilty of two sexual offences against JM.	Sentencing delayed pending finalisation of appeals in SCC254A
2 December 2011 [SCC254A]	3. Higgins CJ sentences the appellant to 9 years and 9 months imprisonment, with a non-parole period of 5 years and 3 months.
22 December 2011	4. The appellant files Notice of Appeal against convictions and sentences in SCC254A.
18 April 2013 [SCC254A]	5. ACT Court of Appeal delivers decision on the appellant's appeal. Gillard v The Queen [2013] ACTCA 17.	Appeal dismissed.
1 September 2013	6. Expiry of sentences on counts 2, 3 and 4, and 19 (as a result of re-setting of sentence date: at event 10.1 below).
14 May 2014 [SCC254A]	7. High Court delivers decision on the appellant's appeal: Gillard v The Queen [2014] HCA 16; 236 A Crim R 586.	Convictions on counts 13, 14, 16 and 18 overturned, new trial ordered.
25 July 2014 [SCC254A]	8.1 New indictment signed on counts 13, 14, 16 and 18 (which become counts 1, 2, 3 and 4).
9 October 2014 [SCC254A]	9.1 The appellant pleads guilty to counts 2(14) and 3(16). 9.2 Agreed statement of facts tendered on counts 2(14) and 3(16).	Pleas accepted in full satisfaction of outstanding matters (including counts 1(13) and 4(18) on new indictment).
16 December 2014 [SCC254A, SCC254B]	10.1 Burns J resets commencement date for sentence on count 19. 10.2 Burns J sentences the appellant on pleas of guilty to counts 2(14) and 3(16). 10.3 Burns J sentences the appellant on two counts in SCC254B.	The sentences imposed by Burns J are the subject of the current appeal.

5 In summary, the sentences imposed by Higgins CJ in December 2011 for eight offences ( the original total sentence) totalled 9 years and 9 months, with a non-parole period of 5 years and 3 months.

6 After two charges from the trial before Higgins CJ were abandoned, and Burns J:

the sentences ( the new total sentence), also for eight offences, totalled 10 years and 9 months, with a non-parole period of 7 years.

• (a) re-sentenced the appellant for two of the other offences originally dealt with by Higgins CJ; and

• (b) sentenced the appellant for two other offences;

7 A more specific comparison between the first and the second total sentences is that between the total sentence imposed for the four offences dealt with by Higgins CJ and the total sentence imposed for the remaining two of those offences for which the appellant was re-sentenced by Burns J. For the four offences dealt with by Higgins CJ (identified as Offences A, B, C and D in the table at [8] below), his Honour imposed terms that totalled 13 years and 6 months and, as a result of provision for concurrency, added a total of 8 years to the overall sentence. For the two offences on which the appellant was re-sentenced by Burns J (Offences B and C), Burns J sentenced the appellant to a total of 4 years and 6 months, with no concurrency, and accordingly added the full 4 years and six months to the overall sentence.

Comparison of facts

8 The offences on which the appellant's convictions were set aside by the High Court, and the offences for which the appellant was later sentenced by Burns J, and their relevant facts, were as follows:

Offence [maximum penalty (term of imprisonment)]	Date of offence	Facts and circumstances of offence	History of offence
Offence A. Sexual intercourse without consent [12 years]	January 1999	The appellant forced DM to fellate him, in the presence of DM's younger sister JM, aged 16. [ Sentence: 5 years imprisonment, accumulated so as to add 4 years to the total sentence.]	Guilty verdict before Higgins CJ (Count 13 on original indictment) set aside by High Court. Count 1 on new indictment 25/7/14. Abandoned (after pleas of guilty to Offences B and C).
Offence B. Act of indecency in the presence of a person without consent [5 years]	January 1999	Trial before Higgins CJ: the appellant was fellated by DM in the presence of JM,...