Director of Public Prosecutions v Ellerton
[2020] VCC 1639
•14 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00885
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEITH JAMES ELLERTON |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2020 | |
DATE OF SENTENCE: | 14 October 2020 | |
CASE MAY BE CITED AS: | DPP v Ellerton | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1639 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One rolled-up charge of indecent act with child under 16 and one charge of indecent assault – Offending against stepdaughter over a period of years from when victim was aged 10 to 13 years (Charge 1) and one further offence on victim’s 17th birthday – Aggravating features of breach of trust by step-father in victim’s own home – Offending apparently in part motivated by desire for retribution against offender’s wife whom he believed to be unfaithful to him and also due to an unsatisfactory sexual relationship with the victim’s mother – Offences of historical nature with last offence 22 years prior to date of plea – Offender 74 years old at date of plea – No prior criminal history and otherwise of good character – pleas of guilty – remorse – probably good prospects of rehabilitation
Sentence: Total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years. s6AAA: 5 years and 6 months, with a non-parole period of 3 years and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Rutherford | Solicitor for Public Prosecutions |
| For the Accused | Mr M Habib | Olympus Lawyers |
HER HONOUR:
1 Keith James Ellerton, you have pleaded guilty to one charge of committing an indecent act with a child under the age of 16 years and one charge of indecent assault. Both of these offences carry a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are summarised in the amended summary of prosecution opening for plea (Exhibit A). The victim of your offending was your stepdaughter, who at all relevant times was living with you and her mother. The offending on Charge 1 took place between 1 January 1992 and 15 November 1995 when your victim was aged from 10 to 13 years. The offending on Charge 2 took place on 16 November 1998, which was your victim’s 17th birthday. You were born on 20 October 1945 and were 36 years older than your victim.
3 Charge 1 is a rolled-up charge which comprises eight discrete episodes of offending over a period of 3 years and 10 months from early 1992 to late 1995. Six of the episodes of offending involved touching, squeezing, or groping your victim’s breasts. One occurred after your victim was drying herself following a shower. Four episodes occurred whilst you were sitting behind your victim, who was driving a 4‑wheeled motorbike, and one occurred when you entered her bedroom and she was in her bed. On all occasions you placed both of your hands under your victim’s clothing to perform the offending act. The two remaining episodes involved you entering her bedroom in the early morning while she was still in bed. You shut the door and then approached your victim in bed, pulled up her pyjama top, and sucked on her left nipple before moving to suck her right nipple.
4 Charge 2 occurred on your victim’s 17th birthday. She was in her bedroom opening the curtains, when you entered her bedroom and walked up behind her and placed both of your hands under her top. She struggled and wrenched her body around, and told you “Get your fucking hands off me.”
5 Shortly after the last episode of offending on 16 November 1998, your victim left the family home to study at university.
6 During the course of offending, on the last occasion upon which you indecently assaulted your victim while she was driving the 4‑wheeled motorbike, she had told you that she was going to tell the police. You replied “No you won’t.” At this stage she was aged 12 years. Despite disclosing your offending to her mother and threatening to tell the police, she received no support, and no complaint was made by her to the police at that time and, indeed, not until many years later.
7 Years later, in November 2017, your victim wrote to her mother. In effect, she stated that she could not understand why her mother had not helped her. She revealed the deep distress that she had suffered and was continuing to suffer. Your victim’s mother responded to her by letter dated December 2017. Essentially, she stated that she still had no answer. She claimed that she had brought it up with you, and you had promised it would stop. She asked for forgiveness, and stated that you would write an apology, which “hopefully will be a starting point in at least a partial patch-up of the fractured relationship”.[1]
[1]Depositions page 75
8 At the request of your victim’s mother you then wrote a letter of apology to her, in or about December 2017 (Exhibit 4).
9 Your victim was clearly undergoing great anguish, and wrote another letter to her mother in April 2018. She stated that she had been seeing a psychologist for help. She ultimately made a complaint to police and a lengthy statement outlining your offending on 9 April 2019.
10 You were interviewed by police on 4 July 2019 and made admissions to what you described as “fondling” your victim over a period of what you initially said was 12 months or thereabouts, but later said it may have been 18 months. You stated that one of the reasons for your offending was that the victim’s mother was “meeting with someone else” and “what I was doing was in retribution”.[2] You described it as “a very cheap way of, I suppose, reacting to what my wife was involved with”.[3] You were less than clear about when this particular motivation had manifested itself, as you conceded that you had probably offended against your victim before becoming aware of the alleged infidelity of your victim’s mother.[4] In any event, you told police that the alleged infidelity of your victim’s mother had only been for two or three months at the most.[5] You were unable to explain why you thought retribution for what her mother had done by offending against her was a good option.[6]
[2]Record of interview, answer to Question 50
[3]Record of interview, answer to Question 53
[4]Record of interview, answers to Questions 79–85 and 98
[5]Record of interview, answer to Question 113
[6]Record of interview, answer to Question 165
11 When asked by police, you denied that you derived sexual pleasure from your offending.[7] You described “It was ... Just the touching, I suppose. Yeah, the softness and that sort of thing.”[8] However, at another point in the record of interview you had stated that, at the time, you probably did get pleasure out of fondling your victim,[9] but, with hindsight, thought you had not. You also admitted that you had some discussions with the victim’s mother about it, and stopped for a time, but then started again. You were unable to say why you had started offending again, as you claimed that you and the victim’s mother had “a so-called normal relationship”.[10] However, when your solicitors sent you to be psychologically assessed by Mr Jeffrey Cummins, you told him that there were problems in your marriage with the victim’s mother, which were focused mainly on the sexual relationship.[11] You told him that, from your perspective, the sexual relationship had been unsatisfactory for a number of years even prior to you commencing offending.[12]
[7]Record of interview, answer to Question 213
[8]Record of interview, answers to Questions 214–216
[9]Record of interview, answer to Question 164
[10]Record of interview, answer to Question 207
[11]Exhibit 1, report of Mr Jeffrey Cummins, psychologist, dated 16 September 2020, page 6, paragraph 44
[12]Ibid at page 9, paragraph 64
12 The filing hearing for the charges was in November 2019 and, thereafter, you retained your current solicitors and resolution discussions ensued over a period of four committal mention dates. In July 2020, you ultimately indicated your intention to plead guilty to the two charges for which I must sentence you.
13 In a plea on your behalf by Mr Habib, the court was told that you are presently aged 74 years, almost 75 years. You come before the court with no prior convictions and no subsequent matters.
14 Mr Habib stated that you are a person of prior good character. You grew up in western Victoria and attended Geelong Teachers’ College, where you qualified as a primary school teacher. You then worked as a teacher, head teacher, senior teacher or principal at a number of primary schools for some three decades until you ultimately retired from teaching in 1996 in order to focus upon dairy farming. Thereafter, you ran your own dairy farm and also cultivated hydroponic tomatoes. You were a member of the Hydroponic Farmers’ Federation from 1997 to 2002. Following that, you gained a number of qualifications to enable you to set up an auditing business in relation to dairy food safety. You ran this business with your wife, your victim’s mother, from 2003 to 2020, during which you conducted audits for several large corporations and in excess of 400 dairy farms.
15 Mr Habib stated that one of your clients became aware of your offending and you were also the subject of media attention in the local press.[13] This caused you and your wife to decide to shut down the business in February this year. In addition, the 32‑year marriage between yourself and your victim’s mother came to an end as a result of the charges for which I must sentence you. This resulted in you having to sell your home and divide up marital assets. Mr Habib asked that the court take into account that you, thus, had suffered some extracurial punishment. He stated that you are someone who had worked hard all your life and, at age 74, had been continuing to do so and now missed such productivity. In addition, you find yourself without the support of your wife in the later years of life, although you do continue to enjoy the support of your 50‑year-old son and, also, have some contact with your 45‑year-old daughter, both from an earlier marriage.
[13]Exhibit 3, two articles from The Standard in Warrnambool dated 24 February and 17 July 2020
16 Mr Habib also asked the Court to take into account that, not only were you a person without any criminal history, but there is evidence of positive good character by reason of your volunteer activities in relation to having been a trainer of a local football club and general manager of a district cricket association and president of a local cricket club over the course of many years. Three references, speaking highly of your generous contribution to sporting communities, were tendered as Exhibit 2.
17 Whilst I do take into account the extracurial punishment mentioned by your counsel, it is not uncommon for people of ostensible former good character to be before the court for this type of offending. Unhappily, it is often the good character of a perpetrator of these type of offences which enables the offending to continue or, indeed, may cause a young victim of such offending to be loath to complain to police for fear that she would not be believed.
18 I also note that, as pointed out by the prosecutor, Ms Rutherford, it is not apparent from any of the references tendered as Exhibit 2 that the authors are fully cognisant of the nature and the extent of your offending. One reference, by Dr Kelly, is entirely silent upon the issue of offending; another, by Mr Sheen, states that you have told him about your “assault charge”; and the third, by Mr Masterson, states that the charges (unspecified) do not alter his opinion of you as a person of integrity, honesty and goodness. This limits the amount of weight to be assigned to such references. However, I do note that Mr Sheen comments upon your embarrassment and sadness about “any harm [you have] caused to everyone concerned,” as well as the “massive impact” on your life by reason of the breakdown of your marriage, the sale of the family home, failure of your business, and “the loss of many, many friends”. Mr Sheen comments that he still supports you and he “cannot see [you] doing anything like this (unspecified) ever again”. Mr Masterson also states that he understands that you are “totally shattered by [your] charges and remorseful beyond belief.”
19 I do not underestimate the impact upon your life that being brought to justice for this offending has had, but your protracted criminal activity has had a devastating impact upon your victim and ultimately, also, upon her mother and the precious relationship that should exist between the two of them.
20 I accept that you indicated your intention to plead guilty to the charges at an early stage and that such plea has considerable utilitarian value, particularly during the pandemic which has brought jury trials to a halt in the state of Victoria. You spared your victim the further trauma of having to give evidence and endure cross-examination concerning the distressing things that you did to her, and you have facilitated the course of justice and spared the state the cost of a trial.
21 I also accept that your pleas of guilty are remorseful. You made admissions in your record of interview, including the fact that, during the offending in the bedroom, your victim would just lie there, you would not say anything to her, and would fondle her breasts for perhaps 15 to 20 minutes.[14] When asked about the impact that your offending would have had upon your victim you stated that you imagined that “it would have been most uncomfortable” for her.[15] Also in your record of interview you stated that, at the request of your victim’s mother, you had written a letter of apology “for everything that [you’ve] done” and that you had agreed not to visit her and felt “bitter at [your] own self” because this had made it difficult for your victim’s mother in that she was not permitted to see your victim’s children at that time.[16]
[14]Record of interview, answer to Questions 189 to 192
[15]Record of interview, answer to Question 219
[16]Record of interview, answers to Questions 288 and 299
22 Although your letter of apology[17] was apparently written at the request of your victim’s mother, you did state in it that you “sincerely apologise for the hurt, anguish, shame, disrespect and discomfort” that you had caused to your victim. You stated that you could “only imagine what [she had] gone through since” and expressed that you were ashamed and that you will live with the guilt for the rest of your life and did not seek her forgiveness. You also apologised, again, during a pretext call made by your victim to you under police instruction on 18 May 2019.[18]
[17]Exhibit 4
[18]Exhibit 5, page 3
23 In addition, when you saw Mr Cummins in September this year, you acknowledged that your victim “would have felt puzzled, angry, hurt and betrayed.”[19] You reiterated your embarrassment, shame, regret and remorse for your offending behaviour.[20]
[19]Exhibit 1, page 5, paragraph 33
[20]Exhibit 1, page 8, paragraph 58
24 By reason of your pleas of guilty, which I accept to be both early and remorseful pleas, you are entitled to a significant discount upon the sentence which otherwise would have been imposed.
25 I have already referred to the psychological assessment embodied in the report of Mr Cummins dated 16 September 2020, which was tendered as Exhibit 1. In the course of the plea hearing I expressed my concern about the apparent tension highlighted by Mr Cummins’ report, in that he expresses his opinion that your offending is appropriately described as situationally motivated and opportunistic, rather than the product of a specific sexual deviance of sexual attraction to underage females and, also, did not mention your conscious motive of retribution.
26 I cannot accept Mr Cummins’ characterisation of your behaviour as “opportunistic”. You ensured, as is so often the case with this type of offending, that nobody else was about at the time of committing your crimes. Also, you offended repeatedly, even after your victim had threatened to report you to the police and her mother had discussed the matter with you. Moreover, part of the offending on the rolled-up charge (Charge 1) involved you deliberately entering your victim’s bedroom in order to commit the offences, as was the case in relation to Charge 2.
27 You told Mr Cummins that you engaged in your offending as a way of satisfying your own sexual needs in the context of problems with the sexual relationship within your marriage, however, you made no mention to him that you had engaged in the offending as payback or retribution for what you alleged to be the infidelity of your victim’s mother to you, as you had done in your record of interview and also in the pretext phone call with your victim on 18 May 2019. In that call, your victim had pressed you for whether you had any idea about why you offended against her and you stated “No. There was – the only thing is that there might have been a bit of kickback to your mother, that was all…you probably don’t know…what she was doing at that time.”[21] Your counsel conceded that this was a reference to the retributional payback to which you later referred in your record of interview.
[21]Exhibit 5, page 2
28 Whilst the revelation by you of this motivation shows honesty for which you should be given credit, it also highlights a disturbing feature of your offending. It indicates a callous cruelty towards your victim in order to get back at her mother for her alleged infidelity to you. It is a serious aggravating feature of your offending. It is truly abhorrent that any person, particularly one who stood in the role of a father figure to a victim, should wilfully commit an indecent act with an innocent child in order to somehow exact revenge upon that child’s mother.
29 This factor, together with your claim not to have had any sexual attraction to your victim, but simply utilised her as a way of satisfying your own sexual needs, to my mind shows worrying features of your personality, and raises concern about how much insight you actually have in relation to the gravity of your offending despite acknowledging its effects upon your victim. It may be that Mr Cummins’ conclusion is correct that now, at the age of almost 75, your risk of committing further sexual offences is low, particularly as there is no evidence of further offending in the last 22 years. However, I am uncertain about his conclusion that there is no clinical requirement for you to participate in offence-specific treatment.
30 In addition to your admitted sexual offending against your victim by way of a perverse form of revenge towards her mother for her alleged infidelity, there are a number of other aggravating aspects to your offending.
31 It involved a huge breach of trust. Your victim had already endured the trauma of the breakup of the marriage of her biological parents. She was a vulnerable 6 year old child when you became her stepfather. When her mother married you, she even had her surname changed to your surname. You were someone who should have protected her, not abused her in the repeated way that you did. You were an authority figure in a household where she was a young child. Your offending was all the worse for the fact that it took place on the farm where she lived and, on several occasions, in the sanctity of her own bedroom. Thus, it strikes at the heart of the entitlement of every child to feel safe in her own home.
32 You, as a primary school teacher and headmaster, should have been acutely aware of the psycho-sexual stages of development of children, and how very vulnerable a child is as she approaches and goes through the phase of puberty. You should have known how harmful exposure to inappropriate sexual conduct can be before a child has the maturity to understand it. Yet, twice in your record of interview, you referred to yourself as being “naïve”. You told police that, although your victim had a couple of times said “Don’t”, you were “naïve enough to continue on.”[22] You also stated that you supposed it was “a naïve way” of getting “some sort of pleasure.”[23] Whilst ostensibly a model citizen in the community, volunteering generously for sporting events and clubs, you behaved in a depraved way at your own home.
[22]Record of interview, answer to Question 160
[23]Record of interview, answer to Questions 212 to 213
33 At one stage, you sleazily, and inappropriately, compared the size of your victim’s breasts with that of her mother. This was when she was only 10 or 11 years old. You also shut her down in an intimidating and controlling way when she said that she was going to tell the police, by telling her emphatically “No you won’t.” Not only did you intrude upon the innocence of her childhood, but you created confusion and eroded her self-esteem and made her feel powerless. Your moral culpability for this offending is high, because you knew it was wrong, but selfishly put your own desire for some sort of sexual satisfaction, which you claim that you were not getting from your victim’s mother, before your victim’s welfare.
34 There was a degree of planning to your offending, in that you ensured that it occurred when others were not about. It was persistent and predatory in nature, in that you repeatedly ensured that you had your victim on her own, either on the 4‑wheeled motorbike or when you deliberately entered her bedroom.
35 The offending on Charge 1 took place over a protracted period of over three years. There was then a gap in offending, when your victim began to recover some of her self-esteem. Then, on the very day of her 17th birthday, you again entered her bedroom and tried to exert your power over her by committing Charge 2, casting a blight over her birthday and causing her to relive your past humiliations of her.
36 Your victim courageously read to the court the contents of her eloquent and insightful victim impact statement, which was tendered as Exhibit B. She referred to the abuse from you having been an all-permeating blight on her life, rendering her resentful and powerless during her period of intimate development. She stated that she tried to bury your abuse by maintaining a cheerful, extroverted, confident facade, whilst all the time being on high alert as to your footsteps outside her bedroom or your machinations to get her alone out in the paddocks on the motorbike. She stated that she tried to keep her shame hidden but, after she had children of her own, particularly her daughter, she was prompted to address the past. She stated that she still relives the feelings of terror and rage and impotence in nightmares, the aftermath of which can linger for days. She recalls with revulsion your rough hands on her skin and the sound of your breathing whilst you abused her. She describes how these traumatic memories have been enduring, and impacted upon her capacity to enjoy intimate relationships with others, and ultimately necessitated her undertaking psychological treatment on an ongoing basis, upon which she has spent approximately $2,000 to date, dealing not only with the shame and disgust and erosion of self-esteem from what you did, but also the fact that her relationship with her mother also lies in tatters, as she remained with you and did not protect her.
37 The sorts of ramifications mentioned by your victim in her victim impact statement are understandable and foreseeable consequences of your offending and, indeed, are the very reason that the law provides special protection to children by making it a crime to expose them to sexually-violating behaviour like yours.
38 Both your counsel and the prosecutor are in agreement that the only appropriate sentence is a custodial sentence, of which there should be an immediate custodial component. Both your counsel and the prosecutor have indicated that they consider that a suspended sentence, which was still within the sentencing power of the court at the time of the commission of these offences, would be within range.
39 I indicated at the plea hearing my qualms about the adequacy of such a sentence, given that it must not be of a duration of greater than three years. Having carefully reflected upon the submissions of each counsel following the plea hearing, I remain of that view. I have arrived at the sentence which I intend to impose being mindful that I must impose a sentence in accordance with current sentencing practices, which means practices existing at the date of sentencing.[24] This does not mean that practices at the time of commission of the offences in the 1990s are necessarily irrelevant, but neither counsel addressed me upon such practices.
[24]Stalio v The Queen [2012] VSCA 120
40 The rolled‑up nature of Charge 1 involved eight occasions of offending over a period in excess of three years, with abusive acts taking place (on your own admission) for 15 to 20 minutes at a time, and which progressed from groping or fondling your victim’s breasts to sucking on her nipples. Although there was no penetrative sexual offending, the length of the period of offending, its persistent nature and the other aggravating features to which I have referred are such that I believe a longer sentence than three years’ imprisonment is necessary to reflect its gravity. In coming to this conclusion, I note that the maximum sentence for the Charge is 10 years and that you have already received the benefit of having 8 discrete episodes of offending rolled up in one charge.
41 Further, although your offending on Charge 2 was of a more fleeting nature, it assumes extra significance in light of the fact that your victim had just begun, after a gap of some years, to feel safe, but here you were again invading her bedroom with a sense of entitlement, placing both of your hands under her top, on her 17th birthday. The impact upon her is evident in her statement to police: “I was outraged. It hadn’t happened in so long, and I had started to feel cautiously good again that it had stopped, and I remember feeling like he was making me feel like a powerless child again, and I was so angry.” It seems that you did not necessarily give up easily, as she had to struggle and wrench her body away from you, and she had to tell you in no uncertain terms: “Get your fucking hands off me.”
42 It is small wonder that your victim moved out of that home soon after she completed Year 12, and resented returning there, as she was expected to do, to “play happy families” during Christmas and other traditional family celebrations.
43 In all the circumstances of this case, the predominant sentencing principles must be denunciation of your conduct, emphasis upon general deterrence so that others who may similarly offend will know that they will be appropriately punished, and just punishment. Although your offending was persistent and repeated in its nature over a lengthy time, it is in excess of two decades since you offended. Accordingly, I consider that the need for emphasis upon specific deterrence, now, is less than it otherwise would have been, particularly given your remorse. However, as previously mentioned, it is possible that you may need to undertake a sex offenders program. I consider it appropriate for you to be assessed as to such a necessity and to undertake or not undertake such a program depending upon the outcome of the assessment. Your counsel has indicated that you are willing to comply with any such requirement and are resigned to your fate of a term of imprisonment. I note that you had requested that your bail be revoked at the end of the plea hearing in order to commence your punishment. However, due to it being a hearing conducted via Webex and the difficult logistics involved in remanding you in custody in those circumstances, it has been necessary to leave your remand in custody until today, when you were required to physically attend the Court.
44 As I have already stated, by reason of your early and remorseful pleas, I have discounted the sentence considerably from what it would have been had you run a trial. I acknowledge that having had no contact with the criminal justice system or prisons will make it difficult for you to serve a term of imprisonment for the first time at almost 75 years of age. I am mindful that Mr Cummins has assessed you as having a depression-related disorder which is reactive to your legal situation and your feeling of being alienated from others and that you had disclosed recent fleeting suicidal thoughts. He assessed you as being mildly anxious and mildly to moderately depressed, but prone to play down your emotions. It is appropriate to act upon Mr Cummins’ recommendation by notifying custody authorities of this situation.
45 Your anxiety and depression have not necessitated the prescription of medication to date, but your counsel indicated that you do take medication for conditions of elevated blood pressure, elevated cholesterol, gout and, also, an aspirin each day for treatment of deep vein thrombosis. I have taken into account that serving a sentence at your age can be onerous and, all the more so, for the fact that you are being remanded in custody during the COVID‑19 pandemic. This will necessitate you being in isolation for a period of 14 days. Also, there are ongoing restrictions within the prison community. Although I must not speculate as to how long they will continue, as at the date of sentence, at most prisons, there are reduced out of cell hours in order to facilitate social distancing, a reduced availability of rehabilitative programs and other activities and a lack of contact visits albeit that there are increased facilities for Skype and telephone calls.
46 I consider that, probably, your prospects of rehabilitation are good and that, taking into account the various mitigatory factors that I have mentioned, along with your now relative social isolation and limited supports following the failure of your marriage and loss of many friends, it is appropriate to set a relatively lengthy parole period to assist in your reintegration into the community, subject, of course, to the Adult Parole Board deciding to grant parole.
47 On Charge 1, you are convicted and sentenced to be imprisoned for a period of 3 ½ years.
48 On Charge 2, you are convicted and sentenced to be imprisoned for a period of 6 months.
49 I order that the sentence of 6 months on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. The total effective sentence is thus 4 years’ imprisonment. I direct that you serve a period of 2 years’ imprisonment before becoming eligible for parole.
50 By reason of your conviction on Charge 1, which is a Class 2 offence under the Sex Offender Registration Act 2004, you become subject to mandatory registration as a sex offender under that Act and will have an obligation of mandatory reporting for a period of 8 years. My Associate will provide a document to you setting out the obligations under the Sex Offender Registration Act.
51 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed this day would have been 5 ½ years’ imprisonment, with a non-parole period of 3 years and 8 months.
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