Director of Public Prosecutions v Shadlow

[2025] VCC 1485

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01382

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT SHADLOW

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JUDGE:

JUDGE DAWES

WHERE HELD:

TRIAL DATES:

Ballarat

25 March 2025 – 2 April 2025

DATE OF PLEA:

15 September 2025

DATE OF SENTENCE:

8 October 2025

CASE MAY BE CITED AS:

DPP v Shadlow

MEDIUM NEUTRAL CITATION:

[2025] VCC 1485

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Sentence – Rape – Make Threat to Kill

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).

Cases Cited:Bugmy v The Queen [2013] 249 CLR 571.

Sentence:                  TES of 8 years and 3 months, NPP of 5 years.

Sex Offenders Register for 15 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Martin	Ms D. John, Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Ms H. Lyons, Adrian Paull Criminal Lawyers

1Robert Shadlow, you were found guilty at trial of two offences that were committed on the one day in Horsham, between 22 July 1999 and 31 December 1999.

2While you were initially charged on the same indictment with your co-offender, Rebecca Johnston, an application was made on her behalf for severance.  This application was granted on 19 March 2025, and you were tried separately.

3Your trial commenced on 25 March 2025.  On 2 April 2025, you were found guilty by jury verdict of the two offences you faced, namely:

Charge No.	Charge	Maximum penalty
1	Rape	25 years’ imprisonment
2	Make threat to kill	10 years’ imprisonment

4Rebecca Johnston’s trial commenced on 3 April 2025.  On 9 April 2025, she was found guilty by jury verdict of the eight offences on her indictment, including the two offences that you faced.  Her plea has commenced but been adjourned to later in the year, for the provision of further material.

5You were 50 years of age at the time of offending and are now 76 years old.  Rebecca Johnston was 24 years of age at the time of offending and is now 50 years old.  At the relevant time, you both resided in Horsham at your house, as Johnston was in a relationship with your son who was in custody.

6The victim of your offending was born in August 1986 and was 38 years of age when he appeared in the trial.  At the relevant time, he was aged between 12 to 13 years and lived with his mother and siblings at an address in Horsham.  The victim often hung around in the main street with his friends.  You and Johnston would run into them and talk to them, as well as giving them cigarettes.

7I will summarise the facts of this case in accordance with the trial evidence and the jury verdict.  It includes references to other misconduct evidence that is not covered by the indictment.  This evidence is part of the narrative and places the charged acts into context.  A general summary is as follows.

8The offending occurred on an occasion when both you and Johnston ran into the victim and his friend outside the toilet block in the main street in Horsham.  The boys asked if you had cigarettes, and you said that you did not.  You spoke to Johnston for a couple of minutes, after which you invited the boys back to your house, as they were told you had chocolates, ice cream and cigarettes.  The victim said that given he was a very poor child, he jumped on the invitation.  You both left and walked with the boys back to your house, where your offending occurred.

9When you arrived, the victim’s friend was not enthusiastic.  You went inside, leaving the boys with Johnston.  Eventually, you came back outside and yelled at Johnston to come inside, which she did.  An argument broke out between the two boys, before the victim’s friend left and the victim was on his own.

10Johnston came back out in her nightie and the victim went inside the house with her.  They both went into a bedroom and the victim could not see anyone else in there, at this point.  Johnston removed her nightie and sexually engaged with the victim for five to ten minutes.

11You then jumped out of a closet in the bedroom.  You were naked and your penis was erect.  The victim did not know you were there.  You started to violently hit the victim around the back of his head, on his body and around his ribs.  As you did this, you called him a bitch and told him to shut up and stop crying.

12You pushed the victim onto the bed in the middle of the room and pushed his head down.  The victim was having trouble breathing and could feel your genitals pushing against him.  At some point, his shorts were pushed down and the victim could feel your erect penis on his bottom.  The victim was trying to take breaths as you continued to push his head up and down.

13You then yelled at Johnston to come over.  At this point, Johnston poured a cold liquid around the victim’s bottom.  You then asked for some to be put on you as well, although the victim was not sure if Johnston did that.

14You had your feet between the victim’s feet and you leaned over the victim’s back.  You inserted your erect penis into the victim’s anus.  You held his head down and thrust your penis in and out.  The victim was crying in pain and tried to scream for help but was unable to, as his head was in the pillow.  He stated in his evidence that he was violently raped.  He felt like he was on fire and that he had never been in so much pain.  He was overwhelmed, crying and wanted his mother to come and save him.

15During the incident, the victim glanced at Johnston who was seated in a chair.  He said that she was touching and playing with herself.

16You ejaculated and withdrew your penis from the victim’s anus.  You told Johnston to clean up the victim, at which point she collected a towel and began to clean the victim’s bottom.  You then left the room.  Johnston stayed in the room, tried to comfort the victim and sexually engaged with him again.

17At one point, you came back into the room while the victim and Johnston were still there.  You told the victim that if he told anyone about this, you would kill him, his family, his sisters and his dog.

18Johnston told the victim that she would take him home and they soon left the house together.  The victim had trouble walking due to pain.  They stopped a few times and the victim was crying and felt very sore.  Further offences were committed by her on the way to his home.

19When the victim arrived home, he ran to the back door and was in pain and crying.  He was covered in marks, swelling and bruising and his rectum was badly injured.  He had trouble going to the toilet.  His brother was home, but his mother was not.

20He went to his bedroom and before he went to sleep, the victim’s mother came home.  The victim said he told her that he had been assaulted by a man and a woman, but his mother did not believe him.  He stated that she told him to stop being stupid and thought he was fighting with his brothers.  He said that he did not tell anyone else at the time.

21One or two weeks later, the victim said that his friend asked him what was going on, as he was not playing football.  He told him that a male and a female had assaulted him.

22Both the victim’s mother and his friend gave evidence in the trials.  There was a conflict in their accounts, as neither of them agreed that the victim had made a complaint to them about sexual misconduct.  Both witnesses said that they knew nothing of the allegations until 2019.

23Approximately one or two months after the sexual offending, the victim said that he saw both you and Johnston, walking the dog.  You ran over and hit him to the head, asking him if he had said anything.  Johnston asked him if he had told the police.  He said no and you both took off.

24The victim left Horsham at the age of 14.  In February 2019, when the victim was in custody in New South Wales, he sought counselling and made a disclosure about the incidents.  A statement was provided by the victim to the police on 13 June 2019.

25According to the victim, the offending has had a considerable impact upon his subsequent life.  In cross-examination, he gave evidence that due to his sexual abuse, he was self-medicating with drugs.  In re-examination, he said that he started to use heroin to suppress the abuse that he suffered.  He stated that his drug use led him to start committing crimes when he was 18 and he now has an extensive criminal history.  He was in custody at the time of giving his evidence in the trial.  Your offending must have been terrifying for the victim, who was a child, only 12 or 13 years of age at the time.  Although no victim impact statement has been provided, your sexual offending appears to have had a significant impact on the victim.

26Sexual offences are crimes of violence.  There is a presumption of harm to a child who is subject to inappropriate sexual conduct.  You have been found guilty of serious offending that was planned when you and Johnston lured the victim to your house.  You took advantage of the victim’s vulnerability and youth when you committed the offence.  There was a significant age disparity between you and the victim.  You inflicted violence on him after you pushed him onto the bed, which is an aggravating feature of the offence.  When you bumped into him on another occasion, you struck him again and asked if he had said anything.  When you raped the victim, you penetrated his anus which caused him physical pain.  Your penile penetration was unprotected and you exposed the victim to the risk of a STD infection.  Your counsel has conceded that the offending here is serious.  The prosecution submits that although this is not the worst example of this type of offence, it does fall at the higher end of the scale.

27The objective gravity of your offending is clear.  You violently forced yourself upon a child, anally penetrating him against his will, punched him repeatedly and after you ejaculated inside him, you threatened to kill him.  All of this occurred in the company of an apparently willing co-offender.  This was reprehensible offending and your moral culpability for both charges is high.

28You have continued to deny your offending, as you have done since these matters were first raised.  You have run a trial and are not to be penalised for that.  In those circumstances, however, there is no acceptance of responsibility for your misconduct and I am unable to conclude that you have shown any remorse whatsoever.  At the plea hearing, your counsel advised the court that in your view, you have been set up by your son because you are 'a soak'.  You maintain that he has fabricated the accusations, and he will seek financial gain.  I note this was not raised as a defence in the trial and your son was not the victim of this incident.  I do not propose to act on this assertion.

29The victim initially reported the offending to police in New South Wales in 2019, while he was incarcerated.  After he provided a statement, police commenced their investigations.  On 2 January 2020, the informant contacted you.  A Record of Interview commenced by consent but subsequently ended when you withdrew your compliance.  You were released pending further investigation and your charges were filed in February 2023.  You were placed on bail and not incarcerated until the jury verdict was received.  Your case proceeded as a contested committal in August 2023 and you were committed to stand trial at Horsham in August 2024.  The trial listing was vacated pending your co-offender being committed.  Your matter then proceeded in the Ballarat County Court and you were found guilty of both counts on your indictment.

30The delay of more than five years between the time you became aware of the police investigation and the finalisation of your case is not solely due to the fact that you elected to contest the charges.  There is no dispute that most of the delay in the resolution of this case was due to matters beyond your control.  You have had the prospect of imprisonment hanging over your head throughout a significant period of time.  I accept that the consequences of the delay have been a source of extended anxiety for you, notwithstanding your pleas of not guilty.  I take the delay into account and accept that it must have a mitigating impact on your sentence.

31You have an extensive criminal history although the majority of your offending in the past has been low level 'street offences' being thefts, minor assaults, offensive behaviour and being drunk in a public place.  You have appeared in court in New South Wales, Australian Capital Territory, Victoria, Tasmania and South Australia.  Your first appearance was in Victoria in 1968 and your offending has consistently occurred until 9 December 2020 where you were found guilty of possess cannabis, cannabis resin or cannabis oil in South Australia.  You were dismissed without conviction for that charge.  Relevantly, in the Melbourne County Court in 1974, you received a sentence of imprisonment of one month, to be served concurrently with another offence, for an indecent assault on a male.  I am advised that you have no recollection of the circumstances of this matter.  In the Prahran Magistrates' Court in 1996, you were convicted and placed on a 12-month work only Community Based Order for the charges of indecent assault and use obscene language in a public place.  You have no recollection of this matter either.  While you have served some short terms of imprisonment in the 1970s, you have not been incarcerated for around 30 years.

32I turn now to your personal circumstances.  It appears that you have had an impoverished and nomadic lifestyle.  You were born in Melbourne in January 1949 and are now 76 years of age.  Your parents separated when you were six years old and you experienced childhood family disruption.  Your leg was injured following a bus accident when you were six years of age.

33You were primarily raised by your mother, who commenced a new relationship and had two children with her new partner.  You describe having a good relationship with your stepfather.  Your mother died in 1991 from cancer.  You had limited contact with your biological father, who had three children with another partner.  He died in around 2000 from a heart attack.  You did not have a particularly strong relationship with your parents prior to their deaths.

34You describe that you underwent a history of unspecified childhood abuse.  This led to your placement in boys’ homes, although you deny this being at the hands of your parents.  You are unable to clarify who committed the abuse to you.  You have described your upbringing as generally positive with no significant incidents of abuse or violence in the home.

35You attended primary school up to Grade 6 including at the Croxton Special School in Northcote.  You believe you attended the special school as you experienced problems with reading and writing.  Your education was poor and you had learning difficulties, including dyslexia.  You did not progress to secondary school.  You gained employment across a variety of manual labour roles until you were aged 16 years.  You were then financially supported by your mother.  You sustained a significant foot injury at around the age of 30, which contributed to your inability to work.  You commenced to receive the Disability Support Pension, although you are unsure of the reason for your eligibility.  You have been in receipt of this pension or the Aged Pension for approximately 46 years.

36You have had limited experience with intimate relationships.  The first was with a woman for around two years.  She had a son in 1975, although it is unclear whether he is biological to you or a stepson.  This relationship ended due to ongoing disagreements.  You married your second partner in 1977 but divorced after one year, due to her infidelity.  You have not been involved in any other long term intimate relationships.  You are estranged from your son, who has a similar history involving incarceration and substance misuse.  You have had limited social support and few friendships, both historically and at present.

37Your medical history is notable for hypertension, dyslipidaemia, cataracts and chronic mobility limitation resulting from the foot injury sustained in an alleged assault when you were 30 years old.  You required surgical intervention and steel plate implantation and you now move with the support of a walking stick.

38Before you were arrested and charged with these offences you resided in South Australia and received Attendant Care Support from the Salvation Army through an Aged Care package.  You received assistance with cleaning and transport but remained independent in all aspects of personal care.  At the time, you had no real friends or relatives to engage with.  Social workers through Anglicare provided the most recent support for you prior to the running of the trial.  Challenges in managing your behaviour were reported predominantly occurring in the context of heavy alcohol consumption.  Notably, no sexualised behaviours were documented.

39Despite your personal and lifestyle issues, you ensured that you attended court for the duration of the trial.  You did not have permanent accommodation in Ballarat.  However, you attended every day in spite of, at times, being homeless and sleeping in the foyer of a police station or in front of a supermarket while the trial was running.  You were diligent in your attendance at court.  Since you were remanded, you have resided at the Melbourne Remand Centre and now moved to Ravenhall.

40You have experienced significant distress since being charged with this matter.  You do not have a record of a formal mental health diagnosis, although you have experienced notable stress and depressive symptoms while in custody and have been admitted to St Vincent’s Hospital on four occasions.  Your belief is that you do not belong in custody and you are concerned about the outcome of this case.  Your current circumstances have been very difficult for you to cope with.

41There is no reported history of substance use within your family home.  However, you have a lengthy history of alcohol and cannabis use since the age of 18.  It is suggested that your nomadic lifestyle was possibly influenced by your issues with alcohol and drugs and mental deterioration.  You estimate that you would consume around '30 cans' of regular-strength beer every two days and have done this for most of your life.  You have also disclosed regular cannabis use, spanning approximately 20 years.  You reported smoking about 0.2 grams of cannabis per night, primarily to assist with sleep.  At the time of the offending, you had a regular pattern of alcohol consumption but denied using cannabis.

42Your counsel noted that prior to the trial, he had concerns about your cognitive ability.  Contact was made with your general practitioner in Adelaide.  She advised that although your mental functioning had reduced, it was not to the extent that a geriatric assessment was required.  Your counsel has suggested that the lack of detail in your recollection, however, indicates that your cognitive difficulties are obvious.

43At the request of your solicitor, you participated in a psychological assessment undertaken by Ms Rebecca Fakhri.  She has provided a report for court, dated 22 May 2025.  A subsequent assessment undertaken by neuropsychologist Dr Sara Fratti took place, to clarify your cognitive functioning and its potential relevance to the alleged offending behaviour.  A report from Dr Fratti, dated 10 August 2025 has also been provided.  Both reports have included accounts of your personal, criminal and mental health history.

44Ms Fakhri writes that:

·you present as 'a highly complex individual whose longstanding cognitive, social and behavioural difficulties appear to have evolved within the context of early development challenges, entrenched substance dependence and chronic criminality’.[1]  Your placement in special school set a trajectory marked by impaired learning, poor adaptive functioning and limited prosocial engagement.

·Over time, these vulnerabilities have been compounded by consistent exposure to criminogenic environments and substance use, both of which appear to have reinforced maladaptive patterns of behaviour.

·You presented with clear indications of cognitive difficulties, most notably with memory and attention.[2]  These difficulties appeared consistent with age related cognitive decline.  You also present with traits of antisocial personality disorder.  At the time of assessment, you appeared to meet the criteria of a major depressive disorder and a generalised anxiety disorder.

·You also meet the criteria for substance use disorders including alcohol and cannabis use disorders.  Given your background being marked by social isolation, early adversity, limited education and physical disability, substance use may serve as a maladaptive coping mechanism that exacerbates vulnerabilities.

·You demonstrate poor insight including into your substance use offending behaviour and interpersonal boundaries.  You denied a longstanding mental health history although you previously required psychiatric admission and have expressed recent distress due to your legal situation.

·Your complex history including longstanding substance use, neurodevelopmental difficulties and psychosocial challenges contributes to a moderate risk of reoffending, if not addressed.  Given your age and physical health issues a multidisciplinary approach involving mental health, medical and community support services is recommended to promote stability and reduce recidivism while monitoring risk factors closely in the community.

·Given your vulnerabilities due to your age, cognitive and physical difficulties, imprisonment would likely weigh more heavily on you than on someone without these conditions.  Your advanced age is considered a significant protective factor.[3]

[1] Psychological Report of Ms Rebecca Fakhri dated 22 May 2025, [108].

[2] Ibid [69].

[3] Ibid [102].

45Ms Fakhri assessed an unspecified neurodevelopmental disorder, which required a neuropsychological assessment.  Dr Sara Fratti outlined your longstanding pattern of social instability, including heavy alcohol and cannabis use.[4]  She opines:

·The results of her assessment were regrettably limited by your test taking behaviours and poor engagement which significantly compromised the reliability and validity of the findings.  While it is not possible to determine the extent or severity of any brain-related dysfunction from this assessment, recent neuroimaging conducted during your recurrent hospitalisations confirms the presence of significant neuropathological changes.

·On balance, considering your perseverative tendencies and neuroimaging evidence, your observed limitations are more consistent with acquired factors, rather than a primarily genetic or neurodevelopmental condition.  However, it is not possible to reliably determine whether you exhibited the same level of cognitive impairment or related symptoms at the time of the alleged offences.

·It is likely that your brain condition has developed gradually over time, exacerbated by your chronic health conditions and lifestyle choices, particularly your longstanding heavy alcohol use.

·With respect to the causality of offending and whether a brain condition, such as an ABI, could have contributed to your alleged historical offending, this remains difficult to determine.

·The highly restrictive and structured environment within a prison setting may lead to improvements in your overall health and help mitigate your cognitive challenges.  Prisons provide a predictable and organised environment, offering a routine that you can learn and adhere to, thereby reducing opportunities for errors and limiting the need for self-initiative.  Your general health would be closely monitored, significantly minimising the risk of non-compliance with medical and rehabilitative protocols.  Your access to substances would also be substantially reduced, limiting the potential for further brain damage and functional decline.

·A prison environment may pose additional challenges for you compared to individuals in good health.  The restrictive nature of incarceration could exacerbate your mood-related difficulties and psychological distress.  While the structured setting may offer certain benefits, it is crucial to consider and address the potential psychological burdens that incarceration might impose on you.

·The assessment of your risk of reoffending falls outside the scope of her neuropsychological expertise.

[4] Neuropsychological Report of Dr Sara Fratti dated 10 August 2025.

46Your counsel has submitted that it is clear that your deterioration in mental function has occurred and there is no dispute about that in either of the reports.  It is not submitted that any Verdins considerations are applicable in your case.  However, your counsel has submitted that your adverse childhood is outlined in the medical reports and enlivens the principles of Bugmy.[5]  The prosecution submits that in light of the available material, Bugmy is not enlivened.

[5] Bugmy v The Queen [2013] 249 CLR 571.

47The information that I have been provided with in relation to your childhood history is primarily outlined in the reports, which I have taken into account.  While you may have had childhood abuse which resulted in your placement in boys’ homes, this issue has only been referred to very briefly and is not supported by any evidence.  You have not disclosed who committed any abuse to you and in fact, you described your family upbringing as generally positive.  Even if I do accept that the very limited history that was provided is true and there were difficulties in your youth, I am not satisfied that your childhood reflects a background of considerable social deprivation that engages the principles of Bugmy.  I do take your background into account as part of your general circumstances, although the circumstances of social deprivation are relatively modest when determining the overall considerations in this case.

48There is no dispute that your advanced age and substance abuse related health issues are relevant, when considering appropriate mitigating factors.  You have now been diagnosed with a major depressive disorder and a generalised anxiety disorder, and overall, your time in custody is difficult by virtue of the jury verdict, which you do not accept.  The seriousness of your offending has been conceded.  There is no dispute that a sentence of imprisonment is inevitable.  Your counsel has submitted that despite this, a crushing term of imprisonment should not be imposed, particularly as that the incident occurred approximately 26 years ago and that your life expectancy appears to be limited.

49It cannot be said that the offence of rape is anything but a serious offence, particularly as this involved the penetration of a child.  I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment.  While specific deterrence and the need for community protection are relevant sentencing considerations, your advanced age and the absence of any further sexual offending mean that those considerations have a limited practical application in the sentencing exercise.  I am also required to balance your prospects of rehabilitation.  You have not been charged with any offences for almost five years, despite the development of your neurodevelopmental difficulties.  In those circumstances, there is a reasonable chance that you will not reoffend and your prospects are fair.

50I take into account the maximum penalties for each offence and current sentencing practices.  The principle of totality needs to be considered, in light of these two offences being part of a single incident.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your criminal conduct overall.[6]

[6] A mandatory sentence, standard sentence and forensic DNA sample are not applicable, given the date of the offending.

51Balancing these factors as best I can, I sentence you as follows:

Charge	Offence	Penalty	Cumulation
Charge 1	Rape	8 years	BASE
Charge 2	Make threat to kill	9 months	3 months

TES	8 years and 3 months
NPP	5 years
PSD	189 days

52The prosecution has made an application for you to be placed on the Sex Offender Register for 15 years [Charge 1].[7]  There is no dispute that the order and the period sought are applicable. I make the order.

[7] Sex Offenders Registration Act 2004 (Vic), s 34(1)(b)(i).

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