R v Davis
[2013] NZHC 2838
•29 October 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2012-016-000884 [2013] NZHC 2838
THE QUEEN
v
RICHARD JAMES DAVIS
Counsel: S B Manning and F E Cleary for Crown
A J S Snell for Prisoner
Sentence: 29 October 2013
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Mr Davis, your jury found you guilty of eight charges of sexual violation and seven charges of indecent assault. I shall now sentence you in relation to those charges.
[2] In sentencing you I shall:
(1) summarise your offending;
(2)explain the starting point which I am adopting by reference to sentencing principles and precedents;
(3)explain the adjustment I will make to the starting point to reflect the totality of your offending, and mitigating circumstances; and
(4) explain your sentence.
R v DAVIS [2013] NZHC 2838 [29 October 2013]
[3] Because you are facing further charges, I shall restrict my comments on your offending to the bare minimum.
Your offending
[4] Your victims were all patients, who attended your clinic to receive osteopathic treatment for injuries and pain they were suffering.
[5] Your offending followed a similar pattern. The consultations would commence with you asking your patients to undress, either completely or partially under the pretence that it was necessary for them to undress, in order for you to administer osteopathic treatment to them. You would then commence treating the patient by using a variety of techniques involving touching of your victims’ bodies with your hands, including a “pressure point” technique which was the subject of considerable evidence at your trial. On all but one occasion you failed to offer your victims a chaperone, or someone to sit in the room with them during treatment.
[6] During the course of treatment, you touched your patients in a sexual manner, without their consent. You did not wear surgical gloves which is a standard practice for examinations of the anogenital region by health professionals. During the course of a number of consultations with five of the complainants, you sexually violated them by digitally penetrating their genitalia (in relation to five victims) and digitally penetrating their anus (in relation to one victim). Three of these victims were subjected to sexual violations on two occasions. You also indecently assaulted four of these victims by massaging their breasts, and in the case of one victim by sucking her nipple.
[7] There were three other victims who were subject to indecent assaults by you but not sexual violation. The indecent assaults occurred when you massaged the outsides of the patients’ genitalia.
Starting point
[8] In my assessment, your offending involved four of the aggravating features identified by the Court of Appeal in R v AM.1 I shall now explain each of those aggravating features.
Planning and premeditation
[9] Your offending was not spontaneous. In my assessment it did involve 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 would ask your victims to undress when they were alone in your clinic, lie on the treatment table, and you sexually violated them under the guise of performing legitimate osteopathic treatment. The period of your offending also shows a degree of premeditation and three of your victims were violated on two different occasions.
Vulnerability of the victims
[10] All the victims were alone in your consulting room, either naked or partially naked, and in a prone position.
Breach of trust
[11] Your victims placed a high level of trust in you as a health professional, to conduct yourself professionally. Your treatment involved your patients coming to you, often in pain seeking osteopathic treatment. Your victims all placed a high degree of trust in you to conduct yourself professionally. Your offending occurred during the course of treatment, and was facilitated and only occurred because of the high degree of trust your victims placed in you. Outside of the terrible cases of sexual offending by a family member against another family member, it is hard to imagine a grosser breach of trust and one that is more serious than the ones which
occurred in your case.2
Scale of your offending
[12] Not all eight victims were subject to sexual violation. However, there were multiple victims and your sexual offending occurred over an 11 month period.
[13] In my assessment, your case represents very high levels of premeditation and breaches of trust.
[14] Notwithstanding the fact that your offending involves four of the aggravating features identified by the Court of Appeal in R v AM, I believe your culpability is best reflected by me classifying your offending as being on the cusp of bands two and three identified by the Court of Appeal in relation to unlawful sexual connection. For this reason I adopt a starting point of eight years’ imprisonment.
[15] To the starting point I will add a further six months to reflect the totality of your offending,3 including the seven charges of indecent assault. Your indecent assault offending involved seven complainants and spanned a longer period of time than the sexual violation offending, and involved a range of inappropriate touching and other forms of sexual contact.
[16] This produces a sentence of eight and a half years’ imprisonment.
[17] I have reflected on whether or not there are any mitigating factors that could be legitimately taken into account to reduce your sentence. Mr Snell has submitted that there are three mitigating factors, namely:
(1) your lack of previous convictions;
(2) the public vilification associated with your convictions; and
(3) your remorse.
[18] I accept that you have not previously offended and that the likelihood of you offending in a similar way in the future is extremely remote. I also acknowledge that your letters of support demonstrate that apart from your offending, you have been a highly regarded osteopath. I have reached the conclusion you are entitled to a discount to reflect your otherwise good character, and I do propose to recognise this by providing you with a discount of six months from the sentence that would otherwise be imposed.
[19] The fact that you will suffer some degree of public vilification and fall from grace is in my assessment an inevitable consequence of offending of this kind. I do not regard this as a mitigating factor, particularly as you used your position as a health professional to facilitate your offending.
[20] I also do not accept that you are truly remorseful. You continue to deny any wrongdoing. That is your right but a consequence of that is that you cannot be given credit for remorse.
[21] In my assessment, you do lack insight into your offending. I hope that in due course you will reflect deeply on the statements made by your victims who have spoken about their humiliation, sense of betrayal and despair over your offending.
[22] I have reflected on whether or not a sentence of eight years’ imprisonment is an appropriate response to your offending and whether that sentence adequately reflects your culpability.
[23] In my assessment, a sentence of eight years’ imprisonment:
(1)holds you accountable for the harm you have done to your victims and to the community;4
(2) denounces your conduct;5
(3) deters others from committing the same or similar offences;6
(4) protects the community from you;7 and
(5)is the least restrictive outcome that is appropriate in the circumstances.8
Minimum period of imprisonment
[24] I have considered whether a minimum period of imprisonment should be imposed. I have decided not to impose a minimum period of imprisonment. However, if you are convicted of the other charges that you are facing, and if I am required to sentence you on those matters I may consider imposing a minimum period of imprisonment at that time to reflect the overall totality of your offending.
Conclusion
[25] Mr Davis, can you now please stand.
[26] On the charges of sexual violation to which you have been found guilty, I am sentencing you to eight years’ imprisonment on each charge. On the charges of indecent assault to which you had been found guilty, I am sentencing you to three years’ imprisonment on each charge.
[27] All sentences are concurrent.
[28] You may now stand down.
Solicitors:
Crown Solicitor, Gisborne
D B Collins J
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