Director of Public Prosecutions v Davidson

[2023] VCC 1242

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-01024

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL DAVIDSON

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May and 3 July 2023
DATE OF SENTENCE:	20 July 2023
CASE MAY BE CITED AS:	DPP v Davidson
MEDIUM NEUTRAL CITATION:	[2023] VCC 1242

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Rape – childhood deprivation – childhood sexual abuse - low cognitive function – vulnerable victim – substance abuse – ADHD – mental health – delay – youthful offender

Legislation Cited:      Sentencing Act 1991 (Vic) s3(1), s5

Cases Cited:Worboyes v The Queen [2021] VSCA 169 - Bugmy v The Queen (2013) 249 CLR 571 - Azzopardi v The Queen (2011) 35 VR 43 - R v Mills (1998) 4 VR 235 - Marrah v The Queen [2014] VSCA 119

Sentence:                  2 years and 6 months’ imprisonment, NPP – 1 year and 3 months

s. 6AAA – 4 years’ imprisonment, NPP – 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Adrian Paull Criminal Lawyers

HER HONOUR:

1Samuel Davidson, on 30 January 2023 you were arraigned on indictment L10938361.1 and pleaded guilty to one charge of rape. You also agreed to this court dealing with one related summary offence and have pleaded guilty to a charge of failing to appear on bail.

Circumstances of offending

2Your plea hearing took place over two dates on 24 May 2023 and then 3 July 2023. A summary of prosecution opening for plea was tendered on 24 May 2023 and what follows is a summary of that document.

3The victim of your offending is Kasey Blackburn.[1] Ms Blackburn has an intellectual disability. At the time she was 19 years of age, she was also 8 to 9 weeks pregnant and was living at an address in Ballarat.

[1] A pseudonym

4At the time you offended you were 20 years of age and you knew your victim through her cousin, who was your ex-girlfriend. You had met Ms Blackburn once or twice.

5On 17 of December 2017, you contacted Ms Blackburn via phone asking if you could come over and visit her as you wanted to hang out. She agreed that you could visit but she told you she did not want anything to happen because she was 10 weeks pregnant.

6At approximately 11:00 am to 12:00 pm you got to Ms Blackburn's address with your friend. You introduced Ms Blackburn to your friend 'Benny', and they had a short conversation. As 'Benny' left he said, 'Have fun but not too much fun'.

7You and Ms Blackburn went out to the back-porch area of the residence and had a cigarette together before returning inside. Once inside, you had a look through Ms Blackburn's bedroom.

8You then sat with Ms Blackburn on the couch in the lounge area. You were sitting extremely close to her, she continued to shuffle over because she was uncomfortable. You started talking about Ms Blackburn's cousin who you had previously dated and the circumstances around how you had broken up.

9Ms Blackburn rubbed her sore shoulder and you asked if you could do it for her. She said, 'Yes', and you massaged her shoulder. You then moved your hand and started to undo her bra. She told you to leave it on, you ignored her and you touched her breasts.

10You leaned over Ms Blackburn and she was unable to get up or move away. She continued to tell you that she did not want anything to happen. You then attempted to undo Ms Blackburn's pants however Ms Blackburn continued to do them back up.

11Shortly after, you grabbed Ms Blackburn by the wrist and led her to her bedroom. You also grabbed a pillow and when you got into the bedroom you told Ms Blackburn to sit down. Ms Blackburn told you she wanted to stand up but you gave her a little shove and forced her to sit on the bed. She also said to you that she did not want anything to happen, you replied that you understood, but you took her shoes and pants off.

12You pulled your pants down to the middle of your thighs and got on top of Ms Blackburn, she could not move. You put your penis into Ms Blackburn's vagina (Charge 1 Rape). You penetrated Ms Blackburn's vagina whilst kissing her neck. You ejaculated inside her and then got off her and pulled your pants up. You did not wear a condom.

13Ms Blackburn heard you call your mate, 'Benny' and say, 'I'm done'. Approximately five minutes later you left the address with 'Benny'.

14After you left the address Ms Blackburn contacted a friend, Paul. They exchanged messages about what happened. One message Ms Blackburn sent said, 'Oh, I told him that we can't do anything coz I'm pregnant and he still fucked me'.

15Ms Blackburn contacted her friend and second cousin and told her that she said, 'No, but he wasn't listening'. Next, Ms Blackburn contacted Triple‑0 and reported that she had been raped by you at her address.

16Police went to Ms Blackburn's address shortly after. They examined the crime scene and seized relevant exhibits. One of the police officers took photographs of the scene, your Facebook profile and the text messages between you and Ms Blackburn.

17Ms Blackburn had a Forensic Medical Examination at the Ballarat Base Hospital. A vaginal swab was taken during the examination and was later analysed for DNA. The DNA result was that the sperm fraction was 100 billion times more likely to be yours than another random member of the population.

Arrest and interview

18Approximately 18 months later, on 26 of June 2019, you attended the Broadmeadows Police Station by appointment and did a record of interview with the police. You denied texting Ms Blackburn or ever having sex with Ms Blackburn.

Victim Impact

19In her victim impact statement, Kasey Blackburn said that her enjoyment of life is not the best and she has good days and bad days. She said that what you did has affected her emotionally and it is hard for her to sleep and there are nights where she has nightmares. Kasey also said that she does not feel safe anymore, she needs counselling but she cries when she talks about what you did and she does not trust men anymore.

20I take into account the impact of your offending on Kasey.

Nature and gravity of offending

21Rape is an intensely personal and inherently serious crime. Mr Davidson, clearly your offending is very serious.  You violated the bodily integrity and personal dignity of your victim, who was pregnant at the time of your offending.

22The seriousness with which Parliament and the community view the offence of rape is evidenced by the 25-year maximum penalty.  It is only in exceptional circumstances that an immediate term of imprisonment is not imposed.  This is not such a case. The offence of rape has been defined as a Category 1 offence; this means I must impose a term of imprisonment.  The offence of rape is also subject now to standard sentencing, however given the date of your offending the standard sentencing scheme does not apply.

23In assessing the nature and gravity of your offending, I have taken into account that your victim was known to you and you had exchanged text messages with her in the past where she had provided you her address. I have also given consideration to the following factors: your offending was not premeditated; it was of relatively short duration; it involved a single instance; your victim was vulnerable in that she has an intellectual disability and is physically weaker than yourself; you continued to offend despite Ms Blackburn stating she did not want anything to happen; your offending occurred in Ms Blackburn's home where she was entitled to feel safe and you ejaculated without the use of a condom.

Personal circumstances

24You are currently 25 years old, and you were 20 years old at the time of this offending. You were born in Box Hill and since then you have lived in a number of locations around Victoria, most recently in Horsham. You have half siblings on your mother's side, who are aged in their thirties. You father is in his early to mid‑50's and lives in Horsham. He works as a chemical engineer and is now semi-‑retired, having suffered a work-related injury.

25When you were only 4 years old, your mother was sentenced to a term of imprisonment for manslaughter, and you waited for her whilst she remained in custody. During this time, you remained in the care of your father. At the age of 12  your mother was released from gaol and shortly after your parents separated.

26After the separation of your parents, you were placed into State care with the Department of Health and Human Services. You had some contact with your father but contact with your mother was limited. Your mother struggled with psychiatric as well as drug and alcohol issues and had been physically violent towards you. In the circumstances, DHHS did not want you to have contact with your mother and when you did it would often result in you being placed in secure welfare.

27Your adolescence was marked by instability, abuse and a lack of consistent care from your parents. Further, during your time in State care you were sexually abused 'on and off' over a three year period whilst you were at Hurstbridge Farm.

28You attended Croydon North and Chirnside Park Primary Schools until approximately grade three or four. After you entered the care of the Department, your formal education effectively stopped. You attended programs and went on excursions, but you do not recall doing any further schoolwork. Prior to entering care, you were medicated for ADHD, and you had a teacher's aide for all primary school classes. You reported difficultly socialising with others at school and your mother's imprisonment made you a target for bullying. You have not completed any further education or training and you have never been able to read and write properly.

29Drug use has been a devastating feature of your life since you were a child. You were introduced to methamphetamine at the age of 13 which you used to self-medicate for your ADHD. By age 16, you were a regular intravenous user of heroin and methamphetamine. You have also reported abusing cannabis, Valium, speed, and tramadol. Your medical records indicate you have been hospitalised several times for drug-induced psychosis. Abuse of alcohol has not been an ongoing issue for you.

30You were released from State care when you were about 17 and you stayed with your father for a brief period before he sold his house. You became homeless and lived in your car in your Mum's driveway, and then at various campgrounds In Lilydale and Maldon. It was during this time that the offending before the court occurred.

31In 2022, your mother passed away from a heart attack, she was aged just 54 years. Prior to this time, you had not seen her for approximately two years because of an intervention order which was in place.

32Your father received a work-related compensation settlement and bought a home in Horsham. At age 23, around 2020, you moved to Horsham to live with your father. For two years prior to your remand you experienced the most stable and probably the happiest period of your life. You have a close relationship with your father who you describe as being 'very supportive'. You speak with your father almost weekly now whilst in custody and plan to return to live with him upon your release from custody.

33It was during the last two years that you were able to get work, firstly, at West Side TAB and then Hot Box Kebabs in Horsham, the latter ending when you were remanded. Prior to your remand you had been working several nights a week at the Kebab shop and you would consider working there again upon release.

34You have struggled with your mental health both in the past and currently. There have been times where you have had suicidal thoughts and engaged in self-harm. Notwithstanding these issues you deny having received mental health treatment or medication prior to your current remand. Your most recent time living with your father was very positive for your mental health. You intend to return to Horsham to live with your father when you are released and I understand that you are likely to be able to take up work again at the Kebab shop.

35In terms of prior history, you have four prior appearances at the Children's Court for a mix of dishonesty, assault, drugs, property damage and behavioural offences. Subsequently, you were dealt with in April 2019 for similar type offending and were sentenced to an eight-month Community Corrections Order. You have no prior convictions or subsequent offending of a sexual nature.

Mental health

36Forensic psychologist, Jeffrey Cummins, interviewed you in custody on 24 February 2023. Through his discussion with you and use of the RSVP (Risk for Sexual Violence Protocol) assessment tool, he came to the view that you had a low-moderate risk of sexual offending, low-moderate being the second lowest risk of five risk categories. He noted you did not deny the offending and, in his opinion, you did not display attitudes which condone sexual offending, though at the time of the offending you were, in his opinion, at least partially motivated by a sense of 'sexual entitlement' You expressed remorse and a willingness to engage in offence-specific programs.

37Mr Cummins considered that you possibly had Borderline Personality Disorder, Antisocial Personality Disorder and ADHD. He considered that a significant motivator of some of the negative aspects of your behaviour seemed to be anger arising from the rejection by your mother and sexual abuse you experienced whilst in State care.

38Further, Mr Cummins noted that you were receiving some mental health counselling in custody from Caraniche, and this is the first time you had ever received any mental health treatment. He noted you are currently on an antidepressant, Olanzapine and methadone.

39Mr Cummins recommended that you be assessed by a neuropsychologist due to the possible presence of a mild intellectual disability or acquired brain injury.

40Neuropsychologist, Anna McLaren, assessed you in custody on 26 May 2023. She estimated your overall level of intellectual functioning to be within the 'borderline' range, though you performed variably in relation to various aspects of functioning, ranging from 'extremely low' to 'average'. Overall, the results indicated you were impaired in the areas of attention, learning and memory and executive function which includes reasoning, disinhibition, planning and organisation.  Your responses in relation to your mood at the time of the assessment indicated that you were experiencing moderate-severe stress and severe anxiety and depression.

41Ms McLaren identified a number of factors which likely impact your intellectual functioning including prenatal substance exposure, a traumatic childhood, limited education and longstanding polysubstance abuse and mental health issues. Additionally, you have received several head injuries requiring further investigations at hospital and you have been treated for seizures.  

42She noted that you were diagnosed with ADHD as a child and considered that you possibly met the criteria for foetal alcohol spectrum disorder. Ms McLaren notes that your cognitive functioning would likely be further compromised 'during times of psychiatric distress or when acutely affected by substances'. 

43In relation to the impact of your cognitive function on the offending, Ms McLaren stated that you are more prone to making impulsive decisions without giving thought to or understanding their consequences. Further, you may have difficulty comprehending and reacting appropriately to situations requiring abstract and nuanced understanding.  At the time of the offending, you therefore may have made the decision to act as you did without fully considering or understanding the consequences. If you were using substances at the time of the offence, Ms McLaren opined that this would have further compromised decision making.

44Ms McLaren considered that your cognitive functioning may make you more vulnerable in custody, specifically in your interactions with other prisoners because of your impulsivity and susceptibility to manipulation. Whilst your cognitive functioning is unlikely to permanently deteriorate as a direct result of imprisonment, symptoms may be worsened by your anxiety and lowered mood at being in custody. You expressed to her concern about the impact on your father and 'missing out on the best part of [your] life'.

45In terms of rehabilitation and prospects of reoffending, Ms McLaren considered that you may always be at risk of reoffending as certain aspects of cognitive functioning cannot be permanently improved. However, some improvement was still possible through treatment for mental health, drug and alcohol use and occupational therapy.  She considered that you were not yet committed to stopping substance use noting that you told her that it was 'good for [you]' and your 'only friend'.

46Further, comments in relation to the offending led Ms McLaren to the conclusion that you had not fully taken responsibility for your actions notwithstanding your guilty plea. Further insight into remorse was prevented by your refusal to discuss it further during the assessment. She considered that other aspects of your performance during the assessment did indicate you had the capacity to understand the wrongfulness of your actions.

Verdins

47Your counsel, Ms Swiney, did not specifically rely upon Verdins considerations given the difficulty in drawing a connection between your cognitive deficits and your offending. Further, Ms Swiney submitted that although you do not fit the criteria for intellectual disability, you have significant deficits and you are a complicated character who needs a great deal of support.

48Mr Pickering for the prosecution submitted that Ms McLaren does draw some nexus between your difficulties and the offending that could enliven limbs one and two of Verdins. He referred to Ms McLaren's opinion that,

'[Your] impairments in aspects of attention, executive functioning, and learning and memory indicate that [you] may be compromised with reasoning through information and situations (particularly those which are nuanced), and hasty or somewhat impulsive in your actions, with likely compromised ability to adequately and reliably weigh up information in [your] head in the moment, and a tendency to make decisions and/or act before fully considering all [your] options and the consequences of his actions. It is therefore possible that [you] proceeded with [your] current offence before fully considering or understanding the consequences of your actions'.[2]

[2]        Neuropsychological report of Anna McLaren dated 13 June 2023, 18.

49Given the language used by Ms McLaren, Mr Pickering submitted the connection was not a strong one. Whether Verdins applies or not, the point that Mr Pickering made is that your presentation is such that protection of the community is a sentencing consideration that should be given some weight.

50In my view, it is clear that you have intellectual and cognitive deficits and a range of mental health issues. I find that your difficulties likely have some connection to your offending and you must be sentenced taking these issues into account. I agree with your counsel that you are not a good vehicle for general deterrence in the circumstances. Further, I agree with Mr Pickering that issues of community protection arise given your identified difficulties.

Application of Bugmy principles

51Ms Swiney, on your behalf, submitted that the principles of Bugmy[3] applied in your case and are a significant mitigatory factor I should take into account. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself.  This can be so either with or without a nexus or connection between the deprivation and the offending. The effects of such hardship do not diminish over time, and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court's assessment of moral culpability for the offence itself and also for the court's consideration of the weight to be given to your prior criminal history.

[3]Bugmy v The Queen (2013) 249 CLR 571

52In your case, I accept your childhood involved significant deprivation as a result of the following factors: the incarceration of your mother; your experiences of sexual and other abuse in State care; the instability and lack of care you received in your youth; your experiences of being locked in secure welfare; the exposure to your mother's mental illness, drug and alcohol abuse and her physical violence towards you; disrupted living situations and homelessness; and lack of proper educational opportunities.

53I consider that the Bugmy principles apply in your case in a general way. There is no evidence of a clear nexus between the deprivation you suffered and your offending. As the Court of Appeal said in Marrah v The Queen:

Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offenders' criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.  It is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage.[4]

[4]        Marrah v The Queen [2014] VSCA 119, [16].

54In my view, your moral culpability is less than the culpability of an offender whose formative years have not been marred in the same way. I consider that your experience of significant childhood deprivation would have been in operation at the time of your prior and subsequent matters and, therefore, put your other convictions in context.  Further, I accept Mr Pickering’s submission that the need for protection of the community arises in light of those issues.

Plea of guilty

55I accept that although your plea of guilty was not entered at an early stage in the proceedings, it has still provided a significant utilitarian benefit. In particular your plea of guilty spared Ms Blackburn from reliving the trauma of your offending. You have also spared the court from what would have been a time-consuming case involving a special hearing and then a trial. In the circumstances, your plea of guilty has facilitated the course of justice. 

56Further, your counsel submitted that a plea of guilty during the pandemic should attract a more pronounced amelioration of sentence than at another time, during the enormous backlog in cases before the courts[5].  I agree with these submissions and have given you a significant sentencing discount for your plea of guilty.

[5]Worboyes v The Queen [2021] VSCA 169.

Delay

57Your offending occurred on 17 December 2017. Although your victim promptly reported the matter to police and made her statement on 23 January 2018, you were not interviewed until 26 June 2019. This matter has been hanging over your head since this time and is now being finalised almost 6 years later.

58Generally, delay can be taken into account by a court in mitigation in two ways. Firstly, in relation to considerations of fairness, that is the matter has been hanging over your head and no doubt has caused you considerable stress and anxiety. Secondly, it can allow a court to assess your capacity for rehabilitation based on your conduct in the period of delay. In your case you have not remained offence free. However, I do note that you had enjoyed a period of stability whilst living with your father and you were able to obtain work and live a somewhat normal life. Further, although you have re-offended this has not involved any sexual offending.

Onerous conditions in custody generally

59Despite having received some mental health treatment whilst in custody, generally your experience of imprisonment has been extremely difficult. Ms Swiney told the court that you are in protection at the MRC and that you have experienced isolation and have been locked down for significant periods of time. You have struggled with the uncertainty of your future whilst you wait on remand to learn the length of time you will be ordered to serve.

Youth

60At the time of your offending you were 20 years old.  You are now 25 years of age and, as such, whilst you no longer fit the definition of a young offender within the meaning of the Sentencing Act1991,[6] you are still to be dealt with as a youthful offender.  In my view, although the offending before the court is very serious, it is not so serious as to entirely displace the principles that generally apply to the sentencing of youthful offenders.  These principles include:

(a)   that the youth of an offender should be a primary consideration for a sentencing court where that matter properly arises;[7]

(b)   young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;

(c)   courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and

(d)   incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation.[8]

[6]Sentencing Act 1991 (Vic) s3(1).

[7]R v Mills [1998] 4 VR 235.

[8]Azzopardi v The Queen (2011) 35 VR 43, 34.

61Your age and circumstances at the time of your offending in my view reduce your level of moral culpability and reduce the weight that the court must put on general deterrence.

Rehabilitation

62Mr Davidson, you are still a relatively young person and you have supports in the community from your father and your brother. In particular, your father is very supportive of you and provided a letter to the court stating that you seem accepting and remorseful for what you have done. Further, he says that he will offer his help as you have been hardworking and are showing promising signs of building a better future.

63Whilst you have been in custody you have accepted treatment and you are currently taking medication. You have also been undertaking some work.

64In the community you have a home and very likely work to come out to. It will be important for you to get further treatment both in relation to your mental health and in relation to substance abuse.  In my view this can be achieved initially through parole. On the whole, I consider your prospects for rehabilitation, particularly if you take up treatment that will be provided for you, to be promising.

65In terms of remorse, I note that there have been mixed messages on this topic in the psychological and neuropsychological reports. I consider that your statements about remorse to Ms McLaren should be seen against the background of your cognitive difficulties and the fact that you have been incarcerated with no effective end date in sight. I accept that you do in fact have some remorse based on what you told Mr Cummins, your father and by virtue of your plea of guilty.

Sentencing principles

66I consider the relevant sentencing principles that must be applied in this case are general and specific deterrence (albeit somewhat moderated, as indicated), denunciation, community protection and just punishment are also applicable. Other sentencing principles I must apply are parsimony and proportionality.

67I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case.  In particular, I have had regard to the sentencing landscape for the offence of rape.  Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

68Mr Davidson, after consideration of all of the above factors, including the oral and written submissions of both the defence and the prosecution,  the victim impact statement from Ms Blackburn, the psychological and neuropsychological material tendered, the testimonial from your father and former employer I have come to the view that the only sentence that can be imposed for the serious offending before the court is one of imprisonment, so as I said to you before:

69In relation to Charge 1, of rape, you are convicted and sentenced to 2 years and 6 months’ imprisonment.

70In relation to the summary related offence of failing to appear on bail you will be convicted and discharged. It is my view in relation to that offence that you felt the very direct impact of that as it caused you to be remanded.

71I order that you serve one year and three months before being eligible for parole.  In this case, I am satisfied it is in the interests of justice and the community, given your age and circumstances, to allow for a significant period of time where you are supervised in the community.

72You have now served 248 days by way of pre-sentence detention and I order that this be reckoned as a period of time already served.

73Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a term of imprisonment of four years with a non-parole period of 2 years. I think that concludes the matter.  Are there any other matters that I have missed?

74MR PICKERING:  No.

75HER HONOUR:  Ms Swiney?

76MS SWINEY:  No, Your Honour.

77HER HONOUR:  All right.  Mr Davidson, good luck with that, you have got a little bit more time in custody, probably almost the same again but hopefully you get parole and you can get some assistance in the community, settle with your dad up in Horsham and just get back the stability that you had, okay.  You might want to consider giving away the drugs.  I know what you have said about it, but it probably will help you into the future.  Hopefully you will see that in time, okay.

78OFFENDER:  Yeah.

79HER HONOUR:  All right.  And if I could just say to Kasey, thanks for being involved in the proceedings.  I hope that you have got some understanding of the reasons why I have done what I have done, but I just want to reassure you that I have definitely taken into account the terrible impact that this would have had on you and I sincerely hope that you can put this behind you as best you can and move on with your future, which I hope is a very positive one.

80I thank counsel very much for their submissions and assistance on the plea.  I will adjourn the Court, thanks.

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