Director of Public Prosecutions v Sheppard (a pseudonym)
[2016] VCC 812
•3 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARIUS SHEPPARD (A PSEUDONYM[1]) |
[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the parties
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| JUDGE: | HIS HONOUR JUDGE STUART |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 3 May 2016 |
| CASE MAY BE CITED AS: | DPP v Sheppard (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 812 |
REASONS FOR SENTENCE
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Catchwords:
Legislation Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Golding | |
| For the Accused | Ms O. Trumble |
HIS HONOUR:
1Darius Donald Sheppard[2], following a trial you were found guilty on one charge of incest and were remanded in custody on 22 March 2016. Incest carries with it a maximum penalty of 25 years imprisonment.
[2] Darius Donald Sheppard is a pseudonym
2You are now a 70 year old man. At the time of offending, you were approximately 56 years of age and your victim, the complainant
Laura Scriven[3], was 17 years old. You were the stepfather of the complainant having married her mother, Martha Sheppard[4], in December 1998. She has since died.[3] Laura Scriven is a pseudonym
[4] Martha Sheppard is a pseudonym
3In order to understand the extraordinary circumstances surrounding your offending it is imperative for me to articulate events of a sexual kind which led up to that offending. I do this by way of referring to
Ms Scriven's evidence during the course of the trial which was given on
16 March this year.4She describes how at the age of 13 she began attending high school and that it was around then that you commenced sexually assaulting her. At p.23, line 5, in her evidence-in-chief she stated, "We lived around the corner - like, where our bus was. We used to get off the bus, and by the time you were at the corner, you could hear the music. We would come home. I basically would prepare myself for what he was going to do, and I - at night, when I was in bed, he would come in and insert his fingers." Question: "Where?" Answer: "Into my vagina." Question: "Can you just tell us more how that – what was happening? What would happen?" Answer: "I would be in bed. So it was dark. Most of the time I would be pretending to be asleep, because I knew that it was going to happen. Sometimes, I was asleep. He would come in. Depending on what I was wearing - he would slide his hand up the side of the doona - he would either remove my underwear to the side so he could put his fingers into my vagina, or put them down fully, and this happened many times." Question: "This happened many times?" Answer: "Many times." Question: "You said he put his finger into your vagina. Was there any other sexual acts of this – of any kind of that – in that period?" Answer: "He did. Not every time. But he would, on the occasion, feel my breasts. So, again, it was sliding it up my nightie, if I had a nightie on. It would just depend what I was wearing, as to how he would do it, but he would manage to do it."
5A little later, at p.24 line 19, question: "How would it end, any particular time he came in?" Answer: "He would just do what he had to do and get up and walk out." Question: "Did he – do you have any recollection of whether he did anything?" Answer: "No." Question: "Ever – before he walked out or anything else? Not necessarily sexual, I don't mean." Answer: "No. Not that I recall." Question: "How did you sort of, in your own mind, cope with it or handle it?" Answer: "I didn't. I just – I would try and block it out." Question: "You would what?" Answer: "I would try and block out what he did."
6Later, at p.31, at the conclusion of the examination-in-chief, she is asked this question, line 3: "And did – was there a – what used to happen if, for example, your mum didn't let you do something or see someone?" Answer: "If Mum said no, I would usually ask Darius and he would mostly say yes - as long as he could touch me, was his – always his response." Question: "Did you ever say anything to him as you got older about that sort of reaction?" Answer: "Many a times, I had said to him that if he – if he continued to touch me, I was going to tell somebody but – yes." Question: "Did that stop him?" Answer: "No."
7Those last few answers were clarified in cross-examination at p.90, where the witness withdrew the suggestion that she said to him on a number of occasions that she was going to tell somebody and stated, at p.90 line 15 and following, question: "And what you're saying to the police there is that you did, in fact, interact with him?" Answer: "On one occasion I said to him, 'Yes.'" Question: "What you say to the police is, 'As I got older, I would say to him while he was touching me that if he didn't stop, I would tell someone'?" Answer: "Yep." Question: "Yes. And what you're saying to the police there is that you did interact with him during these incidents when you got older?" Answer: "I told him not to touch me, yes."
8I wish to make it abundantly clear that I have only referred to this previous sexual activity to set the context in which the offending for which you are to be sentenced, for without understanding the context the circumstances of the offending the subject of the charge of incest would be an extraordinary one and otherwise unbelievable.
9Thus, I turn to the circumstances of the charge of incest. Those circumstances were dealt with at p.26 of the transcript and following. Line 11, question: "Did anything ever happen while you were actually on the computer communicating with Steve[5]?" Answer: "Yep." Question: "Anything as between you and Mr Sheppard of a sexual nature?" Answer: "Yes. There was one instance that I clearly - - -" Question: "I'm sorry, I missed what you're saying." Answer: "Sorry. There was one instance I clearly recall, was during the day, I remember I was wearing a dress, so it was sunny." Question: "Where was the computer?" Answer: "In the main lounge room in front of the window." Question: "What happened?" Answer: "I was on the computer, unsure, again, whether I was speaking directly to Steve or whether it was an email. I was talking to him, and Darius came up alongside me on the left-hand side, swivelled – swivelled the chair." Question: "I'm sorry. Swivelled the chair, did you say?" Answer: "Yes. To the left. And he moved my underwear to the side and put a finger inside me while also having another finger on the outside rubbing my vagina." Question: "Sorry. You said you had a finger inside you? I will have to ask you to spell it out." Answer: "Yes. Question: "Inside where?" Answer: "My vagina." Question: "Yes?" Answer: "Yes. Inside my vagina. And then he rubbed the outside of my vagina as well." Question: "With his other - - -" Answer: "With another finger." Question: "Yes. What were you doing as this happened?" Answer: "I believe I was – yes, as I say, I was speaking to Steve but I can't recall if it was via a message – via the messenger or I was typing an email to him." Question: "Either way, it would involve some sort of typing, would it?" Answer: "Absolutely. Yes." Question: "And did you - - -" Answer: "I continued to type." Question: "And?" Answer: "As he was doing it to me." Question: "How did this incident come to an end?" Answer: "Like all the other - he got up and walked away."
[5] Steve is a pseudonym
10Viewed in context with the previous sexual abuse, your brazen act of coming to your stepdaughter whilst she was on the computer and penetrating her with your finger is explicable. This, for you, was the commonplace act though all the other instances occurred in her bedroom.
11It also explains how your stepdaughter reacted, or did not, react. For her it was commonplace for you to penetrate her vagina with your finger or fingers. Thus, what is otherwise an extraordinary act in terms of its circumstances becomes wholly understandable. I repeat, you are not here to be sentenced for any previous sexual acts. You are to be sentenced solely for the act in question the subject of the charge, which is not a representative charge, but nor can it be viewed in isolation. You relied upon the acceptance of Ms Scriven of your activities beginning when she was aged 13. You were able to act in this cavalier fashion because you were prepared to engage in this gross breach of trust.
12You, at the time of this offence, were approximately 56 years of age. She, about 17. In her victim impact statement she recites, among other things, the consequences of your sexual act: "Suffering post-traumatic stress disorder is a daily struggle for me. I am constantly frightened, sad and anxious, depressed and often feel guilty about what happened. I don't feel like I can trust anybody. I fear for my safety and that of my family. My parenting of my daughter has been a struggle, as I feel I need to protect her from everyone. My relationship with my husband suffers as I relive what happened. Constant breakdowns, inability to trust and my own insecurities." Later, "I am not the person I was. I have changed as a person, a mother, a daughter, friend, a wife and a sister. I have to live with this in my life until the day I die. A life of meltdowns, stress, anxiety and fear. It will never go away. There is nothing that can take it away. I just hope I'm able to try my best to live day-to-day and move on as best I can. You treated your stepdaughter as a sexual object, there for your casual sexual gratification to touch when and where you wanted."
13As to your personal background, you are one of four children. There is no close bond in your family. Your father was a violent alcoholic and a gambler and as a result your family lived in poverty. You witnessed violence and were subjected to violence. You went to secondary school for year 7 but during year 8 you were taken out of school to assist your father in digging ditches.
14Your background is further articulated in the psychological report of
Carla Latner, dated 20 April 2016 which became Exhibit DN2. She outlines that you had been married three times though you have no natural children of any of those relationships. Your last wife, Martha, died on 8 May 2013.15You completed a plumbing apprenticeship and that was your principal occupation for most of your life, save for working in the hotel industry for a period of some 15 years. Due to an injury you suffered in 1997, you have been on WorkCover since.
16You have no prior convictions, although as noted by Ms Latner, you were dealt with for a subsequent charge of possession of child pornography in 2008 and received an intensive corrections order. She stated in her report, "…Mr Sheppard denies his involvement in this matter. His subsequence offence of possession of child pornography is of concern…" Indeed, it is relevant offending. Nonetheless you have been engaged productively in the community, working hard for most of your life. Other than that subsequent matter you have no prior criminal history and are entitled to have this fact taken into account to your credit.
17As noted, on more than one occasion in Ms Latner's report, you deny the charge. You thus present as a man who has no remorse for what you have done and shown no insight whatsoever for your offending.
18There is, however, a significant body of evidence in the form of character references that speak to a different man. Those references were tendered as a bundle and became Exhibit DN3. And I draw from some of those references in order to understand how you present otherwise.
19In the letter of Pamela Bolton[6], she writes: "I have known Darius Sheppard for 35 years. In all of that time, I have never known him to be anything but courteous and respectful towards the female gender, regardless of age. I realise that Darius has been convicted of incest. I have three grown daughters who all have a great deal of time for Darius and have a lot of love and respect for him."
[6] Pamela Bolton is a pseudonym
20In another letter from Maria Haley[7], she writes, "Darius has never been anything but kind and respectful to everyone he has come into contact with in my presence."
[7] Maria Haley is a pseudonym
21Victoria Irvine[8], in her letter, writes, "I have always known Darius to be a kind, honest and caring person. He is well respected in his local community and is always willing to lend a hand to neighbours and friends, whether it be lending them a tool they need or helping them with a project. He derives great pleasure from helping others. In my opinion, Darius is a person of honour and integrity who treats others with courtesy and respect. I would trust him in any situation. I do not believe he poses a threat to society."
[8] Victoria Irvine is a pseudonym
22In the letter of Noah Holland[9], he writes, among other things, "In all that time we've known Darius to be kind of heart, always respectful and considerate to others. He is a hardworking, honest, caring and trustworthy person. He is a good mate and always will lend a hand."
[9] Noah Holland is a pseudonym
23And finally, the letter of Margaret London[10], in the penultimate sentence, she writes, "The admiration I have for this man I will never really be able to explain on paper but everyone who knows him would understand because he is one in a million and his only real fault that I have seen is that he doesn't understand his own worth."
[10] Margaret London is a pseudonym
24Thus it is plain that you have contributed to your community and those who have known you describe you in glowing terms.
25Deterring others is the principal sentencing factor in this matter. Children are entitled to the protection of the law from predatory behaviour by relatives, by stepfathers, by friends who come to their home and abuse them. Deterring you from further offending such as this is also of importance. You are still denying your offending.
26Though I consider your prospects for rehabilitation reasonable, given your past there is also reason for caution in that regard. You, being insightless and without remorse and having regard to the subsequent offence of possession of child pornography. Though to a limited degree, the sentence I pass must also include considerations of protection of the community from you as well as just punishment and reflecting this court's condemnation of your despicable behaviour.
27You suffer a major depression and have suffered from depression for many years. It is put that in the circumstances, particularly given your age and your difficulties with your physical health, that imprisonment will be more burdensome for you than others in a similar predicament. I am not prepared to act upon that basis. I do not consider that for you, prison will be more burdensome such as to enliven the need to moderate the sentence.
28Stand up, Mr Sheppard. Taking all these matters into account, I sentence you to five and a half years imprisonment and I set a minimum non-parole period of three years. I declare the pre-sentence detention of 42 days. Pursuant to the provisions of the Sex Offenders Registration Act 2004 and given your subsequent offending, you having now been dealt with for a class 1 and
class 2 offence, you are to be registered under that Act and the reporting period under that Act is life.- - -
HIS HONOUR: There were other orders, I think. Take a seat, Mr Sheppard.
MS GOLDING: Yes, Your Honour. There was a s.464ZF, forensic sample offence.
HIS HONOUR: Yes. Anything to say about that, Ms Trumble?
MS TRUMBLE: No, that's consented, Your Honour.
HIS HONOUR: Yes. Any factual errors or corrections?
MS TRUMBLE: Just one, Your Honour. Your Honour referred to, in respect of the complainant's evidence, initially to p.23 line 5 and Your Honour read from that. Your next reference you announced as p.23 but you read from p.24. So, I just wanted to - - -
HIS HONOUR: Well, thank you.
MS TRUMBLE: - - - bring that to your attention.
HIS HONOUR: Yes. That will be corrected. Today's date is the third. Yes, I've made that order.
MS GOLDING: Thank you, Your Honour.
HIS HONOUR: Anything further?
MS GOLDING: No.
HIS HONOUR: Yes.
MS TRUMBLE: Yes, I think I have to actually take the sex offender documents to
Mr Sheppard and have them sign them.
HIS HONOUR: Yes. Well, I'm not sure.
MS TRUMBLE: There's a whole raft of papers that get printed. I think I have to do it while Your Honour's still here, that's all. And the logic behind that is because Your Honour has to be satisfied that Mr Sheppard has received all the relevant documentation and signed and understood.
HIS HONOUR: Well, thank you for that. Look, I'll stand down and Mr Sheppard can stay in the dock. When the document's ready, I'll be on the fourth floor.
Mr Brown? Temporarily adjourned.
(Short adjournment.)
HIS HONOUR: Yes. Ms Trumble?
MS TRUMBLE: No, I was just standing waiting for the papers, Your Honour.
HIS HONOUR: I've signed that notice. It requires his signature on the last page, which will then be countersigned, as I understand it, by my associate. Yes, he must report to the Victorian Police within seven days of his release from custody.
MS TRUMBLE: Yes, Your Honour.
HIS HONOUR: Yes. Provide that to Ms Trumble and Ms Golding. If you'd countersign that please, Mr Associate, and photocopy it for both parties. That concludes that matter does it then?
MS TRUMBLE: Yes, Your Honour.
MS GOLDING: Yes, Your Honour.
HIS HONOUR: Thank you, Ms Golding, for your attendance and you, Ms Trumble. Remove Mr Sheppard, please. You're both excused from the Bar table.
MS TRUMBLE: Thank you Your Honour.
MS GOLDING: As the court pleases.
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