R v Davies
[2017] VSC 800
•21 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
SCR 2017 0088
| THE QUEEN | |
| v | |
| GREGORY KEITH DAVIES | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 November 2017 |
DATE OF SENTENCE: | 21 December 2017 |
CASE MAY BE CITED AS: | R v Davies |
MEDIUM NEUTRAL CITATION: | [2017] VSC 800 |
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CRIMINAL LAW – Sentence – Murder - Rape - Pleas of Guilty – Victim a child chosen at random - Offending occurred in 1984 – Prisoner now aged 75 years – Denial of involvement - Claimed absence of memory of offences - Absence of – Custodial conditions – Prisoner attacked and injured in custody – Extra curial punishment – Denunciation – Just punishment – General deterrence – Specific deterrence less significant - Sentence of life imprisonment - Non-parole period fixed – Considerations in fixing – Mercy.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford SC | Office of Public Prosecutions |
| For the Accused | Mr David Gibson | Victoria Legal Aid |
HIS HONOUR:
Gregory Keith Davies, on 27 November 2017 you pleaded guilty in this Court to two offences on an indictment. Charge 1 is a charge of the murder of Kylie Maybury on 6 November 1984. Charge 2 is a charge of the rape of Kylie Maybury, also committed on 6 November 1984.
The maximum penalty for murder is, and was at the relevant time, life imprisonment. The maximum penalty for rape contrary to common law at the time you committed the offence was 10 years imprisonment, pursuant to the Crimes (Sexual Offences) Act 1980.[1] That maximum penalty is only to be increased where there is evidence available to prove beyond reasonable doubt the presence of aggravating circumstances.[2] The Senior Crown Prosecutor on your plea conceded that, in this case, none are able to be proved.
[1]Crimes (Sexual Offences) Act 1980 (Vic) s 45(1).
[2]Ibid s 45(3).
On 27 November 2017, I heard an opening address and submissions from the Senior Crown Prosecutor. I also heard a plea from Mr Gibson of counsel on your behalf.
It is now my responsibility to sentence you for these offences.
Circumstances of offending
On 6 November 1984, which was Melbourne Cup Day, the mother of Kylie Maybury, Julie Ryan and her sister had been to a local hotel in the Preston area where they had lunch and watched the Melbourne Cup on a large screen television. They left the hotel shortly after the running of the Cup and travelling via Thornbury, arrived home at Unit 6/35 Gregory Road in East Preston at about 4.30pm.
Kylie Maybury was 6 years old at the time and was with her mother on that day. Kylie was in Grade 1 at Primary School. After returning home, they went to a neighbour’s place for a cup of tea. They then again returned to their own place. While Julie Ryan was talking on the phone to her mother, Kylie was asked to go to a nearby shop to buy a bag of sugar. She was given some coins to buy it with.
Kylie asked her mother, Julie, if that was alright, and she was told it was as long as she went straight to the shop and returned immediately. She then left for the Food Plus store, located at 502 Plenty Road, East Preston, a distance of approximately 140 metres. She was barefoot, wearing a red skivvy, pants and carrying a green and red handbag.
She entered the Food Plus store at about 5.30 pm, purchased the bag of sugar and left the premises. She was seen by witnesses walking south through the car park, along the footpath, towards her home address.
At about that same time you were driving in the area in your white Holden HQ station wagon. At the time you were living at 46 Gordon Road, East Preston, which was close to both the Food Plus store and also to where Kylie’s body was later found the next morning in Donald Street. You saw her and must have stopped. You found a way to get Kylie into your car without anyone else interfering with what you were doing. It seems likely that no one noticed what was happening. Once she was in the vehicle you then had control of her and at some stage thereafter you raped her. Either in the course of raping her, or sometime after that, you strangled her to death. You had also drugged her with sleeping medication in the form of Valium.
About 10 minutes after Kylie left to go to the shop it was noticed that she had not returned. Her mother and others began to look for her, which included going to the Food Plus store. At the store, Kylie’s mother was told that she had been there and already left the store. She then began searching the area by car and, the search having failed, she notified the police that her daughter was missing. At about 6.55pm, police including Chief Inspector Greenway, attended and co-ordinated a search, including of Donald Street, Preston, but Kylie was unable to be located.
At about 12.45am the next morning, Wednesday 7 November 1984, a member of the public was driving in Donald Street, East Preston, and noticed a body lying in the gutter near the corner of Tyler Street. Police attended and found Kylie lying on the western side of Donald Street, in the gutter. Exhibit A, on the hearing of your plea, are photographs which include those taken at the crime scene and depict Kylie lying dead in the gutter as you had left her. The place where she was found was approximately 650 metres away from where you were living. It is clear to me that you had treated her with absolute contempt.
When Kylie was found she was seen to be wearing fawn coloured trousers, a red skivvy, and a white singlet and had no shoes or socks.
Later on 7 November, a post-mortem examination was conducted. That process revealed an abrasion to the inside of her right foot which is likely to have been sustained after her death. There were small bruises on the muscles of her left neck and hyoid bone and thyroid cartilage was intact. There were bruises on the right arm, an abrasion on her right elbow, and an abraded bruise on the right buttock.
The post-mortem revealed the effects of the sexual attack you had inflicted on her. There was tearing to the vaginal walls and a torn hymen with bleeding into the peri-vaginal tissue. The appearance of the body was typical of suffocation. It was also consistent with a penis or other similar type object having been introduced into the vagina before death. Routine toxicological analysis was conducted, which later revealed the presence of Diazepam (Valium) in the liver, blood and stomach. The levels of the drug indicated recent ingestion. The cause of death was determined to be asphyxia (suffocation).
A scientific examination of swabs taken during the post-mortem revealed the presence of semen on the underpants and trousers, and the presence of spermatozoa on the vaginal swab and external anal swab. A DNA profile was later extracted. You were spoken to by police at the time and you denied any involvement. The police investigation continued as far as it could but was deemed to be a cold case until April 2016. It is appropriate to commend the persistence of the police investigation. It is important for both the community and offenders to know that such serious matters are never left behind.
On 9 June 2016 you were spoken to at your home in Waterford Park, north of Melbourne, by members of the Homicide Squad. They requested you to provide a voluntary biological sample in the form of a buccal swab and you agreed. When the resultant DNA profile was entered and analysed, and compared to the DNA found on Kylie Maybury’s clothing and the vaginal and anal swabs, the analysis revealed that you were more likely to be the contributor of the DNA than anyone else chosen at random. The probability factor relevant to the finding was that it was 100 billion times more likely that it was you than someone else chosen at random from the population. As a result of that, on 9 June 2016, you were arrested by police and interviewed. You again denied being involved. In your answers you recalled having the day off and going to a reunion for your brother and his friends who had served in Vietnam. It seems likely that you were at the barbecue but went missing later in the afternoon. Confronted by police with the fact that your DNA was found on Kylie Maybury’s body, you asserted that was impossible and after being asked a number of questions about the biological samples, you decided to exercise your right to obtain legal advice. Asked by police to explain those samples, along with a large number of other pieces of circumstantial evidence that had been assembled, you replied that you were unable to do so.
You were informed that you would be charged with these offences and you were later remanded in custody.
On 29 May 2017 at the committal proceeding in the Melbourne Magistrates’ Court you indicated you would plead guilty to the murder and rape of Kylie Maybury. When you were arraigned in this Court you pleaded guilty to these offences.
Murder is, of course, the most serious offence known to our criminal law thus carrying a maximum penalty of life imprisonment. Rape, likewise, is a serious offence though at the time the maximum penalty was 10 years in the absence of provable aggravating circumstances.[3]
[3]Crimes (Sexual Offences) Act 1980 (Vic) ss 45(1), 45(3).
The murder you have committed is extremely serious because you killed a defenceless child after raping her. You presumably committed the offence of rape for some kind of sexual gratification. Having committed these offences you lied to police at the time and kept what you had done to yourself for 33 years. I wonder how you were able to do that. As well, I am confronted with you now asserting that you have no memory of committing these offences. As I made clear to your counsel, particularly in view of your record of interview, I find that impossible to believe and reject the genuineness of your claimed lack of memory. You may not wish to recall what you have done but your claimed lack of memory is, I think, more about that than not being able to. Your attitude, even now, is relevant to the issue of remorse which I will shortly come to.
Victim impact statements
At the hearing of your plea, there were three victim impact statements filed by the prosecution. Two were read to the Court by their authors and that of Kylie Maybury’s mother was read to the Court by the prosecutor. The deponents of the victim impact statements were:
1. Rebecca Phillips - the sister of Kylie Maybury;
2. John Daniels - the uncle of Kylie Maybury and the brother of Kylie’s mother;
3. Julie Ryan - the mother of Kylie Maybury.
These people have had to endure not only the death of this child but the extended time since while you kept your secret. The fact that the person who killed Kylie was still at large was obviously a matter of concern and fear for them. There is little or nothing the Court can say that will lessen the suffering of these people. The victim impact statements highlight the catastrophe that is a case like this. They show that the effect of your fatal and violent actions will last a lifetime for these people and highlight the suffering they have already endured. They illustrate that the sentence to be passed on you can never repair the damage they have suffered, which you have caused. For the members of the families, who have lived without Kylie since 1984, the wounds of your violent conduct have developed into sadness and trauma that detracts from every aspect of their lives. I have taken these statements into account in determining the sentence that should be imposed on you.
Criminal history
As at the time of this offending, you had convictions in Melbourne General Sessions in May 1968 for larceny, forgery and uttering and were placed on a three year bond.
On 2 February 1971 you were tried in this Court on a charge of attempted murder and wounding with intent to cause grievous bodily harm, the victim being a 14 year old girl. At the time, your mental state was assessed and you were found to have an IQ of 84 with a state of hysterical disassociation. You were acquitted of the charges brought against you on the ground of insanity and ordered to be detained at the Governor’s pleasure. You remained in custody in Pentridge prison under that order until 3 November 1982. You had been married and that marriage ended three years into your time in custody. Apparently for eight years of that time you were a medical billet. During the period of being held at the Governor’s pleasure, you did not receive any medical or psychological treatment.
In October 1983, you were convicted of exceeding .05% blood alcohol, fined and your licence cancelled.
As I have already noted, the offences, committed against Kylie Maybury, occurred on 6 November 1984.
Your subsequent offending was somewhat more serious. Commencing in 1993 you were convicted of offences including a number of burglary, theft and other dishonesty charges. In 1996 you were convicted of a large number of offences of indecent assault and gross indecency charges for which you received a significant prison sentence.
It was put on your behalf that there is a relative lack of prior criminal history although obviously the subsequent matters are significant. The matter of which you were acquitted is not to be regarded as a prior matter but, as your counsel accepted, I can take it into account in terms of assessing your prospects of rehabilitation.
Personal circumstances
There has been some hardship in your background. You were born in Castlemaine on 6 September 1942 and you are therefore now aged 75 years. You were the third of eleven children and three of your siblings are deceased by either suicide, the effects of alcohol and, in one case, a workplace accident. You claim to have been the victim of sexual abuse by your father over an extended period, which you claim involved both touching and rape. Your education finished at the age of 13 years after year 7 and you left school with the ability to read and write. From there on you had a variety of jobs and you have usually been in employment. You later taught yourself the skill of a welder and spray painter.
In the second half of the 1980s, you apparently entered into a brief relationship. That relationship produced a daughter though the relationship itself ended not long thereafter. Subsequently you lost contact with your daughter, though apparently you have seen her once when she visited you in custody this year.
After you met your present wife Patricia, you were travelling around country markets. You married her in 2004 and that marriage has persisted. You became a country music performer and travelled around doing that for various audiences. Your wife is now aged 91 and unwell and it may be the case that you will not see her again, as visiting you in custody is extremely difficult. Dr Zimmerman, who provided a report on your behalf, has suggested you are grief stricken about that.
Mental State
On 15 November 2017, as I have just said, a report was prepared by Dr Nina Zimmerman, forensic psychiatrist. She reported that you did not describe any mental illness over your life though there may have been depressive episodes. She did suggest that your history of sexual offending supported a diagnosis of non-exclusive paedophilia. She does not conclude that you are depressed though such a condition could likely develop in the future. There is nothing that supports any mental illness which would explain your offending.
Plea of guilty and remorse
As I have said at the beginning of these reasons you pleaded guilty to these two charges. That plea was entered before a contested committal so it was at an early stage in the proceedings though the real tragedy is that it came thirty two years after these offences were committed by you. I am told and accept that you intended to plead guilty at an earlier stage than you did but threats made against you, in those early stages, interfered with that intention.
There is an obvious utilitarian benefit in you having entered a plea of guilty which I do not underestimate. Importantly, the community and family of the deceased child have been spared a trial. However, your plea is not reflective of any remorse on your behalf. The case against you was a strong circumstantial case supported by important forensic evidence. I have taken your plea of guilty into account and I will shortly declare what the effect of that has been on the sentence I will impose on you.
As to remorse, your counsel has properly dealt with your lack of acknowledgement of your crimes. However, in some opaque way, your plea of guilty may contain some element of remorse given that you were threatened before you entered the plea and, as counsel has put on your behalf, you realistically had little to gain by doing so; that is as far as I can estimate it.
Conditions in custody
You went into custody on 12 June 2016. It would appear that it was May 2017 that the fact of the charges you faced became known within the prison. As a result of the nature of the offences you have committed, your conditions in custody have therefore already been difficult and that will continue.
In relation to what may be described as extra curial punishment, on 23 July 2017 you were attacked in your cell with boiling water poured over your neck and groin. That incident caused serious injury and led to hospitalisation and skin grafts. You have burns to 15% of your body. Your left cheekbone was also fractured. There are a number of restrictions on you as a result of these injuries. You continue to suffer pain from your injuries and will for some time to come. That will act as a further permanent reminder of your offending and will no doubt create constant apprehension in the future about your safety.
Prisoners who engage in conduct like this would do much better to concentrate on their own rehabilitation. There is nothing positive about what was done to you and such conduct is to be condemned. As is usually the case, this attack on you was a lawless act of vengeful pack-inspired cowardice.
Given all the circumstances, in all likelihood, you will spend the bulk of your time from now on in protective custody as a direct result of the notoriety of your crimes. I accept the conditions in which you are held are likely to adversely affect your mental state into the future. That future looks very bleak indeed.
I have been provided with an affidavit sworn by Brendan Money, who is an Assistant Commissioner with Corrections Victoria. That affidavit suggests that though you will be likely to remain a protection prisoner, you may still be able to access programs and services. Much depends on your classification after you are sentenced.
Rehabilitation
In many respects the question of your rehabilitation is intangible. You are already advanced in age and by the time of any release on parole, if that occurred, you would be extremely old. Likewise, any risk that you posed in the past and would pose in the future is virtually now non-existent. To the extent that rehabilitation involves your restoration to a normal life, clearly that would not happen. However to the extent that your life and state of mind can be improved by an overt acknowledgement of what you have done, ultimately that is something for you to consider.
Sentencing considerations
Denunciation and just punishment are the primary sentencing considerations. Your conduct is to be condemned and you are to be severely punished for what you have done. You are now 75 years of age and apart from periods of imprisonment you have lived in the community since you committed these offences.
General deterrence is obviously also significant amongst the sentencing considerations that apply to you. The community must know that when offences like these are committed the sentence will be very heavy indeed. I suspect that, in reality, specific deterrence is less important given your age and circumstances. The need to protect the community from you is obviously also less significant now than it was when you committed these offences. It may have been that if you had been properly treated and counselled during your time serving at the Governor’s pleasure between 1971 and 1982, as now would occur in a mental impairment case, your life may have taken a different course and this terrible tragedy avoided.
It is beyond my ability to predict how you will cope with custody in the future and how long you will survive. I do regard the protection of the community as important but if you are ever released I very much doubt you will be any threat to anyone.
Conclusion and sentence
Though these crimes happened 33 years ago, they were terrible offences. You were 42 years of age at the time and in the prime of your life. This child did nothing except walk to a shop and, at age 6 years, she lost her life in the process. You saw her and you chose her at random for the very worst of motives and then ended her life. Your conduct was simply disgusting. As I have earlier made clear, I simply do not believe you cannot recall your offending. As I have already said by virtue of claiming to have been at a Melbourne Cup barbecue, you effectively asserted an alibi which then fell apart. I would have accepted, if it had been put this way, that you take the approach of lack of memory because you know there is nothing that can be said to explain your conduct beyond the most base of motives.
Your counsel conceded that your behaviour was predatory and that life imprisonment on the charge of murder was the appropriate sentence. That concession was well informed. On the charge of the murder of Kylie Maybury, you will be sentenced to be imprisoned for life. On the charge of the rape of Kylie Maybury, you will be sentenced to be imprisoned for eight years.
Given that the base sentence in the total effective sentence is life imprisonment, there is no utility is making orders for cumulation.
Non-parole period
Section 11 of the Sentencing Act 1991 provides that in a case like this I must, as part of the sentence, fix a period during which you are not eligible to be released on parole unless I consider that the nature of the offences or your past history make the fixing of such a period inappropriate.
The Prosecutor has not urged me to decline to fix a non-parole period, indeed to the contrary. As has often been said, it is an exceptional step to refuse to set a minimum term because, among other reasons, mercy has an important role in the sentencing process. I have given anxious consideration to this question. Your age, criminal history and plea of guilty are certainly factors to be considered on this issue though there are cases where even where a guilty plea has been entered, a minimum term before eligibility for parole will not necessarily be fixed.[4]
[4]See R v Lowe [1997] 2 VR 465; R v Cardamone [2017] VSC 493.
Clearly, a minimum term would have to be substantial even given your age. Apart from anything else you are now facing punishment as a person of advanced age for only one reason – you concealed your involvement in these crimes since 1984.
Be that as it may, taking your age into account means the prospects of you being released from custody are in all likelihood non-existent but that can be no more than a speculation. The prosecutor submitted that your age was irrelevant to the fixing of a minimum term. That is not correct. The age of an offender is always a relevant sentencing factor but age alone cannot justify the imposition of what otherwise would be an unacceptably low sentence.[5] However, considering the submissions of the parties, I have come to the conclusion that given your history, age and plea of guilty I should not exclude some slight element of mercy and hope from your sentence, however remote that may seem to you.
[5]See R v Bazley (1993) 65 A Crim R 154.
In all the circumstances, I have decided to fix a period of 28 years before you will become eligible to apply for release on parole.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to the charges on the indictment, I would have sentenced you to life imprisonment and would have declined to fix a minimum term.
Pursuant to s 18 of the Sentencing Act 1991 I declare the number of days of pre-sentence detention to be reckoned as time already served as 560 days and I direct those details be entered in the records of the Court.
I will make the orders in relation to disposal and DNA as requested by the Senior Crown Prosecutor and not opposed by your counsel.
Mr Davies can be removed.
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