Director of Public Prosecutions v Davis
[2018] VCC 2219
•21 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01288
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TE AHU DAVIS |
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JUDGE: | HIS HONOUR JUDGE C. RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 December 2018 | |
CASE MAY BE CITED AS: | DPP v Davis | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2219 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Blackmail - use a carriage service to harass - possess a drug of dependence
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991; Criminal Code Act 1995; Crimes Act 1914 (Cth)
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence: 6 months’ imprisonment and you be released immediately on a Recognisance Release Order for a period of 3 years & Community Correction Order for 3 years with conditions – s6AAA: 3 years’ imprisonment with a non-parole period of 18 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Cameron (For Plea) Ms L. Crase | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr Van Arkadie | Victoria Legal Aid |
HIS HONOUR:
1 Te Davis, some months ago you came before me to conduct a plea in respect of Indictment J10706159 containing three charges, being: use a carriage service to harass (Charge 1); blackmail (Charge 2); and possess a drug of dependence (Charge 3). In addition, you faced the related summary offence of using an unregistered motor vehicle. You were unrepresented and as it was reasonably open that you faced a term of imprisonment by way of sentence, I adjourned your plea so that you might be represented. Ultimately on Monday, 10 December 2018, your plea was conducted by Mr Van Arkadie, public defender.
2 The maximum penalty for Charge 1 is 3 years’ imprisonment, while the maximum penalty for Charge 2 is 15 years’ imprisonment. In respect of Charge 3, the maximum penalty in your case is 12 months’ imprisonment. In respect to the related summary offence, the maximum penalty is 25 penalty units.
3 Tendered as Exhibit A and read aloud in Court was the amended summary of prosecution opening for plea. In summary, at the time of your offending, you operated Davis Health and Fitness, a gymnasium located in Cranbourne. In January 2016, the victim of Charges 1 and 2 joined your gymnasium and approximately 12 months later was joined there by her husband. Over the following year you and your wife became friends with your victim and her husband.
4 It was an aspect of the friendship that flirtatious, sexual messages were sent between the four of you for approximately three months. These communications included intimate photographs passing between you and the complainant.
5 During the currency of the friendship, you encountered financial hardship and were lent sums of money by the victim and her husband. Ultimately, your financial circumstances became so parlous that your family home was sold and your family cars were repossessed.
6 In mid-2017, the friendship between you and your wife and the victim and her husband began to wane. However, you pursued the victim and ultimately she engaged in sexual activity with you and your wife that involved the smoking of methylamphetamine. The conduct was filmed with the knowledge of the victim. The victim’s husband had no knowledge of this tryst.
7 For some months following the “threesome”, the victim sought to obtain the photographs and videos of your mutual sexual encounter, sometimes she was told that the images were “gone” and at other times she received promises from you and your wife that no one would ever see the images.
8 In August 2014, you persuaded the victim and her husband to pay you $400 in advance for personal training sessions. The payment was made because you were experiencing financial difficulties.
9 In September 2017, the victim’s husband trialled a new gym and sent video images of that new gym to your gym’s Facebook messenger group. The tenor of this communication was that the new gym was superior to your own. After receiving the message, you contacted the victim of Charge 2 and her husband, saying that they were no longer welcome at your business and that their money would be refunded.
10 Despite this obvious break in your relationship with the victim and her husband, you continued to send the victim sexually explicit images of yourself. Your victim requested that you stop this conduct however, you continued to do it. At some stage you requested money from the victim, who informed you that she was unable to assist you.
11 Sometime in late October or early November 2017, the victim’s husband began chasing you up in respect of the money that had been paid to you in advance for services that had not been rendered. You messaged the victim, telling her to stop her husband asking for a refund. Messages of this kind continued for some many weeks thereafter. It is these messages that in part support Charge 1.
12 On 11 February this year, you sent a number of text messages to the victim in which you represented to her that the intimate images of the “threesome” were in the possession of a third person and that if the victim was prepared to pay the sum of $200 you could obtain the images and see to their destruction. The details of the exchanges between you and your victim are set out at paragraphs 20, 21 and 22 of the Crown opening.
13 After the exchange of texts, the victim attended the Cranbourne Police Station but it was a very busy time there and to her mind it would have taken too long to get advice. Accordingly, the victim went to a local ATM, withdrew $200 and placed it in a plastic bag in her letterbox in conformity with your instructions. Later that evening you collected the money in an unregistered motor vehicle. (Charge 2 and the related summary offence of use unregistered vehicle)
14
After receiving the sum of $200, you continued to contact the victim by repeated text messages and telephone calls that caused the victim to arrange a new telephone number and to block you from her social media accounts. On
16 February 2018, you used Instagram to send the victim’s husband, a series a images of the “threesome” incident. (Charge 1)
15 The complainant went to the police and ultimately on 13 March 2018, police attended at your home and pursuant to warrant seized a small zip lock bag containing methylamphetamine along with a glass pipe contained in a black case. (Charge 3)
16 You were interviewed under caution and made full admissions to the police.
17 You have no prior criminal history. However, on 13 August 2018 at the Frankston Magistrates’ Court, you were convicted and fined an aggregate sum of $500 for two counts of driving while suspended, failure to answer bail and wilful damage. The last mentioned offence related to a domestic dispute between you and your wife. This domestic dispute attracted the attention of the Department of Health and Human Services (“DHHS”) which included you having to undergo urine analysis over a period of time. I was informed that you tested negative on all occasions. I was informed that DHHS have no further involvement with your family.
18 Tendered as Exhibit B was the Victim Impact Statement of your victim. The document in its entirety was tendered. However, only relevant parts were read and it is plain that your conduct has had significant impact upon your victim’s mental health and her relationship with her husband.
19 Tendered on your behalf were a series of exhibits that included: an outline of defence submissions (Exhibit 1); a report from Simon Candlish, psychologist, dated 22 November 2018 (Exhibit 2); a character reference from a longstanding friend, Shaye Cripps, dated 13 September 2018 (Exhibit 3); a bundle of news clippings in respect to your involvement in charity work through your gymnasium (Exhibit 4); a financial document (Exhibit 5); and a reference from your wife (Exhibit 6), the last two exhibits were tendered when your wife gave evidence on your behalf.
20 Mr Davis, you are 33 years of age. You are a New Zealand citizen. You grew up in a large extended family. When you were about 14 years of age your parents separated and your mother moved you and your two siblings to Hamilton. The move meant that you ceased to have regular involvement with your father and his family. After your parents’ separation, you attended St Paul’s Boarding School from ages 15 to 18, where you completed your secondary education. At school you were a talented sportsman, particularly in cricket and also in rugby. In 2004 you travelled to Bangladesh to play for New Zealand in the Under Nineteens Cricket World Cup. Afterwards you went on to train at the New Zealand Cricket Academy in Christchurch before playing cricket professionally in New Zealand at a level equivalent to Victorian district cricket. You came to Australia when you were 25 years of age and played for a cricket club in Darwin before moving to Melbourne to play for Dandenong. In 2012, you travelled to the United Kingdom to play for Studley in the Birmingham league. As I understand it, this is a level below county cricket. During this period, you enrolled in a Diploma of Sports and Recreation but did not complete it and at the cessation of your cricketing career, you undertook a Certificate III and later Certificate IV in Personal Training, which you completed in 2013 through the Personal Training Academy.
21 Between 2012 and 2017, you established and operated “Davis Health and Fitness”, a personal training business. The business commenced in an annex attached to your wife’s parents’ paint shop but ultimately expanded to where you were able to rent commercial premises in Cranbourne and at its peak your business regularly had over 150 clients and was profitable.
22 You were able to purchase your first home and finance two motor vehicles for you and your wife.
23 Unfortunately increased local competition and what was described as “personal instability” began to affect your business. Your client base began to drop, coincidentally your mental health began to decline which had an adverse effect on your business and ultimately your business became no longer sustainable. Your family home was sold and your motor vehicles repossessed.
24 Since the closure of your business, you have worked in labouring type work, principally as a steel fixer. You earn between $4000.00 and $5000.00 per month from this endeavour.(See Exhibit 5)
25 You were married to your wife, Bianca, in 2014. Your first child Brooklyn is five whilst your younger child, Imogen, is aged two. Your wife is the primary carer to your children and she receives the appropriate Centrelink benefits in respect of them.
26 Your wife was called on the plea and produced Exhibits 5 and 6. Exhibit 5 is a financial document prepared by your wife from the books of account of your business and current financial documents. The document demonstrates the decline of your business in 2017 and 2018 as well as your present financial circumstances which demonstrates that you are just keeping your head above water.
27 In 2017, you attempted to commit suicide on two occasions. After the first unsuccessful attempt, you tried again the following day. Your wife intervened in respect to the last attempt and called the Crisis Assessment and Treatment team, which led to your hospitalisation. Some of the nurses who attended on you in hospital were members of your gymnasium.
28 Mr Candlish, psychologist, opined that:
(1)You appear to meet the criteria for persistent depressive disorder. Further, this disorder appears to have been severe in the past. Your depressive symptoms contributed to your decision to offend and persist with your offending behaviour.
(2)You present with a risk of relapse into depression and imprisonment would impact adversely on you.
29 On the basis of Mr Candlish’s report, Mr Van Arkadie submitted that principles 1, 5 and 6 of Verdins were applicable in the exercise of my sentencing discretion.
30 It was conceded on your behalf that your offending was serious and that general deterrence, denunciation and just punishment were all important considerations in the exercise of my sentencing discretion.
31 Mr Van Arkadie, relying on your wife’s evidence, placed specific emphasis on the hardship that would attach to your family should you be imprisoned. While this hardship falls well short of exceptional circumstances for the purposes of Charge 2 in particular, they are matters which are relevant in arriving at an appropriate sentence in respect of Charge 1, the Commonwealth offence.
32 Mr Van Arkadie emphasised:
·your age;
·your lack of prior convictions;
·the fulsome admissions that you made to police when interviewed;
·your early plea of guilty and the benefits that flow to you from it;
·the effect of incarceration upon your family and your mental health;
·the fact that if you were sentenced to a term of imprisonment of 12 months or more, then you would be liable to deportation from Australia to New Zealand and this would weigh heavily on you in prison; and
·you have ceased to abuse methamphetamine and your employment combined with all the other factors meant that you had good prospects for rehabilitation.
33 Ultimately, Mr Van Arkadie submitted that in respect of Charge 1, that a term of imprisonment with an immediate release on a Recognisance Release Order, when combined with a Community Correction Order with conditions in respect to Charge 2, met all of the purposes of sentencing appropriate to you and your offending.
34 Mr Cameron, who appeared to prosecute the matter, submitted that your offending and in particular Charge 2, blackmail, called for an immediate term of imprisonment. Mr Cameron referred to the unreported authorities of the Court of Criminal Appeal of Hsin (29/11/1994) and Cavellin (24/07/1996) in respect to the nature of blackmail and its effects upon victims and emphasised the following:
·the threat of personal humiliation and embarrassment to the victim;
·the potential destructive impact upon her marriage upon disclosure of the images;
·the threatened dissemination of the intimate images over a wide range of media;
·that there was a significant breach of trust;
·that your offending was motivated by a mixture of greed, need and revenge;
·that whilst you made a meagre financial gain, the harm caused by your conduct was not confined to your monetary gain;
·despite the victim’s compliance with your demands, you nevertheless published the images to her husband; and
·your offending has had lasting impact upon the victim and her family.
35 Mr Cameron emphasised general deterrence, denunciation and specific deterrence as relevant sentencing considerations in the exercise of my discretion.
36 In respect to Charge 2 I regard your offending as being towards the lower end of offending of its kind.
37 Mr Davis, you are 33 years of age with no prior convictions, although you have subsequent convictions which to my mind have little impact upon your prospects of rehabilitation. You made full admissions to the police. You entered your plea at the earliest opportunity and must receive the benefits that flow to you from that plea, being that it is, in the present circumstances, of significant utilitarian benefit and is evidence of your remorse. You have suffered from depressive symptoms for some years that resulted in you attempting to take your life on two occasions. These depressive symptoms, according to your wife, impacted on your ability to perform within your business and had a deleterious effect upon your business. Your depression contributed to your offending and I am satisfied that principles 1, 5 and 6 of Verdins have application in this sentencing exercise. I regard your prospects for rehabilitation as good. Ultimately, I accept the submissions of your counsel Mr Van Arkadie. Will you please stand?
38 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
39 In respect of Charge 1, I sentence you to 6 months’ imprisonment and order that you be released immediately upon a Recognisance Release Order in the sum of $500 and that you be of good behaviour for a period of 3 years. This sentence is to commence today.
40 In respect of Charge 2, with your consent I sentence you to a Community Correction Order for a period of 3 years with conditions that:
(1) you perform 300 hours of unpaid community work;
(2) you be subject to the supervision by the Secretary of the Department or his nominee;
(3) that you undertake assessment and treatment in respect of your mental health; and
(4) that you undertake assessment and treatment in respect to your drug abuse.
41 In respect of Charge 3, you are convicted and fined $500.
42 In respect to the related summary offence, you are convicted and fined $250.
43 I grant a stay of 3 months in respect to these fines.
44 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, without descending into the mechanics of the sentences, I would have sentenced you to a total effective sentence of 3 years’ imprisonment with a non-parole period of 18 months’ imprisonment. Please be seated. As I understand it, there is an application for a forensic sample is that so?
45 MS CRASE: Yes, Your Honour.
46 HIS HONOUR: In addition to that, I understand that there is an application for a disposal order, is that so?
47 MS CRASE: Yes, Your Honour.
48 HIS HONOUR: As well as a forfeiture order?
49 MS CRASE: Yes.
50 HIS HONOUR: Mr Van Arkadie, in respect of each of those applications?
51 MR VAN ARKADIE: Your Honour, firstly with respect to the 464ZF application, I have no submissions to make. It's a matter for Your Honour as to whether you deem this a serious offence that justifies the making of such an order.
52 HIS HONOUR: I do.
53 MR VAN ARKADIE: With respect to the other applications, being forfeiture and disposal, they are consented to by Mr Davis.
54 HIS HONOUR: All right. Excuse me, Mr Carthew, have you got a stapler there please? Thanks very much. Now, what is the most appropriate police station in respect of your client? Will it be the Pakenham police station?
55 MR VAN ARKADIE: I believe it'd be Cranbourne, Your Honour, but if I may just approach the dock and - - -
56 HIS HONOUR: Yes.
57 MR VAN ARKADIE: - - - confirm that. Thank you, Your Honour, it is Cranbourne police station.
58 HIS HONOUR: Is it going to cause him much grief to travel to Pakenham?
59 MR VAN ARKADIE: I don't believe it would.
60 HIS HONOUR: Then the order will relate to Pakenham.
61 MR VAN ARKADIE: Thank you, Your Honour.
62 HIS HONOUR: Is the recognisance release order prepared?
63 MS CRASE: Yes, Your Honour. I believe my instructor's just doing it at the moment.
64 HIS HONOUR: Thank you.
65 MS CRASE: Should be a couple of minutes. Apologies, Your Honour.
66 HIS HONOUR: That's all right. Now, Mr Davis, will you please stand up? There are number of orders that I make in respect of you. You need to understand the effect of my sentence. You have been sentenced to six months' imprisonment in respect of Charge 1 on the indictment. That effectively has been suspended for a period of three years. Should you not be of good behaviour for that term of three years then you will go directly to gaol for six months. Do you understand?
67 OFFENDER: Yes, Your Honour.
68 HIS HONOUR: In addition to that, I've placed you on a community corrections order, which you need to consent to if an order is to take place. Do you consent to that order?
69 OFFENDER: Yes, Your Honour.
70 HIS HONOUR: That order is for a period of three years, with conditions that I've read to you and effectively are these. That you must perform 300 hours of unpaid community work over the period of three years. That you must be under the supervision of a community corrections officer for a period of three years. That you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager and that you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment at a hospital or residential facility as directed by the regional manager. Effectively I have you on a string for three years. If you breach either of these orders, you will do six months gaol. And you will come back to me to be sentenced in respect of count two. I've got you on a string for three years. Don't come back to me. Because you will not enjoy it. Do you understand?
71 OFFENDER: Yes, Your Honour.
72 HIS HONOUR: Is that recognisance release order prepared now?
73 MS CRASE: Your Honour, it'll be emailed to your associate very shortly.
74 HIS HONOUR: I can indicate to you that whilst the all seeing eye of Mordor may very well be popular, it does not compete with a prepared piece of paper in circumstances of sentence. Please sit down, Mr Davis. While that recognisance release order is making its way through the ether, I have made a disposal order in respect to the methylamphetamine and glass pipe and I hand down a copy of that order. I have made a forfeiture order in respect to the mobile phone and I hand down a copy of that order. In respect to the application by the Crown for a forensic sample, I have granted an order that there be a taking of the scraping from your mouth.
75 Now, the order is expressed in a rather ham-fisted way, Mr Davis, and it works like this. After a period of four weeks has passed from today, you have 28 days thereafter to attend at the Pakenham police station to undergo the procedure of taking what is a buccal swab from the inside of your mouth. I have made that order because the seriousness of the circumstances of the offending warrant the order and the granting of the order is in the public interest.
76 If you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand? Do you understand?
77 OFFENDER: Yes, Your Honour.
78 HIS HONOUR: I hand down two copies of that order. Have we got the recognisance release order yet?
79 TIPSTAFF: No, Your Honour.
80 HIS HONOUR: Has it come through yet?
81 TIPSTAFF: No, Your Honour.
82 HIS HONOUR: Madam Prosecutor, do you have a copy of the recognisance release order available to you in one form or another?
83 MS CRASE: Electronically I do, yes, Your Honour.
84 HIS HONOUR: Yes. Is there any reason why paragraphs (a), through to (e) should appear in this order?
85 MS CRASE: Apologies, Your Honour, we can remove them.
86 HIS HONOUR: No, it's - - -
87 MS CRASE: We were previously advised that they were regularly just crossed out for Commonwealth matters.
88 HIS HONOUR: Well, that's - can I have a ruler please? That's why 19th century technology sometimes beats 21st century technology hands down.
89 MS CRASE: Absolutely, Your Honour.
90 HIS HONOUR: So, a word to the wise, if there's a prospect of there being a recognisance release order, then bring a paper and pen to court.
91 MS CRASE: Thank you, Your Honour.
92 HIS HONOUR: Now, in respect to the paragraph that commences, "This order has issues because", does paragraph (a) form any part of this proceeding and order?
93 MS CRASE: No, Your Honour.
94 HIS HONOUR: Could you hand down that to the prosecutor to check please? Thanks Mr Carthew.
95 MS CRASE: Thank you, Your Honour. Thank you for Your Honour's patience.
96 HIS HONOUR: All right, if that could come back to me please? Could you take that down to the prisoner? I've signed that. Yes. Because he's got to sign it. Mr Van Arkadie, if you'd go down and assist your client?
97 MR VAN ARKADIE: Thank you, Your Honour.
98 HIS HONOUR: What's taking place now, Mr Davis, is the community correction order together with the recognisance release order is brought to you for your signature. By signing them you undertake to comply with both of them. Do you understand?
99 OFFENDER: Yes, Your Honour.
100 HIS HONOUR: Can copies of those be made for the parties please? And one for the accused. And before they're distributed, could I have a copy of each please? I need a copy of the 464ZF and I need a copy of the community corrections order. I need a copy of the 464ZF and a copy of the CCO. No, that's the recognisance release order. Is this actually at the back is it? Good on you. All right. Now, Mr Davis, please stand. Now, that these documents have been properly executed, you must attend at the Cranbourne community corrections services at 176 Sladen S-l-a-d-e-n Street, Cranbourne, within two clear working days of today. So, you better either do it today or Monday.
101 In respect of the 464ZF order or the order for a forensic sample you need to attend upon the Pakenham police station. You will be provided with a copy of the 464ZF order, your community corrections order and the recognisance release order in respect of the sentence of imprisonment for your records. Thanks very much. You may come out of the dock and sit behind your counsel. Sine die.
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