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Davy v The Queen

Davy v The Queen

Case [2011] VSCA 98 8 April 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0541

CRAIG LAWRENCE DAVY	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO, HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 FEBRUARY 2011
DATE OF JUDGMENT	8 APRIL 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 98
JUDGMENT APPEALED FROM	R v Davy (Unreported, County Court of Victoria, Judge Jenkins, 25 February 2009)

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CRIMINAL LAW – Sentence appeal – Child sexual offences – 19-count presentment – Duties of prosecutors – Inadequate assistance to sentencing judge – ‘Overloaded’ presentment – Early plea of guilty – Two victims – Long period of serious offending – Statutory aggravating factors – No prior convictions – Inadequate gap between head sentence and non-parole period – Inadequate discount for early plea of guilty – Totality – Current sentencing practices – Appropriate sentencing range – Director of Public Prosecutions (Vic) v DDJ (2009) 22 VR 444 – Director of Public Prosecutions (Vic) v CPD (2009) 22 VR 533 – Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181 – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant:	Mr I Hill QC with Mr A Robertson	Wood Fussell Solicitors
For the Crown:	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

On 16 December 2008, Craig Lawrence Davy was arraigned and pleaded guilty to all counts on a 19-count presentment before her Honour Judge Jenkins in the County Court. Eleven of those counts alleged sexual offences against a male child, X, one count alleged a sexual offence against another male child, Y, five counts involved sexual offences against both X and Y and the two remaining counts were concerned with the production and possession respectively of child pornography.

On 25 February 2009, Davy was sentenced by Judge Jenkins as follows:

Count Offence Description of offending Sentence Cumulation

1 Indecent act with a child under 16.[1] Masturbating by Davy with or in the presence of X (8‑10 years old). 18 months’ imprisonment 6 months

2 Sexual penetration of a child under 16.[2] Fellatio of X (8‑10 years old) by Davy. 5 years’ imprisonment 3 years

3 Sexual penetration of a child under 16. Fellatio of Davy by X (8‑10 years old). 5 years’ imprisonment

4 Indecent act with a child under 16. Masturbating by Davy with or in the presence of X (10‑12 years old). 2 years’ imprisonment 6 months

5 Sexual penetration of a child under 16. Fellatio of X (10‑12 years old) by Davy. 4 years’ imprisonment
1 year

6
Sexual penetration of a child under 16.
Fellatio of Davy by X (10‑12 years old). 4 years’ imprisonment

7 Indecent act with a child under 16. Masturbating by Davy with or in the presence of X (12‑14 years old). 2 years’ imprisonment 6 months

8 Sexual penetration of a child under 16. Fellatio of Davy by X (12‑14 years old). 4 years’ imprisonment 1 year

9 Sexual penetration of a child under 16. Fellatio of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davy v The Queen

Details

AGLC: Davy v The Queen [2011] VSCA 98
Case: [2011] VSCA 98
Decision Date: 8 APRIL 2011

CaseChat Overview and Summary

In this case, Davy appealed against his sentence for multiple child sexual offences. The appellant was convicted of 19 offences and received a head sentence of 10 years’ imprisonment, with a non-parole period of six years and eight months. The Court of Appeal held that the Crown prosecutor had inadequately assisted the sentencing judge by presenting an "overloaded" case, with insufficient attention to statutory aggravating factors and the totality principle. The court found that the Crown had not provided sufficient information about the statutory aggravating factors, including the appellant’s early plea of guilty, the vulnerability of the victims, and the long period of serious offending. The court concluded that the sentencing judge’s failure to adequately consider these factors resulted in an inadequate gap between the head sentence and the non-parole period, as well as an inadequate discount for the early plea of guilty.

The appeal court determined that the statutory aggravating factors warranted a sentence at the upper end of the appropriate sentencing range, but that the totality principle required a non-parole period of no more than half the head sentence. The court referred to previous cases to determine the appropriate sentencing range and found that the appellant’s sentence was manifestly inadequate. The court held that the Crown prosecutor had a duty to ensure that the sentencing judge was adequately assisted in making sentencing decisions, and that the appellant’s sentence should be set aside and the matter remitted to the County Court for re-sentencing. The appeal was allowed, and the appellant was re-sentenced.

Orders