HIS HONOUR: A very important part of determining a sentence for an offence the harm caused by that offence.
In this case I heard an eloquent victim impact statement read by the complainant in three of the offences for which the offender must be sentenced. I will use a pseudonym when I refer to her as well as two other victims of the offender.
Ms Davis describes herself as a strong woman, who has survived these crimes. But as the victim impact statement went on, it became clear that Ms Davis has only reached this state after being to the depths of despair, contemplating suicide and self-harming.
What Ms Davis read to me was an eloquent explanation of the entirely foreseeable consequences of the offender's conduct. It is not an exaggeration to say that these offences have impacted upon her entire life. These impacts include her relationship with her husband, both emotional and physical; her relationship with members of her family; her feelings of self-worth; her physical state; her mental state; and even her career progress.
It has to be said, and immediately acknowledged, that the offender is fully responsible for all of the harm Ms Davis described.
She was born in 1993. A little while later, her mother, Ms D, commenced a relationship with the offender. They were married in 1996. Ms Davis has two half-sisters who were born to the offender and Ms Davis' mother. The family lived in various locations, including New South Wales and South Australia.
The offender pleaded guilty to an offence of persistent sexual abuse. This offence covers a significant number of offences, many of which are of great seriousness. I am going to go through every one of the individual matters covered by the offence of persistent abuse of Ms Davis.
These offences began when Ms Davis was about ten years of age. Her mother was working as a counsellor and, at times, would be away from the home for work. One evening she was away and the offender was looking after Ms Davis and the other two children. He sent the two younger children to bed, allowing Ms Davis to stay up. She was sitting on the floor, watching television. He offered to give her a back massage. She lay down on a mat on the lounge room floor and the offender commenced rubbing her entire back and her legs. After a while the offender said, "Come on, let's go and have cuddles in bed."
He took Ms Davis - I repeat, who was ten at the time - to the bedroom he shared with her mother. He pulled back the covers and lay down. Ms Davis climbed in as well. He was lying on his back and she was lying on her side, facing him. The offender turned off the light, and not long afterwards he took Ms Davis' hand and placed it over the top of his underwear and held her hand there for a while. Not surprisingly, Ms Davis felt uncomfortable. She was frozen. He then proceeded further, he took her hand and put it inside his underwear, placing her hand on his erect penis. He then proceeded to squeeze Ms Davis' hand whilst it was there.
She made an excuse to leave. She said she needed to go to the toilet. She went to the bathroom and vigorously washed her hands. She then snuck back to her bedroom and crawled into bed before she started crying,.
There was another offence when Ms Davis was ten years of age as well. She had been picking blackberries and was left with a large number of thorns in her skin. When she got home, Ms Davis noticed that her mother was not there. She complained of being in pain to the offender, who suggested that she soak in a bath. Whilst in the bath, Ms Davis removed a number of thorns from her body.
After a while the offender came into the bathroom and offered to help. At the time he was holding a serrated knife with a wooden handle. He got some tweezers. Ms Davis had blackberry thorns up her back, on her legs and arms, as well as her stomach. The offender told her to stand up and he proceeded to remove thorns from her back, legs and buttocks by flicking them out with the knife.
She then turned to face the offender, who commenced to remove the thorns from her stomach and upper thighs. Whilst he was doing that, he held the knife in his left hand and placed his right hand over Ms Davis' genitals, with his index finger up against her. In effect, he was cupping her genitals with his hand. In the process of removing thorns, the offender moved this hand, turning it over and intentionally brushing it against her genitals. Whilst doing this, the offender had the knife in his hand.
The family then moved to South Australia. During the period they were in South Australia, the offender's relationship with Ms Davis' mother began to disintegrate. As a result, she spent extended periods away, with a number of lengthy stints in China. This meant that during the period they were in South Australia, the offender engaged in more frequent indecent and sexual assaults upon Ms Davis.
At about Christmas time in 2005, when Ms Davis was about 12 years of age, Ms Davis' mother was away for work. This meant that the offender was at home with the three children. One night the offender lit candles in the lounge room and asked Ms Davis to crack his back by walking on it. After she did that, the offender offered Ms Davis a massage, which she accepted.
Whilst massaging her, the offender massaged the inside of her thighs and slid his thumbs up inside the leg of her shorts and touched the skin of her genitals. At the time the other two children were asleep at the other end of the house.
In about 2008, when Ms Davis was about 15 years of age, the offender would routinely smoke cigarettes outside the home where they were then living. On a number of occasions she saw the offender looking into her bedroom, staring at her. On five of those occasions she saw the offender standing side on with his hand inside his pants, masturbating.
From about 2009 onwards, the offender slept in a separate bedroom to that of his wife, Ms Davis' mother. Indeed, Ms Davis' mother started to spend most of her time working in China. Near the end of 2009, Ms Davis was 16 years of age. Her formal was approaching. The offender suggested to her that she have some alcoholic drinks at home to determine what her limit was, so that she could be safe when she was at parties and the formal, where alcohol might be consumed. He bought some Toohey's Extra Dry beers for her to consume. She did this, became hazy, and passed out.
She woke up to discover she was naked in her bed, and heard the clicking sound of a camera. Not long afterwards, the offender came into her bedroom and forced his erect penis into her mouth, moving it in and out. He was taking advantage of Ms Davis' state of intoxication because she was unable to defend herself as a result of the alcohol he had provided for her.
The following day, Ms Davis confronted him and said, "I know what you did to me. If you've done that to me, what have you done to my own sisters?" The offender told her that he would never touch his own flesh and blood, saying to Ms Davis that she and he had a special connection. The conversation continued. The offender said that if Ms Davis wanted her mother, her sisters and herself to be provided for, she would have to "walk alongside me". The offender made it clear that sex and money go hand in hand, and she could not have one if she did not agree to the other. Ms Davis understood this to mean that the offender would not provide for her and her sisters if she was not prepared to let the offender do whatever he wanted.
Given the nature of that threat, one can understand the terrible position that Ms Davis found herself in. The offender had made her responsible for the welfare of her sisters, who would only be provided for if she gave in to his desires. In effect, he was treating her as a sex object, and obtained her cooperation through the threat I have just described.
In February 2010, Ms Davis had turned 17. Ms Davis went with the offender on a work trip to the Riverland region of South Australia. They stayed in a hotel. One afternoon, Ms Davis was watching TV on the bed. The offender was on the other side of the bed. He stood up, put a towel on the bed and came over to her without saying a word. He then removed all her clothes except her underwear and bra, and instructed her to lie face down. He poured some massage oil on Ms Davis' back and started to massage her with his hands. He kept moving his hands so that he could touch her breasts. He spent a lot of time massaging her bottom and the inside of her legs near her genitals. He then took all his clothes off and put a condom on. This caused Ms Davis to freeze. He put oil on his erect penis and Ms Davis' genitals, and entered her from behind, causing her pain. He said, "You're beautiful. This feels really good." After he had ejaculated, he let her go. She went to the shower, where she stayed for a long time, crying all the time as she cleaned herself.
One morning, Ms Davis had woken up early. She was on her way back to her bed from the bathroom when the offender called her into his bedroom. When she walked in, he patted the bed next to him, so she sat in the bed with him for a period during which he cuddled her. He then said, "Let's try and get you to relax a bit. I want to make this about you, because it's a partnership". Ms Davis was scared. She did not want to be touched by the offender. She was also scared that her mother, who was home at the time, would walk into the room. The offender removed Ms Davis' pants and underwear, spread her legs apart and kissed down both her legs up to her genitals. He then performed cunnilingus on her for a period. After he finished, he tried to kiss Ms Davis, who refused, and turned her head away. She made an excuse to get herself out of the offender's embrace, and went to her bedroom, where she used her keyboard to barricade herself in her room.
On another occasion, Ms Davis was at home, waiting for one of her sisters to return. The offender came home early. He said, "I've always dreamt of coming home from work and bending a beautiful woman over the table and screwing her whenever I feel like it." He left, and soon reappeared with some massage oil. He then grabbed her and pulled her across to the dining table. He put her head down and bent her over. He then pulled her pants down, put a condom on and proceeded to force his erect penis into her vagina. He continued to have sexual intercourse until he ejaculated.
On another occasion the offender sent one of Ms Davis' sisters down the street to buy something from the local service station. This meant that he was alone with Ms Davis. She was just leaving the shower and was wearing a towel to get back to her room. The offender forced her into her mother's bedroom and placed her on the bed. He then proceeded to put his penis inside Ms Davis' vagina. He was rough and forceful because he intended to be done before Ms Davis' sister returned from the service station. When he was finished, Ms Davis was still crying, whilst trying to cover herself up with a towel. After this happened, Ms Davis had stomach pains for a number of hours.
There was another occasion, too, when the offender sexually assaulted Ms Davis on her mother's bed. On this occasion he removed her clothing, leaving her shirt on, and forced her to straddle his naked body. He then forced her hips backwards and forwards while his penis was inside her vagina. During this incident he was not wearing a condom. Ms Davis was well at the age where she could become pregnant. After a while he started ejaculating inside Ms Davis' vagina before hurriedly removing his penis. He then instructed Ms Davis to go and have a shower and to clean herself out properly.
There were numerous instances in South Australia where the offender entered Ms Davis' bedroom and sexually assaulted her.
One morning he entered, waking her up. He closed the door behind him. He checked that the curtains on the window were closed. He told her to be quiet. He then approached her and tried to kiss her. In response, Ms Davis buried her head in her pillow. The offender removed his shorts and he started rubbing his erect penis on the inside of her thighs. He removed her shorts and underwear and pushed her back onto the bed before climbing on top of her. He then forced his penis into her vagina. She cried, "Please don't. That hurts," in response to the offender fondling her breasts in a way which caused her pain. This had no impact at all on the offender, because he continued penile/vaginal intercourse and to fondle her breasts. After he had ejaculated he got up, put on his shorts and left the room, leaving Ms Davis behind, crying.
One evening, while she was asleep in bed, the offender came into her bedroom. As soon as he got inside, she started crying, because she knew what was going to happen. He took off his shorts, took off the blankets that were covering Ms Davis, and removed her shorts. He then again had penile/vaginal intercourse with her. As he was doing this, she pulled one of the pillows over her face in an attempt to disassociate herself from being there. This was the first time that she had used a pillow by putting it over her face, but from this point onwards it became a regular occurrence.
On one occasion during the day time she was reading a book on a bed in her room. He came in, took his shorts off and got under the covers and said, "Let's try something different." This time he penetrated her from behind until he ejaculated. He lay behind her after he had finished and fell asleep for a while, only waking when Ms Davis tried to leave the bedroom.
On a different occasion an act of penile/vaginal intercourse occurred in the shower.
Another occasion, Ms Davis was in the shower, having been told to go there and have a shower by the offender, when he came in and stood there watching her.
After a netball game, Ms Davis was taking a bath when he came into the bathroom. He said he wanted to wash her hair. He took his clothes off and got into the bath with Ms Davis. He then put some soap on his hands and reached around and washed Ms Davis' breasts and stomach. He started washing her genitals and started inserting his finger inside her vagina repeatedly. He then lifted her up and put her back down on his erect penis. This is another occasion when the offender was not wearing a condom.
On one occasion he was sitting on a lounge chair in the lounge room. Ms Davis walked into the lounge room and he pulled her over to sit on his lap. Her mother was only a few metres away in the kitchen, but despite this, when the offender put Ms Davis on his lap he began fondling her genitals through her pants.
In December 2010, Ms Davis was aged 17 years and nine months. On 23 December 2010, the offender told Ms Davis that she would share a bedroom with him when they went to his parents' home. He said that this would be so that they could have one last night together before Ms Davis' mother returned the following day. After everyone else had gone to bed, the offender came into the room Ms Davis was in and closed the door. He then had quite forceful penile/vaginal intercourse with her.
I mentioned before that the offender treated Ms Davis as a sex object. As another illustration of that, when police executed a search warrant on his home in February 2017, they seized a hard drive containing electronic material. They discovered 15 videos which were stored on the hard drive. These had been uploaded between 19 April 2011 and 11 August 2011. Ms Davis had turned 18 about two months before the first video was uploaded.
These videos were secret recordings made by the offender of various sexual encounters with Ms Davis. In the recordings he can be seen putting the camera in a hidden location that looks down onto a bed before Ms Davis arrived in the room.
There is one recording showing the offender massaging her bottom. There is one recording showing her massaging the offender whilst he lies on a bed. But what was most prevalent in the recordings was the offender having sexual intercourse with Ms Davis. It is apparent that she is not a willing participant in these encounters. On all occasions she is passive and lies on the bed. She does not roll over and has to be moved into every position by the offender. She does not assist him when he takes her clothes off, and remains lying on the bed. On occasions she protests before the offender commenced sexual intercourse. And on occasions she places a pillow or a blanket over her head whilst the offender engages in sexual intercourse with her.
For separate reasons, Ms Davis and the offender moved to Newcastle, ultimately moving into a residence at Caves Beach. Whilst there, Ms Davis tried to limit her time at the house to when one of her sisters was there, but she continued to run the household by cooking, cleaning, buying groceries and doing the laundry.
Between August 2011 and November 2011, the offender had sexual intercourse with her on a number of occasions. Generally he would wait until Ms Davis' sister had gone to bed, and then he would come down and have sexual intercourse with her against her will. Whilst these acts of sexual intercourse occurred, she would normally be crying and have placed a pillow over her face to avoid looking at the offender.
There was one occasion that the offender made her go into his bedroom, took all her clothes off, climbed on top of her and put his penis inside her vagina. On that occasion she did not have a pillow, but she cried and lay still while the sexual intercourse took place.
The offender pleaded guilty to two offences of aggravated sexual intercourse without consent when the complainant was under his authority. These relate to two occasions when the offender had sexual intercourse with her after she told the offender, "No". On each occasion the offender ignored her and proceeded to force himself upon her and perform penile/vaginal intercourse.
On each of the occasions the offender removed all of her clothing and she would let her body go limp. She felt powerless to stop the offender from having sexual intercourse with her.
Count 2 has an additional aggravating feature because it was as a result of that intercourse that Ms Davis became pregnant. When she told the offender, he said, "What are you going to do?" She replied, "I have to get rid of it. You'll pay for it and then you will never touch me again. How dare you do this to me." Ms Davis' pregnancy was later terminated.
It is apparent that Ms Davis feels guilt to this day at having to terminate her pregnancy. She feels deeply the results of having to do so. I do not wish to understate in any way the significance of the criminality involved in an act of intercourse which leads to a woman becoming pregnant where, because of the circumstances in which she became pregnant, she had no alternative but to terminate that pregnancy.
Matters eventually came to light. Ms Davis told a friend of hers and then her now husband about what had happened. Eventually she made a statement to police. A pretext call was made on 11 February 2017 in which the offender made clear admissions.
Police arrested him soon after the pretext call. They interviewed him and he told police, falsely as it now appears, that he had not engaged in any inappropriate conduct toward or with Ms Davis. The offender denied being the father of the child, despite saying things in the pretext call which suggested otherwise.
Ms Davis is not the only person to have suffered as a result of the offender's lustful desires. After his arrest for the offences committed against Ms Davis, it became known that he had committed other offences against two daughters of his new de facto partner. I will refer to them also by pseudonyms.
One evening, when Ms Cathy Wilson was 14 years of age, she was asleep in the living room. When she awoke, she saw the offender in a hallway, wearing his boxer shorts and a shirt. He removed his penis from his pants and started masturbating. This complainant rolled over and pretended not to see him. At the time of this incident she was in the care of the offender.
Complaint was made but her mother did not believe her. Indeed, she made this complainant apologise to the offender.
Her sister, Ms Julie Wilson, experienced similar offending. She was 15 years of age, sleeping on a mattress on the lounge room floor, on a trip to Goulburn to help the offender's parents paint their house. One evening, he tiptoed back inside, after having a cigarette outside, to the lounge room, where she was awake and lying down on the mattress. She could see and hear the offender standing in front of her. She heard him pull his pants down and commence masturbating for a couple of minutes. She saw and heard the offender ejaculate onto the carpet in the lounge room next to the mattress. She heard him clean up the ejaculate and go and wash his hands.
On the morning of 24 June 2016, Ms Julie Wilson was in bed at her home. Her mother was at work and her sister and brother had gone to the park to play. She heard footsteps coming down the hall and stop outside her bedroom door. She saw the offender staring at her. She shut her eyes, pretending to be asleep, but she heard the offender pull down his pants and commence masturbating. After a few moments she heard the offender making groaning noises. After that, the offender walked to a nearby bathroom and washed his hands.
Not long after that incident, the offender came into the bathroom whilst Ms Julie Wilson was showering. She had put a towel over the shower door in an attempt to stop the offender from spying on her. As soon as the offender opened the shower door, she retreated to the rear of the shower in an effort to get as far away as possible. He pulled down his pants and commenced masturbating. She turned around to see what he was doing, and when she did so he stared at her and continued to masturbate. Eventually he ejaculated onto the floor of the shower and said to her, "That was good. Don't tell anyone." He left her crying in the shower. She also vomited.
When the offender was arrested for the offences involving Julie and Cathy Wilson, he declined to participate in a record of interview.
The offences involving these two complaiants are all offences of aggravated act of indecency with a person being under the authority of the offender.
The offence of persistent sexual abuse of a child has a maximum penalty of 25 years imprisonment. The two offences of aggravated sexual intercourse without consent with a person being under the authority of the offender have maximum penalties of 20 years imprisonment, with standard non-parole periods of ten years. The remaining four offences carry maximum penalties of five years imprisonment.
I have taken into account the maximum penalties and, where appropriate, the standard non-parole periods, in determining the appropriate sentences to impose upon the offender. My reasons for not imposing the standard non-parole period appear in these remarks on sentence.
I mentioned before that the offender pleaded guilty. The utilitarian benefit of having done so needs to be recognised, and so the sentences I impose upon him will be 25% less than they would otherwise have been.
The offender grew up in a supportive and caring household. He has one older sister and one younger sister, who he got on well with as he grew up. His father worked as an ambulance officer and was rarely home. The offender said to a psychologist who prepared a report for the benefit of the Court that he missed his father, and felt that he did not get enough time with him.
The offender told the psychologist that when he was about nine years of age he was sexually assaulted by his next door neighbour, who was aged about 30 at the time. He said that this happened twice to him, and that years later he found his best friend was also sexually and physically assaulted by the same neighbour. Eventually this friend brought charges against the perpetrator. He asked the offender to support his matter in court, but the offender said he could not go through with things.
The connection between the offender's claim to have been sexually assaulted and his offending is difficult to determine. Correlation does not equal causation. One, of course, can feel extremely sorry for the awful experience of being assaulted by a neighbour at nine years of age, but I do have to say that that hardly excuses the conduct for which I must sentence him. There are many victims of sexual assault who do not themselves go on to be perpetrators.
Despite what I have just said, it is clear that the consequences for the offender of having been sexually assaulted were themselves significant, and those consequences are certainly part of the background which I will take into account in determining the sentence to be imposed upon him. Not surprisingly, being sexually assaulted had a significant adverse impact upon him. The psychologist reports that the offender was depressed at the time of his offending. The offender told the psychologist about how the relationship with his ex-wife deteriorated, to the extent that they had not had sex for the last five years of their relationship. I am sure that it is not meant to sound this way, but I need to make something clear. Living in a loveless and sexless marriage is not in any way an excuse for satisfying your sexual desires upon the daughter of your wife.
The offender has had periods of depression over the years, first noticing this in his adolescence. He also suffered from anxiety on occasions. The psychologist says that the offender was likely depressed and anxious at the time of his offending.
When asked about the seriousness of his offending, the psychologist says:
"Mr R acknowledged he was wrong to have committed the offences and said he regretted his behaviour. His comments and attitude towards offending reflected someone who had taken responsibility for his actions."
This is the psychologist's conclusion. Precisely what the offender said to establish that conclusion is not recorded. That is a factor that I have to consider when I determine whether the offender is remorseful. Added to that is the circumstance that the offender did not give evidence in his sentence proceedings. He did not say from the witness box anything which would allow me to say that he has taken responsibility for his actions.
Sometimes a plea of guilty can be evidence of remorse, but in circumstances where the offender filmed himself having sex with Ms Davis, and in the context of the pretext telephone call, the case against him was remarkably strong, although I do have to say that the offender appears to have acknowledged many offences beyond those the subject of the video recordings and pretext telephone calls, and in addition, has pleaded guilty to offences involving the two Ms Wilsons.
Not without some hesitation, I am satisfied that, on the balance of probabilities, the offender is remorseful for what he has done.
The offender has no previous criminal history. He is described by those who have provided written references for the Court in ways which, it must be said, are quite inconsistent with his criminal behaviour. He was described as being a dedicated family man, trustworthy, a man of very high moral standards, of very good character, and a person of good morals. I take those references to mean that he displays these characteristics in circumstances unconnected with his offending, because, as far as his offending is concerned, he was clearly not trustworthy; he clearly had anything but very high moral standards. Nevertheless, he is entitled to have me take into account his otherwise good character. However, as the Crown accurately points out, good character has to be assessed in the light of the repeated, ongoing sexual abuse committed against three separate complainants, which the offender has engaged in over many years.
This was not some isolated incident, immediately regretted. The offender has abused and caused harm to three people, simply, and I know I have said this many times but it is worth repeating, to satisfy his own sexual desires.
It is clear that there has been some delay between these matters coming to light and the sentence today, especially as regards the offences involving Ms Davis, but not too much can be made of this. There is no suggestion that the offender lived his life in fear of the knock on the door that would lead to this day coming. Indeed, after his opportunity to sexually abuse Ms Davis finished, he abused two other young girls.
Reference has been made to the fact that he is on protection at the moment. That is commonplace for offenders convicted of offences of this kind. Most sentences for child sexual assault matters have built into them considerations involving the risk that the offender will serve part or all of the sentence in protection, and the associated risk that that will involve harsh conditions of custody. The offender will do his time in custody harder also because of the psychological problems from which he suffers.
It is important that I assess the objective gravity of the offender's misconduct. When I do so, I find that the persistent sexual abuse matter is well above the middle of the range of objective seriousness. I make that finding for a number of reasons;
the length of time over which the abuse took place, a period of eight years;
that it commenced when she was vulnerable because of her age, having been left in the care of the offender, as her mother was overseas for significant periods of time;
many of the offences occurred in the home which she occupied;
the abuse took various forms, including all manner of sexual intercourse, the first of which involved the offender having rendered Ms Davis incapable of resisting, by getting her drunk;
he secured her cooperation by using what the Crown describes as emotional/financial blackmail, a description which seems to reflect the circumstances of this case;
on a number of occasions covered by the persistent sexual abuse matter, the offender had unprotected sex with her, ejaculating inside her vagina, exposing her to the risk of pregnancy;
this was, of course, a gross abuse of trust; he was Ms Davis' stepfather;
there was a significant gap in their ages, too, of some 15 years;
and finally, count 1 covers 18 separate sexual offences.
Count 2, I find is above the mid-range of objective seriousness, most obviously, of course, because it was this act of intercourse which led to Ms Davis becoming pregnant, which led, in turn, to her having her pregnancy terminated, which led, in turn again, to a significant part of the harm which Ms Davis has experienced as a result of the offender's criminal behaviour.
I find that count 3 is in the mid-range of objective seriousness, as are the remaining counts involving the two Ms Wilsons. Those, too, were offences involving a significant breach of trust.
Of course, I have to be careful not to double count, for all offences apart from count 1, because it is an element of the offence that the complainant was under the authority of the offender.
The question of whether there are special circumstances arises. I am satisfied that there are none, or at least, I am satisfied that the non-parole period I will shortly announce is the minimum which properly reflects the objective gravity of these many offences. In any case, the length of the sentence I impose, when the statutory ratio is applied, provides more than enough time for the offender's rehabilitation.
I will impose an aggregate sentence. Were I not to have done so, I would have imposed the following sentences.
For count 1, fifteen years imprisonment.
For count 2, twelve years imprisonment with an eight year non-parole period.
For count 3, nine years imprisonment with a six year non-parole period.
For counts 4 to 7, imprisonment for two years.
Instead, I impose an aggregate sentence consisting of a head sentence of eighteen years, with a non-parole period of thirteen-and-a-half years, to date from 13 February 2017, which means that the non-parole period will expire on 12 August 2030.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 December 2018