Director of Public Prosecutions v Davies (a pseudonym)
[2025] VCC 1103
•5 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG DAVIES (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE McINERNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 July 2025 |
DATE OF SENTENCE: | 5 August 2025 |
CASE MAY BE CITED AS: | DPP v Davies (A pseudonym) |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1103 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Sexual penetration of a child under the age of 16.
Legislation Cited:
Cases Cited:Clarkson v The Queen [2011] VSCA 159; Hudson v The Queen [2010] VSCA 332; Boulton [2014] VSCA 342; Brown v The Queen [2019] VSCA 286; Atkinsv The Queen [2023] VSCA 23; R v Mills [1998] 4 VR 235; Bugmy v The Queen (2013) 217 HCA 37 Giri v The Queen [2022] VSCA 64; Fisher (a pseudonym) v The King [2025] VSCA 131, Lefoe v The King [2024] VSCA 131, DPP v Dissanayake [2024] VSCA 320, and finally Clarke (a pseudonym) v The Queen [2022] VSCA 89
Sentence:Nine months imprisonment with a community correction order for a period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Danos | Office of Public Prosecutions |
For the Accused | Ms E. Strugnell | Victoria Legal Aid |
HIS HONOUR:
1Mr Craig Davies[1] was convicted of Charge 5 on this indictment No.12117886.3, being an offence against s49B(1) of sexual penetration of a child under the age of 16.
[1] A pseudonym.
2The period in which this occurred is somewhere between 02/09/22 and 16/09/22.
3The maximum penalty prescribed for such offence is 15 years imprisonment with a standard sentence of six years.
4Mr Danos appeared on the trial, and the plea, for the Director, as did Ms Strugnell for Mr Davies.
5Mr Davies was born in February 2002 and was 20 at the time of the offending, he is now 23.
6The victim was born in August 2007 and was 15 at the time of the offence, she is now 18. The victim was the niece of Mr Davies' partner.
7It should be remarked that the trial of Mr Davies before me commenced on 29 April of this year and concluded on 7 May.
8The trial had some particular history beginning with two special hearings in October 2023, and four aborted trials which commenced on 1 May 24.
9On 7 May 25 the jury, as to the first four charges on the indictment concerning a different complainant, indeed the sister of the victim, found Mr Davies not guilty. I want to stress to you, Mr Davies, that I specifically disregard, for the purpose of your sentence, the allegations in regard to those four alleged crimes, of which you have been found not guilty.
10In this sentence I take into account as a matter of mitigation the subjective stress, burden and anxiety that Mr Davies has incurred from such an extended, unusual and extraordinary legal process. I must say I still do not fully understand why such a process took place.
11I remanded Mr Davies following the verdict and he has served to yesterday Pre Sentence Detention of 90 days. The plea was heard on 23 July 2023, albeit that Exhibit D, the written submissions of the prosecution were not received and/or tendered till today.
12At that plea hearing, Mr Danos tendered Exhibit A, which was the victim impact statement of the victim, and Exhibit B the victim impact statement of her mother. Mr Danos submitted to the Court that the prosecution considered the appropriate punishment to be a sentence of imprisonment with a non-parole period.
13I refer to Clarkson v The Queen [2011] VSCA 159, [26], where the Court of Appeal pointed to the two purposes of this particular provision in the Crimes Act, being firstly, to prevent premature exposure to sexual activity of minors and secondly, to deter adults from so exposing such minors to such sexual activity by their actions. Further, at [27]-[33], after consideration of a number of relevant cases the Court stated that the presumption of harm to such children, who have been so prevailed upon, is clear.
14As I said, in this case the prosecution tendered two victim impact statements. Exhibit A was that of the victim as to the actual harm which she suffered as a result of Mr Davies' crime. I thank the victim for being so open. It is of course difficult for the Court, without relevant specialist opinion, to classify such. I accept what is reported. The actual happening of the offence was three years ago and it is clear that the victim still needs assistance with the impacts of this offence. I would think that the social impacts that she refers to in her statement will be ameliorated hopefully with some form of professional assistance, which I understand has not happened to date, certainly the Court was not advised of such.
15As to Exhibit B, the reference therein by the mother to her feeling of guilt for this offence, is a natural maternal feeling in the circumstances. However, clearly, she has no actual role in the criminality or responsibility for such. That is purely the responsibility of Mr Davies. I understand the anger and impact that has been expressed by the mother, albeit I consider the consequences expressed at p6 somewhat extreme, especially the father stopping work. However, it may be that being involved in the broader sense not only with this victim, but with another sister of which allegations were made, may have produced a much greater impact than I am able to understand.
16Again, professional assistance I am sure would assist the family in this regard. I thank both the victim and her mother for being so open and forthright in making their statements that have been tendered to the Court .
17Today, as has been said, the Court received an additional prosecution submission and four particular cases, two of which seem more relevant than the other two, which I have considered. I take into account not only those cases, but those cases referred to by Ms Strugnell. Insofar as such cases are concerned, I quote from the Court of Appeal case of Hudson v The Queen [2010] VSCA 332, [29], where they said:
'Like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences.In that context it has been said on many occasions that 'comparable cases' can only provide limited assistance to this Court . They may however be used in search of unifying principles.
18I come then to the plea of Ms Strugnell.
19Ms Strugnell did not seek to underscore the objective seriousness of the charge. That seriousness is made up and particularised as follows:
(a), the inherent seriousness which comes from the maximum sentence imposed by Parliament of 15 years, with a standard sentence of six years;
(b), the age discrepancy, being that the victim was aged 15 and Mr Davies 20;
(c), a degree of breach of trust being that the victim was the niece of Mr Davies' partner and the offence occurred in the bedroom of her grandparents' home, when the victim was visiting. It so happened that Mr Davies was living there. Clearly, the victim, a young girl, while visiting her grandparents was entitled to feel safe in her own bed;
(d), the offence occurred at night when Mr Davies entered the victim's bed when she was asleep and subsequently pulled her pants down prior to the digital penetration;
(e), the victim asked him to stop on two occasions, both before the offence occurred and after;
(f), albeit none of the aggravating features detailed by Ms Strugnell in paragraph 3(i) of Exhibit 1 occurred, it must be noted that Mr Davies, after the offence, continued to lie on top of the victim and to use the victim's words 'dry hump' her with his hand over her mouth at the time;
(g), the victim said that the act of digital penetration itself caused her pain and discomfort;
(h), this offending was a single occasion episode only.
20Analysing the objective offending, I accept the submission of the defence at [4] Exhibit 4, that the offending is at the lower end for this type of offending.
21Albeit such assessment is made for the purpose of s5A1(b), and 5B(5), I take such sections into account as legislative guideposts, being a part of the instinctive synthesis relevant to this sentence as detailed by the Court of Appeal in Brown v The Queen [2019] VSCA 286, [55]-[57].
22Coming then to the subjective factors surrounding this offending, Ms Strugnell stressed that Mr Davies:
(a), was a defined young offender at the time of this offending, albeit that he is now 23, the principles of R v Mills [1998] 4 VR 235, 241-242 are applicable. Mr Davies comes before the Court with no prior offences of any sort, nor any indication of any offending since. He has an excellent work history. He is a licensed excavator and as a result works hard to support his family of four people.
(b), He has had a difficult upbringing as detailed in Exhibit 2, the psychological report of Dr Gee, [28], and suffers from impairments of mental functioning with defects in self-regulation and reflection, (see [26]). Insofar as his history, in particular the circumstances in his youth where he was subject to childhood domestic violence, I take into account Bugmy, (2013) 217 HCA 37 principles generally, albeit that I find no specific nexus to the offending in this case.
(c), Mr Davies’ anxiety state while on remand pondering a prison sentence, the risk of deportation and consequent family disruption to his partner and three children;
(d), his excellent rehabilitative prospects and background set out in Exhibit 1, at [10(b)] and [(c)];
(e), the diagnosis by Dr Gee that Mr Davies does not have a paedophilic disorder (see [12]);
(f), I take into account the concern of Dr Gee as to the impact of an immediate gaol sentence upon Mr Davies and his view of the need for a period of parole and/or community disposition, to enable Mr Davies to improve his psychological wellbeing and reduce the risks upon incarceration because of his mental state (see [20] and [28]). In that regard it is appropriate to take into account principles 5 and 6 set out in Verdins [2007] VSCA 102, [32].
(g), The positive CCO report, which not only found him suitable, but took into account what they perceived as a very low risk of future offending.
23Given such factors, despite the seriousness of the offending and the paramount considerations as to general and specific deterrence as detailed in Clarkson, [78], Ms Strugnell submitted that a combined period of gaol and a CCO would be appropriate.
24Ms Strugnell put to the Court there were no cases that she could find which did not disclose multiple offending of this type, although that it must be said that the additional material today did disclose one such example, albeit it did not necessarily indicate that Ms Strugnell was wrong in that King exposes a single occasion, but there was within that single occasion four offences which the Court had to deal with.
25Ms Strugnell referred to Atkinsv The Queen [2023] VSCA 23, Giri v The Queen [2022] VSCA 64 as being similar, given the circumstances of the age differential, but the point must be made that both were pleas which obviously does not apply here. That is, that Mr Davies has exhibited no remorse in the circumstances, having run the trial and indeed those cases that Ms Strugnell referred to involve multiple offences, and in each case involve the sentencing Judge making a mistake at first instance.
26I point out that in the submissions today, which I have read this morning, the prosecution referred me to Fisher (a pseudonym) v The King [2025] VSCA 131, Lefoe v The King [2024] VSCA 131, DPP v Dissanayake [2024] VSCA 320, and finally Clarke (a pseudonym) v The Queen [2022] VSCA 89, in such regard I refer again to the comments that I made earlier as to Hudson.
27The prosecution also supplied sentencing statistics, which I have already perused, in regard to this offence, No.282. They are for a period from 2017/18 through to 2021/22 and are of limited assistance because they do not only deal with standard sentencing decisions. However, they show that 64 per cent of principal sentences for this offence involved immediate imprisonment, that figure increasing to 72 per cent where it was a standard sentence. And further, that 26 of the 176 sentences for individual offences, received a community correction order in addition to imprisonment, being 15%.
28In the end the Court as decreed by the High Court in Dalgleish [2017] ALJR 91, 1063-1079, [49], must deliver individualised justice to Mr Davies based upon the facts of this case and the exercise of judicial discretion to do justice to Mr Davies upon such facts.
29The Court is also conscious, given the facts concerning this particular crime and the references to Clarkson, to ensure that the sentence delivered assists the social rehabilitation of the victim and her family. (See in particular the references to this principle in DPP v Twomey [2006] VSCA 90.) Of course, in consideration of Ms Strugnell's submission, one has to take into account not only the principles that she referred to in R v Mills, but the principles set out by the Victorian Court of Appeal in Boulton [2014] VSCA 342.
30The competing considerations here have been exquisite. I am however satisfied, after anxious consideration, that a combined sentence of imprisonment and community correction, with work requirements and therapeutic conditions, together with a fine, will be sufficiently punitive to satisfy the need to punish Mr Davies, given the circumstances that I have detailed. I therefore reject the prosecution's sentencing submission.
31Before I pronounce the determination, it will be necessary for you Ms Strugnell to get consent to such. In those circumstances I will stand down and no doubt the prosecution will remove itself from the Court while you talk to your client.
32What I have in mind Ms Strugnell is as follows:
That your client be sentenced to a period of nine months' gaol by way of a combined sentence pursuant to s44, with a community correction order for three years. That community correction order to commence on the date that he is released from gaol. That would mean that he would have, taking into account the pre-sentence detention, a further six months to serve - this is approximate - on the basis of the three that he has already served.
33The conditions to that community correction order would be supervision,
200 hours work, undergoing courses in regard to assisting him as to further reoffending, undertaking appropriate psychiatric, psychological and medical assistance, and also assistance with regard to drug or alcohol problems.34In addition to that combined sentence, I would impose a fine of $8,000. In regard to that fine, I would propose that he have two years to pay that fine from the date that he is released from gaol.
35Obviously Pre-Sentence Detention of 90 days would have to be taken into account in regard to that, as I have already indicated.
36I will leave the Bench and you should seek instructions from your client in the circumstances.
37MS STRUGNELL: Thank you, Your Honour. Mr Davies consents to the making of that order.
38HIS HONOUR: Yes, thank you. Mr Davies, before this is formally made, it has probably been explained by counsel that the provision for a combined sentence and community correction order was brought in by the Parliament to provide an alternative in particular circumstances. It is however fundamentally important that you, during the period of that community correction order, do not commit another offence or other breach. On the material before me I am confident you will not, but you should be reminded by me now, that if you did, you should be well aware of the consequences if you come back here, all right.
39Yes. So formally, pursuant to s44, Mr Davies will be sentenced to a combined order of nine months' gaol and a community correction order for a period of three years. The conditions attached to that will be:
(i), a work order of 200 hours
(ii), a order for supervision by the Department
(iii), that Mr Davies undertake courses as part of that community correction order to assist him to ensure that reoffending does not take place, to assist him with any issues of psychiatric, psychological or medical issues and also insofar as drug and alcohol issues.
40The specific sections that that refers to will be set out in the order that is detailed.
41Insofar as the additional portion of this sentence, Mr Davies will also be fined, in addition to the s 44 combined order, the sum of $8,000, such sum to be paid to this Court within two years from the date that he is released from gaol pursuant to the community correction combined order.
42Insofar as the nine months' gaol, I note that to date he has served by way of pre-sentence detention 90 days, which essentially is from the day that I remanded him. I declare that 90 days to be part of this sentence and such be recorded in the records of this Court. So as closely as I can get the imprisonment part of this sentence, having already served approximately three months, will involve a further six months in gaol and thereafter the community correction order and the payment of the fine.
43As detailed in [21] hereof I have taken the standard sentence of 6 years into account as a legislative guidepost and as part of the instinctive synthesis, as detailed in s 5B(2)(b), which in totality with all other factors I have taken into account has led the Court to pass a different sentence from that detailed as a standard sentence.
44The Court notes that Mr Davies has signed the acknowledgment as to being obligated to report to SORA for 15 years from this date.
45Therefore those obligations as to reporting et cetera to the Community Corrections Office will be brought into play once he's released.
46MS STRUGNELL: Yes. So he must report within two clear working days of the commencement of the order.
47HIS HONOUR: Yes.
48MS STRUGNELL: So often that's done very quickly and then, then so that's the induction assessment, it's a check in and then there's a formal induction process that takes place after that.
49HIS HONOUR: All right. Well you'll indicate that to your client, but I think what happens is that's pretty clearly set out when they're released.
50MS STRUGNELL: It is, yes.
51HIS HONOUR: Because he's also got the SORA provisions to comply with.
52MS STRUGNELL: Yes, yes. Yes.
53HIS HONOUR: Yes. Thank you both for your assistance.
54COUNSEL: As Your Honour pleases.
55HIS HONOUR: Yes, well good luck, Mr Davies. Let's hope that this serious blemish in your life is never repeated. Thank you.
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