R v Davidson (a pseudonym)

[2023] NSWDC 101

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Davidson (a pseudonym) [2023] NSWDC 101

Hearing dates:

17 February 2023

Date of orders:

17 February 2023

Decision date:

17 February 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Impose an aggregate imprisonment sentence of 5 years with a non-parole period of 3 years

Catchwords:

CRIME — Aggravated sexual intercourse with child under 16 years DV

SENTENCING — Relevant factors on sentence —sentence after trial — victim impact — special circumstances — need for retributive sentence and victim vindication

Legislation Cited:

Crimes Act 1900 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:

Clarkson v R [2011] VSCA 152

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 25

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Gavel [2014] NSWCCA 56

R v Herring (1956) 73 WN (NSW) 203

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Van Ryn [2016] NSWCCA 1

Tepania v R [20018] NSWCCA 247

Texts Cited:

W Wan, S Poynton, G Doorn and D Weatherburn, “Parole Supervision and Re-offending” (2016) 149 Australian & New Zealand Journal of Criminology 4, 497

Category:

Sentence

Parties:

Scott Davidson (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
T Yeh (for the offender)

Solicitors:
Badarne Lawyers (for the offender)
R Taylor (for Director of Public Prosecutions)

File Number(s):

2020/37402

Publication restriction:

The name of the complainant is not to be published, nor is any other material that could lead to the identification of that/those complainant(s): s 578A Crimes Act 1900 (NSW) and s15A Children (Criminal Proceedings) Act 1987. Identifying information has been removed from this version of the judgment to comply with the statute. To ensure that order has effect, a pseudonym has been used for the name of the offender in this published judgment.

sentence – ex tempore revised

Introduction

1. On 15 November 2022, Scott Davidson was found guilty by a jury and then convicted of two counts of Sexual Intercourse with a Child Under 16 in Circumstances of Aggravation, that the Child was Under his Authority: s 66C(2) Crimes Act 1900 (NSW).

2. The child, the complainant in this matter, was the niece of his partner. She had been living with him, his partner, their child, and the stepchildren in the family home. She was at the time in the care of the Minister and, as Mr Crown points out, entitled to the protection offered by the home in which she had been placed.

3. I just add, of course she has a name, but I will refer to her as the complainant. She has a right to privacy and that right is to be respected. It is up to her, and only her, to determine whether her name be published.

4. After this conviction Davidson’s bail was revoked. His sentence should start from that date, 15 November 2022.

Facts

5. On Australia Day 2020 the child was celebrating near Wollongong Harbour. There she had a physical and verbal fight with her cousins and Aunt. She ran away upset and carrying bruises. During the dispute she had yelled out that her uncle, the accused, the father of her cousins, was a “paedo”. She was later found that day at Wollongong Railway Station by another cousin, to whom she complained, that her uncle had touched her down there. She repeated this complaint to another aunt. The aunt took her to hospital and then to be interviewed by police.

6. At the time the child was 15 years old. In a recorded interview, she told the police about two incidents when her uncle had touched her at the home they shared in southern Wollongong. She told the police that one day, a few months before Australia Day, she was sitting on a lounge watching television, other children were in their rooms. Her uncle who had been sitting on the lounge got up and placed his hands on her leg. He then moved his hand up so that he was touching her. She indicated near the top of her thigh. She later explained that he moved his hand slowly up to her vagina, touching it underneath the pyjama shorts she was wearing. He moved his hand up and down and put his fingers inside her vagina. He said, “Are you going to tell Aunty?” She said, “No”, because she was scared.

7. She said three days later she was in her bedroom when the “same thing” happened. This time however her uncle approached her as she was lying on the bed and this time “he did not go slow”. He put his hand up her leg and put it straight on her vagina. He then put his fingers in. He did not say anything, but he moved his fingers up and down and then just left.

Objective seriousness

8. Every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on any sexual activity with a child: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.

9. The law is strictly enforced. It is intended to protect children from the physical and psychological harm that can be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is treated seriously by the courts. The guidance offered by maximum penalty of 12 years, and here a standard non-parole period of 5 years, makes that clear.

10. Every sentence must be appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. That objective seriousness must be determined in the light of the entirety of the facts and circumstances in question.

11. In assessing the objective seriousness of individual matters, the act done, the character of the sexual act, the degree of physical contact involved is of significance. Other matters bearing upon that assessment include:

• the age of the child relative to the range encompassed by the offence;

• the age difference between the perpetrator and the child; and

• the relationship of the perpetrator to the child.

12. Here, specifically, each offence has a circumstance of aggravation committed while the child was under the offender’s authority. Each case also involved some breach of trust. But as the Crown point out, to take into account that breach of trust here, given that the offences are inextricably linked with the fact that the complainant was under the authority of the offender, would be to double count that circumstance.

13. The offences occurred in the home where she had gone for security and safety. The second offence occurred in her bedroom, in her bed or on her bed, again a place she was entitled to feel secure and safe. The offender was an adult and someone to whom the child was entitled to look to for protection, not abuse. Each act of intercourse was similar. Each act involved relatively brief physical contact. The act of intercourse was, as the Crown in written submissions accept, “fleeting”. No physical pain was reported, but what was done scared the child. Continued psychological harm is presumed in such matters.

14. There was an absence of commonly occurring aggravating features. But I have to note, any act involving sexual penetration of a child by someone with authority over them is very serious, for the reasons I have outlined.

15. The act of penetration makes out the offence, but the act itself and the surrounding circumstances here, place each offence lower in the range of objective seriousness. But that assessment is relative to many other types of even more serious offences that come before the court, such as where the act of penetration is prolonged or involves other more demeaning acts, contemplated by the definition of ‘sexual intercourse’ within s 61HA Crimes Act 1900.

16. I note the age of the child and their relationship. As the child’s uncle and carer, his responsibility, as I have noted was to protect and care, not use his position to abuse the complainant for his own sexual satisfaction. She was 15, in her own home, effectively helpless. Those general considerations and specific matters were critical to my assessment that this matter was so serious that only custodial sentences could be imposed.

Maximum and standard non-parole period

17. In reaching that decision I note again the maximum penalties for a s 66C(2) Crimes Act 1900 offence, and the standard non-parole period that relates to an offence, taking into account only objective factors, which fall within the middle of the range.

18. Careful attention to both the maximum and standard non‑parole period is required. Both provide sentencing measures to be balanced with all other relevant factors. I am required to give content to the standard non-parole period. In doing so, I am required to, as I have sought to do, assess objective seriousness without reference to matters personal to the offender, and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39; Tepania v R [20018] NSWCCA 247 at [103] to [120].

19. However, as the High Court has made clear I cannot engage in a staged approach to sentencing: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5 at [28] and Muldrock v The Queen. The process of comparing and contrasting the actual offence with some abstract one is not necessary, nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non‑parole period: Tepania v R at [103] to [120]. I have sought to do so, however, when I come to a general assessment of objective seriousness, fixing the matter on some notional range can be unhelpful.

Record

20. The offender has a criminal record. He did spend some time in custody decades ago. He has never committed offences of this type. His record in New South Wales and Queensland disentitles him to the leniency often given first offenders. But I note that leniency is rarely given to first offenders in matters such as this.

Victim impact statement

21. The complainant provided the Court this morning with a victim impact statement, which I will take into account. It was read to the Court by her aunty. She says:

“I’m still discovering the ways that the abuse I suffered has hurt me. It set my life off course and destroyed the normal childhood, teenage years and early adulthood that everyone deserves.”

22. She expressed her deep distaste for the offender and what he did to her, and she has entirely, understandably, nothing but contempt for him because of what he did to her. She says:

“I will get stronger; I have years of growth and life to live”.

23. Statements such as this allow a victim of a sexual assault, perhaps for the only time, to express her feelings about what occurred. Sadly, the impact of these offences is very common to other victims of childhood sexual abuse.

24. In my experience it is important for victims of such matters, after the process of the Court are concluded, to turn down the volume, to turn down their anger, real and human though it is, and focus on themselves. Because focusing on yourself and taking the assistance being offered by friends, family and others will help you, as you say, get stronger, grow and live the rest of your life.

25. I have to formulate a sentence which takes into account all relevant factors, including the impact on the complainant. I have to take aspects of the human condition, so far as the offender is concerned, the complainant is concerned, all of the facts and relevant principles and convert them into a time in prison. No victim of any crime should ever attempt to measure their own harm against the penalty that is ultimately imposed; that just cannot be done.

Subjective case

26. I have received a reference from the offender’s uncle, and a medical report noting that he has for a period suffered from Crohn’s Disease, which fluctuates in severity, and it is often severe, sometimes requiring hospitalisation. He requires regular treatment.

27. I have no evidence from Justice Health, but in my long experience both as a lawyer and a judge I have heard evidence that Justice Health will do everything they can to provide for those with chronic debilitating conditions. I also have heard evidence that Corrective Services will try and meet prisoners’ dietary requirements. I cannot make any specific findings here in the absence of evidence, but it has also been my experience that those promises cannot always be met and that during COVID there were, and are, considerable constraints on the capacity of Corrective Services and Justice Health to provide necessary services.

28. The fact that a prisoner suffers from a chronic medical condition such as Crohn’s Disease, is a matter I can take into account for the obvious reason that it will make his time in custody harsher and more onerous than a prisoner who does not suffer from that debilitating condition.

29. The report from the offender’s uncle allows me to formulate a few matters in relation to his subjective circumstances.

30. He was born in 1971. He still has strong support from family members and prosocial members of the community. Some are here in support. He has, prior to his incarceration, cared for a child who has special needs and needs his support. Other members of the family have had to step up because he is incarcerated and that will cause them hardship; matters I take into account.

31. COVID still impacts on those in prison and carries risk for those with chronic health conditions. There are still regular restrictions on prisoners. I have often heard evidence about restrictions on visits and contact.

32. There is an obvious concern by anyone locked away about being in custody. Gaols are still subject to regular lockdowns, and I have heard evidence that during lockdowns meals are provided to the cell and people are often kept in their cells for lengthy periods of time without access to exercise. I do not underestimate the lived experience of gaol. It takes little imagination for anyone in the community to appreciate the hardships involved with sharing a cell and being forced to eat in the same room containing your toilet for extended periods.

33. The offender is presently on Special Management Area Protection (SMAP). That form of protection is likely to continue, but again I am aware that while there are some restrictions for SMAP prisoners, generally education programs and work can be provided to them. Nevertheless, it is a matter I take into account.

34. He was raised in a single parent household in a Housing Commission area, in southern Wollongong. He did ten years of service in the Australian Navy, and I will take that service into account. He has been on disability pension since 2008.

35. There are a number of incidents in the history provided by his uncle in relation to deaths and family disputes. He has limited contact with some family members, and some of their support is good and some of it not so good. I will take those matters into account.

36. Obviously, he does not get a reduction in penalty because of acceptance of responsibility or remorse given to those who accept their guilt and accept their responsibility at an early stage. He is not to be punished for exercising his right to trial. But as his counsel, Mr Yeh, concedes, his denial of the offence means that he has no insight into his offending behaviour, and that might make his rehabilitation more difficult.

37. He may be offered sex offender programs while in custody. I advise him to take those programs despite his denials; because ultimately his release to parole will be dependent on the decision of the State Parole Authority, and they will not release him into the community if he is a risk to the community.

Submissions

38. Mr Taylor, for the Director of Public Prosecutions, provided succinct but careful submissions in writing and orally today. Mr Yeh said all that could be said. He urged on me a finding of special circumstances. I will take those submissions into account.

Structure of the sentence

39. There are two discrete offences, but they have similarities, and the purposes of sentencing are common to both. But there must be some discrete punishment for each independent offence to reflect that what was done occurred twice.

40. I will make a finding of special circumstances given the offenders; age, health, the COVID pandemic, the need to maintain support with prosocial members of the community, the need for him to be supervised and monitored in the community for as long as possible and to allow for the possibility that he may have to complete sex offender courses in the community. In so finding I am mindful of the requirement that the minimum period he should be imprisoned must also reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

41. It is important to note that studies from the Bureau of Crime Statistics and Research indicate that those who receive parole supervision generally take longer to commit further offences than those who do not: W Wan, S Poynton, G Doorn and D Weatherburn, “Parole Supervision and Re-offending” (2016) 149 Australian & New Zealand Journal of Criminology 4, 497.

Synthesis

42. I have to synthesise all of those factors. Mitigating factors will be given appropriate weight. But I have to impose a sentence which is proportionate to the gravity of the offences for sentence. Proportionality is important, so too is retribution.

43. In each matter for sentence today there is a community expectation that offenders such as Davidson will suffer severe punishment. A proper sentence marks the Court’s view of the seriousness of the crime and should let others know the retribution which will fall upon them if they too prey upon children in the manner Davidson did: R v Herring (1956) 73 WN (NSW) 203 at [205].

44. Sentencing courts have an obligation to vindicate the dignity of child victims of sexual assault, to express the community’s disapproval of such offending. They can do this by removing the offender for a period and by structuring a sentence so that they can be supervised, monitored when they are released. This can afford the vulnerable some protection against repetition of the offending: Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38 at [52] to [58].

Orders

45. I will impose an aggregate sentence. Given the circumstances of each offence there is no reason to distinguish between them. For the first count I indicate a sentence of 4 years imprisonment with a non‑parole period indicated of 2 years and 5 months. For the second offence I indicate a sentence of 4 years, with a non-parole period of 2 years and 5 months.

46. There will be an aggregate sentence of 5 years imprisonment. There will be a non-parole period of 3 years. That sentence will commence on 15 November 2022. The offender will become eligible for consideration for parole on 14 November 2025. Release to parole will be subject to a decision of the State Parole Authority. The balance of the sentence of 2 years will commence on 15 November 2025 and expire on 14 November 2027.

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Amendments

30 August 2023 - Grammatical and typographical errors

Decision last updated: 30 August 2023