DPP v Ellingson

1. In 1996 or 1997 when the complainant, Elena was in Grade 1, you moved into her house and lived with Elena's mother, Elena and her three siblings, comprising an older brother and sister, and a younger sister.
2. Elena's mother attended night school, and you assisted looking after Elena and her siblings.
3. With respect to Charge 1 sexual penetration, on one occasion, when Elena was between six and nine, she was in the lounge room lying on a mattress where you slept. Elena's mother and her siblings were in bed. Elena was kneeling two thirds down the bed with the covers pulled back. You told Elena to suck on your penis. She complied and put your penis in her mouth. During the act you gave instructions, 'harder' or 'softer' and praised Elena, saying she was good at it. You also told her it was a secret, and she could not tell her mother what had happened.
4. With respect to Charge 2, indecent act with a child under 16, on another occasion when Elena was aged between six and nine years old, after the offending comprising Charge 1, Elena was lying on the bed in her mother's bedroom and the covers were off. Elena remembers it was dark outside, her mother was not at home, and her siblings were in bed.
5. You knelt on the bed and licked Elena's vagina. Elena remembered it feeling good but cannot recall how it ended.

1. The offending is objectively serious.
2. The offending is aggravated by the disparity in age between yourself and Elena. You were an adult well into your 40s when the offending occurred.
3. You were in a position of trust as her uncle, and had been enlisted by her mother to help care for the children whilst she was separating from the children's father and attending night school.
4. You used that position of trust to tell Elena to keep the offending a secret, and not to tell her mother.
5. The indecent assault charge is objectively serious.
6. The prosecution submit the penetration offence is 'mid-range seriousness for that type of offence' and the indecent assault is above mid-range of seriousness for that type of offence.
7. There is no victim impact statement from Elena. The prosecution submissions on sentence noted and I agree, 'offending against children is always serious; it causes irreparable damage to victims and their families. It is often difficult to detect and, as in this case, committed by people who are trusted by the victim.'[3]
8. Your counsel in her submissions in terms of that impact noted, 'It is accepted that the offending has had a long-lasting impact on the victim.'[4]
9. Your culpability and degree of responsibility for the offences is high. The offences constitute a betrayal, a breach of trust of the role you assumed by moving into the home and coming to the family's aid in their time of need.

1. Your circumstances are such that this offending occurred a few years after the end of your second marriage. Your son remained with your ex-wife, and you were drinking heavily. You had used heroin sporadically over your life but not at the time of this offending. You travelled to Melbourne to assist your sister who was separating and lived with your sister and her children for 12 to 18 months to help run the household and care for the children.
2. You are now aged 74 and live in Queensland.
3. You were born in Melbourne into a sibship of five with one of your sisters dying in infancy. Your counsel submitted you are still close to your surviving sister, brother and mother who live in Melbourne.
4. You described a happy childhood and family life. You completed up to Year 11 at school. You worked for the government then you joined the army aged 20. You were a second lieutenant from 1971 until 1973. Following that, you attempted courses in land valuation, real estate and teaching. You were employed in a variety of unskilled positions until you were placed on the disability pension.
5. It is not clear when that was.
6. Aged 27 you were the driver in a car accident when a passenger died. You lost consciousness and have no memory of the accident but thereafter suffered from headaches and cognitive difficulties. You described to Clinical and Forensic Psychologist Mr Patrick Newton that after the car accident, a combination of concussion and drug use made it impossible for you to complete the teaching course.[5]
7. You have been married twice and have one son. Your son, Curtis,[6] is aged 35 and struggles with drug abuse and mental health issues and lives in supported accommodation. You are close to him.
8. You are single and live in Queensland. You have lived with Ms Karen Oyler,[7] your land lady, in a platonic relationship on her property for 18 years, you pay her board and assist with routine maintenance matters and her animals. There is no internet and limited phone service. You travel on a weekly basis for medical appointments and supplies.
9. You now suffer from Parkinson's disease which was diagnosed in 2023.
10. In addition to medical summaries, medication lists and medical histories, two medical assessments were tendered by your counsel.

Neuropsychological assessment by Ms Laura Scott report dated 3 June 2025

1. In Ms Scott's opinion your long-standing problems with cognitive function are consistent with suffering a traumatic brain injury aged 27 in the car accident.
2. Ms Scott detailed the following difficulties in your daily life:
   • Recalling conversations and other detailed verbal information such as written material;
   • You are somewhat concrete in your thinking with a preference to focus on immediate concerns rather than future or tangible matters;
   • Your approach to new or complex tasks can be inefficient;
   • You can be disorganised in thought and action;
   • You are overwhelmed at times by detailed or complex information;
   • You are slow to process information; and
   • You can be mildly disinhibited and impulsive.
3. Ms Scott noted you presented with a high level of anxiety and moderate depressive symptoms. This together with your Parkinson's diagnosis means '[you] would be vulnerable to experiencing a deterioration in [your] mental health as a result of incarceration.'[8]
4. She stated you 'appreciated the wrongfulness of sexual offending against a child'. You told her you pleaded guilty for 'practical purposes' and declined to discuss your offending.[9]
5. Your Parkinson's symptoms include bilateral hand tremors, postural instability and hesitancy with mobility. You are currently prescribed Madopar.
6. Ms Scott noted you had marked impairments of memory function and aspects of executive function. Further you have mild impairments in the areas of working memory, information processing speed, visual memory and impulse control and behavioural regulation.
7. In Ms Scott's opinion you will be disproportionately affected by the impact of imprisonment compared with other prisoners. Your movement disorder is likely progressive. This results in instability, incoordination, reduced motor strength and poor motor control. These symptoms will progress over time. You are vulnerable to victimisation in prison. Ms Scott also referenced your high degree of anxiety and mild to moderate depressive symptoms. Given your medical and psychological comorbidities, she noted you would be vulnerable to experiencing a deterioration in your mental health as a result of incarceration.[10]

Psychological assessment report by Mr Patrick Newton dated 12 July 2025

1. Mr Newton diagnosed you with an adjustment disorder with mixed anxiety and depressed mood. He stated: 'This encapsulates my opinion that his distress is somewhat more intense than is common for a man in his situation but not reflective of more serious anxiety or depression- related problems.'[11]
2. In Mr Newton's opinion, at the time of your offending your alcohol related problems were sufficiently intense to warrant the diagnosis of an alcohol use disorder.[12]
3. At the time of offending, Mr Newton also diagnosed you with paedophilic disorder.
4. Mr Newton noted you attributed Elena as responsible for initiating sexual interactions stating, 'she made the first move' Mr Newton stated, you were 'implying that she had taken advantage of [you] by deliberately choosing to approach [you] when [you were] intoxicated'.[13]
5. Mr Newton opined: 'The age of [Elena] at the time of offending (between six and nine years of age) combined with the unequivocally sexual nature of both charges points clearly to the presence of paedophilic sexual deviance in [your] case.'[14] Mr Newton noted this is a lifelong condition. Your gaps in insight and ability to discuss related issues would tend to support this conclusion.[15]
6. Mr Newton noted the use of alcohol when you offended, and that 'alcohol use is likely to have disinhibited [you] and increased [your] desire for sexual interactions'.[16]
7. In terms of risk, Mr Newton noted the context of the offending that occurred more than 25 years ago, and when considering you had lived an offence free life in the community since then, he said that the level of risk is substantially reduced from an already low risk level.[17] Taking into account your lack of insight and likely presence of an underlying sexual deviance he assessed you as posing a

low-moderate risk of recidivism.[18] 8. Mr Newton considered you to be at an elevated risk for deterioration in your mental health if you should be placed in custody.

1. Your counsel submitted a suspended period of imprisonment as a sentence would be open. She referred to a number of matters in mitigation such as limited offending, no relevant criminal history, the delay since offending, no subsequent offending, your advanced age with significant medical conditions including Parkinson's, your vulnerability in custody given physical and mental vulnerabilities and positive prospects for rehabilitation.
2. She submitted factors which reduce the objective gravity of offending, namely that there were only two occasions of offending, there was no risk or pregnancy (although there was some risk of transmission of a Sexually Transmitted Disease) and noted an absence of aggravating features such as threats, inducements or degrading conduct.
3. Counsel submitted the following constitute personal matters in mitigation: In light of Ms Scott's opinion you are 'likely to be disproportionately affected by the impact of incarceration when compared to other prisoners' and Mr Newton's opinion, the 'most significant factor affecting [your] capacity to cope with imprisonment is [your] deteriorating neurological health (including both [your] Parkinson's disease and [your] movement disorder)',[19] your counsel submitted Verdins limbs 5 and 6 are engaged.
4. Further, she submitted, your physical issues would make you an extremely vulnerable prisoner in custody.
5. With respect to delay, it was submitted your plea of guilty is over 29 years after the offending and you have not been charged with any further offending.
6. Your counsel also submitted that delay impacted the maximum applicable penalty to Charge 1, in that if your case had been dealt with prior to 21 November 2000 the maximum penalty for the offence was 20 years rather than 25 years.
7. Counsel submitted you have a prior good character as indicated by the references tendered and should be given some weight.
8. Further, you pleaded guilty after the committal hearing after the complainant had given evidence. You also expressed your remorse to Mr Newton, saying, 'it shouldn't have happened, it was my fault'.
9. In terms of current sentencing practices, this refers to those in effect at the time of sentencing, however the principle of equal justice may make sentencing practices at the time of the offending one of the sentencing factors included in the sentencing synthesis relevant to arriving at a sentence which is just in all the circumstances.
10. Counsel referred me to a number of cases as examples of current sentencing practices.[20]
11. The prosecution counsel submitted your offending warranted an immediate gaol sentence.
12. Prosecution counsel submitted the objective gravity of the offending was aggravated by the age disparity between yourself and Elena, the position of trust you held as her uncle, that you used your position to impose on her your conduct was a 'secret' and that the indecent assault involved licking her genitals.
13. The applicable sentencing purposes are general deterrence, denunciation and just punishment and the weight given to specific deterrence is reduced by the delay, your illness and capacity to re-offend.
14. Counsel for the prosecution noted that although s5AA of the Sentencing Act 1991 is not enlivened, the weight given to good character carries less weight in sentencing this conduct.
15. He also conceded that Verdins limbs 5 and 6 were enlivened.
16. In terms of rehabilitation, it was submitted that this be given less weight than sentencing purposes such as general deterrence and denunciation, and the prosecution counsel submitted that the defence cannot rely of Mr Newton's opinion that you cannot access programs in custody, when there is no plan for you to receive offence specific treatment in the community.[21]
17. The prosecution counsel conceded a suspended sentence is an available sentencing option as this offending occurred prior to 1 September 2013, but did not accept that a wholly suspended sentence was appropriate and that a term of imprisonment be served immediately was required to give effect to general deterrence.

1. In my view the principle sentencing purposes to be met in sentencing you are deterrence, punishment and denunciation.
2. As noted, the maximum penalty for Charge 1 is 25 years' imprisonment and for Charge 2 is 10 years' imprisonment.
3. I have taken into account the current sentencing practices in the cases referred to by defence counsel whereby offenders received suspended or partly suspended sentences of imprisonment. Although as is usual, none of those cases is 'on all fours' with the circumstances here, I also note in none of those cases was a maximum penalty of 25 years' imprisonment applicable.
4. I have detailed the nature and gravity of the offending. It is serious offending and, as the prosecution counsel noted, the maximum penalty for Charge 1 of 25 years reflects the fact the child is under 10 years of age, making it the highest penalty for that offence.
5. Your culpability is high as the offending breached the relationship of trust and care between you and the complainant; you were living in the household as a trusted carer being the mother's brother and the children's uncle. The offending occurred on two occasions, and you exploited the complainant's vulnerabilities given her young age between six and nine and her filial relationship to you.
6. You alone are responsible for the offending.
7. The complainant has not completed a victim impact statement, but that does not lessen my consideration of the impact your offending would have had on her. I have no doubt the impact has been detrimental and long standing.
8. I note and give weight to your plea of guilty which has the utilitarian benefit of avoiding a trial requiring witnesses to give evidence. However, I note the stage of proceedings at which you entered your plea was following the committal when the complainant and her siblings gave evidence. Therefore, the plea was not the earliest it could have been.
9. I also note you have expressed remorse to Mr Newton that the offending 'shouldn't have happened. It was my fault'.[22] You stated to Mr Newton, you attributed responsibility to the sexual interactions to the complainant's initiative stating, 'she made the first move' and implying the complainant had taken advantage of you by deliberately choosing to approach you when you were intoxicated.[23] Mr Newton noted you continue to view the complainant as the instigator of the conduct and as having actively sought to engage you in it.[24] This response demonstrates you have poor insight regarding your responsibility for your offending as well as the effect of your offending.
10. Details of your previous character are noted above. You do not have relevant prior convictions and have not offended for 28 years. Despite Mr Newton's diagnosis of paedophilic sexual deviance for which you have never been treated, your lack of offending bodes fairly well for your rehabilitative prospects. I accept Mr Newton's prognosis you are low-moderate risk of recidivism. I give greater weight to the sentencing purpose of rehabilitation.
11. I accept the passage of time and ill health means you are at a low risk of

re-offending. 12. In light of this I give less weight to the sentencing purpose of specific deterrence. 13. You are now 74 and have the grave health condition of Parkinson's disease. You are still mobile however and have travelled from Queensland where you live independently with your land lady, although she has noted a deterioration in your mental and physical abilities. 14. In R v Verdins the Court of Appeal detailed six principles which must be considered when formulating an appropriate sentence when an offender has impaired mental functioning. 15. Limb 5 states that the existence of the condition at the time of sentencing may mean a sentence will weigh more heavily on an offender than it would on a person in normal health.[25] 16. Limb 6 states where there is a serious risk of imprisonment having a significant impact on the offender's mental health, this will be a factor tending to mitigate punishment. 17. Defence counsel submits and the prosecution counsel concedes Verdins limbs 5 and 6 applies here. 18. Mr Newton states your adjustment disorder with mixed anxiety and depressed mood is an intense emotional reaction to life stressors and is a temporary condition that will typically resolve when precipitating stressors are addressed.[26] Ms Scott also diagnosed you with a high level of anxiety and mild-moderate depressive symptoms and you would be vulnerable to experience a deterioration in your mental health in custody. 19. As a result of your adjustment disorder, you would be expected to experience both more regular and more intense bouts of anxiety and depression than a prisoner not afflicted with your challenges. Mr Newton considers you to be at an elevated risk for deterioration in your mental health in a custodial environment. This appears to constitute a serious risk imprisonment will significantly impact on your mental health. In accordance with Verdins I will give less weight to punishment as a sentencing purpose. 20. It follows with the effect of imprisonment having a significant impact on your mental health that Verdins limb 5 is enlivened, and the existence of the condition at the time of sentencing will mean that a given sentence will weigh more heavily on you than a person in normal health. 21. Separate to Verdins, your Parkinson's and movement disorder makes you likely to be disproportionately affected by custody and vulnerable to victimisation due to cognitive and physical limitations. Defence counsel submitted your physical health issues render you extremely vulnerable in custody. 22. I accept your current physical health conditions, and your age will add to the burden of imprisonment. 23. In terms of delay, these offences occurred between 1996 and 1998. Your counsel has submitted your lack of offending demonstrates your enhanced prospects for rehabilitation and is a powerful mitigating factor. I accept that. 24. Your counsel noted that if these charges had been dealt with at the time, the maximum penalty was 20 years' imprisonment rather than the current 25 years maximum which was changed retrospectively by the Crimes (Amendment) Act 2000. 25. Delay as a result of the effluxion of time before these offences came to light is partly linked to the nature of the offences themselves and the complex reasons for the reluctance of child victims to report these matters. Your position of trust within the family is also a factor that may have contributed to the delay. In my view, it is unlikely these offences would have come to light in the short period between the offending and the change to the maximum penalty. 26. I also take into account equal justice and give consideration to sentencing practices at the time of your offending. It is one of many factors to which I am required to have regard. 27. Your counsel has submitted I should sentence you to a period of imprisonment to be wholly suspended. The prosecution counsel has submitted a term of imprisonment to be served immediately and is required to give effect to general deterrence. 28. In my view given the gravity of your offending and the breach of trust entailed, an immediate period of imprisonment is required to meet the sentencing purposes of general deterrence, punishment and denunciation for your conduct. I will ameliorate the time to be served in consideration of Verdins and the physical burden a term of imprisonment will have given your diagnosis of Parkinson's. I take into account your plea of guilty, the delay, your lack of relevant priors or subsequent offending. I take into account the references tendered on your behalf attesting to you otherwise good character. 29. In respect of Charge 1, which is the penetration offence, you are convicted and sentenced to two years' imprisonment, 12 months of which is suspended. With respect to Charge 2, the indecent assault charge, I sentence you to 12 months' imprisonment of which I order six months to be served cumulatively on Charge 1. 30. The total effective sentence is two and a half years' imprisonment of which you are to serve 12 months' imprisonment with 18 months suspended. The operational period of the suspended sentence is three years. 31. A suspended sentence means after you have served the 12 months imprisonment you will be released with an 18 month suspended sentence, suspended for three years. This means if within the period of suspension you commit another offence punishable by imprisonment, that would breach the suspended sentence, and you would need to demonstrate exceptional circumstances as to why the remaining period should not be served. 32. Prosecution counsel has confirmed in submissions that standard sentencing does not apply and you do not fall to be sentenced as a serious sexual offender. 33. Because of my sentencing of you today, you will be a registrable offender under the Sex Offenders Registration Act 2004. 34. Charge 1 is a Class 1 offence. Charge 2 is a Class 2 offence. In accordance with s34(1)(c)(i) for a class 1 offence upon a finding of guilt you are liable for registration for life. Under s34(1)(a), the Class 2 offence carries a period of eight years. Therefore, you will be registered for life.[27] 35. You will required within seven days of your release from custody to report your personal details and report as required by the Sex Offenders Registration Act 2004 and you will be otherwise subject to the Act for the remainder of your life. You will be under a significant number of obligations as a result of that registration. 36. You will be given a document outlining your obligations under the Sex Offenders Registration Act and once you have signed acknowledgement that you have received it, a copy will remain on the court file. 37. In accordance with s6AAA of Sentencing Act 1991, but for your plea of guilty I would have sentenced you to four years' imprisonment with a non-parole period of two years. 38. Could I address counsel, are there any aspects of my sentence that require correction or clarification? 39. COUNSEL: No, Your Honour. 40. HER HONOUR: All right. 41. Could I ask defence counsel to contact and alert the relevant custodial authorities of any risk factors and provide them with a list of Mr Ellingson's medications and other relevant information regarding his health issues. My associates will provide you with the relevant contact details for custodial authorities. 42. COUNSEL: Thank you, Your Honour. Often Your Honour's associate can provide it directly to custodial services, so that it goes downstairs with - also that that authorities have it immediately on his receipt downstairs. 43. HER HONOUR: All right. Well I am making the direction that defence provide that information, so I'll leave you to have a chat with my associates perhaps, when I leave the court. 44. COUNSEL: Thank you, Your Honour. 45. HER HONOUR: Thank you. Thank you, we will adjourn the court. 46. Yes, actually, Mr Ellingson is required to sign the acknowledgement under the Sex Offender Registration Act. 47. COUNSEL: Yes. 48. HER HONOUR: Thank you. 49. COUNSEL: I just ask that my instructor assist Mr Ellingson. Thank you. 50. HER HONOUR: Yes. Thank you. So a copy of that will be on the court file and I think Mr Ellingson has the original. All right, thank you. 51. COUNSEL: Thank you, Your Honour. 52. HER HONOUR: Thank you, we will adjourn the court.

[3] Outline of prosecution submissions on sentence dated 18 July 2025, [9].

[4] Outline of submissions in mitigation on plea dated 14 July 2025, [4.e].

[5] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [4].

[8] Neurological report by Ms Laura Scott dated 3 June 2025, [11].

[9] Neurological report by Ms Laura Scott dated 3 June 2025, [3].

[10] Neurological report by Ms Laura Scott dated 3 June 2025, [1011].

[11] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [36].

[12] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [59].

[13] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [41].

[14] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [44].

[15] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [58].

[16] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [64-65].

[17] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [47].

[18] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [53].

[19] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [68].

[20] DPP v McArdle [2022] VCC 1205; Scannell v The Queen [2014] VSCA 330; DPP v Monson [2021] VCC 2098; DPP v Masters (a pseudonym) [2016] VCC 1925.

[21] Outline of prosecution submissions on sentence dated 18 July 2025, [17, 20].

[22] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [53].

[23] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [41].

[24] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [76].

[25] R v Verdins [2007] VSCA 102, [32].

[26] Psychological assessment report by Mr Patrick Newton dated 12 July 2025, [56].

[27] Amended summary of prosecution opening for plea dated 21 July 2025, [16]. The Amended summary

also notes as the offences were committed prior to 20 October 2017 standard sentences do not apply

at [17] and you do not fall to be sentenced as a serious sexual offender at [18].