Director of Public Prosecutions v Davidson
[2017] VCC 1346
•19 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01618
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE KEITH DAVIDSON |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 28, 31 July, 1, 2, 3, 4, 7, 8, 9, 11, 14, 15, 16, 17, 18, 21, 22 August 2017 | |
DATE OF SENTENCE: | 19 September 2017 | |
CASE MAY BE CITED AS: | DPP v Davidson | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1346 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | Office of Public Prosecutions |
| For the Accused | Mr J. Taaffe | Doogue + George Criminal Lawyers |
HER HONOUR:
1 Shane Davidson, you have been found guilty by a jury of one charge of sexual penetration of a child under 16 and one of indecent act with a child under 16. At that trial, you were acquitted of a further charge of indecent act. You were convicted after the second trial that you faced. At the first trial, the jury had acquitted you of one further charge of indecent act and had been unable to agree on its verdicts in respect of the three charges that then went before the second jury.
2 The victim of the offending was a 15 year old girl by the name of Victoria Pickworth.[1] You had become friendly with the Pickworth family because you had met her two older brothers at school. You were in the year that was between the years that they were in. You became friendly with both of them and had been welcomed into the Pickworth family home. The brothers and Victoria herself treated you as another brother of the family and you were welcome at all times in the home.
[1] Victoria Pickworth is a pseudonym.
3 You had known the family for some years at the time of the events. You had completed school, as had Victoria's brothers, but Victoria was still at school. You had maintained your social connection with the brothers and with the family after leaving school.
4 The events occurred after you had been out at a hotel with the older of the two boys, the one who became your class contemporary when you skipped a year at school. You had been out at a hotel drinking and as was the custom when you were out with Victoria's brother, you would come home with them and, as was the custom within the family, were allowed to sleep in the family home.
5 Ms Bosch,[2] the mother of the three children, had welcomed her children's friends into the home, had made it clear that she would encourage them to stay at the home after they had been out at night, rather than wandering around in the streets in the dark at a late hour, particularly if, as they got older, they had been drinking. There were spare beds and a number of spare mattresses in the house. You were well familiar with that setup and on every other occasion over the years when you had stayed in the home, you had slept either on the sofa, in the bunk in one of the boys' rooms, or on one of the mattresses.
[2] Bosch is a pseudonym.
6 On this night, consistently with the jury verdicts, Victoria's mother heard you and her older brother come home at about four in the morning. Victoria's evidence, which by its verdicts the jury accepted, was that somewhere early in the morning after dawn, when she could see the light coming through the window and hear the birds singing, you came into her bedroom, closed the door and asked if you could sleep there. You falsely asserted, that there was nowhere else for you to sleep. She said yes because she trusted you. She assumed that you were going to lie down on the floor. Instead you got over her and onto the bed. She still trusted you.
7 Consistently with the jury verdicts, I am satisfied that having entered the bedroom under that pretext, closed the door, hopped onto the bed beside her, you then, over her protests and her attempts to avoid you, ultimately ended up putting your hand down her shorts and underwear, touching her on the vagina and then digitally penetrating her.
8 The jury clearly rejected your account, given both in interview and in sworn evidence, that you had done no more than try, without even making physical contact, to kiss her, encouraged by six months of flirtatious behaviour before that, including, on one occasion, an act you said was initiated by Victoria, namely her touching and rubbing your thigh. The jury clearly rejected your account that you had fled, embarrassed by the realisation she was not interested in you after your fumbled and unsuccessful attempt to kiss her. They clearly also rejected your account that this happened shortly after midnight and just after you had come home, but it was rather much later and after everybody else, including Victoria’s brother, was in bed and asleep.
9 In her victim impact statement, Victoria said,
"Shane had been a friend of my older brother for about four years before he attacked me. I had only known him as a friend of my brother and he was over at our place all the time. He was like one of the family. Over the past six years since this has happened, the horror I feel at what he did to me and the trauma I have experienced since then has stayed with me. Generally, I'm able to cope with my reactions and triggers I have that bring about emotional distress, because I have professional people who can help me through this, but I often feel alone. An attack such as I experienced is a total violation and something only the person who goes through it can understand, although that can be hard sometimes. Knowing someone who was a friend of the family and who was accepted as such can damage your trust and sense of safety, that's what Shane's actions have done to me. I was so confused when he attacked me, because I didn't know how to react, what to feel. I was numb and hurt and so afraid. For him to do what he did, I started to blame myself, thinking I must have done something to make him do what he did. It took me three years with professional help to understand where the responsibility lay and that was with Shane."
10 She also said this:
"Making my police statement was horrible. I had to experience the attack all over again and it was devastating, but I did it and now the court process is almost over for me. I knew I had to take this as far as I could for my own wellbeing and for the protection of others, but the journey has been very traumatic. The legacy of what Shane did to me is one of change for me, change in the way I trust people particularly. It changes everything you believed in and everything you wished for in your future. I am more guarded and self-protective. Trusting someone is always going to be an issue for me, because I feel everyone around me has a hidden agenda. The emotional fallout of what Shane did to me has been immense and over many years."
11 She speaks of the serious physical, psychiatric and psychological consequences that she suffered and the fact that she has needed significant psychiatric – including in-patient hospital care – as a result and how she saw herself as worthless. She finishes, though, in a way that I think is a very positive way and a testament to her strength and courage:
"Even though the impact of what Shane did to me is huge for me and ongoing, I am determined his actions will not define who I am. I am studying and my future outlook is bright. I participate in activities that bring me joy and fulfilment. I have support when I need it."
12 It is a touching and eloquent statement and should be particularly poignant for you, because you were such a trusted person in the family.
13
Although Victoria is the primary victim, she is not the only victim. You were
a close friend of her two older brothers and trusted and treated by both of them, as well as Victoria, like another member of the family. You were trusted by their mother, Ms Bosch, to be in the house and to sleep over. They have all felt profoundly betrayed by the discovery of your conduct and the sense of quite unwarranted shame and guilt they feel for having been unable to protect their daughter and sister. Ms Bosch spoke eloquently in her victim impact statement and in fact, in her evidence before the jury, about how she had suffered from the feeling of not being able to protect her daughter and how she felt, although she understands intellectually it was not her fault, she feels at fault for having trusted someone to be in the house who betrayed her and her whole family so badly.
14 The assault occurred in May 2011, but it was not until three years later, in June 2014, that Victoria decided, and felt strong enough, to report the matter to the police. Over three years has elapsed since then, before the matter finally came on for trial. Just under two years of that time was due to police delays. It took 15 months after Victoria had made her report to the police before you were finally interviewed and a further seven months before a decision was made to charge you. You were finally charged in April 2016. No matter what resource and training needs can explain the delay and no matter what shortage in funding and adequately trained personnel Victoria Police has, that is for you and for the community, a totally unacceptable delay.
15 After you were charged, a contested committal, running over two days, in which Victoria, her brothers, and the three girlfriends in whom she had confided, were cross-examined. That was six months after you were charged, and the trial commenced ten months after that. Victoria, her mother, her brothers and her girlfriends were all cross-examined again at trial.
16 One of the defence arguments at trial was that the delay in disclosure and reporting to the police undermined Victoria’s credibility. Implicit in that argument was that if Victoria had been, as she said she was, sexually assaulted in the manner she said she had been, she would have called for help, resisted more strenuously, immediately told her mother and brothers the full details of what had happened, and reported to the police forthwith.
17 I want to make it very clear that not only are those matters now known to be what are commonly these days called ‘rape myths’, that is, that people who are sexually assaulted call for help, struggle, escape, complain immediately and give complete and consistent detail to everyone they do tell, having seen the extensive examination of the minutest details of what Victoria said and did and did not say and do in the bedroom and then when making her various disclosures, I can only say, it is not surprising that so many complainants are afraid of that process of disclosure, reporting and trial.
18 I take the delay from the time of the report by Victoria to the police to the time that you were charged into account in your favour. I do not consider the delay thereafter to be a mitigating factor. It was attributable to your exercising your right to contest the charges and I do not consider the delay from time of commission of the offences until the time of making a formal report to the police by Victoria, a factor which should operate so as to reduce the sentence otherwise appropriate. Although it would appear that from some time in 2012, you knew that Victoria had told people what you had done and people in your social circle were aware of her allegations, I do not consider that you can call in aid as a mitigator, the fact you knew allegations had been made and so had the pressure of the prospect of report or charge hanging over your head. Having regard to the jury verdicts, the remedy for any oppression resulting from that lay in your hands. You could have acknowledged, apologised and taken responsibility and brought matters to a head yourself.
19 This is serious offending. Victoria was only 15. Despite your denials at trial that you did not know her true age and various assertions made in your interview with the police and your evidence at trial that you believed that she was 16 or even 17, as your defence at trial made clear, you did not seek to invoke a defence you believed that she was 16 or older. I am satisfied that you knew at the time, consistently with the verdicts and consistently with the way the trial was run, that she was 15. You were 19.
20 This was a gross breach of trust. She was, in all senses, the kid sister. She was the schoolgirl and on the evidence, was a young 15 year old. She was still singing in eisteddfods, doing dancing lessons, and going to rock concerts where gospel groups performed. She was not one of those early maturing 15 year olds doing things beyond perhaps their chronological age. There was no evidence that she was going out to hotels or nightclubs. No evidence that she was drinking alcohol or using drugs and she was certainly not impaired at the time. There was no evidence that she was interested in hanging out with boys so much older than her. In fact, she had been at home, as you knew, with her mother on the Saturday night, while you and her brother, as 19 and 20 year olds, young adults, were out at a pub. You were in your second year out of school, but she was still a Year 10 student. So the age, experience and maturity disparity at that age is significant.
21 This may have well have been spontaneous and opportunistic. You may well have been impaired by alcohol, but your behaviour was simply inexcusable.
22 It is clear therefore, that subject to considerations personal you, denunciation, just punishment and deterrence are significant sentencing considerations. Young people should feel safe in their homes, families should feel safe that when a family friend is invited into the home, that he will respect the integrity of everybody in that home and that he will respond to the trust invested in him. That he will not act in a sexually predatory way with an innocent and unwilling younger member of the family.
23 You were 19 at the time, legally an adult, but a young one. You are now, at the time of sentencing, 26. You are rightly to be regarded and treated at law as a young offender at the time. You had no other previous contact with the criminal law and you have had none since then.
24 Apart from this terrible offending, you have lived your life well and have made the most of the opportunities afforded you and you have survived, even flourished, in circumstances which could have had a catastrophic impact on your life.
25 Your parents suddenly and unexpectedly disappeared from your life when you were five. You came to discover that your mother had lost her life at your father's hands and he had then taken his own life. You and your two sisters were therefore left parentless. You have been fortunate to have been surrounded by the love of you sisters and your grandparents. Your paternal grandparents particularly obviously deserve enormous credit for the way they coped with the tragedy that affected them as well. They devoted their lives to bringing you and your sisters up, still in a family and with the love surrounding you.
26 They did whatever they could in the early years of your life to ensure that you and your sisters had considerable contact with your maternal grandparents, despite the obvious distress that that must have caused in the extended family circle, having regard to the circumstances in which your mother died. But you were obviously given a loving, supportive family life by your grandparents and you and your sisters have all flourished. Care was obviously taken to ensure that the best assistance that could be provided to each of you, to come to terms in your own ways with the tragedy that had beset you. Each of you and your sisters reacted in different ways, but have managed, no doubt in large part because of the love you were surrounded with by your grandparents, to survive.
27 A truly impressive array of testimonials to your good character was presented to me on your plea. Not only from your grandparents, your grandmothers and her new partner following the death of your grandfather, your sisters, your partner, your partner's family, you godmother, extended family members and family friends. All spoke glowingly of you. They spoke of how much this was out of character with the young person they had seen grow up and flourish, how it was different from your attitude as they had seen it towards women and how it was out of character with the way you otherwise behaved. They were all clearly shocked to discover that this was what, on the jury verdict, you had done.
28 You are an intelligent young man. You were placed in an accelerated learning program at school and you graduated from university with a Bachelor's degree in IT, going straight onto university from school. You have been in steady and obviously very good employment since then, rising through the ranks. Your employment has been in your chosen area of work in IT and somewhat ironically, in light of the circumstances, you spent your time employed in the education sector and most recently working on developing internet filters for secondary schools.
29 The nature of verdicts mean that the mandatory provisions of the Sex Offenders Registration Act 2004 (Vic) apply to you and you will be subject to reporting conditions for 15 years. This, I might say, is yet another example of the unfair and arbitrary application of this legislation. There are other much less invasive means that can properly be employed to assess what risk you might pose now or in the future to children and much less invasive and intrusive means of containing such risk as you might pose. However, there is no discretion in the legislation. The nature of these offences mean I must place you on the register and I must do so for the prescribed period of 15 years.
30 I am told that despite the verdicts, your employers are standing by you and again, that is testament to the character that you have otherwise displayed. I am told that you should be able to continue with them and in your chosen field. Although it does involve work in the secondary education sector of schools, it does not involve direct access to children or placement on school premises.
31 So all of these things, your flourishing life, your absence of convictions before and after, how well you have spent your time since then, the glowing testimonials provided by such a wide range of people, your employability, and your commitment to employment and to securing your financial future, all show that you have very good prospects for rehabilitation.
32 The jury found you guilty of these two charges. Had you acknowledged your moral and criminal responsibility and done so at the time, or when you were first questioned by the police, you would have had - or even by the time of trial, you would have had the very significant added mitigating factor in your favour of acknowledgement of responsibility, of sparing your victim the ordeal – and in this case it was clearly considerable – of giving evidence, of reliving for her what were clearly very distressing and searing events and of being branded a liar and a fantasiser.
33 You cannot be punished for pleading not guilty, but by reason of your pleas of not guilty, you cannot call this significant and powerful factor in aid in mitigation.
34 I have thought long and anxiously over what is the appropriate sentence, given your youth at the time, the fact that this stands as an aberration in an otherwise good life and the positive factors counting in your favour. But I am satisfied, having regard to the nature of the offending, that is, predation on a 15 year old and such a breach of trust as it was, that no sentence other than one involving a component of imprisonment immediately served is appropriate.
35
I am also satisfied that in this case a combination sentence, that is,
a combination of a term of imprisonment followed by release upon a community correction order, is the appropriate way to balance the needs for punishment, deterrence and denunciation, with recognition of the positive factors in your life and encouragement of rehabilitation. This will give you a certain release date and I have structured the sentence so as to allow some of the punitive aspect of the sentence to be served in the community, by way of the conditions I am attaching to the community corrections order. It is also structured in a way that will allow for you to participate in a sex offender treatment program, if you are considered suitable, either in custody or in the community or part in custody, part in the community. In my view, that is the way to achieve the balance between those needs of denunciation, just punishment and general deterrence, with those significant personal factors counting in your life and your youth at the time.
36 Could you now please stand.
37 Shane Davidson, on the two charges of which the jury found you guilty, you are convicted.
38 On Charge 1 of sexual penetration of a child under 16, you are sentenced to be imprisoned for nine months, followed by a community correction order.
39 On Charge 3 of indecent act on a child under 16, you are sentenced to be imprisoned for a period of three months, which is to run concurrently with the sentence on Charge 1, and followed a community correction order.
40 That makes a total effective sentence of nine months.
41 You are then, upon your release, to be placed on a community corrections order for a period of two years.
42
There are core conditions that apply to all community correction orders and
I will tell you what those are in a moment. I am adding two conditions to the core conditions. They are conditions of unpaid community work. As I said, that is because I am factoring part of the punitive component of the sentence into that part you are to serve in the community and that is to be by way of unpaid community work. I am also imposing a treatment and rehabilitation program and that is specifically to have you assessed for suitability for and to participate, if directed, in a sex offender treatment program.
43 So the CCO is in these terms:
· The order will last for two years and commences upon the completion of your term of imprisonment;
·
You must attend at the Wonthaggi Community Correctional Service at
7 Korumburra Road, Wonthaggi, within two clear working days after the commencement of the order. So that is after your release.
44 The mandatory terms of the CCO are these:
· You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·
You must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011. That means, you must not be impaired by drugs or alcohol when you attend at Corrections for any visits and you must submit to drug or alcohol testing, if required to do so;
· You must report to and receive visits from the Secretary or delegate;
· You must let a Community Corrections officer know within two clear working days if you change your address or your job;
· You must not leave Victoria without first getting permission to do so from the Secretary or delegate;
· You must obey all lawful instructions from and directions of the Secretary or delegate;
· You must perform 300 hours of unpaid community work over the period of two years, as directed by the Regional Manager. If you fail to comply with the community work order component of the order, the Secretary to the Department of Justice or his delegate may give you a direction to perform additional hours of unpaid community work, in accordance with s.83AU of the Sentencing Act 1991 (Vic);
· You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager, specifically a sex offender treatment program.
45 Do you understand the effect and conditions of the order?
46 OFFENDER: Yes.
47 HER HONOUR: Do you consent to it being made?
48 OFFENDER: Yes.
49 HER HONOUR: I must also provide you, Mr Davidson, with a copy of the mandatory conditions of the reporting under the Sex Offenders Registration Act 2004 (Vic). You will be given a receipt and asked to sign an acknowledgement of that. It is not mandatory to sign the acknowledgement, the court record will show, in any event, that has been provided to you. But I will have both the CCO and the Sex Offenders Registration Act 2004 (Vic) reporting conditions provided to you and ask you to sign the CCO, acknowledging your commitment and sign a receipt of the Sex Offenders Registration Act2004 (Vic) conditions, if you wish to do so.
50
I have also been asked to make an order for the provision of a forensic sample and I have decided that in the circumstances, it is appropriate to do so. I am doing that by way of the provision of buccal sample. That is a saliva sample obtained by rubbing a swab like a cotton bud on the inside of your mouth until a sufficient sample has been obtained. I must warn you that if you do not
co-operate in the provision of that sample, the police are authorised to use reasonable force to obtain it and they may well use the more invasive form of obtaining a sample, namely the taking of a blood sample. Do you understand that?
51 OFFENDER: Yes.
52
HER HONOUR: Do the orders that I have pronounced reflect what I said
I intended to do?
53 COUNSEL: Yes, Your Honour.
54 HER HONOUR: Any further orders?
55 MR PIRRIE: No, nothing, Your Honour.
56 HER HONOUR: No further orders required?
57 MR PIRRIE: No, nothing, nothing.
58 HER HONOUR: Thank you. Can you remove Mr Davidson please.
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