Director of Public Prosecutions v Davies

[2015] VCC 414

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02486

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN DAVIES

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 9, 10, 11, 12 February 2015 Mention: 13 February 2015 Plea: 27 March 2015
DATE OF SENTENCE:	1 April 2015
CASE MAY BE CITED AS:	DPP v DAVIES
MEDIUM NEUTRAL CITATION:	[2015] VCC 414

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	OPP
For the Offender	Mr H. Roberts	Patrick W Dwyer Criminal Lawyer

HER HONOUR: 

1Shaun Davies, you have pleaded guilty to one charge of using a carriage service to transmit indecent communication to a person under 16 years of age and one charge of failure to comply with reporting obligations under the Sex Offender Registration Act 2004 (‘the Act’).

2This is not the first time you have come before this court for sexual offending.  On 21 May 2012, you were sentenced by His Honour Judge Gucciardo for two charges of sexual penetration of a child under 16 and one of indecent assault.  Those charges concerned separate incidents with two 15-year-old girls.  On that day, you were sentenced to a Community Correction Order and placed on the Sex Offender Register for life and were served with a copy of your reporting obligations.  The registration for life was because that is the period fixed by law following conviction for those offences.  Registration on the Sex Offender Register restricts your unsupervised contact with children under the age of 18. 

3You actually brought this offending to light yourself, unintentionally it would appear.  In the early hours of the morning of 25 March 2013, you went to the Reservoir Police Station to report that your phone was missing.  You told the police that earlier that night on 24 March you had met up with the victim.  You told them that the two of you had sat in your car talking and when the victim eventually left your car, you discovered that your phone was gone.  You told the police that you had met the victim on Facebook, that you had met her a few times, and had kissed.  You were 20 years old at the time. 

4The police sent you home.  Their checks then revealed that the victim was in fact 15 years old, a child living in DHS residential care.  They also discovered that you were a registered sex offender.  They went to the home where the child was being cared for, retrieved your phone and requested you to return to the police station to make a statement.  When making your statement – this is about the circumstances in which your phone went missing – you again mentioned kissing the victim and having contact with her.  You were then immediately arrested. 

5You were interviewed in respect of these charges.  In your recorded interview, you admitted meeting the victim on Facebook, exchanging phone numbers and meeting up with her on a number of occasions.  You told the police that you had given or lent her money and taken her to buy drugs on more than one occasion.  You told them that you had kissed.  You told them that she had told you that she was 15 after you had kissed her.  You told the police that you continued to have contact with her, both in person and via social media, after discovering her age.  Although you told the police you had no idea that she was 15 until she told you, her Facebook page, as you knew and told the police, said that she was at school, and you knew that she was a child in DHS residential care. 

6Examination of your phone showed that there were messages passing between you and the victim on it.  You admitted that you were the author of the messages in your name on the phone.  You admitted that you had sent a message to the victim the previous night before meeting up with her, saying, "Wanna have fun and make love tonight?".  You acknowledged that at the time that you sent that message to the victim, you knew she was 15.  When taken to the exchange in its detail, you said, amongst other things, "I was probably maybe semi-serious about it".  It is sending this message which forms the basis of charge 1, using a carriage service to transmit an indecent communication to a person under 16. 

7Under s14 of the Sex Offender Registration Act 2004, you are required to make an initial report to the Chief Commissioner of Police within the time prescribed by s 12 of the Act of what are described in the Act as personal details. Those personal details include, by s.14(1)(e), the names and ages of any children with whom you have regular unsupervised contact. Section 14(2)(c) does not state in positive terms what regular contact is. What it says is:

A registrable offender does not have regular unsupervised contact with a child unless he or she has unsupervised contact with the child for at least 3 days (whether consecutive or not) in any period of 12 months.

Transformed into plain English, that means unsupervised contact on at least three days in any 12 month period is regarded as regular unsupervised contact for the purposes of s 14 of the Act.

8By s 17 of the Act, a registrable offender must report any change in personal details to the Chief Commissioner. Section 17 sets out the time for reporting changes in personal details. Different times are set for different personal details. Section 17(1A) is worded even more obscurely than s.14(2)(c). However, what it does is impose an obligation to report any change in personal details to which s.14(2)(c) applies, that is, the regular unsupervised contact with children within one day of that change occurring.

9Your account given in the recorded interview makes it clear that you had unsupervised contact with the victim on at least three occasions between 15 and 25 March 2013. At no time did you report that contact to the Chief Commissioner or his delegate as defined in the Act, as required under the Act. Your complaint to the police that the complainant had taken your phone or that you suspected she had taken your phone and your admissions in the recorded interview to contact with her do not constitute a report to the commissioner. It is this breach of your reporting obligations under the Sex Offender Registration Act2004 by failing to report the at least three contacts with a child under 18 which forms the basis of charge 2. 

10You were initially charged with using a carriage service to procure a child under 16 for the purpose of engaging in sexual activity and attempting to procure a child under 16 for sexual penetration as alternatives to the charge of use a carriage service to transmit an indecent communication, as well as the charge of breach of sex offender reporting conditions.  Following a non-contested committal and pre-trial argument in relation to the admissibility of evidence of the circumstances of your previous convictions regarding sexual activity with 15 year old girls which resulted in a ruling from me that such evidence was admissible as tendency evidence in relation to Charge 1, you pleaded guilty to the charge of using a carriage service to transmit an indecent communication and to the charge under the Sex Offender Registration Act 2004.  So it is that you now come to be sentenced for those charges. 

11Your pleas of guilty, although late in the piece, entitle you to a reduction in the sentence that would otherwise have been imposed.  Although late, they do have a utilitarian value; they have saved the time of trial and some of the cost that otherwise the community would have had to face. 

12The offending to which you have now pleaded guilty also breaches the Community Correction Order imposed by his Honour Judge Gucciardo.  As a result of that, you will face breach proceedings in front of him.

13Last week, a concurrent hearing was held at which both his Honour Judge Gucciardo and I presided where the materials to be relied upon both in respect to the breach of the order made by His Honour and the sentencing in respect of the charges before me was held.  It is to your credit that, through your counsel, you consented to that hearing being conducted in that way.  This concurrent hearing was the first of its kind in this court, and to my knowledge, in this state.  The circumstances of the charges to which you pleaded guilty before me were equally relevant to the pending breach proceedings before his Honour Judge Gucciardo, and the matters relied on in mitigation by you were relevant to both the plea hearing before me and the breach proceedings before his Honour Judge Gucciardo.  The concurrent hearing avoided the obvious duplication that would had occurred had separate hearings involving these matters been held in respect of these charges and in respect of the breach proceedings. 

14However, as each of his Honour Judge Gucciardo and I made clear at that concurrent hearing, the hearing was for the purpose of hearing the agreed summary of evidence and the submissions which related to both sets of sentencing.  However, as we each said in the course of the concurrent hearing, we will make our sentencing decision independently.  It is for that purpose in part that I am sentencing you today and His Honour will not sentence you until after I have imposed by sentence. 

15In addition to your pleas of guilty, the matters relied upon on your behalf on the plea were these:  the charges arise predominantly by reason of the admissions made by you, both in the initial report relating to the circumstances of the loss or theft of your telephone and the subsequent interview.  The complainant was not to be a witness at the trial and has not filed a victim impact statement.  However, the material before me makes it very clear that she was a vulnerable young child, a child in the care of the state and in secure residential accommodation.  It is an aggravating feature, in my view, that the circumstances of your meeting/having contact with this young person involved you giving or lending her money and taking her to buy ice.  There was clearly a significant element of exploitation of a vulnerable young person with multiple needs or risk factors. 

16Having said that, it is clear, as Mr Roberts submitted, that there was a level of spontaneity or lack of premeditation to the offending.  Although you met the complainant through social media, the material before me does not suggest that there was a predatory marking out of the complainant through social media and a predatory following of her.  But nonetheless, it was exploitative behaviour once she came to your attention.  In one sense, one could say it was fortunate both for her and for you that matters came to light in the way they did so that nothing more happened.  She was clearly vulnerable and whether, as you maintain to the police, you never intended to act on the suggestion of meeting and making love or whether there was a high risk of sexual activity with this child will not be known.  I do not speculate on that for the purpose of the sentencing.  However, this is – whilst serious offending – at the lower end of the scale of sexual offending with children. 

17It has been two years since the offending came to light.  That is a considerable time to have these matters hanging over your head, and there has been significant change in your circumstances since then.  At the time of the offending, you were in a relationship which has continued.  There is now a child of that relationship, you are married and you express great commitment to the marriage, to the continuation of the relationship and to the fathering and continued support of your child.  These should be significant factors that should protect against the risk of further offending or should give some more encouraging view to your prospects of rehabilitation which are not great, I must say.   

18

I have been greatly assisted by the report of Mr Jeffrey Cummins dated

26 March 2015.  He sets out your history and the findings he made on interview with you.  His Honour Judge Gucciardo had also referred to your history in his reasons for sentence.  Suffice to say, you lacked a significant male role model in your childhood, that you report having been bullied at school and having had a difficult schooling with an absence of friendships and low self-esteem leading ultimately to depression and concerns about self-harm in your adolescence.

19During your adolescence, you were under the care of the Child and Adolescent Mental Health Unit at the Austin Hospital where you received treatment for approximately two years and apparently benefited from the therapeutic support you obtained through that.  Your employment history has been poor, predominantly because of your inability, it would seem, to stick at a job or your tendency to turn to drugs or alcohol and therefore to turn up to work impaired or not to turn up to work because you were impaired or hungover. 

20Mr Cummins has conducted an assessment of your risk of sexual reoffending using the RSVP; the Risk for Sexual Violence Protocol.  He notes that the RSVP has not yet been standardised or validated in Australia, although it has been validated in overseas studies, and that it is a tool primarily designed for assessing risk in terms of contact sexual offending.  Nonetheless, he considers that the results that he obtained provide some sensible guidance to the assessment of your risk, and with those qualifications, I accept that. 

21He concludes that your risk of reoffending by breaching conditions of the Sex Offender Register is moderate and most probably moderate to high.  I accept his conclusions and the reasons for it set out in his report.  He says that it is imperative that you are now required to participate in offence specific treatment, and again, I endorse that conclusion.  You were not required on the previous occasion to engage in a sex offender treatment program.  It was thought that other conditions of a Community Correction Order, including mental health treatment conditions, would be more appropriate to manage and contain your general risk of recidivism and your risk of sexual reoffending specifically.  However, it is clear from the materials put before me relevant to my sentencing of you that part of the breach behaviour in respect of Judge Gucciardo's Community Correction Order was your failure to comply with and engage with mental health treatment and assessment as directed. 

22I therefore consider that in order to manage your risk, to deal with protection of the community, to specifically deter you and to encourage your prospects for rehabilitation, that a Community Correction Order with conditions directed to managing the risk of sexual reoffending by engagement in a sex offender treatment program is a more appropriate rehabilitative condition than a condition of mental health assessment and treatment.  If you wish to engage with mental health assessment and treatment, in my view, it is a matter for you.  But I do not see it is appropriate to include that as a condition under a Community Correction Order when you have shown yourself so manifestly unwilling to engage with that to date.  In my view, that would only be setting you up to fail, and whilst your mental health treatment may well be a significant concern in your overall wellbeing, it is a matter for you. 

23

Given your youth, given the difficulties that have been identified by

Mr Cummins in his report, given your history of previous mental health interventions, your currently, it would appear, stable marriage and your commitment to your child, and the hope that in the two years since the commission of the offence the absence of other like offending all show promising signs of maturity, in my view, I do not consider it necessary or appropriate to reflect the needs of punishment, denunciation and deterrence to impose a term of imprisonment upon you either alone or as part of a Community Correction Order.  In my view, those sentencing needs that I have identified can all be appropriately met by the imposition of a Community Correction Order. 

24Unfortunately, because of the logistics involved in this, I must impose two separate Community Correction Orders; one in respect of the Commonwealth offence and one in respect of the State offence.  So what I intend to do is to impose in respect of the Commonwealth offence the Community Correction Order with conditions of unpaid community work, of the engagement in the sex offender treatment program, of supervision and judicial monitoring.  So far as the Community Correction Order for the charge of breach of sex offender reporting obligations, it will run for the same period.  It will be subject to the special conditions of supervision and judicial monitoring, but it will not have the conditions of unpaid community work or engagement in a sex offender treatment program. 

25I am also making it a condition of the first Community Correction Order that 25 hours of engagement and treatment under the sex offender treatment program will count as hours done in respect of unpaid community work.  So provided you engage in your sex offender treatment program as directed, 25 hours of that will come off your unpaid community work and you will only be required to do the remaining 75 hours of that.  But I consider it is appropriate for the punitive element of the order to impose a period of unpaid community work, and I do so too, having regard to your not entirely satisfactory history under the previous Community Correction Order in respect of your unpaid community work.  You must accept responsibility for your actions and punishment for them. 

26Could you now please stand.

27Shaun Davies, on the two charges to which you have pleaded guilty, you are convicted.  On Charge 1 of using a carriage service to transmit indecent communication to a child under 16, you are sentenced to be placed on a Community Correction Order for a period of two years commencing today, 1 April 2015, and ending on 31 March 2017.  The core conditions of that Community Correction Order are the same as the core conditions of the Community Correction Order in respect of Charge 2, fail to comply with reporting obligations.  The special conditions in relation to the Community Correction Order on Charge 1 are that you perform 100 hours of unpaid community work over that two year period with 25 hours being counted as community work if you undertake your sex offender treatment program as directed, and that you participate in programs or courses that address factors relating to your offending as directed by the regional manager, specifically a sex offender treatment program. 

28I will now read you the special conditions that apply to both Community Corrections Orders.  They are that you be under the supervision of a community corrections officer for a period of two years and that you attend for review under judicial monitoring on 10 July 2015 at 9 am at this court and thereafter as directed. 

29I will now read you the general conditions; core conditions that apply to both Community Corrections Orders.  They are:  That you attend at the Greensborough Community Correctional Services Office at Unit 4/18 Sherbourne Road, Greensborough within two clear working days after the commencement of this order.  That means because the Easter break is intervening, tomorrow or by Easter Tuesday.  But I thoroughly recommend that you go there today as soon as you have finished in this court. 

30In addition, the core conditions are these:  You must not commit another offence for which you could be imprisoned during the time the order is in force; you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations, that means you must not attend any visit to Corrections and your supervision by them, any community work or any treatment program whilst under the influence of drugs and alcohol and you must submit to drug or alcohol testing if directed; you must report to and receive visits from the Secretary or delegate; you must let a community correction officer know within two clear working days if you change your address or job; you must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.

31Do you understand the effect and conditions of these orders?

32OFFENDER:  Yes, Your Honour.

33HER HONOUR:  And do you consent to them being made?

34OFFENDER:  Yes, Your Honour.

35HER HONOUR:  Very well.  I will ask your counsel to take those two orders to you and when you have satisfied yourself of those conditions, sign them indicating your consent to them.  Ms Harper, something you want to say?

36MS HARPER:  The only other matter, Your Honour, does Your Honour require someone from the prosecution for the judicial monitoring appointments?  Each judge has a different practice in my experience, and we're happy to attend, but if Your Honour could clarify whether someone from the Office of Public Prosecutions is required, we will see that that happens.

37HER HONOUR:  I'm aware that different practices have developed and it's something we're talking about internally.  It is clearly something where we've got to have a more uniform practice. 

38MS HARPER:  As at today, Your Honour, do you require someone from the prosecution?

39HER HONOUR:  As at today I don't, but if it's a ‑ ‑ ‑

40MS HARPER:  If that changes, yes, Your Honour. 

41HER HONOUR:  ‑ ‑ ‑ unfavourable report at the time of the judicial monitoring, then I would require somebody from the OPP. 

42MS HARPER:  Thank you for the indication, Your Honour. 

43HER HONOUR:  So if your instructor can watch this space. 

44MS HARPER:  My instructor can capably deal with that, Your Honour. 

45HER HONOUR:  The report for judicial monitoring will be provided to her.  If it's favourable, there won't be a requirement.  If it's unfavourable, there will be.

46MS HARPER:  Thank you, Your Honour.

47HER HONOUR:  Thank you.  Just take a seat, Mr Davies, while I sign the final orders.  All right.  Those CCOs have been signed.  Once a copy has been made and provided to Mr Davies, he'll be free to leave the court.

48MS HARPER:  May Your Honour please.

49MR ROBERTS:  As Your Honour pleases. 

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