Director of Public Prosecutions v Sheppard
[2023] VCC 2330
•7 December 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
THE DIRECTOR OF PUBLIC PROSECUTIONS
| v |
GARY SHEPPARD
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 6 December 2023 | |
DATE OF SENTENCE:: | 7 December 2023 | |
CASE MAY BE CITED AS: | DPP v Sheppard | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 2330 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | Office of Public Prosecutions |
| For the Accused | Ms C. Caruana | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1
Gary Sheppard, you have pleaded guilty to four charges of sexual assault.
That crime carries a maximum penalty of 10 years' imprisonment.
2 You are 60 years of age and have no prior convictions and nor have you been convicted of anything subsequently. All those matters go very much in your favour.
3 The plea of guilty was to a settled indictment. On the original indictment there was a charge which would have carried probably years of incarceration and that charge was very sensibly in the situation withdrawn on the basis of your plea of guilty.
4 Accordingly, though I have some doubts, I am prepared to sentence on the basis that you do have a level of remorse.
5 You clearly must get the utilitarian benefit of that plea of guilty. As indicated yesterday during the course of the plea, had those ladies had to give evidence the outcome would have been very, very different for you had you been convicted.
6 The situation here is that the unusual aspect of it is that in each of the circumstances the plea of guilty is based on there being a belief in consent that was in fact unreasonable. It is an unusual situation indeed.
7 I, myself, have my doubts about that but that is the way it has been done and the probabilities are that that is in fact the case. Accordingly and it is strange situation to sentencing for a crime that is not intentional, simply unreasonable.
8 As the prosecutor correctly pointed out you do seem to have limited insight into what you did. One can only hope that having heard the victim impact statements yesterday you realised the consequences of what you have done but again, I would not be too sure about all that.
9 I do not hold any of that against you, make that clear.
10 In any event, you have pleaded guilty in the time of Worboyes and you must get a benefit for that. I have mentioned remorse. I have mentioned the utilitarian benefit.
11 The offending I am going to describe has to be regarded as serious. Of course I agree with the Crown very much in the application of general deterrence. In your situation at 60, I think specific deterrence played very little part. Denunciation of punishment also of course must be a factor in this sentencing process.
12 Also, of real significance here is there has now been a delay of some two and half years. I accept that that is partly due to negotiation, partly due to COVID. I certainly do not hold it against you.
13 In fact, it is a significant delay and I do therefore take into account in terms of I am sentencing somebody two and half years down the track who has not reoffended since.
14 The circumstances of the offending are fully described in the Crown opening, which I will annex to these my sentencing remarks rather than read it all out again in full. It was read yesterday in full, as were the victim impact statements. I think I can truncate it a little in these particular circumstances.
15 I make it clear to the victims that I will be using their names as I go through this because it is disrespectful not to. As long as they understand that when it is actually produced it will have been anonymised so they cannot be identified by any person unless they wish to be so.
16
The first complainant was Georgia Brevel,[1] 21 years of age. The next,
Elyssa Wakeford[2] was 40 years of age and the third, Charlotte Russo,[3] who was 42 years of age.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
17 In April of 2020, you completed two massage courses and following your accreditation you commenced a massage business from your residential address in Canadian. You were using a bedroom for those purposes.
18 The business was called Hands On Massage. You advertised your services using social platform Facebook and apparently in the local paper.
19 The offending all occurred in that room at your house when the complainants were receiving a massage.
20 On 12 October 2020, Georgia Brevel contacted you and made an appointment where a massage took place without issue. She was given a loyalty card at the end of it. On 20 October she contacted you again requesting an appointment. You suggested dates later in the week.
21 Eventually, on 16 November 2020, she booked in for a massage at 3.30 pm on that day. When she attended in the appointment she undressed and you began to massage her in a way which initially at least would not cause comment.
22 Following that you massaged her legs up to her arms. Then her face and you were massaging upper chest. She asked you to apply less pressure because she was sore in that area. You spent some time on her upper chest before moving your hands down the sternum that was under the towel.
23 You said to her, 'Just let me know if I'm getting too intrusive'. She said at this stage it was fine. She was comfortable with you massaging her sternum. You continued to massage her sternum. Your hands went further and further down under the towel. She began to feel uncomfortable.
24 You again asked if she was uncomfortable, to which she replied, 'Sort of on the edge of that now'. You continued to massager her underneath the towel, began massaging around her breasts. By this time they were exposed. You placed a hand on each breast, gently grabbing them and massaging over her nipples. She was panicked and trying to work out how to get out of the house.
25 That gives rise to Charge 1 of sexual assault. At the end of the massage you said there was nothing sexual. It was just a massage. A lot of women actually like it when you massage their breasts. She was disgusted, in any event, called a friend and back in December of 2020 went to the Ballarat Police Station. I am not sure what occurred after that.
26 The complainant Elyssa Wakeford contacted you on 6 March 2021 and made an appointment to attend at your home on the 15th. She attended on that day, undressed in the massage room and you began by massaging her legs and then her back, shoulders, arms and neck.
27 Once you had ceased that she rolled over and you again massaged front side of the legs, arms, shoulder, et cetera. You placed your hands underneath the towel that was on top of her and began to rub between her breasts down to her stomach. She felt uncomfortable and thought it was weird but trusted that you knew what you were doing.
28 You asked, 'Are you relaxed?', to which she replied, 'Yes'. You then proceeded to use both hands to rub her breasts simultaneously, touching nipples while doing so. That gives rise to Charge 2 of sexual assault.
29 You then moved your hands further down her body, touched her stomach for a bit and said, 'Are you relaxed?', to which she replied, 'Yes'. At that point you were standing on the lefthand side of her body. You put your hands underneath her underwear and touched her clitoris twice in quick succession. No dialogue was exchanged between you and she froze not knowing what to do. At this time the alarm on her phone went off and that was the end of the matter again.
30 Each of these people paid you at the end of their sessions. She also, feeling disgusted I would assume, contacted a friend and was then taken to hospital to be examined and that had consequences for her as well, as we know from the victim impact statement.
31 The third victim is Charlotte Russo. In March of 2021, she contacted you via Facebook. There was an agreement you perform a deep massage. Again, with the process of undressing and holding the towel in much the same way as had occurred with the other ladies.
32 You massaged her arms, legs, et cetera and then began massaging her between her breasts. You moved the hands to her breasts conducting a soft massage on each for about five minutes. Her breasts were exposed at this point as the towel had slipped down. She was frightened and uncomfortable and moved her clenched fist underneath her breasts.
33 You moved to the righthand side of her body. You asked, 'Are you okay?', to which she replied, 'Yeah', referring not to being in pain or feeling dizzy. You continued to massage her breasts for a short time. That gives rise to Charge 5 of sexual assault.
34 Ultimately, police became involved. You were interviewed on a couple of occasions. You denied the touching of the clitoris. Other matters you seem to have admitted and said it was not sexual and that you had their consent.
35 As I said, it is a very unusual situation. Having seen many of these over the years it is my view had these matters proceeded singly before a jury the chances of you being acquitted would have indeed been high.
36 They were to proceed together because of a Court of Appeal ruling on tendency and accordingly, there may have been a different result.
37 But in any event, the utilitarian benefit of the pleas of guilty at least gives the complainants the acknowledgment that what you did to them was wrong. There seems to be an element of self-justification involved in it all. And as I said during the course of the plea, perhaps an element of brinkmanship as to how far you could push it.
38 But be that as it may, you were in a position of trust. I accept that this situation is a situation that has been brought about by you where women who clearly had bodily difficulties and the like put their trust in your to endeavour to relieve pain not in effect, cause it.
39 The situation here is that each of the victims had read or read out their victim impact statements. Each of those statements eloquently describes the devastation your offending has caused to each of them in terms of self-esteem, in terms of relationships, in terms of trust that has been ongoing and continues to be ongoing. Each of them suffers to this day, hopefully not forever, but will continue to suffer for a significant period of time.
40 As I have said, there is an element of self-justification. It seems clearly to me whether you have taken on board what they said or not I do not know but the fact of the matter remains that other people in your situation who have, in effect, enticed women into this circumstance must understand that serious consequences ensue.
41 I do not think a custodial sentence is the only sentence available. I will not be doing a s6AAA in the normal form.
42 I just make it very, very clear that had this matter gone before a jury and you been convicted the sentence that I impose would be a very, very different one. There is no way around that but I have to give an acknowledgment to the fact that the matter was resolved and they at least got their pain acknowledged at least by you.
43 In terms of personal and I do not propose to read out the victim impact statements. Each was read out yesterday. They are tendered and they are on the court file and me reading them out is not going to do them justice. They show that devastation, as I have already described, that you caused.
44 You are now 60 years old. Your parents separated when you were about four. You were raised by your father's parents and you never saw your father again. During your childhood you had contact with your mother but she has never accepted you. You went to live with your grandparents, left home at 25.
45 After that you were married to your second wife for over 20 years and you remain very close friends. You have a son together and with him you are close. You are also close with a daughter from your first relationship.
46 Insofar as schooling and employment is concerned you went to Year 11. I will not go through them all but you have got clearly a very good work record. You have been very rarely if ever out of work and usually holding positions with responsibility. Again, I do not need to detail all those.
47
As I understand it at the time this actually occurred you were working as a
Youth Justice Worker at Malmsbury.
48 You have got a number of physical illnesses, not put to me that they would effect you in a gaol scenario but you have antisynthetase syndrome, fibromyalgia, rheumatoid arthritis and diabetes. You rarely drink and you have no drug problems.
49 I have been through the major matters on your behalf. It is clear from the material before me, including references that have been tendered and also a psychological report from Mr David Ball that you have been a valued member of the community, that in many respects you have put into that community, that you have helped others and that you are always willing to do so.
50 You have obviously had the ignominy which is only to be expected of this matter receiving publicity which it has again today. That is a matter you are just going to have to live with and it is a matter which is quite a normal consequence of this sort of thing.
51 In the end, I am not going to again go into the great detail of the laws. The decision of Bolton is right on point you would have thought here. A community corrections order does have significant consequences. It will be with conviction which is a punishment in itself.
52 You risk of recidivism is regarded by the experts as low and I accept that that is the case and the risk of you offending in this way is virtually zero.
53 But taking all those matters into account as best I can and I have read the materials now a number of times, as indicated yesterday the sentence has to be significant but I do not think it calls for gaol.
54 Accordingly, on Charges 1, 2, 3 and 4 you are sentenced to be placed on a community corrections order if you agree. It will be with conviction. It will be for three years and the only condition will be 250 hours of community work, which is the highest number of community hours I can order in these situations without getting a full scale report. So, if you agree that will be the punishment that is involved.
55 Mr Sheppard, you are on a CCO if you breach that you are brought back for re-sentencing. If you are re-sentenced there is only one step further it goes. That is not a matter for you. I just hope that having heard the victim impact statements yesterday you got some insight into what you have achieved.
56 In any event, I say pursuant to s6AAA it is impossible to say because it would have been a very, very different trial. I simply say this had this matter proceeded on the original indictment and you being convicted you would have received a gaol sentence with a head sentence and a minimum term.
57 All right. Thanks for that.
58 MS PEZZIMENTI: If Your Honour pleases.
59 HIS HONOUR: Thanks.
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