Police v Kieron Davison [2020] NSWLC 6 | Case summary

Defence submissions on sentence

It was appropriately conceded that the section 5 threshold was crossed.
The defence tendered the following documents: 1. Letter from Trudy Allende-Lester, Aboriginal Health Worker at The Royal Hospital for Women, 29 January 2020 2. Letter from Maureen (neighbour), 28 January 2020 3. Letter from Mary Davison, 29 January 2020 4. Letter from Craig Walters, Caseworker at Weave program, 30 January 2020 5. Letter from Aaron More, Caseworker, Salvation Army Pathways, 3 February 2020
Written submissions suggested that the offender is due to become a father in 2-3 weeks to his partner RS. Oral submissions indicate the due date is 20 March 2020, though the baby could arrive earlier.
His partner's neighbour feels that RS has developed deep depression with Mr Davison not being there. RS wants Mr Davison present for the birth and living with her.
Mr Walters met up with Mr Davison after receiving a phone call from him on 9 January 2020. Mr Davison had been in in full-time rehabilitation at Oolong House, Nowra from mid-November 2019, but left the facility on 7 January 2020 prior to the program being completed due to apparent disagreements with another participant who had a close family member as supervisor at the facility, which made Mr Davison's time there difficult.
Mr Walters "could see that the thought of being a parent was very motivating and energising" for Mr Davison. He asks that it be noted that lapses to drug use after some time of abstinence due to being in a gaol or being in a protective environment such as an Alcohol and Other Drug ("AOD") rehab treatment are common for many clients, and do not necessarily progress to relapse.
Mr Davison commenced participation in the Salvation Army Pathways Program on 14 January 2020.
Mr Bhutani submitted that 7 weeks is the longest period that the offender has abstained from illicit drug use. That frank admission logically points to the offender's drug use being more significant than the seven times he has tested positive to the use of illicit drugs in the past 12 months.
It was said that the offending conduct was at the lower end of the scale of objective seriousness, comparing it to the offence of Self Administration of Prohibited Drugs, suggesting the matter was at the lower end of the criminal calendar, reflected in the maximum penalty of 2 years imprisonment. That submission is rejected, and reasons will be given shortly.
The defence point to the fact that there was no injury, loss or damage occasioned through the offender's conduct. Had there been, no doubt Mr Davison would have faced relevant charges.
It was submitted that Mr Davison's use of drugs at an early age and current substance abuse disorder mitigates, to some extent, the offender's moral culpability.
The Court was reminded of the offender's background of social deprivation, which is set out in the decision of Fullerton J.
It was submitted that the sentencing process should not be overwhelmed by the need to protect the community as the conditions of the ESO remain in place.
Mr Bhutani referred to the objects of the Crimes (High Risk Offenders) Act 2006 suggesting that rehabilitation should be given significant weight in the imposition of any sentence for a breach of the Act.
Reliance is placed upon State of New South Wales v BG (Final) (supra) at [12] per Fagan J: "Interruption of the defendant's liberty under the ESO by prosecution and return to prison for infringement of unnecessary conditions would disrupt and impede prospects of rehabilitation. The two objectives identified in section 3 are not mutually exclusive. Rehabilitation of an offender will of itself contribute to the safety and protection of the community."
Reliance was also placed on State of New South Wales v McQuilton (Final) [2019] NSWSC 265 at [43]: "It is apparent that when such a condition is in place and is breached, Corrective Services officers and police exercise their prosecutorial discretion very readily in favour of laying a charge. The proper purpose of prosecuting a breach is to enforce compliance with the conditions, by securing a penalty to deter the defendant from future breaches. Prosecution should be seen as a means of securing preventive detention. The Act does not provide for or envisage intermittent preventive custody as a means of protecting the community."

General Remarks

The quotation from McQuilton (supra) related to a condition of prohibition concerning any type of pornography, which his Honour said should not be a condition of any further ESO for that defendant (at [43]).
In the present case however, Mr Davison's condition of not using any illicit drug is fundamental to the issue of protection of the community. His counsel at the final hearing accepted that the defendant's substance abuse was the 'key risk trigger to his reoffending'. The facts of past offending are set out in Davison, preliminary (supra) and involve considerable violence.
The earlier quote from 'BG' refers to: "The interruption of the defendant's liberty under the ESO by prosecution and return to prison for infringement of unnecessary conditions would disrupt and impede prospects of rehabilitation."
If by using that quotation it is suggested or inferred that condition 15 of prohibiting the use of illicit drugs is 'unnecessary', it must be firmly rejected.
The submission that the sentencing process should not be overwhelmed by the need to protect the community as the ESO conditions remain in place must also be rejected. The word 'overwhelmed' was used by Fullerton J in Karout v R [2019] NSWCCA 253 at [94], and I will refer to that decision in due course and rely upon it as a reason for imposing the appropriate sentence.
The ESO conditions are in place specifically for the protection of the community. The prohibition on using illicit drugs is perhaps the most important condition to protect the community.
Whilst the conditions remain in place and were also in place in identical terms for the ISO, there have been seven known breaches of that condition coupled with admissions to the effect that the offender uses illicit drugs more frequently than every 7 weeks.
The importance of community protection for the making of an ESO is set out in the objects of the Crimes (High Risk Offenders) Act at section 3, with primacy over rehabilitation mandated in section 9. Justice Fullerton's judgments regarding Mr Davison reflect that point.
The objects of the Crimes (High Risk Offenders) Act set out in section 3 are as follows: 1. The primary object of this act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. 2. Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
As indicated previously, Mr Bhutani submits that the focus of rehabilitation in the Act means that it should be given significant weight in the imposition of any sentence for a breach of the Act (submissions at [21]).
Contrary to that submission, whilst rehabilitation is one of the objects of the Act, section 9(2) obliges the Court to 'give primacy to the safety of the community' in determining whether or not to make an ESO: see Davison (Final) at [14].
Purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act include, inter alia, to protect the community from the offender and to promote the rehabilitation of the offender. Another purpose that looms large in this sentencing exercise is the need for specific deterrence.
Mr Davison is not an ordinary offender. He is a high risk offender who in the past has used significant violence against domestic partners. The need for the offender's rehabilitation is important, and as Fullerton J noted, great latitude was given to Mr Davison leading to the making of the ESO.
Whilst the offender has recently shown some inclination towards rehabilitation through attendance for part of a rehabilitation program, conversations with Mr Walters and participation in the Pathways Program, he has also continued to use illicit drugs.
In the context of this high risk offender with a demonstrated risk to significant violence from drug use, the offender's rehabilitation becomes subordinate to the need to protect the community for the purpose of this sentencing exercise.
Rehabilitation is however not simply cast aside. The ESO conditions will remain in place upon his eventual release and he will be encouraged to continue with rehabilitation, knowing from past experience, that continued drug use is likely to result in further incarceration.
Mr Bhutani handed up a document from the Sentencing Advisory Council of Victoria, 'Does Imprisonment Deter?'. I read the paper.
Irrespective of the views expressed therein, Mr Davison is a high risk offender. The Supreme Court has identified an unacceptable risk which is potentially ameliorated by compliance with a set of tailored conditions. There has been repeated non-compliance. Short sentences have seemingly not deterred Mr Davison from using drugs. His use of drugs carries the concomitant high risk of compromising the safety of the community. This Court will take that into account in sentencing.
The fact that Mr Davison might not be deterred by imprisonment does not obviate the need in sentencing for the protection of the community. Nor does it stop the Court from considering the need for, and applying a measure of specific deterrence in the sentence imposed.
The prosecutor cites Veen v The Queen (No 2) [1988] HCA 14 at [14] where Mason CJ, Brennan, Dawson and Toohey JJ said: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
I have already found that the offender's record is not an aggravating factor. Within the same paragraph in Veen, it was said that: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence."
The Crimes (Sentencing Procedure) Act was enacted well after Veen. The previous breaches of condition 15 by using illegal drugs points to the need for specific deterrence.
At the time of making the ISO, Fullerton J was well aware of the offender's failure to comply with parole conditions and disengagement with community corrections having been released to parole for the violent offences upon a former partner, the facts of which are set out in DK, Preliminary. It was noted at [44] that the offender's failure to address 'outstanding criminogenic needs' appeared to refer to his failure to abide by directions, including to attend and complete the EQUIPS domestic Abuse Program and to participate in a prescribed alcohol and drug rehabilitation programs (sic).
At [38] of DK, Preliminary, her Honour also took into account allegations of domestic violence upon Mr Davison's current partner, which were subsequently withdrawn due to his partner being 'apparently unable or unwilling to give evidence for the prosecution'.
Further, the fact of the offender breaching parole on 17 November 2017 and 9 December 2017 by testing positive for drug use, and the three convictions for 'Failing to Comply with an Interim Supervision Order' through positive drug tests revealing methyl-amphetamine use were all considered by her Honour when making the ESO.
In the making of the ESO, her Honour referred to the available evidence to determine whether to make an ESO, and said at [80]: "In this case, that evidence includes, necessarily, the defendant's, at best, patchy response and, at worst, open defiance or disregard of what I am satisfied have been concerted efforts by a range of agencies, including most recently Ms Savage, his departmental supervising officer under the ISO and Mr Walters to assist him, with an appropriate and culturally sensitive approach, to address his substance use, including assisting him to achieve a sufficiently sustained term of abstinence to qualify him for admission into a long-term drug rehabilitation facility."
There is reference in that decision, (Davison, final), at [83] to conditions imposed for the ISO being made with a view to the defendant 'demonstrating his commitment to addressing his ongoing drug use.'
At [84] her Honour referred back to reasons for the making of an ISO where the Court was mindful of pressures that: "…social vulnerability and emotional vulnerability give rise to, and the understandable but unacceptable ways that young people have of dealing with those stressors which is to take a substance or two that makes it all go away momentarily…".
Further, her Honour informed Mr Davison that such conduct: "can't go on because if it goes on, all of the information before me gives me very grave reasons to fear that in a drug fuelled rage, he does something very dangerous to the community [including] particular people close to him which will send him back inside…"
Mr Walters, who works for Weave Youth and Community Services and provided a letter for these proceedings, gave evidence at the final hearing - see [66] to [72]. I note in particular the penultimate paragraph of his letter referring to 'lapses to drug use after some time of abstinence due to being in gaol or being in a protective environment such as AOD rehab treatment are common for many clients.'
After carefully reading the references to his evidence (Davison, final) and his letter to this Court, it appears that Mr Davison is not learning from his lapses. The word 'lapses' is an understatement of the extent of his dependency: see Davison, final at [67] and 2nd last paragraph of Mr Walter's letter.
Mr Walter's observed that 'the thought of being a parent was very motivating and energising for' Mr Davison. The offender told Mr Walters, around 16 January 2020, less than a week before the instant offence was committed, 'that he had decided it would mark a turning point in the process of his personal recovery from substance use.'
Her Honour said at [87] (Davison, final): "It cannot be overlooked however that the defendant has demonstrated a tendency to ignore or disobey supervision orders under a succession of regimes under which those orders have been imposed, even accepting as I do that the CRO was not in place long enough and with sufficient continuity for him to have demonstrated a capacity to submit and cooperate with that form of supervision before he was the subject of the ISO I imposed in December 2018."
At [89], her Honour took into account the defendant's "oscillating insight into the precursors to violence, namely his use of drugs and alcohol' when making the ESO.
Although the facts sheet only refers to the use of methyl-amphetamine, the annexed Drug Analysis Report indicates that the drug 6-Acetyl morphine was also detected. I take judicial notice that 6-Acetyl morphine is indicative of recent heroin use. It is not a derivative of methyl-amphetamine. The use of heroin or finding of its derivative was not detected in the previous six breaches of condition 15.
I note the submission by the prosecutor that a breach of an ESO is a serious offence, relying upon Leeming JA's judgment in Lynn (supra) at [75].
His Honour's conclusion is well supported by the fact that penalties for a breach increased in 2015 by 150%, i.e. 2 years to 5 years, and the monetary penalty increased five-fold to a potential fine of up to $55,000: see Hordern (supra) at [48].
In Muldrock v The Queen [2011] HCA 89 at [31], the High court noted: "An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased."
The objective seriousness of this matter is largely measured by reference to the importance of the condition breached and the manner in which it was breached.
Condition 15 prohibiting the use of illegal drugs is of paramount importance to the protection of the community given the identified risks of significant violence by this offender when affected by drugs (or alcohol).
The fact that no violent incidents are known to have occurred during this incident, or on any of the previous six breaches is not a mitigating factor.
I find the objective seriousness to be high. The breach involved is not merely technical, such as breaching condition 27 by 'failing to inform change of a form of identification within 7 days'.
However, the objective seriousness would be more significant if an offence of violence had occurred: see Hordern at [61].
There is some reduction in moral culpability due to drug addiction, being something that commenced at an early age (see R v Henry [1999] NSWCCA 111 at [273]) and in circumstances of a deprived upbringing (see Bugmy v The Queen [2013] HCA 37 at [40]). The need for general deterrence is reduced.
There has been a pattern of drug use contrary to parole, the ISO and now the ESO. I am only sentencing in relation to the most recent offence. Had this offence been merely an aberration, the penalty would be significantly less than that which is appropriate today because there would be less need for specific deterrence.
This offence represents a continuing risk to the community by his ongoing drug use, rather than an isolated incident of drug use, that must be reflected by a measure of specific deterrence. It is implicit from the legislation breached that specific deterrence is the very basis of interim and extended supervision orders being made.
Having applied the maximum discount of 25% for the utilitarian value of the plea, taken into the aggravating and mitigating factors, the facts, relevant case law and the purposes of sentencing, the appropriate sentence on this occasion is one of 12 months imprisonment.
Having made that determination, I am comfortably of the opinion that the sentence should be served by way of full-time detention rather than by an Intensive Correction Order. ("ICO").
I have considered section 66 of the Crimes (Sentencing Procedure) Act, which provides: Section 66 Community Safety and other considerations 1. Community Safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. 2. When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of re-offending. 3. When deciding whether to make an intensive correction order, the sentencing court must also consider the provision of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
In making that determination, I note that on 5 February 2020 the High Court dismissed the special leave application in Fangaloka v R [2020] HCASL 12. Gordon and Edelman JJ said: "the application does not give rise to any reason to doubt the correctness of the Court of Criminal Appeal…."
In R v Fangaloka [2019] NSWCCA 173, Basten JA referred to the preferred construction of section 66. His Honour referred to the fact that the 'removal of an offender from the community for a period may have a protective function' (at [66]).
This Court could have no confidence that at least in the short-term, the offender would cease using illicit drugs and therefore place the community at risk, consistent with the findings of Fullerton J in Davison, final (supra).
I am satisfied per section 66(2) of the Crimes (Sentencing Procedure) Act that serving the sentence by full-time detention is more likely to address the offender's risk of re-offending. Neither previous parole, the ISO or ESO have managed to dissuade this offender from drug use. Very short prison sentences also appear to have had no impact.
A sentence by way of ICO would in effect be of no discernible difference to the stringent conditions that the offender was meant to be observing under the ESO. This offender has demonstrated time and time again non-compliance with these Orders which are designed to protect the community as well as promote his rehabilitation.
Safety of the community was a paramount consideration in determining whether to make an ESO. It remains a paramount consideration in this sentencing exercise.
I have had regard to the various considerations in section 66(3), and referred to them earlier in these remarks. I note in R v Fangaloka (supra) at [64]: "There is no doubt that a sentencing court must have regard to the personal circumstances of the offender; but they should not divert the court from imposing adequate punishment, having regard to the objective gravity of the offence." (See also: there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594).
The offender wishes to be in attendance at the birth of his child. There is a need for his rehabilitation. Those and other circumstances personal to the offender do not persuade me that a short sentence similar to those previously imposed is appropriate. Nor do they persuade me that an ICO is appropriate.
I find that the offender's prospects of rehabilitation are poor, based on his demonstrated non-compliance with orders in the past and his continued use of illicit drugs, even in circumstances where there is some motivation to cease drug use by his impending fatherhood.
As Fullerton J said in Karout v R [2019] NSWCCA 253 at [94], the decision concerning whether to sentence the offender by way of ICO "overwhelmed other considerations that were in play."
I make a finding of special circumstances regarding the offender's drug addiction issues and the identified Bugmy (supra) issues. The non-parole period will be reduced to promote the offender's rehabilitation.
I note the relationship of parole orders to high risk offender orders pursuant to section 160A of the Crimes (Administration of Sentences) Act 1999 in that the offender's parole will be suspended whilst he remains subjected to the ESO.
The offender Kieron Davison is sentenced to a non-parole period of 6 months from 24 January 2020 to 23 July 2020. There is an additional term on parole of 6 months. The overall sentence is one of 12 months. P D Stewart LCM 19 February 2020 Central Local Court

Police v Kieron Davison

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Judgment (9 paragraphs)

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Cases Cited (16)