R v Davis

[2014] NZHC 606

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-016-000884 [2014] NZHC 606

THE QUEEN

v

RICHARD JAMES DAVIS

Hearing:                   28 March 2014

Counsel:                  S B Manning for Crown

A J S Snell for Prisoner

Sentence:                 28 March 2014

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Davis, in light of your pleas of guilty that you have just entered, and in view of the fact that I have previously had the advantage of a pre-sentence report in sentencing you on 29 October 2013, I am going to sentence you now.

[2]      You  have  now  pleaded  guilty  to  seven  charges,  which  relate  to  sexual violation and indecent assault.  I shall not now summarise your offending because I have just done so in giving you a sentence indication.  The sentence I am giving now should be considered concurrently with the sentence indication which I have given this morning.  The sentence indication also explains the starting point which I have

adopted when sentencing you today.

R v DAVIS [2014] NZHC 606 [28 March 2014]

Starting point

[3]      I reiterate that  I will  adopt  a starting point  of eight  years, which  I will increase by six months to reflect the totality of your offending.  That is exactly the methodology I used when I sentenced you on 29 October 2013.  I adopt that starting point because in my assessment your offending involves four of the aggravating factors identified by the Court of Appeal in R v AM.1

Planning and premeditation

[4]      Your  offending  was  not  spontaneous.     In  my  assessment  it  involved calculated decisions.  You used your role as a health professional to get your victims into a position where you could sexually offend against them.   You asked your victims to undress when they were alone in your clinic, when they were lying on the treatment table, and when in that position you sexually violated them or you performed  acts  of  indecent  assault  upon  them  under  the  guise  of  performing legitimate osteopathic treatment.

Vulnerability of the victims

[5]      All of the victims were alone in the consulting room, either naked or partially naked, and in a prone position.

Breach of trust

[6]      Your victims placed a high level of trust in you as a health professional, to conduct yourself professionally.  Your treatment all involved your patients coming to you, often in pain seeking osteopathic treatment. Your offending occurred during the course of treatment, and was facilitated and only occurred because of the high degree of trust that your victims placed in you.  I read through the victim impact statements last night and it is striking how their comments mirrored those of the victims that I sentenced you in respect of on 29 October 2013.  Most still are deeply offended by

the high level of the breach of trust involved in your offending.

1      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

Adjustment

[7]      I   therefore   adopt   a   starting   point   of   eight   years   and   six   months’ imprisonment, but I reduce that figure so that your end sentence is seven years and seven months’ imprisonment from today.   The discount primarily relates to your guilty pleas, which have the effect of acknowledging guilt on your part, but most importantly relieving six complainants of the stress and trauma of having to give evidence in Court.

Conclusion

[8]      Mr Davis, will you now please stand.

[9]      On the charges of sexual violation, I am sentencing you to seven years and seven months’ imprisonment on each charge.  On the charges of indecent assault, I am sentencing you to five years’ imprisonment on each charge.

[10]     Each of those sentences will be concurrent.

[11]     You may now stand down.

D B Collins J

Solicitors:

Crown Solicitor, Gisborne