Director of Public Prosecutions v Davis

[2023] VCC 2109

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS DAVIS (a pseudonym)

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATES OF HEARING:	27, 28, 31,July, 2, 3, 4 ,8 August, 24 October   2023
DATE OF SENTENCE:	1 November 2023
CASE MAY BE CITED AS:	DPP v Davis
MEDIUM NEUTRAL CITATION:	[2023] VCC 2109

REASONS FOR SENTENCE

---

Subject: Criminal law - sentence      

Catchwords:              Offender found guilty by a jury of 7 charges of sexual assault of child under 16 and 2 charges of sexual activity in presence of a child – offender was grandfather of two complainants – girls aged 7 and 8 – duration over two years – families permanently estranged – health of offender’s wife -  whether family hardship – offender aged 76 at Time of trial – multiple health problems. 

Cases Cited: DPP v Merryfull; DPP v Bloomfield [2023] VSCA 244 ; Lam v R [2023] VSCA 244

Sentence:                  15 months imprisonment   with 6 months non parole  period

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Jones	OPP
For the Offender	Mr R. Edney	Emma Turnbull Lawyers

HER HONOUR:

1Thomas Davis[1], you have been found guilty by a jury of seven charges of sexual assault of a child under 16, and two charges of sexual activity in the presence of a child under 17.  I will be sentencing you to a term of imprisonment of 15 months with a period of six months to be served before you will be eligible for parole.  I will explain the reasons for that sentence.

[1] A pseudonym.

2You are the grandfather of the two complainants:  Audrey Pryor[2], aged between five and eight years when the offending occurred and Bridget Davis[3], then aged between seven and eight years.  You were aged between 67 and 71.

[2] A pseudonym.

[3] A pseudonym.

3All the offending occurred either in your home where you lived with your wife when the children were staying overnight, or in the Pryor home when you and your wife were staying overnight there.

4You and your wife played a significant role in your grandchildren's lives, often babysitting them and caring for them when their parents were working, or in the school holidays.

The offending

5You were charged with offending against Audrey on four separate occasions, Charges 1 to 4.  You were acquitted of Charges 1 and 2.  Offending on two other occasions gave rise to Charges 3 and 4, of which you were found guilty.

6On a day sometime after her eighth birthday between March and December 2018, Audrey was in her room at her home listening to an audiobook when she heard you having a shower and went to join you in the bathroom.  You were naked, but had a towel around you, and you asked her if she wanted to help you with baby powder.  She touched your penis and it became erect.  That is Charge 3.  She then returned to her bedroom.

7On an occasion when she was still aged eight, she was in her room when she heard you finishing your shower.  She joined you in the bathroom where you were naked and drying yourself.  You produced baby powder, and Audrey rubbed powder on your abdomen, back and penis.  She then used both hands to rub your penis, which became erect.  This is Charge 4.  She then returned to her room and went to sleep.

8There were further occasions when, according to Audrey, this conduct occurred.  She said it happened almost every time you visited.  I want to make it clear that I am sentencing you only for those acts of which the jury found you guilty.

The offending against Bridget

9On an occasion when Bridget and other grandchildren were staying overnight at your home during school holidays, you asked Bridget to put baby powder on your body.  While you were naked in the bathroom Bridget put powder in your armpits and rubbed it.  She then went with you into your bedroom where she helped you to get dressed.  She was about seven‑years‑old at the time.  This was not the subject of any charge.  Again, I am sentencing you only for the crimes of which you were found guilty.

10The next time this happened Bridget was still aged seven and you were both naked.  She rubbed baby powder on your toes, armpits and bottom, which is Charge 5.  She then assisted you to get dressed as she had done the last time.  On another occasion when Bridget was aged seven or eight between January 2018 and April 2019, she was assisting you to get dressed when you had an erection.  You told her you had to wait before putting your underpants on, as your penis was too hard.  At some point on this occasion, she put powder on your toes, underarms and bottom, which is Charge 6.

11On a further occasion, but in the same timeframe as the previous incident, you committed two offences of sexual assault of a child under 16.  Bridget was assisting you to get undressed to have a shower.  She put powder on your penis and rubbed it, resulting in an erection.  That is Charge 7.

12You then had a shower and Bridget went to watch TV in the living room.  After your shower you called Bridget and she returned and put baby powder on your underarms, toes and bottom.  That is Charge 8.  Immediately after this you put powder on your penis and rubbed it in Bridget's presence.  This is Charge 9, sexual activity in the presence of a child.

13On the last occasion, when Bridget was still aged eight, she was watching TV when you called her to come and she joined you in your bedroom.  You were drying your body with a hairdryer.  You asked her to put baby powder on.  She put it on your bottom, which is Charge 10, sexual assault of a child, as well as on your armpits and toes.  She then rubbed it on your penis, which is not a charged act, and you then rubbed powder on your penis, which became erect.  That is Charge 11, sexual activity in the presence of a child.  You told her that you had made your penis go hard.

Victim impact statements

14The victim impact statements provided by your grandchildren, your daughter Elizabeth Pryor[4], and daughter‑in‑law Amanda Davis[5] are moving and sad.  Elizabeth  read her statement aloud to the court.  She described the devastating impact your offending has had on the whole family.  She has, of course, lost her relationship with you and her mother, and in effect has no parents now.  She was very close to you both, as were the children, and the loss is felt profoundly by all of them.

[4] A pseudonym.

[5] A pseudonym.

15Both she and Amanda Davis, who was married to your son, have recounted how they could not discuss the matter for the four and a half years' duration of the case for fear they would be accused of colluding.  The children were only able to speak with their cousins on rare occasions and never about the offending or anything relating to it.  As Audrey was entering puberty and early adolescence, her mother felt constrained in talking to her about it for fear of triggering distress.

16Ms Pryor had to try repeatedly to persuade Audrey that what happened was not her fault, but Audrey states that this feeling has persisted, even though she knows rationally that it was not her fault.  Ms Pryor has not been able to pursue any advancement in her career, and so has lost financially.  She explained that her marriage has suffered from the strain of the trauma from your offending, and that her husband feels powerless and angry.

17Audrey stated poignantly that she becomes jealous when other children talk affectionately about their grandfathers, and she has none.  She feels anxious about her future in terms of intimate relationships and feels that she carries tonnes of emotional baggage that she does not deserve.  She says she cannot erase her very unwanted memories, and she grieves for her mother having had to cut off her connections with her own parents, and she feels responsible for that.

18Bridget states that she has lost some of her confidence and feels nervous in public as if she is being constantly watched, and at times feeling a bit paranoid and unsafe.  On the other hand, she has said it has made her value trust and honesty.  Her mother, Amanda Davis, said she was unable to discuss puberty with Bridget in case it was brought up by the defence, and this has impacted their relationship.

19Ms Davis says that she felt demoralised by the process of the investigation and the trial.  She believes that her health was affected because she began suffering from Crohn's disease at the start of the case, and this made going to court difficult, which she had to prioritise over seeking treatment.

20She also had to curtail her career and take on a less stressful role in order to support her family, and her marriage to your son has not survived.  She is now supporting the household on one salary.  Her own mother died a few days before these events unfolded and she had to put aside her grief while she took her children to the police station to be questioned.

21As you will understand, from having heard your daughter read her statement aloud at the plea hearing, my summary is just that:  a summary of the extensive grief you have caused.  At the same time, I am obliged to keep the family's experience in perspective and not let it overwhelm the other matters I must take into account in sentencing you.

Gravity of the offending

22These statements refer to some of the serious aspects of your offending, in particular the breach of trust placed in you by your granddaughters and their parents.  The children trusted you as their grandfather, and this must have contributed to their vulnerability, given that they did not understand the wrongfulness of your behaviour.

23Their parents trusted you to look after them appropriately when the children were placed in your care at your home and in the Pryor home.  The brazen violation of trust in these circumstances in homes where the children felt secure and safe is very serious and is to be taken into account in reaching an appropriate sentence.

24After the first occasion you continued to offend in very similar ways on five further occasions over 12 to 15 months.  It would have been apparent to you that Audrey was prepared, after your initial invitation, to repeat the behaviour when she heard you showering in the bathroom next to her bedroom.  This indicates a degree of planning, which you also used to enlist Bridget's assistance in the dressing and powdering rigmarole.

25The difference in age between you and the children is a relevant aggravating factor which hardly warrants mentioning given that you were their grandfather.  But even more serious is their very young age at the time.  They appear to have had a very strong bond with you, making them particularly vulnerable to your predations.

26It is often said that any sexual offending against children is regarded with abhorrence by the community.  Your behaviour in getting these children to touch intimate parts of your body while naked certainly attracts that response.

27Mr Edney, on your behalf, did not resile from this characterisation, but he noted that none of your offending involved you touching the children, threatening them in any way, or offering rewards for keeping silent, nor did you ever complete the sexual act by ejaculation.  The fact that you did not touch them does have some significance.  Overall, the offending is probably within the mid-range of seriousness, as submitted by Mr Hannan in his written submissions on sentence.

Mitigating factors

28I turn now to factors which go to mitigation of the sentence I will impose.  You are a 76‑year‑old married man, an engineer who worked in senior positions until retirement.  You were brought up in a loving family in a small country town, and you did well at school, enabling you to complete a diploma of electrical engineering.  You then worked in the power company industry for over 40 years.  Once retired, you learnt to fly gliders, building your own glider and flying extensively.

29You and your wife travelled widely and otherwise helped care for your grandchildren in their homes and in yours.  As I said, this was in school holidays and at many other times during the week when their parents were working and needed help.

30Your wife, to whom you have been married for over 50 years, worked in child development education for many years including at national level, and together you raised a family of three children.  The youngest of your children, Tony[6], died tragically at the age of 18, resulting from a motorcycle accident.  The other two are your son Michael[7], the father of Bridget, and your daughter Elizabeth, the mother of Audrey.

[6] A pseudonym.

[7] A pseudonym.

31Since the commencement of proceedings, you and your wife have been estranged from your son and daughter and their children, and at present there does not appear to be any chance of reconciliation.  You were assessed recently by the clinical psychologist Ms Carla Lechner, who diagnosed symptoms of post traumatic stress disorder which have remained unresolved since the death of Tony, as well as an adjustment disorder with depression and anxiety consistent with the stress of the court proceedings over the past five years since you were arrested and later charged.  There is some evidence of suicidal ideation but with no intention to act upon it.

32Ms Lechner administered tests to assess the risk of your reoffending and concluded that the risk is low.  She noted that the availability of victims is the most salient risk of reoffending, and that in your case, with access to your grandchildren ruled out, there is no other avenue of availability.  Ms Lechner added, and I quote:

The process of apprehension and ensuing court attendance, as well as the loss of his family unit, have had a salutary impact that would also contribute to the low risk of reoffending[8].

[8] Report of Carla Lechner dated September 28, 2023 p.8

33You are under the care of a consultant haematologist for two conditions:  Monoclonal gammopathy, which needs to be monitored every 6 to 12 months by a blood test; and neutropenia, which is a low neutrophil count exposing you to infection, and therefore requiring a self-administered injection of medication once or twice a week.  In recent months you experienced atrial flutter, for which you take two medications under the care of a cardiologist.  You also suffer from various skin rashes, a side effect of neutropenia.

34There is no evidence suggesting that these conditions could not be managed satisfactorily in custody, even accepting that medical care in prison may not necessarily meet the highest standards to be expected in the community.  The theoretical exception to that statement is the risk of contracting COVID-19 in prison if incarcerated.  I understand that you have been extremely cautious in avoiding infection to date, being aware that you are exposed to that risk through suffering neutropenia.  The realities of prison life will likely reduce somewhat the efficacy of any precautions open to you.

35In addition to the medical material tendered on the plea, a number of references were also provided.  Dr Grace Couchman is the psychologist consulted by your wife, and she came to know you by that means.  She states in a letter to the court dated 29 August 2023, that you remain perplexed by the charges against you but you have not sought to cast any blame and are saddened, at times even despairing over the painful estrangement from your family.

36Dr Susan Stacpoole, a friend of yours for 30 years, describes you in her letter to the court as kind, values‑driven, honest and gentle.  She was often present when your grandchildren visited and observed your care of them.  Your sister also provided a reference, stating that the offending is entirely out of character.

37Your wife has been suffering from cardiomyopathy since 2019.  At that time she was in the care of cardiologist Dr Christopher Hengel, who described her in August 2019 as being very debilitated and requiring a fulltime carer.  He referred her to Professor Peter Kistler for a catheter ablation, which took place in 2019 and again recently on 7 August 2023 while the trial was in progress and a few days after she became ill in court, having given evidence in the trial.  Professor Kistler states in his report, dated 10 October 2023, that her prognosis is very good from a cardiac perspective.

38Your wife has been seeing a psychologist, as I mentioned, Dr Grace Couchman, since January 2020 for chronic depression and anxiety.  Dr Couchman referred, in her letter dated 3 September 2023, to her grief over her estrangement from her entire extended family because of the allegations and eventually the verdicts.  Dr Couchman states that she is dependent on you for many areas of her life, including home maintenance and financial management, and that should you be gaoled her health would likely decline further, as she has no one else to provide these and other supports.

39In her own letter to the court your wife described the very sad consequences for her of the events since 2019 when you were charged with these offences.  Her estrangement from her entire family has resulted in her being deprived of the significant role she had played for years as a grandmother.  She described being shocked and horrified to hear of the allegations when you were arrested, and suddenly her family was gone completely from your lives.

40Your wife stated that the stress and psychological impact have caused her health to deteriorate significantly and seriously.  She is vulnerable to unpredictable physical problems associated with her cardiac condition, and she needs someone to be at home with her to monitor her condition and take any necessary action in seeking medical attention.

41She described feeling very vulnerable in this regard, and unable to live independently if you are imprisoned.  She is dependent on your role for heavier domestic work and house maintenance, handling finances and technology and driving.  She feels she has been punished for five years and has lost everything that she holds dear.

42Five years is indeed a long delay, and it is a matter I take into account.  The initial cause of delay was due to the COVID-19 pandemic, which caused the virtual cessation of jury trials for approximately two years, and the creation of a backlog of cases, frequently interrupted by further incidents of infection in the community which affected the courts.  Other causes of delay were incidental to the processes of trial management broadly.  Whatever the causes of delay in this case, you have had the case hanging over your head all that time with its attendant stress and I take that into account.

Sentencing discussion

43The low risk of reoffending identified by Ms Lechner indicates that the need for specific deterrence is much reduced, and any need for community protection is low given your inability to have access to any children through circumstances prevailing.  But general deterrence is of significant importance in order to emphasise that sexual offending against children will be harshly punished, and that it is to be strongly condemned by the courts with commensurate punishment.

44The maximum penalty for each charge is 10 years' imprisonment.  Charges 3, 4, 10 and 11 attract the provisions of the standard sentencing procedures.  The standard sentence for these charges is four years, which is the sentence to be imposed if the offending is objectively assessed as being in the mid-range of seriousness.

45That said, the standard sentence is intended to be a guide, and it does not replace the intuitive synthesis approach to sentencing, nor does it constrain the court from consideration of other matters.  It does, however, require that any non-parole period fixed by the court is to be at least 60 per cent of the head sentence, unless the interests of justice dictate otherwise.

46The defence submission as to sentence was that a Community Correction Order would satisfy the sentencing requirements in this case on the basis of two matters, your state of health and the hardship facing your wife if you were sentenced to an immediate term of imprisonment.  I was referred to the sentence in the case of DPP v Luke Merryfull & Shaun Bloomfield [2023], a very recent case endorsing the impact of a Community Correction Order involving onerous restrictions on the liberty of a person on whom one is imposed and its punitive character[9].

[9] [2023] VSCA 244 at [64]

47As to your health, I have already observed that none of the individual conditions from which you suffer could not be appropriately treated in custody.  The situation facing your wife calls for a different analysis.  Mr Edney submitted on your behalf that the impact on her would be disastrous, given her state of health and dependence on you, and that this amounts to an exceptional circumstance calling for the exercise of mercy.

48Mr Hannan referred me to the decision in Lam v R,[10] where very different circumstances were found to be exceptional, involving a two‑year‑old child sent to China to be cared for when his mother was imprisoned.  There was no guarantee that the child, an Australian citizen, would not be sent back to Australia by the Chinese authorities and be placed in foster care for several years until his mother was released.  This was described by Mr Hannan as the fixing of a high bar for exceptional circumstances, one which your case does not meet.

[10][10][2023] VSCA 244 at [64]

49As much as the loss of your support and care will seriously affect your wife, I do not find that this is an exceptional case.  It falls within a class of cases where families often experience hardship following imprisonment.

50As pointed out in Lam, I must also consider three other matters:  that the primary function of a sentencing court is to impose a sentence commensurate with the gravity of the crime; that to treat family hardship as the basis for leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less; and to treat an offender who has needy dependents more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be palpably unjust[11]. 

[11] ibid at [33] . The Court was quoting from Borg v R [2020] VSCA 191, [48]

51Accordingly, I am not satisfied that a Community Correction Order is appropriate.

Sentence

52Mr Davis, I sentence you to the following terms of imprisonment: 

For Charges 3, 4, 7, 9 and 11, nine months' imprisonment for each charge.  For Charges 5, 6, 8 and 10, six months for each charge. 

The sentence for Charge 3 will be the base sentence for the purposes of cumulation. 

The order for cumulation will be that one month of each of the sentences for Charges 4, 5, 6, 7, 10, and 11 is to be served in cumulation upon the base sentence.

In making those orders I have had regard to the principle of totality and the need to avoid a crushing sentence.

This results in a total effective sentence of 15 months.  I fix a period of six months which you must serve before being eligible for parole.  The overall circumstances of this case indicate that it is in the interests of justice to fix a non-parole period below that required under the standard sentencing regime.

53It is mandatory that you be placed on the Sex Offenders' Registry, which will require you to provide to the police your contact details every year for the rest of your life.  You will shortly be given a form to sign in relation to that. 

54Ms Jones, are there any other matters that I have neglected or omitted?

55MS JONES:  Just in respect of the serious sexual offender provisions.

56HER HONOUR:  Yes, I will attend to that in relation to those charges.  Could you just remind me what they are, please, Ms Jones?

57MS JONES:  Yes.  So upon the terms of imprisonment that Your Honour has imposed in respect of Charges 3 and 4, Mr Davis is to be sentenced as a serious sexual offender in respect of the remaining charges five through to 11.

58HER HONOUR:  Yes, yes. All right, thank you. 

59Mr Edney, anything else?

60MR EDNEY:  No, Your Honour, thank you.

61HER HONOUR:  Yes.  My associate has the order for Mr Davis to sign for the sexual offence registry.

62MR EDNEY:  Yes.  Perhaps that is appropriate, Your Honour, yes.

63HER HONOUR:  Do you want to accompany her to the dock?

64MR EDNEY:  Yes, perhaps I should.

65HER HONOUR:  Mr Edney, just one more thing, do you want me to note any custody management issues, apart from a “first time in custody”?

66MR EDNEY:  “First Time in custody and medical concerns should be assessed immediately”, just given the range of conditions which Your Honour has noted in the reasons of sentence.

67HER HONOUR:  I will ensure that they are included in the gaol order.

68MR EDNEY:  Thank you very much, Your Honour.

69HER HONOUR:  Could I take this opportunity to thank you, Ms Jones and, through you, Mr Hannan and you, Mr Edney, and your junior, who is not here today, for your assistance during the trial.

70MR EDNEY:  Yes.  Thank you, Your Honour.

71COUNSEL:  As Your Honour pleases.

‑ ‑ ‑