R v Davey [2006] VSC 173

Supreme Court of Victoria|2006-05-03|Before: OSBORN J

SENTENCE - Murder - No direct link between psychiatric condition and offence - Sentenced to 18 years non-parole period of 15 years.

1 Owen James Davey, you have pleaded guilty to the murder of Athanasia Wust on 12 July 2004 at Rye. Your plea was entered after evidence was given to the Court by Dr Daniel Sullivan, a consulting psychiatrist that you were fit to plead. His evidence was based on consultations he had had with you commencing on 2 May 2005. Your plea was further entered after you had received advice from very experienced and competent senior counsel.

2 At the date of her death Athanasia was aged 37. She was the mother of two sons, Ben, the son of Robert Wust, who was aged 6 at that point in time and Alexander, who was your son and who was then aged 17 months.

3 You were living with Athanasia and her two sons in a house at Rye.

4 You had first met Athanasia in late 2001 at Frankston Psychiatric Hospital. She had suffered difficulties following the sudden death of her father and was diagnosed as suffering from a bipolar disorder. After discharge from hospital the relationship with her husband deteriorated and she formed a new relationship with you.

5 The relationship between you and Athanasia caused tensions with her family and at the time of her death her contact with her family was by telephone only.

6 On the afternoon of Monday 12 July 2004 Athanasia collected her son Ben from primary school and returned home. At about 6.45 p.m. Ben sought help in the Rye shopping centre and as a result police attended the family home at about 7.20 p.m. On arrival police found Athanasia's body on the loungeroom floor. She had suffered multiple stab wounds and lay in a welter of blood. The handle and blade of a broken knife were found nearby. Alexander was found unhurt but covered in blood in the kitchen.

7 An autopsy subsequently showed that Athanasia had suffered some 40 stab wounds to the head and neck, concentrated primarily upon the area of the eyes and face. There were also some nine defence type wounds including full thickness stab wounds through the right hand. Athanasia died from the loss of blood caused by the wounds. The wounds were inflicted by you in what must have been a sustained frenzied and relentlessly savage attack. Further, they were inflicted when both boys were present in the house.

8 You fled the scene after the stabbing and hitched a ride to Rye and then after several further movements attended the psychiatric ward at Frankston Hospital. You there stated to the Acting Nurse Manager:

"I've done bad. I stabbed my girlfriend in the eye five times, the bitch."

This accurately reflected the focus of the injuries inflicted by you.

9 Subsequently you were interviewed by police. Although some answers given by you were confused, you admitted responsibility for the stabbing. In the course of the record of interview you further stated, among other things:

that you had hurt the person you loved but in your words "she kept on fuckin' shitting me".
your victim made you feel in your words "like a fuckin' idiot".

• when you used the knife in your words "it just didn't feel like myself".

• everyone wanted you to change and you did not want to change.

• Athanasia was talking to you in this way all the time.

• Athanasia in your words "always didn't let me do what I wanted to do".

10 Relevant medical records disclose that there was a history of some discord between Athanasia and yourself. In particular a note of 22 April 2004 records:

"Athanasia appearing quite angry reporting Owen had gone to Social Security in an attempt to gain control over their finances and had incorrectly informed Social Security that Athanasia was in hospital and that he was looking after the children ... also (complaining of) Owen owing her money [sic]."

11 There are a number of aggravating circumstances associated with the killing perpetrated by you:

you killed a woman who was in an intimate relationship with you in which she placed trust in you;
who had allowed you to live in her home;
and who was the mother of your son and another young boy;
she offered you no apparent provocation other it seems than the sort of discussion about improving behaviour which is a normal incident of any continuing relationship and necessarily involves the potential for some irritation;
she was unarmed and physically smaller than you;
you killed her when her sons were in the house, in circumstances when it must have been apparent to you not only that you were killing the mother of two small boys, but also that they would be confronted with the savagely wounded and bloodied body of their mother.

12 As against these considerations there is little to be found in the circumstances of the killing which can be said to militate in your favour. I accept, however, that there is no evidence that your actions were premeditated and the evidence as a whole supports the probability that your actions were sparked by something said by Athanasia which caused you to erupt in a fury of anger.

13 As might be expected the consequences of your actions have been grave for the members of Athanasia's family. Nine victim impact statements have been presented to the Court. They speak in compelling terms of the emotional trauma you have inflicted upon Athanasia's two sons, and her extended family who are confronted with her loss on a continuing basis as they seek to care for her children. Her mother, sisters, brother, estranged husband, brothers in law and godparents have all suffered and continue to suffer lasting emotional pain, grief and loss as a result of your violence. I will repeat part of the statement of Athanasia's mother which encapsulates the pain you have caused.

"I am Athanasia's mother and I have suffered untold sadness and trauma since losing my child. Please understand that to be told that your child has been murdered by another leaves me with an open wound that can never be healed. I am struggling to continue living without my child. I had to face all my fears of burying my daughter with her two young children. Who witnessed the unthinkable crime Owen Davey has destroyed my family with his act of murder. I am faced on a daily level (with) the agony of my daughter's gravesite whilst knowing that Owen Davey will one day be set free. I am forever grieved by the knowledge that I will never see Athanasia again and neither will her children. My life has dramatically changed for the worst the night Athanasia died. She was killed brutally and her death can never be reconciled in my mind."

14 I turn then to your personal circumstances. At the time of the murder you were aged 30 having been born on 25 December 1973. It appears you are of low intelligence. You left school in year 10 and then found work in a variety of unskilled occupations. You have, however, been on a disability support pension for most of your adult life.

15 You commenced substance abuse when about 13 and have abused alcohol, cannabis, amphetamines and benzodiazepines. You were first admitted to a psychiatric facility in 1993, with a diagnosis of amphetamine induced psychosis and anti-social personality disorder. Since then you have had a number of in-patient admissions with a diagnosis of drug induced psychosis and schizophrenia with paranoid features and associated outbursts of violence.

16 You have a 10 year old child from a previous relationship who lives with the mother. But it would appear that your ongoing behaviour has effectively destroyed any relationships from which you could now derive support.

17 At the core of the plea made on your behalf it was submitted that the Court must give weight to your history of mental instability and the ongoing consequences of your psychiatric condition.

18 I accept that it is clear that you do suffer from schizophrenia and during the 10 years up until the murder you had suffered ongoing and recurrent psychiatric problems. But the consequences of those problems in the present context require careful consideration.

19 Three psychiatric reports have been tendered to me. Insofar as your mental condition at the time of the killing is concerned the relevant considerations are most fully addressed in the report of Dr Debra Wood. Because an assessment of your mental condition as at the time of the killing might be regarded as critical to an understanding of your moral culpability I propose to repeat her opinion in some detail. On the whole of the evidence before me I accept this opinion as accurate.

"1. Mr Davey appears to have a psychotic illness, most likely paranoid schizophrenia, which has been manifest for at least 10 years. He has, when unwell, described paranoid delusions, probable ideas of reference from others and the television, auditory hallucinations, and displayed disorder of language form. His subsequent course in prison suggests that he also has so-called 'negative' symptoms of avolition, amotivation, and difficulties with sustained attention.

Mr Davey has used licit and illicit psychoactive substances on a regular basis for many years, most notably amphetamines, cannabis, opiates and alcohol, but at times extending to LSD, benzodiazepines, solvents, and on occasion, lavender. Mr Davey's substance misuse was such that it exacerbated his mental illness, rendered him indebted, presumably drove some of his criminal offending, and was a cause of conflict between him and his intimates.
The treatment of his mental illness has been complicated by his psychoactive substance use, poor medication compliance and evasion of services. That he can become extremely unwell is attested to by his prolonged admission in the latter half of 2001. Since that time he has been maintained predominantly as an outpatient, and although he has occasionally complained of symptoms, these have been difficult to tease out from reality-based fears and the effects of illicit substances.

It seems, from the Peninsula Hospital medical record, that Mr Davey was relatively well in the months leading up to his alleged offence. Mr Davey, in March 2004, demonstrated a willingness to seek assistance if things were not going well, albeit at that time the service did not consider his concerns to be of a psychiatric nature. Similarly, the record of his request to Social Security seems to indicate that he was - at least in April 2004 - capable of complex, organized action. Apart from ongoing tension between Mr Davey and services about medication, there are no concerns about Mr Davey's mental state expressed in the Peninsula record in the three months leading up to his arrest.

From the Peninsula Health medical record, it appears that Mr Davey has led a chaotic lifestyle for many years, characterized by repeated periods of homelessness, illicit drug use, indebtedness, and relationship breakdowns. De facto relationships are noted as providing stability, and have been generally associated with a reduction in illicit drug use, and improved self care and function.
Mr Davey's contact with services has not uncommonly involved threats of self-harm or of harm to others. On any one occasion it would be difficult to tease out the motivations for these behaviours, however, they seem to include one or more of the following:

A means of accessing hospitalization (for safety, security, or accommodation); 2. A response to perceived (psychotic) slights (eg punching the co-patient whilst admitted in 2001);

An instrumental threat [eg to be discharged (2001), or to cease depot medication (2004)].

His threats have variously occurred in the context of psychotic symptoms, and also in their apparent absence.

Without access to collateral sources (particularly the Forensicare files and relevant police briefs), it is impossible to come to any conclusions regarding Mr Davey's motivation and state of mind at the time of his previous assaults.

Mr Davey's history is also one of marked impulsivity and poor judgment: he frequently absconded from the inpatient unit when admitted; is reported to have often left home without notice; frequently changed residence (although this was apparently triggered on some occasions by his drug use and 'hostility'), and apparently made threats (to harm himself or others) without regard for the consequences.
From time to time, the Peninsula service appears to have doubted the veracity of some of Mr Davey's reported symptoms, and questioned the extent to which he might be using them for 'secondary gain' (such as hospital admission).
The assessment of the contribution of Mr Davey's mental illness to the above behaviours is not at all straightforward. The issue here is the separation of pre-morbid interpersonal dysfunction from illness; that is, to what extent do the above behaviours represent Mr Davey's underlying personality, and to what extent, if any, are they driven by illness?

Collateral information pertaining to Mr Davey's premorbid behaviour and attitudes is required to answer this question, hence my request for permission to interview Mr Davey's parents. In the absence of this information, though, I note that the Peninsula Health file records that Mr Davey engaged in fights, breaking windows, and an episode of fire-setting whilst at school. Other than this, there is little information upon which to form an opinion about his premorbid personality. Suffice to say that the assertion that but for his mental illness, Mr Davey would not have engaged in antisocial conduct, is not supported.

In relation to the defence of mental impairment, it is my opinion that Mr Davey certainly satisfies the required criterion of having a mental illness. Whether or not he meets the section 20 CMIA criteria for mental impairment is much less clear, and in my opinion is, on the balance of probabilities, not met for the following reasons:

Although there is evidence that Mr Davey was probably suffering some psychotic symptoms after the offence, such as: 1. In the statement of REINEKER, Mr Davey was noted to be saying 'I love everyone, I love God' and 'Amen' (brief, p71); 2. In the statement of Martin DAVEY, Mr Davey was described as being 'incoherent, but . . . hinting at what had happened' (brief, p 173); 3. Dr Doug Bell's record of interview at the MAP on 16 July 2004, and notes that Mr Davey referred to himself as the 'The Holy Grail', because he 'was born on Christmas day.' Mr Davey also said 'they are coming after me' because he is The Holy Grail - referring to co-prisoners and described auditory hallucinations swearing at him and making derogatory comments; 4. His report of voices saying, 'Owen, com on', to Dr Viswanathan on 22 July 2004; and 5. His statements to Dr Reid (psychiatry registrar) on 12 August 2004 about need to 'care' for others and his report that others were looking at him 'strangely;' and his odd touching of the television screen prior to the interview; 2. These phenomena are scarce given the overall volume of material, and suggest that although Mr Davey may well have been experiencing some psychotic symptoms after his offence, he was not manifesting symptoms of a florid psychotic episode such as he has previously exhibited when severely unwell (such as in 2001);

In my opinion, the bulk of the evidence attesting to Mr Davey's mental state after the offence is more suggestive of him being shocked and scared, including: 1. Witness REINEKER's statement that Mr Davey appeared to look 'sick' and agitated (brief, p 71); 2. Witness SCOTT's description of Mr Davey's behaviour, and his reassurances that he was 'OK'; 3. Witness TEMBEY's statement that Mr Davey 'was breathing funny like he was having an anxiety attack' (brief, p 169); 4. Witness Martin DAVEY's description of Mr Davey being in a 'state', 'incoherent but hinting about what had happened', and 'yelling out that if he goes to hospital then he will go to gaol' (brief, p 173); 5. Witness COCHRANE's statement that Mr Davey looked upset when he attended the hospital, that he said 'I need help, I need help', and that he appeared agitated (brief, p 66); 6. Mr Davey's comments of 'Scary. Scary' (Q21, brief p 87); 'I'm scared' (Q32, brief p 88); 'I'm going to jail now . . .' (Q55, brief p 90);

This would be consistent with his statements to Ms Muriel Cummins whilst on the AAU, and indeed his presentation throughout this incarceration and during our three interviews for this report.

There is evidence from Witnesses REINEKER, COCHRANE and the transcript of the police interview that Mr Davey was angry, at times clearly at the deceased, immediately after the offence:
1. After Mr Davey entered Witness REINEKER's car, he said 'Drive' in a 'demanding' manner; subsequently, Mr Davey said 'Where are you going and don't lie?' in an 'aggressive tone'; he was subsequently described as 'pushy' and 'demanding', then 'yelling' at REINEKER (brief, pp 69-72);
2. Owen said; 'I've done bad. I stabbed my girlfriend in the eye five times, the bitch.' When he said 'the bitch' he seemed to have anger in his voice' (COCHRANE, brief p 66);
3. In the police interview, Mr Davey stated, 'I hurt the person that I love . . . But she just - I don't know, she kept on fuckin' shittin' me, mate . . . About stuff, saying these things that I never do this - you know' and that this made him feel like 'a fuckin' idiot' (Q 95-99, brief p 94); later he said that 'Everyone want - wants to make me, like, just change into something that I don't want to change into, you know', and that the deceased was doing this 'all the time' (Q 116-117, brief p 96); he said, 'She always didn't let me do what I wanted to do, you know . . It made me angry' (Q 130-131, brief p 97).

In my opinion, the evidence that at the time of the offence Mr Davey was suffering a degree of mental impairment such that he was unable to reason with a moderate degree of sense and composure that the conduct was wrong is weak. It seems much more likely, on the available evidence, that he and the deceased had an argument along the lines of their previous domestic conflicts, and that Mr Davey stabbed her in anger. I have not encountered any evidence that suggests that he harboured psychotic beliefs about her; his comment during the police interview that people were trying to kill him - 'Spiderman' (Q 153-155, brief p 99) - lacks authenticity, and in any case does not suggest that Mr Davey's concerns, if any, rested on the deceased."

20 Insofar as your continuing condition is concerned Dr Senadipathy has seen you recently in the St. Paul's Rehabilitation Unit at Port Phillip Prison. He records that you presented with a chronic history of mental illness, substance use and behavioural disturbance. He diagnoses schizophrenia with the possibility of a co-existing brain disorder. This possibility is the subject of further neuropsychological assessment.

21 He records that you have been treated with a series of medications and that you have responded to only one of these but this response has been promising. He further reports ongoing improvement in this context. He states that if sentenced to custody you will remain in St. Paul's Rehabilitation Unit until your condition has stabilised and you are suited for mainstream management.

22 Mr Montgomery submitted on your behalf that your diagnosis of mental illness should be regarded as diminishing your moral culpability for your actions, and bears on the need to reflect considerations of general and specific deterrence in the sentence I must impose. He further submitted your likely conditions of custody should be taken into account and treated as more onerous than would otherwise apply but for your illness.

23 Your plea acknowledges the fact that you are unable to establish on the balance of probabilities that you were suffering from mental impairment at the time of the killing, such as to provide a defence to the offence charged.

24 Further, the analysis of Dr Wood convincingly demonstrates that the evidence strongly favours the view that you were not psychotic at the time of the killing (this being the crucial question as Dr Sullivan expressly states and Dr Wood's report implicitly acknowledges).

25 I am prepared to accept that your long standing history of mental illness and substance abuse have in all probability impacted upon your emotional and psychological development to some extent and that this must result in some sensible moderation of your sentence by way of muting of it. Nevertheless I must ultimately sentence you not on the basis of the label of schizophrenia or simply by reference to your underlying condition, but in significant part by reference to your state of mind at the time of the offence.[1] I do not accept that the evidence justifies a material reduction in your sentence by reference to considerations of reduced moral culpability, or the inappropriateness of your case for general or specific deterrence. Insofar as moral culpability is concerned the evidence simply does not show that you were psychotic or otherwise materially affected by mental illness at the time of the killing. Insofar as general deterrence is concerned, domestic murders of the type carried out by you are a scourge upon our society. They pervert the fundamental fabric of personal relationships and family trust upon which society is founded. It is necessary that a continuing message be sent to persons in emotional relationships that the resort to violence against a partner will not be accepted either by the community or the Court. The sentences of this Court must reflect both the sanctity of human life and the total unacceptability of weak and vicious behaviour towards persons said to be the objects of love.

26 Insofar as specific deterrence is concerned your criminal record comprises 48 offences in 12 different groups going back to May 1991. Although they are in large part related to substance abuse they include offences of violence, and a number of other offences displaying a continuing indifference to the rights of others and the authority of the law. It is apparent that not only the penalties previously imposed upon you with respect to a continuing succession of serious criminal offences but also ongoing treatment within the mental health system have simply failed to bring about anything other than continuing criminal behaviour. I have come to the view that a significant custodial sentence must be imposed in order not only to ensure that your supervised rehabilitation is completed so far as is practicable, but also to reinforce an awareness in you of the extreme seriousness of your offending, and further to protect the community.

27 This being said, you are entitled to some real discount for your plea of guilty. That plea has, among other things, spared your victim's family the stress and trauma of a contested trial and you must be given benefit for it. Were it not for such plea I would have been minded to impose a sentence in excess of 20 years.

28 I do not, however, accept that the circumstances in which you will be held will mean that you will suffer in custody unduly as a result of your mental condition. To the contrary, Dr Senadipathy's report demonstrates that you are being well cared for and professionally treated. Moreover, your rehabilitation is progressing in an appropriate manner.

29 Mr Davey, having regard to the above matters and the provisions of the Sentencing Act 1991 I sentence you to a term of 18 years' imprisonment for the murder of Athanasia Wust and I fix a non-parole period of 15 years.

30 I declare that the period of 659 days has been served by way of pre-sentence detention.

[1] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400; R v Yaldiz [1998] 2 VR 376 at 383.

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Judgment (59 paragraphs)

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