Director of Public Prosecutions v Davies

[2023] VCC 1351

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01719

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARETH JOHN DAVIES

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2023
DATE OF SENTENCE:	28 July 2023
CASE MAY BE CITED AS:	DPP v Davies
MEDIUM NEUTRAL CITATION:	[2023] VCC 1351

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW      

Catchwords:          Plea of guilty to one rolled-up charge of indecent act with a child under 16 comprising two instances of sexual touching; Offence committed August 2003; Victim aged 15 and a half years at the time of offending whilst accused was 46 years of age; Victim regarded offender as father figure; Significant victim impact; Delay; No subsequent convictions; Reasonably good prospects of rehabilitation; Risk of deportation; Whether total suspension of sentence would adequately achieve sentencing purposes of denunciation and general deterrence.

Legislation Cited:                Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).

Cases Cited:Stalio v The Queen (2012) 46 VR 426; Clarkson v The Queen (2011) 32 VR 361; Sims v Queen [2022] VSCA 114, Schembri v the Queen [2020] VSCA 217, Moore (a Pseudonym) v R [2018] VSCA 2, Lugo v the Queen 2020 VSCA 75; DPP v David [2003] VSCA 202

Sentence:  2 years imprisonment wholly suspended for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Clancy	Office of Public Prosecutions
For the Accused	Ms A. Hancock	Doogue & George

HIS HONOUR:

Introduction

1Gareth John Davies you have pleaded guilty to one charge that on 14 August 2003 you wilfully committed an indecent act with or in the presence of Alanna Shu[1] who at the time was a child under the age of 16. The charge is a rolled up charge comprising two instances of sexual touching which occurred on the same occasion.

[1] A pseudonym.

Summary of circumstances of offending

2Ms Clancy who appeared on behalf of the Victorian Director of Public Prosecutions tendered a summary of prosecution opening upon plea dated 30 June 2023 and read that summary to the court at your plea hearing.

3The following summary of your offending is largely based on that document.

4Alanna Shu was born in January 1988 and was 15 and a half at the time of this offending. You were 46 years old at that time.

5In approximately 2002 the complainant's mother commenced a relationship with you. It was said that you moved in to her home in Belgrave sometime during 2003. You formed a close relationship with the complainant, she looked up to you as a father figure and considered that you were "the most decent person" her mother had ever dated.

6When Alanna Shu was 14 years of age she got in contact with a modelling agency and was told that she required a photo portfolio but that it would be expensive. You took photos of the complainant for her portfolio. Alanna Shu turned 15 in January 2003. She was then a student at her local high school.

7On the morning of 14 August 2003 Alanna Shu was in bed at home. Her mother worked as a food delivery driver which required her to leave for work at around 5am. The complainant had a dog who used to sleep at the end of her bed. Sometime after her mother left the house you walked into her bedroom and stood next to her bed for a couple of minutes. Alanna Shu was in her pyjamas under the doona and pretended to be asleep.

8You proceeded to pull the doona off the complainant and got into bed next to her and then put your hand up under the front of her pyjama shirt and grabbed her breasts rubbing them and squeezing them and also rubbing her nipples. Alanna Shu describes you touching her in this way for about 5 to 10 minutes.

9She pretended to be asleep because she did not know what to say or how to deal with the situation. She said that she was scared and froze. You then placed your hand on the complainant’s stomach and then put it under her pyjama pants and under her underwear. You then touched her on her vagina for about 5 to 10 minutes. When you stopped you got out of bed and took the dog with you. The complainant started to cry and worried that you might return. Eventually she got up and went to school without seeing you again.

10On the way to school Alanna Shu told a school friend what had happened and said that she did not want to return home to have you do the same thing again. She told another schoolfriend and when she got to school spoke to a counsellor. The Department of Health and Human Services and the police were subsequently notified. Later that morning the police spoke with Ms Shu who was provided with information as to the police procedures associated with reporting the matter formally. She requested time to consider that information and to decide what to do.

11Later that day the complainant’s mother spoke to you and asked you what happened. You said that you had just laid on Alanna’s bed next to her and gave her a cuddle. The complainant did not initially return to her home and instead stayed with a friend for some time. She determined that continuing with her police report would likely create problems for her mother at home and she said she wanted to move on with her life and not deal with the situation. Accordingly she made what was then called a statement of no complaint. You were not arrested or interviewed in respect of the allegation at that time.

12On 24 December 2019 Alanna Shu made a further statement to police and the investigation was recommenced. That same day the complainant made a pretext call to you which was recorded. During that call you acknowledged the event and apologised to the complainant for it. You made several comments during the call including that "it was a situational thing, me and you got along really well, it was a momentary thing you know, I never did it before and I never did it again. I suffer from that, I honestly do. And I should. Mate I'm sorry if I fucking scarred you in any way”.

13You were arrested and interviewed in respect of this matter on 9 January 2020, although you exercised your right to remain silent.

14You were charged with this offending in October 2020 and committed to stand trial in this court in August 2021. The matter was to proceed to trial where you were to face more serious charges however you pleaded guilty to this charge in June 2023 once those more serious charges were withdrawn.

15The maximum penalty for this offence is 10 years imprisonment.

Victim impact

16In her victim impact statement Alanna Shu described how she felt she was very happy when her mother met you because she was happy to have a father figure around the household. She says that you made her feel that she could talk to you about anything. She was enormously distressed that you took advantage of that position and sexually abused her. She says that has caused her "huge trust issues" throughout her life.

17She has suffered symptoms consistent with post-traumatic stress disorder for which she has sought professional assistance, both medical and psychological. Your offending has had a significant impact on her life in many ways including an inability to trust people especially men, anxiety, depression, and low self-esteem to mention but a few.

18You should understand that the significant impact your offending has had on your victim is an important consideration to be taken into account in fixing the sentence to be imposed upon you.

Personal circumstances

19You were born in Wales in September 1956 and are now 66 years of age.

20You migrated to this country with your family when you were nine years of age. You have an older brother and a younger brother each of whom have provided helpful personal references.

21You have never married and have no children and are said to now live quietly on a 96 acre property near Ararat.

22After arriving in Australia your family settled in the South Melbourne/Port Melbourne area where you attended school. Your schooling was not easy, you stood out because you had a heavy accent and found the school environment quite hostile. You finished your schooling at South Melbourne Tech at the age of 15 and went on to start work as a roof tiler.

23You have always been in employment having variously worked in jobs such as a printers assistant, a tradesman assistant, a meat worker and a gravedigger. In January 1987 you were involved in a very serious motor vehicle accident in which two of your best friends were killed and in which you suffered a crushing injury to your vertebrae amongst other serious injuries. It seems that it took you a couple of years to recover and at around the age of 32 you started work dredging for gold in a remote part of northern Victoria. Thereafter you obtained work as a forklift driver and then a truck driver.

24In 1998 you purchased the property on which you now live which you turned into an olive grove with over 1300 olive trees. A reference provided by your close friend Demetrios Dionisopoulos explained how he had been involved with you in developing that land which had suffered from over-farming. You did a lot of research on the type of tree species needed to successfully produce olives and over many years worked tirelessly to plant over 1000 trees. Mr Dionisopoulos describes your dedication as a labour of love.

25In 2020 olives pressed from your farm produced extra virgin olive oil which won a gold medal at a Hunter Valley Show. In 2021 Mr Dionisopoulos and his partner Ms Boyle purchased the property from you because your physical health had declined so much over the last 10 years and you were unable to tend to the trees as you had. Your friends have permitted you to remain on that land where you live alone in a caravan.

Defence Submissions

26Your declining health was an important matter relied upon by your counsel Ms Hancock. You suffer from chronic back pain which dates back to your serious motor vehicle accident in 1987 as well as arthritis in your hips and right knee which is painful and limits you considerably. In particular you can only now walk a very short distance.

27The letter from your GP confirms these problems and in addition refers to the fact that you suffer from depression for which you are now receiving psychological assistance. You have started seeing Carly Johnson, an accredited mental health social worker, in the context of symptoms of sleep and appetite disturbance, pervasive depressed mood, anhedonia, reduced motivation and social withdrawal.

28Although you have a criminal history it is very limited relating to some minor thefts and cannabis offences in the 1980s. I do not regard the three court appearances which constitute that history as at all relevant for the purposes of formulating this sentence.

29In her submissions on your behalf Ms Hancock acknowledged that this was serious offending given that it involved a breach of trust in the context of your relationship with the complainant’s mother. The defence did take issue with the allegation that you were living in the household at the time of the offending. In the event, you will be sentenced on the basis that whilst you may not have been living in the house at the relevant time you did periodically stay over at the complainant’s house and the complainant herself looked up to you as a father figure.

30Ms Hancock however pointed to the fact that this offending was isolated and there was nothing to suggest that you have ever engaged in this sort of behaviour before this offence or after with this victim or anyone else. It was noted that in the pretext call of 24 December 2020 you apologised to the complainant.

31Your plea of guilty was important in a number of respects. First, although it could not be suggested that it was an early plea it was made after the withdrawal of more serious charges. Moreover it facilitated the course of justice and saved the complainant and other witnesses the ordeal of having to give evidence. Indeed the utilitarian benefits of the plea were enhanced by the fact that it is made in the context of the court managing a large number of cases delayed by the pandemic.

32It was said that your prospects for rehabilitation were excellent. In the 20 years since the commission of this offence you have not reoffended and it would appear that the risk of reoffending would be very low.

33Your age and ill-health were important matters to weigh in your favour, it was submitted, particularly as it was likely that imprisonment would be more burdensome for you given your physical and psychological difficulties. You were at risk of deportation because you have never taken out Australian citizenship. Should you be sentenced to a term of imprisonment that you must serve immediately your permanent residency would be cancelled and you would be deported subject to satisfying the Minister that the cancellation of your visa should be revoked. It was put that there remained a prospect of deportation even if you were not sentenced to imprisonment which itself was a form of extra curial punishment.

34Delay was also said to be a powerful mitigating feature of your circumstances. The offence occurred 20 years ago. You were not interviewed in respect of it until January 2020, you were then charged in October 2020. Accordingly there has been a delay in the order of three and a half years since the time at which you were put on notice of the investigation into this allegation.

35Finally, it was submitted that in addition to having regard to current sentencing practice, regard should also be had consistent with the principle of equal justice articulated in Stalio[2] as to sentencing practice at the time of the offending.

[2] (2012) 46 VR 426.

36In all of those circumstances it was appropriate to impose a term of imprisonment that was wholly suspended as the relevant legislation from that time permits.

Prosecution Submissions

37Ms Clancy on behalf of the Director submitted that this was clearly serious offending when one had regard to the following factors:

·        You breached the trust placed in you by the complainant’s mother and the complainant herself;

·        You were significantly older than the complainant, you were 46, she was 15 and a half;

·        You occupied a position of authority as a father figure;

·        You committed this offence whilst the complainant pretended to be asleep which increased your moral culpability;

·        The offending occurred in the complainant’s own home where she was entitled to feel safe indeed she did not feel that she could return home after the events and stayed with a friend for some time;

·        The offending involved two acts over some time;

·        There was some calculation involved in that you committed this offence once the mother had left the home for work; and

·        There had been a significant impact on the victim.

38It followed that the sentencing objectives general deterrence, denunciation and just punishment attracted significant weight. It was submitted that a term of imprisonment was appropriate and that at least some component of that term should be immediately served.

Consideration

39I was referred to a number of comparative cases for the purposes of formulating sentence. They were Sims,[3] Schembri,[4] Clarkson,[5] Moore,[6] Lugo[7] and David.[8] I have found those authorities to be of limited assistance. I was also referred to the Sentencing Advisory Council’s publication “Sentencing Snapshot Number 24”, sentencing trends for indecent act with a child under 16 in the higher courts 2001-2002 to 2005-2006.

[3] [2022] VSCA 114.

[4] [2020] VSCA 217.

[5] (2011) 32 VR 361, (‘Clarkson’).

[6] [2018] VSCA 2, (‘Moore’).

[7] 2020 VSCA 75.

[8] [2003] VSCA 202, (‘David’).

40During discussion on the plea I queried with Ms Clancy whether the commission of the offence whilst the complainant pretended to be asleep constituted an aggravating feature given that consent is not an element of the offence. The answer, she helpfully provided, is to be found in the five bench judgment in Clarkson  where it was said that:

… proven absence of consent will significantly increase both the gravity of the offence and the culpability of the offender”.[9]

[9] Clarkson, [36].

41Additional written submissions on this point were provided by the parties after the plea hearing. Ms Clancy submitted that I should find that because the victim said she was scared, froze and pretended to be asleep throughout the entire incident her actions made clear that she did not give free agreement to the sexual touching. It must therefore have been clear to you that she was not consenting and that awareness constituted a circumstance of aggravation.

42Ms Hancock submitted that I should not be satisfied beyond reasonable doubt that you were aware that the complainant was asleep, despite her evidence that she was pretending to be asleep. Reference was made to various parts of the complainant’s evidence at committal in support of that submission.

43Despite your counsel’s submissions, I am satisfied beyond reasonable doubt that the complainant froze as she said and pretended to be asleep. I am further satisfied that you must have been aware of that fact. The particular references to the complainant’s evidence at committal do not dissuade me from that view. I therefore accept the prosecutor’s submission that your moral culpability was increased because you persisted in committing this offence whilst the complainant pretended to be asleep.

44Counsel also made reference to some of the comparative authorities where the victims were very young such as in Moore where the victim was 6 years of age or in David where the victim was 7. The question arose as to what utility those decisions had for comparative purposes given that your victim was 15 and a half years of age. Certainly the authorities make it clear that the fact that a child is close to 16 years of age is not a mitigating feature. The principle to be applied was articulated in Sims at paragraph 46 per Maxwell P and Beach JA:

Similarly, the fact that the victim was 15 years and 11 months of age at the time of the applicant’s offending was not a mitigating factor. All other things being equal, it may be accepted that the younger the age of the victim of offending of this kind, the more serious the offending becomes. It is not, however, a matter in mitigation that a particular child was of an age at the upper end of the range within which offending of this kind may be committed.[10]

[10] [2022] VSCA 114, [46].

45With one exception, I consider that the prosecutor’s submissions as to the factors that rendered this offending serious were well made. The exception relates to whether there was any premeditation or calculation involved in this offending. To conclude as such would to some extent involve speculation in my view. The circumstances are equally consistent with offending that is opportunistic.

46That consideration aside, it is important to emphasise that the victim was a young person who looked up to you as a father figure and yet you chose to abuse that position and the trust that she and her mother had placed in you. Your abuse of your victim has had lifelong consequences which the victim continues to manage to this day. Your moral culpability for this offending is particularly high. It follows that just punishment, denunciation and general deterrence must be given significant weight.

47In those circumstances I have come firmly to the view that there is no other   alternative other than the imposition of a term of imprisonment. However, the provisions of the Sentencing Act 1991 in force at the time of the commission of this offence allowed for the possibility of the suspension of that sentence. The question of whether your sentence should be wholly suspended was the essential point of contention between the prosecution and defence on the plea.

48Section 27 of the Sentencing Act 1991 as it then was permitted the court to make an order suspending the whole of a term of imprisonment “… If it is satisfied that it is desirable to do so in the circumstances.”

49Certainly the matters advanced in your favour are substantial. You are 66 years of age, your physical health has deteriorated considerably and your psychological health is precarious. Unlike many of these types of cases seen in this court this does appear to be a genuinely isolated incident albeit there is no satisfactory explanation as to why you chose to behave in this way. Even so you have not offended over the last 20 years and having regard to that history and your current circumstances I do not see you as posing any particular danger to the community. On the contrary your prospects for rehabilitation appear to be reasonably good. I note also that when you were contacted by the complainant in the pretext call you apologised to her and appeared to show some insight as to the damage you were likely to have caused.

50Further I accept that the delay with that has attended your case is inordinate. You were placed on notice as to these allegations back in January 2020 and then charged in October 2020. You have therefore spent the last three years or more in a state of uncertainty as to whether you will be required to serve a term of imprisonment. I accept that uncertainty over such a long period is punitive. In addition there is the prospect of deportation even though you have spent virtually all of your life in this country. Whilst there is a degree of speculation associated with that prospect I am satisfied that it too has been punitive.

51Your counsel rightly points to the utility of your plea of guilty. The victim has been saved the ordeal of cross-examination and the community has not been put to the expense of a criminal trial. Moreover, the plea has been entered in circumstances where the court is managing a large number of cases delayed by the pandemic. Those matters in and of themselves justify a substantial reduction in the sentence that would otherwise be imposed.

52Finally, in addition to the matters set out in s 5(2) of the Sentencing Act 1991, I am to have regard, so far as it can be discerned, to sentencing practice at the time you committed this offence. According to the relevant Sentencing Advisory Council’s Sentencing Snapshot, in the five-year period between 2001-2002 to 2005-2006 approximately 39% of persons dealt with for this offence received a period of actual imprisonment while 30% received a wholly suspended sentence of imprisonment, 11% received a partially suspended sentence of imprisonment and 9% received a community-based order.[11] It follows, it would seem, that a wholly suspended sentence was well within the available sentencing range.

[11] Sentencing Advisory Council, Sentencing Snapshot Number 24, June 2007, P1.

53Balancing the competing sentencing considerations as best I can, I have come to the view that it is desirable to wholly suspend the term of imprisonment that will be imposed for this offending. Whilst this is an inherently serious offence there is in my view little to be gained for the community by requiring you, all these years after the commission of this offence, to now serve an immediate term imprisonment. Your age, ill health, plea of guilty, the delay and uncertainty that has attended this case and the fact that you have remained offence free over the last 20 years in my view justifies that course. I consider that the process of arresting, charging and convicting you of this offence together with the imposition of a sentence of imprisonment albeit suspended, will, in the circumstances of your case, adequately deter and denounce your offending.

Sentence

54Taking all relevant matters into account you will be sentenced as follows:

55On the one charge of indecent act with a child under 16 you will be convicted and sentenced to a term of imprisonment of 2 years and I will order pursuant to s 27 of the Sentencing Act 1991 that that sentence be wholly suspended for a period of 2 years.

56I will declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a total effective sentence of 2 years and 6 months immediate imprisonment with a non-parole period of 18 months.

57I will also note that having committed one Class 2 offence under the Sex Offenders Registration Act 2004 you will be required to adhere to the obligations under that act for a period of 8 years.