R v Davies

[2013] NZHC 2526

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S

203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-077-001254 [2013] NZHC 2526

THE QUEEN

v

LENNARD WILLIAM DAVIES

Counsel:

A J Gordon for Crown

H S Edward for Prisoner

Sentence:

4 October 2013

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Davies, you  are to be sentenced today in relation to 23 historic sex offences. The offences I am sentencing you for are:

(1)       Two charges of rape (one of which is representative); (2)       12 charges of indecent assault on a girl aged under 12;

(3)Two charges of inducing a girl aged under 12 to do an indecent act on you; and

(4)Seven charges of indecent assault on a girl aged between 12 and 16 years.

R v DAVIES [2013] NZHC 2526 [4 October 2013]

[2]      In sentencing you I shall:

(1)       describe your offending;

(2)       summarise your previous offending;

(3)       summarise your personal circumstances;

(4)       explain why I am not sentencing you to preventive detention;

(5)	explain the starting point of your finite sentence;
(6)	explain the increase to that starting point which I will impose because of the totality of your offending;
(7)	explain the adjustment to the starting point to reflect the sentences you are currently serving and your guilty pleas; and
(8)	explain your end sentence.
[3]	You	pleaded guilty to 14 charges.  However, you also exercised your right to

defend 12 very serious charges.  You were ultimately found guilty on nine of those charges, including the two charges of raping A when she was approximately 13-14 years old and of indecently assaulting A when she was under 12.   You were also found guilty of three counts of indecently assaulting B when she was under 12 and guilty of three charges of also indecently assaulting B when she was aged between

12-16.

[4]      You were discharged under s 347 of the Crimes Act 1961 in relation to two charges that were in the indictment and the jury found you not guilty on one charge of raping A when she was approximately 21 years old.   I am sure the jury had a reasonable doubt about consent in relation to that charge.

Your offending

[5]      Your offending spanned from approximately July 1973 to March 1990.  Your victims were both related to you.  At the time of your offending you were aged between 30 to 47.  Your victims were young girls or in their early teenage years at the time of your offending.

[6]      Your offending started off with you indecently assaulting your victims by fondling their genitalia when they were young girls.  Your offending then increased to inducing one of your victims to perform indecent acts upon you.  From there your offending escalated to digital penetration and penetration of one of your victim’s genitalia with objects.

[7]      Ultimately, you raped A in the garage of the house where you living when she was approximately 13.  You have also been convicted on a representative charge of raping A on numerous occasions when she was in her early teens.  In her evidence A claimed she was 13 when you first raped her.  She told the jury about how you stood her on a toilet seat and inserted your penis up and down inside of her vagina.  She also described being raped in a pump shed and in other rooms of the house where you were living.

[8]      Your offending involved gross breaches of trust because you obtained sexual gratification by offending against girls and young teenagers who were related to you and in circumstances where they and their families were fully entitled to believe that you would care for them rather than offend in the way you did.

[9]      Other aggravating features of your offending include:

(1)       the age and obvious vulnerability of your victims; (2) the repetitive nature of your offending; and

(3)the wide range of your offending.  Your crimes range from indecent assault to rape.

[10]     Your offending has had a profound impact on both A and B.   It was clear from the way they gave their evidence that they continue to be deeply affected by your offending in that they have suffered significant emotional trauma most of their lives because of your conduct.  The victim impact reports from both A and B are very distressing and attest to the enormity of the harm your offending has caused.

Previous offending

[11]     In October 2010 you were convicted of doing indecent acts upon a girl under

12 and on a girl aged between 12 and 16.  This offending occurred in 2008 and 2009. You were also convicted at that time on four charges of indecently assaulting a girl under 12.  That offending occurred in 2007 and 2008.  On that occasion you were sentenced to one year six months’ imprisonment.

[12]     In May 2012 you were convicted of an offence involving unlawful sexual connection with a girl under 12.   That offending occurred in 2002.   You were sentenced to two years nine months’ imprisonment in relation to that offending.  You are still serving that sentence.

Your personal circumstances

[13]    You are now 70 years old and have been married three times.  Your third marriage has  lasted  20  years.   You  have five  biological children  and  six  step- children.

[14]     You  have  had  difficulties  in  your  life.    In  particular,  you  have  told  a psychologist about the premature deaths of a number of your children.  You have also worked hard and aside from your criminal offending you have been a good parent, husband and generally been a responsible member of society.

[15]    Last year you were diagnosed with bowel cancer for which you received chemotherapy. I understand that you are currently in remission.

Preventive detention

[16]     I  sought  the  reports  that  are  a  precondition  to  imposing  a  sentence  of preventive detention because at the time you gave your evidence I was concerned about your lack of empathy towards your victims and I believed that you might pose a serious risk of further sexual offending against vulnerable young girls.

[17]     The  two  reports  that  I  have  obtained  are  illuminating  and  substantially confirm my view that you do lack empathy for your victims.  Dr Kumar, the clinical psychiatrist, says that you lack remorse and empathy and that you do not accept responsibility  for  your  offending.    He  says  you  continue  to  either  deny  your offending or blame your victims for some of your offending.  In your letter to me today you continue to say that you were convicted because of lies.

[18]     Dr Kumar is not able to assess the likelihood of you reoffending.  Dr Kumar advises that your sexual deviance and wide history of sexual offending against young girls over a protracted period is consistent with you having a high risk of sexual recidivism.   However, Dr Kumar also says that you do not appear to display the typical behaviour found in sexual offenders.

[19]   Dr Kumar suggests you may benefit from an appropriate rehabilitation programme designed to reduce your sexual offending.

[20]     Ms Hallett, a psychologist, also noted that while at times you displayed genuine regret for your actions, you nevertheless lack insight into the impact of your offending on your victims.

[21]     Ms Hallett assessed you as being at a high risk of sexual reoffending based on actuarial estimates and psychological dynamic risk factors for sexual offending.

[22]     However, as the Crown acknowledges, it would appear that I do not have jurisdiction to impose a sentence of preventive detention because at the time you committed the offending you could not have been sentenced to preventive detention.

Starting point

[23]     In  setting  the  starting  point  for  your  sentence  I  am  treating  the  two convictions you have for raping A as being the lead offences.

[24]     At the time of your offending the maximum sentence for rape was 14 years’ imprisonment. I will impose a sentence that would have been imposed at the time of your offending so as to ensure that you are not subjected to any punishment that is more severe than that which would have been imposed at the time your offending occurred.1

[25]     To put that into context, had I been sentencing you on the basis of the current law and sentencing guidelines I would have adopted a starting point of somewhere in the vicinity of 16 years’ imprisonment.

[26]     However, consistent with the law that applied at the time of your offending I am required to adopt a starting point that is much lower than the current starting point for offending of the kind that I am sentencing you for.

[27]     In my assessment, the appropriate starting point is ten years’ imprisonment.  I believe that a ten year starting point adequately reflects the fact that your offending was against a girl in her early teens and in circumstances where your offending involved gross breaches of trust, and involved multiple offences.

[28]     I believe that the ten year starting point is generally consistent with instances where starting points in the range of 10 to 12 years’ imprisonment had been imposed for similar or more serious offending.2

Increase to reflect your total offending

[29]     I am, however, going to be increasing the starting point to reflect the totality of your offending.  To the starting point of ten years I am going to add a further two years’ imprisonment to reflect the fact that you have been convicted on a total of 23

sexual offences involving two victims who were young girls or teenagers at the time of your offending.3

[30]     I have considered whether it is appropriate to increase your sentence further to reflect your previous convictions for offending against young girls.  However, I believe it is unnecessary to further increase your finite sentence because a 12 year sentence would adequately meet all of the objectives and principles of sentencing that applied at the time of your offending.

Adjustment to reflect your current sentence and guilty pleas

[31]     I  am  going  to  make  an  adjustment  downwards  to  reflect  your  current sentencing guilty pleas.  You are still serving the sentence of two years nine months that was imposed on 8 May 2012.

[32]     You therefore appear to have been sentenced so far to a combined total of

four years nine months’ imprisonment for offending which occurred in 2002 and

2007 to 2009.

[33]     In assessing your end sentence I need to have regard to not only the totality of the offences that you have now been found guilty of, but also I have to have regard to the fact that you already have or are serving sentences for offending that is similar in nature to most of the offences that I am to sentence you for.4     I am therefore aiming to impose a sentence for your current offending that reflects a sentence that would  have been  imposed if  all  your  offending was  dealt with together.   This exercise is made more difficult by the significant period of time between your earlier and later offending.

[34]     In my assessment, the overall totality of your offending is best reflected if I make a deduction of two  years from the sentence that I would  otherwise have imposed to reflect the fact that you have been sentenced to a total of four and a half years’ imprisonment for similar offending.

[35]     You pleaded guilty on the first day of the trial to 14 offences.  It is difficult to give you much of a reduction because your guilty pleas occurred so late in the process.  I will however reduce your sentence by six months to reflect your guilty pleas.

Treatment

[36]     I sincerely hope that you take advantage of the treatment programmes that will be offered to you.   You have signalled a desire to participate in treatment programmes.  Both the psychologist and the psychiatrists have said that if you have any hope in the future it will be only through taking advantage of those programmes.

Conclusion

[37]     Mr Davies, could you now please stand.  On the two charges of rape I am sentencing you to a total period of imprisonment of nine years six months on each offence to be served concurrently.  That sentence best reflects the principles of sentencing that I am required to adhere to.  It also reflects your age and the enormous impact that your offending has had on your victims.

[38]     On all other charges to which you have pleaded guilty or found guilty I am sentencing you to a sentence of five years’ imprisonment on each charge.

[39]     All of those sentences will be served concurrently.

D B Collins J

Solicitors:

Crown Solicitor, Rotorua

H S Edward, Rotorua for Prisoner