Director of Public Prosecutions v Shelton (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

RONALD SHELTON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2020
DATE OF SENTENCE:	21 July 2020
CASE MAY BE CITED AS:	DPP v Shelton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1073

REASONS FOR SENTENCE
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Catchwords: Indecent assault of a female and incest, all upon biological daughter. Course of conduct spanning many years (July 1977-December 1986). Offender a married GP who provided morning after pill. Pregnancy in Year 11. Offender organised and paid for abortion and offending continued with birth control pill given to daughter. Very significant impact. Early plea. Some limited remorse. 74 years old now. Poor health. Some mental health issues enlivening Verdins 5 and 6.
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APPEARANCES:	Counsel	Solicitors
For the Director	Ms B. Goding	Office of Public Prosecutions
For the Offender	Mr D. Brustman QC with Mr R. Larkins	Scanlan Carroll

HIS HONOUR:

1Ronald Shelton[1], you have pleaded guilty to one charge of indecent assault upon a female and one charge of incest. Each charge relates to your daughter and each charge is a course of conduct charge. When regard is had to the between dates periods alleged in each charge, a lengthy course of conduct from when your daughter was 8 to 18 years old. The maximum penalties are correctly spelt out in the summary. The crime of incest committed in the period I am dealing with is punishable by a 20 year maximum term of imprisonment. The maximum penalty has been increased but the increase does not apply here given the commission date.
[1] A pseudonym
2You were born on [redacted] and are now 74 years old. You have no prior criminal history.
Facts
3The detail of your offending is set out in a very lengthy written amended summary of prosecution opening dated 1 July 2020. Your counsel,
Mr Brustman, informed the court that it was an agreed statement of facts and one that had been provided to you, and that in this COVID-19 environment there was no need for it to be read in full in the course of the opening. However, the prosecutor still read a sizeable portion of it. Given the length of that document and the fact that it is agreed, I see no need to set out all the facts in these my reasons.
4This was plainly very serious offending. These charges relate to your sexual abuse of your daughter from when she was a girl of 8 in 1977 until she was 18 years old and in her final year of school. She turned 18 years of age in December 1986.
5You touched her inappropriately to the vagina, including her clitoris, on a monthly basis in relation to Charge 1. So this was vaginal touching from when she was 8 until she was about 12. In that period, the legal definition of sexual penetration did not include digital, or for that matter, lingual penetration. As is conceded, there was uncharged conduct occurring before that point, either overseas or interstate when she was younger still (see paragraph 13b). There is also the uncharged conduct relating to other forms of touching; for instance, with your tongue or rubbing your penis on the outside of the vagina in the charged dates (see paragraph 13(c) of the opening).
6So there are many years of touching. You fall to be sentenced for the charged touching, which is described. You told her that you were having relationship problems with her mother, your wife, and that she would not have sex with you. Your daughter felt sorry for you. You began to refer to your daughter as "your little wife" or "secret wife". As is plain from the summary, the level of touching progressed.
7Your counsel concedes that there was a process of grooming in play here and that is very clear from the materials. As you got older you would talk to her about adult topics and began to introduce the head of your penis into her vagina, going a little bit deeper every time. That is covered by the incest charge and relates to those acts commencing when she was 12.
8The first full penetration was around the period when she was in Year 9 and before she was 16 years old. Your counsel said it was 'when she was 14 or so'. Whether 14 or 15 is of no importance, as the incest was already occurring with the less complete penetrations I have described. The incest charge relates to the many acts of penile vaginal penetration of various degrees; as many as 100 such acts in the between dates period. After the first full penetration, which is described in paragraph 26, the subsequent acts were acts of full penile vaginal penetration to ejaculation. You were, throughout these acts, not just her father but also a medical practitioner. Sometimes you would use a condom, but not always. Sometimes lubricant was used but, again, not always. When a condom was used you would collect one from your study and take it with you as you climbed up the ladder into the loft, where your daughter slept. Many of the acts of incest involved unprotected intercourse with ejaculation. You gave your daughter the morning after pill on many occasions and would follow up with her to ensure that she had taken it.
9At one point, when she was in Year 11, your daughter fell pregnant to you. You chastised her for falling pregnant. You organised and paid for her to have an abortion, booking the appointment under a false name and then driving her to the clinic. I repeat; you were a GP and would know what that procedure would involve. You just dropped her off. You did not even go inside the clinic with her, leaving her to this significant enough procedure without any support. It is incredible.
10Not even that event served as a wakeup call. Thereafter, you gave her the contraceptive pill and continued on with this pervasive and damaging conduct. The charges incorporate the particularised and unparticularised acts set out in the summary and there is, as I have said, the uncharged conduct led by way of context which is also referred to.
11All of the conduct occurred in secret. It was totally warped conduct. Your own wife lived in the same house.
12The last act occurred when you had taken your daughter to the Grampians. It is described in paragraph 41. It occurred in 1986, when she was in Year 12.
13Your daughter began speaking to a psychologist in 2018. She had been worried that no one would believe her, afraid of what might happen to you, and to her and the family. When her own daughter turned 8, your daughter became increasingly apprehensive about contact between you and her child, your granddaughter. Your daughter was encouraged by the psychologist to speak to her partner and also to speak to the police to get some sense of her options. This she did.
14She made a formal statement on 23 October 2018. There were two pretext calls made; the first on 29 March 2019, the second on 12 May 2019. The first occasion you shut down the conversation very swiftly. On the second occasion you tried to shut it down but were not so successful. When she asked you if you had thought about what she had said in the earlier call about promising not to make her daughter, Alison[2], your 'little wife', you said that was absolutely disgraceful, how could she possibly ever think that. Later you said it was just disgusting. You were plainly trying to stop this from coming out. Once you had admitted it, you very directly indicated you would end your life. That you wanted to keep working to provide an inheritance, but you would have no choice but to kill yourself if the matter came out. Some of what you said is set out in the summary and it is really impossible for me in these reasons to give a true sense of that exchange. There is a level of manipulation in that call and very little genuine remorse on display. You said some pretty incredible things. Amongst them, that it was the marijuana that made you do it, or your mental health issue, or you implied that it was in part your wife's fault for chasing other men and for treating you poorly and rejecting you. It is a very lengthy exchange but it was full of perverse statements by you. Amongst those statements, there were utterances which would ordinarily suggest the presence of remorse or shame.
[2] A pseudonym
15You were interviewed by police on 2 July 2019, following your arrest on that day. It was, again, a very lengthy interview. Again, it is impossible for me to give a full sense of that exchange in these my reasons. As with the pretext conversation, it leaves a lot to be desired in terms of expressions of genuine remorse. Again, you made some quite incredible statements. You described the earlier touching of your daughter as 'pretty harmless'. This was intimate touching of your daughter in the family home. You said your daughter was punishing you, that you were confident you would not get caught but were glad that you were near the end of your life. You said that your daughter seemed to be a willing partner and that it would have been helpful if she had resisted. That she was too accepting and passive. More incredibly, you asserted that the offending had little if any effect on her and that she would not be very different if you had not offended against her. You asserted that you had diminished responsibility. As to your mindset you at one point said the following:
"I think to go on doing something you knew in your mind was wrong and yet your mind said, ‘It's not that bad, you'll get away with it', or, 'It's good anyway. It's fun, you know, but you know nothing much will happen', and just supremely overconfident" (see interview question 568, 569).

16Again, mixed in with those sorts of utterances were utterances which ordinarily would signify regret, shame or remorse, but again the problem is they are surrounded by remarks and sentiment which suggest quite the opposite.
Dr Walton recognised that was problematic in terms of any finding of complete remorse here. He is right. It is.
17You have been on bail until my remand of you last Friday.
18I see no need to go further into the details of your offending. Again, I have paraphrased some of the matters from the pretext calls and the interview. One can only get a true sense of what you said by reading it all. The interview spans over 1200 questions. The second pretext call over 100 pages. You said some quite incredible things.
19One must not lose sight of the fact that these are not single occasion charges or even representative charges. I am dealing with you for the course of conduct in relation to each charge over all those years. The totality of the charged conduct and with the context provided by the uncharged conduct. I am not to treat the uncharged conduct as an aggravating feature. I will not. No issue was taken with the uncharged conduct so that provides the full context here.
20The summary makes plain how grave this offending was and I sentence in accordance with that agreed factual statement.
Victim Impact
21There are two victim impact statements. One from your daughter, one from her partner of many years, Mr Erik Steele[3]. Now, I asked Mr Brustman if there was any issue taken with the Court receiving those impact statements and he told me there was not and so they were marked as Exhibit B. It was readily apparent that there were a range of matters which were not admissible within each, I said as much, and neither Mr Brustman or the prosecutor saw the need to work their way through the portions which were not admissible, trusting that I would act on only the admissible portions. This I have done.
[3]A pseudonym
22I am not going to set out the many aspects which are inadmissible. I will act only on the admissible portions. I am, by the way - in saying this - not being critical of either Ms Shelton or Mr Steele for placing such material into their impact statements. Incest is so serious a crime because it has such a devastating impact upon a victim and the sense of the family unit. I am confident many victims will have a sense of total abandonment from the whole family unit and that is hardly surprising. It must be terribly hard to draw the line between describing the impact of a crime and describing other things such as the opinion held as to the offender, or as to your wife or friends of the family. The victim impact statement does not exist to permit people to make negative statements about the sort of person you or your wife are, or even to describe the higher qualities of your daughter. It does not exist to give someone an outlet to vent in those areas, though one can easily enough understand why each would.
23I am not dealing with any aspects of deceit or manipulation by you in the time that your daughter's partner has been on the scene. I am dealing with the impact of crimes committed by you upon your daughter. So these impact statements are designed to disclose to me, the sentencing Judge, the impact of those crimes. Mr Steele is the partner of your daughter and has observed her over the period where she has disclosed to him and then gone to the police. He has seen her torment and is entitled to comment on that. That he goes beyond that is perfectly understandable but not admissible.
24Both his statement and your daughter's statement are both very lengthy and of course your daughter's is the one I pay far greater heed to. She, after all, is the direct victim. I turn to your daughter's victim impact statement but note again that insofar as she often describes what 'they' would do, being a reference to her mother and father, I am not here to pay regard to what sort of parents 'they' were generally, or the nature of the relationship between you and your wife, or aspects of emotional neglect or the arrogance or superiority of the mother and father or disparaging and demeaning statements made by each to her. There are many such descriptions in the impact statement which are removed from the impact of the crime and which I must not have regard to. Again, I am not being critical that those things are in the statement. No doubt your daughter feels - and more importantly felt - completely abandoned by her family owing to the crimes being committed in secret in the family home by you, her father. How could she have anything other than a sense of betrayal by every adult figure in her life? But I must be careful to only act on the admissible portions of the impact statements.
25Now, I sometimes go into some level of detail in relation to the content of impact statements. It occurs to me this is not necessary or useful here. Your crimes are just so serious blind Freddy would appreciate the high degree of impact. Your counsel conceded the sizeable and lasting impact. The Court of Appeal has said that it is a well-known fact that young victims of incest carry the scar for their lives, and of course that is so (see R v KHB [2004] VSCA 219).
26It is almost impossible to reduce these things into writing. Dani[4] tried as best she could. She felt abandoned, lonely and isolated. A sense of hopelessness. She felt fear for herself, fear of being disbelieved, fear as to what might happen if she disclosed. Perhaps she would be removed from the home. The unknown was scarier than the known. She recalls, as a child, waking up into a forced alertness. Holding her breath as you entered her room. She recalls the fear that you would penetrate her and then you doing so and the fear of what would happen if you did not get your way. The fear of not being believed.
[4] A pseudonym
27A huge sense of loss and despair. The grief for the loss of her own childhood and adolescence, the absence of love from her father, the loss of friendships and opportunities. She wonders where she would be absent this abuse and, of course, she will never know. She has a sense of urgency in trying to catch up in her life. Unsurprisingly, she felt fear when her daughter reached a certain age.
28She feels though a sense of strength, having now spoken out. There is at least that note of optimism towards the end of her impact statement. She has received much support from the police and others and feels valued for who she is. She has a sense that disclosure has improved her life drastically.
29I am not here to make judgments about your wife or the other ways in which your daughter feels let down by her parents as a unit. I am not dealing with those things, but the admissible portions of the impact statements spell out so eloquently why incest is such a serious crime. By committing these crimes you, Mr Shelton, betrayed every duty you owed to her as her father. You did that for close to a decade. You have totally marred her childhood and adolescence and have obviously forever altered the course of her life. You have altered her attitude to family, to her own mother and sister, to trust and to love. The impact here has been vast. It will forever reverberate through the course of your daughter's life long after you are gone. I hope these proceedings do give her some comfort. As I say, I am pleased to see some optimism in her impact statement.
30I am not to view this material and act emotionally. That is not my job as a judge. I guard against that approach and of course the impact of crimes is but one of a host of matters that a judge has to consider. I must not let it swamp other considerations. I have to take into account though the impact of your crimes, and I do. It has been vast; something that any sensible person should easily enough understand. Something that still, for whatever reason, seems to be - to some extent at least - beyond your comprehension.
Submissions in Mitigation
31Mr Brustman appeared with Mr Larkins and they raised a number of matters in mitigation on the plea. They placed before the court an outline of written submissions which was marked as Exhibit 1. They relied upon a report from
Dr Walton, as well as reports from Dr Greve, Dr Sullivan, Dr Freilich, Dr Khalid and Dr Mannerheim. Dr Sullivan's report in fact annexed a large range of other materials from other practitioners reporting back to him as your general practitioner. Dr Walton was called on the plea. Counsel made some submissions as to the relevant purposes of sentencing.
32In mitigation your counsel relied mainly upon the following:
·Your early guilty plea;
·The presence of at least some remorse;
·Your level of co-operation with the police;
·The absence of any criminal history;
·Your age;
·An increased prison burden posed by your age, mental health and physical conditions, your knowledge of your wife's predicament in your absence, as well as the response to the COVID-19 virus;
·As to the mental health aspect of that increased burden, the 5th and 6th limbs from the case of Verdins [2007] VSCA 102 were relied upon here.

33Your counsel conceded that this was serious offending with lasting consequences upon your daughter, and with many matters of aggravation, and plainly requiring a head sentence and a non-parole period. He described it as likely that you would be in jail into your 80s.
Prosecution Submissions
34Ms Goding had prepared some very detailed written submissions and did not need to add greatly to those in her oral submissions. It did not seem to me that there was much in dispute here. I raised that with Mr Brustman, who confirmed that there was nothing controversial about the written submissions at all, so I see no point in setting them all out in my reasons. They contained matters of firmly established sentencing principle in relation to this sort of matter. They dealt with the impact, the objective seriousness of the offences and the relevant sentencing purposes. They dealt with the various matters in mitigation and aggravation. The prosecutor questioned the extent of the remorse and made submissions as to the evidence and the opinions of Dr Walton. I was referred to a number of cases including the decisions of Dalgleish [2017] HCA 41 and [2017] VSCA 360. I was reminded that these were course of conduct offences and the impact of those provisions in the Sentencing Act 1991. This was very serious offending indeed, the Director submitted, with many features of aggravation and with general deterrence and denunciation at the forefront of the sentencing exercise. Now, the written submissions suggested that specific deterrence and community protection could be appropriately moderated for the reasons set out in paragraph 15. Of course, that altered - as it had to at least in relation to community protection and the second charge - as the Crown had incorrectly assumed that the serious offender provisions had no application. In fact, those provisions applied to Charge 2 and hence community protection was in fact the principal purpose of sentencing for that charge. A term of imprisonment was plainly warranted and of a dimension requiring the fixing of a non-parole period, the Crown said.

Background
35I turn now to your background. I have no reason not to accept the personal family background that has been placed before me. It is set out in some detail in the written outline and in the report of Dr Walton. I do accept it and see no need at all to rehash it in these reasons, which will be quite long enough. There is nothing placed before me which sensibly explains your offending or in any way reduces your culpability. Though Mr Brustman worked his way through the history of mental health issues, including your later epic battle with the Medical Board, there is no submission that there is any reduction in your culpability for this serious offending. He was explicit in that regard.
36Very briefly then you are 74 years of age, born in [redacted]. You have no criminal history. You were the youngest of 4 children who grew up in the Mallee region. Your mother was a primary school teacher but had some mental health issues and your father was a road engineer. It was said that it was a strange and distant style of parenting with some emotional neglect on hand. I interpose. Consider the advantage of that existence over the style of parenting you brought to bear here with Dani, sexually abusing her throughout her childhood and teens.
37You boarded at Ivanhoe Grammar in the second half of secondary school and did well in matriculation and went on to study medicine at the University of Melbourne.
38Your parents, obviously enough, are dead now.
39Your siblings all survive and you have no contact with the eldest but have some limited contact with the twins, who are both medico's.
40You met your wife when you were at university. You married young. Danielle was born in 1968 and Ethel[5] a few years later. You travelled to the United Kingdom and Europe in 1974/5. It is very plain that the marriage was not a happy one. You say as much in the interview and in the second pretext call. That serves as no excuse or as providing any basis at all as to why you have sexually abused your daughter. Leave the marriage. Form a relationship with an age appropriate woman outside the marriage. Do anything other than what you did do. It is in no way sensibly explained by the failing relationship with your wife or any of the mental health issues described in the materials.
[5] A pseudonym
41Again, I see no need to descend to the finer detail of your employment. It was listed in some detail. I accept that there had been some difficulty holding down a job and that you had, at the very least, some unusual presentation from time to time. You became very fixated in your research and your so called 'discovery' of the cause of Alzheimer's disease. There is material before me describing some of your grandiose, fixed and unshakeable views and your later dealings with the Medical Board make it pretty plain that there were some serious enough mental health issues for many years. Dr Walton confirms that. The reports from Dr Sullivan and Dr Mannerheim deal with their observations of some manic tendencies. You were, though, still working as a GP.
42In 1990 you were at one point detained involuntarily. You went to Larundel at one point. Those issues, as I understand it, led into the problems with the Medical Board. There is a report from Associate Professor Hassett, the psychiatrist who was appointed to examine you, and it spells out your fixed and unreasonable views and the way you waged a battle with the Board. They only let you continue to practise with psychiatric supervision or treatment.
43Whatever may be said about your mental health predicaments, and no one is suggesting they were minor matters, you were still practising as a general practitioner as at the date that the police came knocking on your door last year. That was in July 2019. You are no longer registered.
44You have gone into something of a decline since being charged and in a way may have given up on life. That seems to at least be the view of Dr Sullivan. At one point you were held under the provisions of the Mental Health Act (see Dr Khalid's report). That was in October last year and that interfered with the forward progress of this matter, with difficulties in getting instructions from you for a period. Once discharged, you then ceased medication at one point, against all the advice of those who were treating you, but I believe you have resumed taking that prescribed medication. You have had some investigations conducted by a neurologist, Dr Freilich. The diagnosis is not clear, nor the actual implications of the three possible diagnoses listed in his report. You have been living at home until my remand of you last Friday and your wife, who is joining this WebEx sentence, is now there alone, but moves have been taken to get a boarder to give her at least some support in your absence. That is only a brief outline of your personal circumstances but of course I act on the full materials placed before me.
Guilty Plea
45I turn now then to the various other matters in mitigation. Firstly, to your guilty plea. You have pleaded guilty at the earliest stage. You were co-operative with the police and whatever might be said of the issue of remorse you undoubtedly made full admissions. You undoubtedly pleaded guilty at the earliest stage. There is a strong utilitarian value in a person pleading guilty at an early stage. You have taken full legal responsibility for your offending.
46As a result, the community has been spared the time, the cost and the effort associated with a criminal trial in this court, or a committal in the Magistrates' Court. It was an overwhelming case, of course - given the second pretext phone call - but the strength of the case is irrelevant to the benefits I must give you for your guilty plea. You have facilitated the course of justice by pleading guilty at the earliest stage. Your daughter has been spared the experience of being called as a witness and cross-examined. That can be a very unpleasant and distressing experience, even with all the advances that we have made in the way these cases are now conducted. It has been averted here. She sat in court the other day and saw you stand before a court and completely vindicate her by admitting your guilt of these serious offences committed against her. So I take into account your early plea of guilty as well as the full admissions which you made. I must pass a lesser penalty because of these various matters.
Remorse
47Let me turn now then to the issue of remorse. It is far from easy to reach a view in this respect. You make the right noises as to having a sense of shame and regret for your conduct. So in the pretext call and in the interview you say those things and more. You say them for others; for instance, Dr Walton and
Dr Sullivan. Dr Sullivan describes, as he put it, 'a genuine pit of heartbroken remorse', but Dr Sullivan is presumably not awake to the main pretext call and what you said in that, or the interview. I wonder what he actually knows as to the actual detail of the alleged offences.
48So there are these words which would ordinarily signify regret, yet often enough you raise matters almost of justification. Your unvarnished efforts in the pretext phone calls are problematic - so too the police interview. Your counsel recognised that. He is not suggesting that there is fulsome remorse here, nor is Dr Walton, who says there is only partial remorse. He says that part of the problem is that anyone who was able to act in the way that you did to your daughter was able to objectify her and that would lead to having difficulties in terms of feeling remorse. It is a process of developing remorse and you are, in a way, a work in progress; which is surely an unusual thing to say about a 74 year old man, and one who has had over 30 years to think of your conduct and its seriousness and yet who still has a lack of insight.
49I dealt with the pretext call and the interview earlier in these reasons and said then that it is almost impossible to have a real appreciation of those exchanges without reading the lot. Initially you tried to shut down the whole call to ensure no one found out, then you said that what she was implying was disgusting. How could she think you would touch her daughter sexually? I interpose. How could she not fear that, Mr Shelton? It was troubling that you almost turned the matter around upon the victim and your wife in these various taped materials. It was in part your wife's fault for not having a relationship with you, it was in part your daughter's fault for being so passive. It was the drugs fault, it was the fault of the mental health issues, it was your mother's fault for passing on the gene. You would kill yourself if the matter moved outside the family. The second pretext call was a perverse exchange which does you no credit at all but must represent the way you thought and think - it was said in an unguarded moment. So you say some things for public consumption, for instance to
Dr Walton, but the pretext calls were not for public consumption. It was you speaking with your daughter and wife. Even in the secretly taped calls you were expressing shame, but as I say, it was interspersed with other answers suggesting a total lack of insight. The interview had much of the same including, as I have said, the incredible suggestion that your conduct would not have really altered the way your daughter turned out. A totally repugnant statement, but you must have felt it was true. That does not suggest much remorse.
50It is very much a mixed bag here. Ordinarily an early guilty plea is indicative of some remorse. That is not always the position. Here, as I have said, it was an overwhelming case against you and that is because you had made those powerful admissions in the secretly taped call. What options did you really have after those admissions had been made?
51It follows that whilst that issue of remorse does not in any way intrude upon the level of discount I give for the guilty plea, it is less easy to infer the presence of remorse from the fact of your guilty plea owing to the strength of the case against you. Mr Brustman relied on your early plea, your admissions to police, what you said to Dr Walton and in the pretext calls. He argues that you are genuinely remorseful. He points to Dr Sullivan, but Dr Sullivan's view does not accord with Dr Walton's view, and Dr Walton knows the details of the matters which call into question the existence of your remorse. The Crown query the extent of your remorse.
52I have some significant reservations here. You are plainly quite manipulative. The pretext call proves that beyond any shadow of doubt. How can anyone who implies that it was his wife's fault in some way, or the girl's fault for being passive, have genuine remorse? How can anyone who believed in July last year that Dani would have turned out much the same – how can that person have genuine remorse less than a year later? Dr Walton says it is partial remorse. That it is not complete. I have often wondered about this notion of having 'a bit of' remorse. How do you have a bit of remorse for crimes as serious as these?
53Ultimately I have probably spent far too long on this topic. I am prepared to find, as your counsel urges me to, that you do have at least some remorse for these serious crimes. I take that into account in mitigation. I do not believe for one moment it is as fulsome as some of those you have spoken to believe it to be. Nor does Dr Walton. I believe that you have only quite limited remorse. You still seem not to recognise the gravity of your crimes committed upon your daughter.
Various materials including Dr Walton's report and evidence and Verdins
54Now I move to the issue of your mental health. There is a range of material before me. There was the report of Dr Khalid dealing with your admission late last year and commenting on the three decade history of bipolar disorder with a differential diagnosis of schizoaffective disorder. I also have the report from your GP, Dr Sullivan - but not just his report, as I have said - also the various documents collected in that bundle which represent materials provided back to him as your GP. So, for instance, the report from Associate Professor Hassett from July 2016 reporting back to the AHPRA investigator on your condition and commenting on your presenting symptoms of longstanding schizoaffective disorder, but mentioning also past presentations consistent with bipolar disorder or even schizophrenia. There is a report from Professor Singh, various discharge summaries and a number of letters from Dr Phoebe Mock. There is also the report from Dr Walton together with his sworn evidence. In addition, the letters you sent to Senator's Madigan and Xenophon and the letter from
Dr Mannerheim dealing with things she has observed over the years.
55It is very plain that you have had some sizeable enough mental health issues over the years and still do. I see no utility in trawling my way through these various materials in my reasons. In a way Dr Walton draws it all together and he has had access to some of this other material I have mentioned. You have attracted these various diagnoses of bipolar disorder, schizoaffective disorder or schizophrenia. Dr Walton only saw you once in March of this year and thinks schizoaffective disorder the most likely diagnosis, but it matters little as each are, as he put it, at the serious end of the spectrum. They are each serious mental health conditions.
56I have already dealt with the limits to your remorse, a conclusion supported by Dr Walton, who said it was less than complete. He said it was partial and I have mentioned already his opinion as to the reasons for that.
57I take into account the report and the evidence of Dr Walton as well as this various other material. Before Dr Walton was called I asked your counsel to spell out exactly how Dr Walton and this other material was relied upon. I did that because the written outline simply said, "The mental state of Ronald Shelton and the relevance to sentencing". That told me nothing. It was not apparent whether the principles from the case of Verdins were relied upon here. It was perhaps implied, but there was no mention in the written outline of the case or the actual limbs relied upon, or how they were said to be engaged. Mr Brustman told me that the 5th and 6th limbs were relied upon but none of the others. That is, an increased burden and the serious risk of significant adverse impact. I could not see the basis for the 6th limb on the report alone, but that changed when Dr Walton gave evidence. His report referred to the increased burden, particularly at paragraph 7 of his opinion. That was hardly surprising. You are an unmistakably odd individual. You have a lack of insight and some very fixed and strange views. It is not possible at this point to say that you are suffering from dementia, or Parkinson's disease for that matter.
58In his sworn evidence Dr Walton described the likelihood of the stressful environment posing a serious risk to your mental health and it seemed to me that the 6th limb was, on that basis, also made out. The prosecution took no issue with the application of those two limbs from that case.
59Mr Brustman was explicit as to the fact that none of the other limbs of Verdins had any role to play here. He explicitly disavowed any reliance on the first limb and was not relying on any aspect of Dr Walton's opinion in that regard.
Dr Walton had mentioned at paragraph 2 of the opinion the mental health condition as possibly having some contribution to the crime. There was obviously a high level of speculation in that opinion and it did not come close to grappling with the long-standing nature of the abuse, which is presumably why no limb 1 argument was made. Anyway, that opinion was not relied upon by your counsel.
60So I find that there will be an increased prison burden and that there is a serious risk of imprisonment having a significant adverse effect on your mental health, and I take those two matters - limbs 5 and 6 from that decision of Verdins - into account in mitigation.
Rehabilitation
61Your counsel really did not make any detailed submission as to rehabilitation and that is, in a way, understandable. You are 74 years of age, in relatively poor health and facing a very lengthy sentence. He said in paragraph 11 of the outline that specific deterrence is not a significant factor, that you are unlikely to offend again. He said in that same paragraph, "nor is rehabilitation a significant issue". That submission was made in recognition that you were going to prison for many years. There is no evidence that you have committed any offences since the mid-80s.
62Of course, you have no prior criminal history at all, and that is something that I must take into account, however this offending itself, as we know, spanned many years.
63The reality is that you will not have any ability to re-offend even if you wanted to. You are still relatively insightless as to the great damage caused by your crimes and have only partial remorse. In a different setting, say the setting of a much younger offender with prospects of a decent amount of life in the community post-sentence, that lack of insight would pose serious issues indeed, given the long duration of offending - notwithstanding the delay since the last offending. Here, though, I have the reality of your age and the relative poor health. I believe it unlikely that you will offend again for, as I say, you are 74 and will be much older if you live to see your release from prison. You may well not survive to see that day. You will be, as your counsel says, in your 80s and subject to the strong limits imposed by the Sex Offenders Registration Act 2004. You will not have any access to any children. Independent of those provisions surely no one in their right mind, even at that stage, would leave a child with you. This daughter will not. I agree with your counsel's submission in this regard. Rehabilitation is not of much weight here.
64I turn then to the aspect of age and poor health.
Age
65Your age and state of poor health are raised in mitigation. I have already dealt with the mental health issues when dealing with the Verdins submissions and will not return to those. This submission dealt with the physical health conditions as well as just the fact of your age. Well, you have some health issues; for instance, high blood pressure and some sight issues. In a way you have given up. Giving up is not a health condition. Now, there is the report of
Dr Freilich. He is a neurologist and examined you very recently. Dr Walton had raised come concerns as to whether you had Parkinson's disease or some other neurological disorder. There had been, on your report, a deterioration in your gait. Based on the history and examination Dr Freilich says you do suffer from an extrapyramidal syndrome with three possibilities being Parkinson's disease, a variant of Parkinson's or a drug induced syndrome - drug induced in terms of being a by-product of the various prescribed drugs you are taking. That third diagnosis is seemingly less likely given the long-term nature of the issues and the recency of the drug which might cause that condition, but it cannot be ruled out.
66Ultimately Dr Freilich is unable to make a definite diagnosis as to which of the three possible diagnoses applies here, but there is the definite existence of the extrapyramidal syndrome. It would need to be investigated at some stage with an MRI and some other drugs prescribed. Imprisonment will have no effect on the condition, but of course having the limits of movement caused by whichever of the three conditions is applicable would have some role to play in increasing your burden. There is no evidence placed before me as to the ramifications of those first two conditions or the likely course of your life arising from those first two possible diagnoses. Nothing touching upon reduced life expectancy or the likely progression of those illnesses. Presumably, if the third diagnosis is the correct one, then there would be steps taken to alter your medication regime.

67Prison will be hard for you, even before taking into account your age and poor health. You are going there for the first time. Age and poor health increase the burden to a degree. Dr Sullivan describes you as being frail, seriously deconditioned, undernourished and with no apparent capacity for self-care or the management of daily living. That is the person I am sending to prison. He, as your GP, has serious concerns as to whether you will survive prison. He and others are left with a sense that you have given up.
68The age of an offender is clearly a relevant sentencing consideration and must bear upon the severity of the effect of incarceration. Your age, however, can provide no justification for the imposition of an inappropriate sentence.
69It is clear that in an appropriate case a significant period of imprisonment may be required despite an offender's advanced age - even in some settings a term of imprisonment which may leave no or little expectation of any life beyond prison. Of course such an outcome is a weighty one and not arrived at lightly.
70Here your age and poor health is relied upon as a matter of significance in the sentencing task. It is.
71Even putting aside for the moment your relatively poor health, a person of your age would commence any term of imprisonment with the risk that by virtue of your advancing age you may well not see life beyond a prison setting. Imprisonment would represent a larger proportion of your remaining life expectancy. I do not ignore that.
72I then must factor in your poor health and take that into account as well.
73However, I must not let these matters overwhelm other considerations. This was terribly serious offending. It was always going to be rewarded with a very sizeable term of imprisonment and must still be. I must pass appropriate sentences and give appropriate weight to the relevant sentencing purposes. In this case denunciation, just punishment and general deterrence are now, and always would have been, significant sentencing purposes.
74Your age, poor health and the passage of time reduces the weight to be given to specific deterrence and community protection. I give appropriate attention to your age and poor health, but confidence in the administration of justice has to be maintained by the imposition of sentences which adequately reflect the gravity of your crimes. These were grave crimes with deep impact and can, as your counsel concedes, have only one outcome.
75I do not lose sight of the fact that each year of the sentence which I am shortly to pronounce would undoubtedly represent a decent portion of the period of life left to you. It is easily possible that you may die in prison. Who knows, an actuary might say it is likely, given the dimensions of the sentences I will soon announce. However, that risk is the consequence of a person of your age falling now to be sentenced for extremely serious crimes committed upon your daughter all those years ago. In your interview you said that you were glad that you were in the final stages of your life when this matter caught up with you (see Question 1187).
76I take your age and poor health into account insofar as I am able to and I do apply the principles from cases such as RLP [2009] VSCA 27 and TRG [2011] VSCA 337, as well as the many cases discussed within those two decisions.
COVID-19
77I turn now to the impact of the COVID-19 virus. I accept that the COVID-19 virus and the response to it by those running the prisons will increase your prison burden. You are in a high risk group by way of age and will not find it easy to self-isolate or practice social distancing. You would normally worry about contracting the virus but, as I say, you seem to have given up on life, so maybe worry is a thing of the past for you. Prison is undoubtedly a more stressful place owing to this virus. A case was discovered a few days back. You are entering prison for the first time, of course.
78As I have said in other cases, I say now in yours; the uncertainties thrown up by the virus and the response to it increases the stress for all prisoners. It is impossible to know precisely how it will impact upon you in the future. There are some lockdowns, or half lockdowns, but they do not exist across all prisons, so I am not able to conclude that they would apply to you in the future. You will be isolated for 14 days, which is a stressful start. Visits have been suspended and so have some courses and some programs. I cannot know how long those things may persist. According to a Corrections publication that I mentioned to Mr Brustman, any prisoner who is of good behaviour, and who is suffering disruption or deprivation due to the prison response to the COVID-19 virus, would automatically be considered for emergency management days. It is not exactly clear what that would mean for you and that is because the extent of any relief granted will be decided on a case by case basis. It will not be attracted merely by the suspension of personal visits. What then lies ahead for you in prison? It is difficult to forecast the impact of this virus either on those in the community or those in prison. We have been riding a bit of a roller-coaster. Three months ago things looked bleak. 4 weeks ago they had looked up with a significant easing of restrictions. Things looked far less promising a couple of weeks ago with the housing commission hard lockdown and two weeks ago we headed back into lockdown in Melbourne for 6 weeks. Limits have been strengthened over the weekend. These recent events do not suggest to me that there will be any relaxations in a prison setting for quite some time. I believe then that it is reasonable for me to conclude that there is no prospect in the short term of any in-person visits for any prisoner. Prison will be hard enough for you going there for the first time. There is probably no such thing as a good time to go to prison. It is not a good time to be going there at this moment. This undoubtedly will make prison life tougher for you. I accept that there is an increased custodial burden in your case for these various reasons and I take it into account in your favour.
Third Party Hardship – not relied upon
79Your counsel was relying on a report from Dr Greve, your wife's psychiatrist. He did not mention that report in his plea, or how that was being relied upon, and it was not clear from the written outline, which mentioned your wife's predicament and increased suffering in the course of your imprisonment with risks of deterioration. The written outline did not mention exceptional circumstances or the leading case of Markovic [2010] VSCA 105. As with the Verdins issue, the written submissions were really quite inadequate and I was compelled to ask Mr Brustman how it was being relied upon. He submitted that I should take into account the impact upon your wife in mitigation. That is, the third party impact. He said that it would be extremely difficult for her and may well result in some deterioration of her mental health, if not an increased risk of suicide. I do not doubt that it will be difficult for her. There is evidence before me from Dr Greve's report as to your wife's pretty delicate and sad position. I mentioned the case law to Mr Brustman and the high threshold posed by the exceptional circumstances test set out in Markovic. I asked Mr Brustman if he was suggesting that the circumstances here were actually exceptional. He said that they were not. He was aware of the Markovic threshold and conceded that it was not reached here, however, quite strangely, he persisted in submitting that the court could and should take into account the impact upon your wife by exercising some merciful discretion. That is exactly what I am not permitted to do and Markovic made that point very clearly. If exceptional circumstances are not established, and plainly they are not here, then third party hardship cannot be taken into account in some residual merciful discretion. There is no residual discretion.
80The fact is that judicial officers are routinely obliged to sentence offenders who may be breadwinners of families, carers of the disabled, parents of children and many others, and in a manner bound to result in hardship to third parties. More often than not, sending any person to prison will cause hardship, and often enough serious hardship to others, but that is not enough. It has to be exceptional or rare for third-party hardship to be taken into account and that does not exist here.
81Of course I have sympathies for your wife's predicament. I wish she was not in the predicament she is in. I accept that life will not be easy for her. I interpose. It has not been for many years. Indeed it will be a good deal harder for her now. She will hopefully receive some support from your youngest daughter but I understand that a boarder is being taken in to give her some support on a daily basis. Your wife will need to make some serious adjustments in her life. She may even need to consider if she can live independently. All that lies ahead. As I say, I do not doubt that it will be difficult for her. As odd as your relationship together has been, I do not doubt that she would rather you were there to assist and support her, as you have over many decades.
82I just cannot take into account that third party impact as it is not exceptional. I see no need to work my way through the case law in any detail or the various other reasons why the exceptional circumstances test has developed or what circumstances in the past have or have not satisfied the test or why it is not met here. It just is not, and your counsel was explicit in that submission and was plainly correct in making it.
Increased custodial burden arising from third party predicament
83That deals finally then with third party hardship. I cannot take it into account here. You will be imprisoned and will know of the very uncertain predicament faced by your wife. You will feel impotent to assist her emotionally, physically or financially. This will, to some extent, increase the burden of imprisonment upon you. Now, I have found that there are no exceptional circumstances permitting me to take into account the impact upon her. That is the position. I am, though, allowed to take into account the impact upon you. That is because I am not making a mitigatory finding as to third party hardship but a finding as to an increase in your prison burden by virtue of your knowledge and concern for her position. I take that into account.
Current Sentencing Practice
84I must take into account current sentencing practices and I do. They are not a controlling factor but one of a large range of matters which I must take into account. I have looked at the Sentencing Advisory Council Snapshot No. 217 of 2018 in relation to the crime of incest. There are, though, very many reasons to exhibit very significant caution when looking at that document over and above the usual inherent difficulties posed by statistical material. Firstly, it relates to a crime with the higher maximum penalty of 25 years. Secondly, the statistics are drawn from sentences passed from 2012-13 to 2016-17. The sentencing practices for the crime of incest have undergone significant changes in this State owing to the very strong observations made in the cases of Dalgleish. I say 'cases' as there were strong statements in the Court of Appeal in [2016] VSCA 148 and that decision went on to the High Court, which was more concerned with the role of sentencing practice [2017] HCA 41. It was then remitted back to the Court of Appeal, where again strong statements were made in 2017 (see Dalgliesh [2017] VSCA 360).
85The crime of incest has always been viewed very seriously by the courts but with sentences which seem to have devalued the seriousness of it, for some reason.
86In the decision of RBN v The Queen [2011] VSCA 261 the President of the Court of Appeal stated the following:
"This court has often said that incest is a crime of great seriousness. It is an appalling crime involving the worst kind of breach of trust as between parent and child and it is notorious that it causes long-term damage to the child victims, whom it is the parent's first obligation to protect".

87Many cases from our Court of Appeal re-state or clarify those same principles. They are referred to in the remitted hearing in Dalgleish (see, for instance, cases of Sposito[6], Talbot [7], KHB[8]and Short[9]).
[6](Unreported, Supreme Court of Victoria Court of Appeal, Marks, Hampel and McDonald JJA, 8 June 1993)
[7]Talbot v R [2016] VSCA 218
[8]R v KHB [2004] VSCA 219
[9]DPP v Short [2006] VSCA 120
88The Dalgliesh decisions of our Court of Appeal provide the clearest pronouncements as to the seriousness of the crime of incest. The Court of Appeal spelt out in detail the seriousness of the offence and the reasons for that. The first Dalgleish decision dealt with the misconception that the court had seemingly developed as to crimes of incest not really being crimes of violence. They stated that sexual penetration of a child is, by its very nature, an act of violence.
89The Court of Appeal concluded that current sentencing practice just did not reflect the objective gravity of the offending or the moral culpability of the offender. The court spoke of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under the age of 18, the recurrent features being extreme invasion of the victim's person, exploitation of a vulnerable child, violation of societal norms, long-term and severe impact, serious breaches of trust and the undermining of familial roots of society. These features are common in incest occurring across the range of seriousness, but the Court of Appeal went on to say that the factors distinguishing worst-case offending from mid-range offending was the nature and the extent of the offending conduct, its frequency and duration and the circumstances in which it occurs. The High Court in the Dalgleish decision discussed the ramifications of worst-case offending in terms of the maximum penalty.
90The Court of Appeal in the original Dalgleish decision concluded that the sentences imposed in the past devalued the objective gravity of the offence as informed by the egregious breaches of trust and the important consequences for victims. The Court of Appeal did not intervene in that particular case as a result of the erroneous view they held as to the impact and restraint posed by current sentencing practices, but the High Court corrected that decision and remitted it back to the Court of Appeal which then significantly increased the sentence. Pre-Dalgleish sentences are of very little weight indeed.
91Quite aside from the change to sentencing practices brought about by Dalgliesh one always has to be very careful looking at other cases. The starting point is really that every case is to be dealt with on its own facts. That is the starting point and the ending point. There are differing maximum penalties over the years and even different forms of incest. There can be differing relationships giving rise to it. Some cases involve a single act, some involve a representative charge, some involve multiple victims. Some, such as here, involve a course of conduct offence where the offender falls to be sentenced in a manner to reflect the totality of the offending constituting the course of conduct.
92There are always differing aggravating and mitigatory considerations, differing durations, differing impacts, differing ages of offenders and of victims, differing acts. No two cases are ever the same.
93No amount of looking at statistics or other sentencing outcomes in other cases can provide the answer to the correct exercise of my discretion in your case. Each case is very different, so too every offender, and what I must do is exercise my sentencing discretion in your case.
94In the case of the indecent assault, again statistical material is of virtually no value. There have been, over the years, differing maximum penalties. Unlike the incest, where the breach of trust is inbuilt into the offence, indecent assault has no such requirement. It can be committed without any breach of trust at all. Here, of course, there was a serious breach of trust, and that is a serious feature of aggravation in relation to this instance. In your case there was some penetration which, given the time frame, was not treated by the law as sexual penetration back in that day. Not every indecent assault involved penetration. It could be constituted by touching, even on the outside of clothing. Later amendments expanded the concept of sexual penetration and as a result later acts of indecent assault by their very nature were not penetrative. Those amendments had not been made at the time of your offending. The fact is many of your acts embraced by the course of conduct, Charge 1, were penetrative.
Offence Gravity
95I must pay regard to the gravity of the offences before the court. I see no need to descend again into the facts. This was, on any view of it, grave offending. There are many features of aggravation, as is correctly conceded, and no reduction in your culpability. I mentioned earlier some of the matters in aggravation and amongst them is the duration of the offending, the frequency of offending, the fact that your charged conduct spanned the period from when your daughter was 8 and continued on until she was 18. You were her biological father, which is a feature of aggravation only in relation to the indecent assault. The conduct mostly occurred in the family home, a place where your daughter should have been safe, and was plainly catering only to your sexual gratification. It did involve a degree of planning with the use of condoms on occasions or the giving to your daughter of the morning after pill or contraceptives. There was intermittent use of a condom and exposure of your daughter to the risk of pregnancy or disease. She in fact fell pregnant and you as a medical practitioner arranged an abortion under a false name. You would have known what that procedure involved and just dropped your own daughter off for the abortion without any support. More incredibly, as I said earlier, you then continued on with unprotected penetration beyond that date but sought to protect your own position by giving her the pill. There are, in this case, a litany of aggravating features. You had an obligation to care for and to protect your daughter. You did quite the opposite. There is an early plea, but far from complete remorse in this case. You have simply deliberately exploited and debased your daughter through all of the formative portions of her childhood and adolescence. You have totally warped that relationship. You have totally betrayed her. You have caused vast harm to someone whom it was your duty to love, nurture and to protect.
96Mr Brustman raised by way of mitigation the fact that your offending was confined to one victim. That is not a matter in mitigation. He submitted that the offending ceased when the victim was mature enough to tell you that it must stop and that you complied with that request. That is hardly a matter of any moment when you have committed 9 years of sexual abuse on that one victim. Had you pressed her to continue, no doubt that would be a matter of an aggravation, but you did not, and so I do not sentence you as having done so. In paragraph 10 of his outline he submitted that while the gravity of the offending was acknowledged you did not exacerbate it by taking photographs or by physically beating your victim or committing "such other acts of sexual deviation that regrettably sometimes occur". I suggested to him that those matters were merely the absence of matters of aggravation which sometimes do exist. That they were not actually matters in mitigation. He took issue with that analysis and insisted that the absence of those additional features was in fact a matter in mitigation. He is quite wrong. I am not passing a sentence upon you for crimes with those additional features.

97One can almost always envisage a worse case of any crime, including crimes of incest or indecent assault. The absence of differing aggravating features says very little indeed about the actual seriousness of the offence before the court, especially where the crimes before the court have a host of aggravating features present, as these crimes plainly do.
98As I think I mentioned earlier in these reasons, the Court of Appeal spoke in the original Dalgleish decision of the sorts of considerations that distinguish 'worst-category' offending from mid-range offending. They spoke of the nature and the extent of the offending conduct, its frequency and duration and the circumstances in which it occurs.
99The High Court in an unrelated decision of Kilic [2016] HCA 48 expressed some concerns as to the use of the label "worst-category offending". They said that worst category offending is offending that is so grave as to actually warrant the maximum prescribed penalty.
100Other decisions in our Court of Appeal have from time to time questioned the utility of using adjectives to describe the level of seriousness of an offence. For instance, 'low', 'mid' or 'high' range offending. Those terms can mean different things to different people. However at the end of the day I have to pay regard to the nature and the gravity of the offending. Where does this instance of incest fit on the spectrum of offence seriousness? For the reasons I have announced it is, in my view, an extremely serious example of incest. It represents grave offending falling towards the highest end of offence seriousness. So too, for that matter, the indecent assault. In describing the offences in that way I am describing them in the singular, using the word "it". It is true that I have one offence of indecent assault and one offence of incest and that I have the one maximum penalty for each.
101In each instance, though, it must not be forgotten that I must sentence you for the totality of your charged conduct in the large between dates periods for each offence. Of course that must, and does, inform my characterisation of the seriousness of the offence in each case.
Serious Offender Provisions/Totality
102Owing to the fact that I am dealing with two course of conduct charges I will be sentencing you as a serious sexual offender in relation to Charge 2. When doing so under the serious sexual offender provisions within the Sentencing Act, unless I otherwise direct, the sentence passed upon you on that charge would be served cumulatively upon the earlier sentence (see s.6E of the Sentencing Act).
103On that charge I must regard the protection of the community as the principal sentencing purpose. The court has available the power to impose a disproportionate sentence in relation to that charge to achieve that purpose. That is neither necessary nor even urged upon me by the prosecution, and of course I will not impose any disproportionate sentence here.
104I am not free to ignore the serious offender provisions. I must give them due weight. I must give weight to s.6E and the nature of your offending. Though there is some modification it is clear that I still must pay regard to the principle of totality.
105Quite aside from that provision, it is plain, though, that there must be significant cumulation here. These are each serious offences. The base sentence obviously will be imposed on Charge 2. Charge 1 was itself a serious crime. It occurred over a number of years and when your daughter was younger.
106Community protection is the principal purpose of sentencing for Charge 2. That is so under the Statute, but it is clear from the case law that I must inform myself by reference to the level of risk of re-offending in the same way. I have spoken already of that reduced risk here. It is low owing to the nature of the sentence required here, your age and your poor health. In reality, community protection is of little, if any weight.
107I have given consideration to the overall effect of the sentences imposed by me and I have engaged in a last look at the overall effect to ensure that it is consistent with your overall criminality. Your criminality was extremely high and inescapably there must be a very sizeable prison sentence; one which may well require you to spend the rest of your remaining days in prison.
General
108There are many matters which must be taken into account. I have to take into account the maximum penalties, I have to pay regard to current sentencing practices and to the impact of your crime upon the victim. The impact has, as I have said, been vast. I must consider your prospects of rehabilitation and I have pronounced my view in that regard earlier in these reasons.
109I have to punish you justly and proportionately. That is a powerful sentencing purpose here - so too is denunciation. This court must strongly denounce your conduct. That is an important purpose of sentencing here. You have, over so much of her childhood and adolescence, committed extremely serious crimes upon your daughter all those years ago. Your conduct was shameful and evil. It was totally destructive and perverse. You should be totally ashamed of yourself; more ashamed than you actually are, if I may say so.
110The protection of the community from you is of no real weight here given your age, health and the passage of time.
111You will be facing a very long period in jail. You are 74 years of age already, are growing older every day, and with a number of health issues. I do not believe that specific deterrence is of any great weight in my task.
112I am required to deter others from committing these types of serious offences. That is known as the principle of general deterrence. General deterrence is a highly relevant sentencing purpose here, and that is so despite the passage of time and your advanced age. Delay, sometimes very sizeable delay in these matters coming before the Courts, is all too common. There must be no expectation created that age and ill health may save the day. It will not; especially in a case as serious as this one.
113The courts must send a strong, loud and unequivocal message to those in the community who may think it open to sexually exploit their children in any way. The courts, by the sentences passed in these kinds of cases, must make very clear to others – very plain - that such conduct as yours will not be tolerated and will be met with strong punishment. General deterrence is still a powerful purpose of sentencing in this sort of case despite the passage of time and despite your age.
Sentence
114Remain seated and I will pass sentence upon you.
115Charge 1 is the charge of indecent assault upon a female, a course of conduct charge dealing with your touching of your daughter from July 1977 to 1981. I convict and sentence you to 45 months or 3 years and 9 months' imprisonment.
116On Charge 2, incest; again a course of conduct charge relating to many penile vaginal acts of incest occurring from March 1981 to December 1986, I convict and sentence you to 15 years' imprisonment. That is the base sentence.
Serious Offender into Records of Court
117I have sentenced you on that charge (Charge 2) as a serious sexual offender and that fact is to be entered into the records of the court.
Section 6E; Cumulation Unless Otherwise Directed
118I find it conceptually difficult to apply the wording of the serious offender provisions in s.6E to cumulation when, in a case such as this, you only fall to be sentenced as a serious sexual offender in relation to Charge 2, and Charge 2 is very evidently the most serious of the matters for which the base sentence is to be imposed. So though aware as to the wording of s.6E requiring that this base sentence will be served cumulatively on other sentences unless I otherwise direct, I will approach my task by pronouncing the extent of the cumulation of the sentence imposed on Charge 1. That is, the extent to which that is to be served cumulatively upon the base.
119I direct that 18 months of the sentence imposed on Charge 1 will be served cumulatively upon the base sentence imposed on Charge 2.
Total Effective Sentence
120This results in a total effective sentence of 16 and a half years' imprisonment.
Non-Parole Period
121I fix a period of 11 and a half years during which you will not be eligible for release on parole.
Section 18
122You have been in custody for 4 days. I declare that you have served that period already in relation to this sentence and that declaration is to be entered into the records of the court.
Section 6AAA
123I have told you that I have reduced the sentence as a result of your early guilty plea. Had you pleaded not guilty and been found guilty by a jury of all of this conduct (which on the plea was placed into two course of conduct charges), I would have sentenced you to 19 and a half years' imprisonment. I would have fixed a non-parole period in those circumstances of 14 and a half years. That declaration is made pursuant to s.6AAA and is to be noted in the records of the court.
Sex Offenders Registration Act
124You have been sentenced by me in relation to one Class 1 and one Class 2 offence under the provisions of the Sex Offenders Registration Act.
125Upon your release from prison, should you survive to that point, you must comply with your reporting and other obligations under the provisions of the Sex Offenders Registration Act for the remainder of your life. Now, just let me just check. I believe there is, in that room, a document that explains your obligations under that Act.
126You will be given a document which will explain your obligations under the Sex Offenders Registration Act. You will need to acquaint yourself with those obligations. Not now though; it is just too large a document to expect anyone is going to be able to sit there and read it. I will, at this stage, merely be giving you that document; having it provided to you and having you sign to acknowledge that you have received the written explanations as to your responsibilities under the Sex Offenders Registration Act.
127When you read that document you will find that the Sex Offenders Registration Act imposes a number of conditions upon you including impediments to your future contact with children. What you will need to do, but not today, is to familiarise yourself with those matters, as any breach of the Act, or your reporting obligations under the Act, is itself a serious criminal offence and one often punishable itself by a term of imprisonment.
128Now, Mr Larkins, we're just going to get that document. If it was in court what'd happen now is my associate would go down the back of the courtroom and have him sign the acknowledgement. It's a bit less easy in this sort of setting, sentencing over the WebEx, but I'm dealing with the notification of his reporting obligations. You will have seen these documents before, I imagine. They're very lengthy documents.
129MR LARKINS: Yes, Your Honour.
130HIS HONOUR: It goes into all of his requirements under that Act. I am not contemplating he is going to be sitting down in the room he is in reading it now. It will simply be provided to him and he will be asked to acknowledge by his signature that he has received the written notice under that Act. You understand that?
131MR LARKINS: Yes, Your Honour.
132PRISON OFFICER 1: Your Honour, I've got the paperwork here.
133HIS HONOUR: The paperwork is there? All right. Well, if you'd be good enough, Mr Shelton, to sign that in the relevant portion.
134OFFENDER: Sure thing.
135HIS HONOUR: Just a separate document headed 'Acknowledgment' I think it is.
136PRISON OFFICER 1: Yep. So just the acknowledgment.
137HIS HONOUR: Yes, all right. Whoever's in the room, if you would witness that document with your name and print your name on that document as well in the acknowledgement please?
138PRISON OFFICER 1: Yep, not a problem.
139HIS HONOUR: Yes, all right. Well, thank you. All right, well that matter's been signed then by the prisoner. So no other matters then from either of you?
140COUNSEL: No, Your Honour.
141HIS HONOUR: All right. Mr Larkins, presumably you'll make arrangements to have some sort of conference with your client in due course?
142MR LARKINS: Yes, I will.
143HIS HONOUR: All right. Well, that completes the matter then, Mr Shelton. Your legal team will be in contact with you in due course to discuss what's occurred here today and that completes the matter. So what I'll now do is I will disconnect the link then. Thank you.
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[2020] VCC 1073

21 July 2020