R v Davidson

Objective seriousness

1. The Crown submitted that the sentence was not above the middle range. Mr Norrie of counsel for the offender submitted that it would fall somewhere between the lower range to the mid-range. Both counsel acknowledged the difficulty in assessment of objective seriousness because manslaughter covers such a wide variety of offending.
2. A significant aspect of the present matter is the offender's mental illness which impacts on most, if not all, considerations in relation to the sentence.
3. In my earlier judgment, I concluded that the attack on the deceased must have been sustained and prolonged for him to have suffered the injuries that he did. I said that this was not a fleeting event such as a shooting or a stabbing where an assailant with mental illness problems might not realise until too late that what he had done was wrong.
4. The CCTV footage showed that the deceased and the offender were alone in the cell between 1:53:05pm and 2:18:19pm. Whilst I cannot conclude beyond reasonable doubt that the assault on the deceased occupied the whole of that time, I am satisfied beyond reasonable doubt by reason of the extent of the injuries that it was a sustained and prolonged attack.
5. I accept that by reason of the offender's mental illness, which was present before and during the time of the assault, there was little or no planning involved. In that regard, the evidence disclosed no history of animosity towards the deceased by the offender, nor of prior problems between them including immediately before the attack. Whilst I do not consider it an aggravating factor, the fact that the deceased was a prisoner and was killed in his own cell in the gaol, is a matter that bears upon the assessment of objective seriousness.
6. I assess the objective seriousness as being within the mid-range.
7. Subject to the matter of the offender's mental illness, an aggravating factor is that the offence is one of serious personal violence, and the offender has a record of previous convictions for serious violence offences. The most significant of these is an offence of intentionally choking another prisoner on 1 February 2017. Apart from that offence, there was an offence contrary to s 97(2) of the Crimes Act 1900 (NSW) and an offence of assault occasioning actual bodily harm, for both of which offences the offender was sentenced at the same time as the choking offence.
8. It is necessary to outline briefly what occurred in relation to those offences because they highlight the interrelationship between the offender's mental illness and his drug-taking. This summary is taken from Judge Haesler SC's Remarks on Sentence: R v Mervyn Davidson [2018] NSWDC 45.
9. On 29 January 2017 the offender was in the grip of a drug-induced psychosis. He armed himself with a baseball bat and went to the Aldi store in Albion Park with the intention of robbing it. He ran at one of the cashiers and swung the baseball bat, hitting her on the head. She collapsed unconscious. He then kicked her as she lay on the ground. He attempted to open the cash register. A customer and another staff member tried to restrain him. The staff member was hit in the head with the bat three or four times.
10. Having been arrested and taken to the police station, the offender asked if he could lie down. As the police officer was laying out a mattress, the offender punched him in the face and knocked him down.
11. The offender was remanded in custody. He was placed in a two-out cell with Jamie Robin. On 1 February 2017 after meals were delivered to the cell, the offender took off his T-shirt, put it around Mr Robin's neck and choked him until he fell unconscious to the ground. He kicked Mr Robin as he lay on the ground, and continued to do so until the Immediate Action Team arrived and removed him from the cell.

Subjective matters

1. The only recent medical report tendered was a report of Dr Olav Nielssen of 28 October 2019 which was tendered by the offender. Dr Nielssen had interviewed the offender in August and October 2018, and prepared reports which were tendered at the trial. The report of 28 October 2019, which was written without Dr Nielssen again interviewing the offender, dealt more particularly with the offender's mental illness, and matters of rehabilitation and reoffending.
2. The offender relied principally upon reports of Professor David Greenberg of 20 April 2017 and the psychologist Emma Hubner of 9 January 2018, both of which were prepared for sentence proceedings heard by Judge Haesler SC in the District Court in 2018. The offender gave evidence at the present sentence proceedings and affirmed the correctness of the information contained in those reports. However, there were a number of conflicting matters reported by the offender to those experts.
3. He told Professor Greenberg that he had been in a relationship with the mother of his children for the "past seventeen years" but, somewhat inconsistently, said that he had separated from his partner 15 years previously. The true position seems to be what is contained in Ms Hubner's report, namely, that he met his partner when he was 15, he had three children with her, and they separated when he was 30.
4. The offender told Ms Hubner that his father used harsh physical punishment to enforce household rules, but he spoke positively of his father otherwise. Ms Hubner noted that there was an indication in the Justice Health psychiatric report that the offender's father was a heavy drinker, but the offender denied that to Ms Hubner. On the other hand, he told Professor Greenberg that his father was an alcoholic, but he said that he was neither abused nor neglected, and said that he lived in a "house of love".
5. He told Ms Hubner that he attended Maroubra High School where he reportedly experienced learning difficulties and was placed into special classes for children with additional academic needs. He told her that he was eventually expelled for truancy prior to the completion of grade 7. He told her he was then enrolled at Matraville High School where he was again expelled in grade 9 for the same reason.
6. On the other hand he told Professor Greenberg that after completing his primary school studies he attended Matraville High School but he was expelled in year nine. He then attended Maroubra High School where he was also expelled in year nine. He admitted to wagging school and being disruptive in class, but he said the teachers picked on him. He appeared to accept, as he told both Professor Greenberg and Ms Hubner, that he chose to associate with delinquent peers and family members, and to engage in antisocial behaviour. He told both of the professionals that he had never worked, telling Ms Hubner that he didn't want to work.
7. He told Ms Hubner that he had been deaf in his left ear since birth, but Ms Hubner noted that that was in contrast to information in the Justice Health psychiatric report which suggested he had been deaf in that ear since an assault approximately 12 years earlier. The offender told Professor Greenberg that the deafness followed an assault 12 years earlier.
8. The inconsistencies in his reporting may be due to both his cognitive difficulties and substance abuse.
9. When Ms Hubner conducted psychometric tests on the offender she concluded that his verbal comprehension, his perceptual reasoning and full scale IQ score were in the extremely low range meaning that 99% of the general population achieved stronger scores. She concluded that those results were supportive of profound cognitive impairment.
10. Ms Hubner recorded that the offender said that he had smoked cannabis from the age of eight years and had drunk alcohol from the age of ten. As a child he also experimented with ecstasy, cocaine and LSD, and sniffed petrol. He told Professor Greenberg that he used various illicit substances from the age of eight. He told Ms Hubner that he started using heroin at the age of 27 and amphetamines at the age of 30. She reported that the offender had attended rehabilitation programs at the William Booth Drug and Alcohol Rehabilitation and Oolong Drug and Alcohol Rehabilitation when he was in his thirties but he had not completed either program due to relapse. He ceased using heroin at the age of 42 but continued to use amphetamines until the time of the present offence.
11. The cognitive difficulties combined with substance abuse from an early age likely explain his difficulties at school and the antisocial behaviour that led him to a life of crime starting in his late teenage years. In that regard, it must be said that his criminal record entitles him to no leniency. His first offending at the age of 17 was constituted by four counts of break and enter with intent. Subsequent offending involved driving and street offences, a large number of offences of resisting, intimidating and assaulting police officers, and a number of break and enter offences, not including the offences for which the offender was sentenced by Judge Haesler SC on 9 March 2018.
12. Professor Greenberg diagnosed the offender as suffering from Amphetamine Induced Psychosis, Polysubstance Use Disorder, and Personality Disorder with Antisocial Features. However, he concluded that there were no reasonable grounds to believe that the accused was a mentally ill person suffering from a mental illness or a mental disorder as defined within the meaning of Chapter III of the Mental Health Act 2007 (NSW). I explained in my earlier judgment why I accepted, contrary to this opinion of Professor Greenberg, that the offender suffers from schizophrenia, following the opinions of Dr Martin and Dr Nielssen.
13. In his Remarks on Sentence Judge Haesler said this: [46] He was raised in a home environment where heavy alcohol abuse, drug use and violence were prevalent. That continued into early adulthood. He has never worked. He has tried two rehabilitation programmes but failed to complete them. Ms Hubner describes a life with "a persistent pattern of anti-social behaviour." [47] Davidson's dysfunctional upbringing and his early and ongoing exposure to violence and alcohol and drug abuse have resulted in significant and chronic problems. They provide a compelling explanation for his continuing addiction problems and ongoing involvement in criminal offences. These offences cannot be divorced from his significant mental and cognitive difficulties. There is a causal relationship between his drug use, his psychosis and the offending. The result is a subjective case in which Davidson's moral culpability for these serious offences is necessarily significantly reduced. If an offender has been raised surrounded by alcohol abuse and violence this may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred. There is evidence Davidson's background compromised his capacity to mature and learn from experience. The effects of such deprivation do not diminish over time and should be given "full weight" in determining the sentence in every case. It remains relevant even where there has been a long history of offending: Bugmy v The Queen (2013) 249 CLR 571.
14. It may be observed that Judge Haesler considered that there were Bugmy factors which ought to be given full weight in determining the sentence. In many respects, the principles in Bugmy v The Queen (2013) 249 CLR 571 are not relevant because the evidence does not disclose a background of childhood deprivation. It may be accepted that the weight of evidence is that the offender had an alcoholic father who used severe discipline, but the cause of the offender's problems appear to derive, probably principally, from his profound cognitive impairment which led him to drug and alcohol abuse which caused subsequent behavioural problems. Nevertheless, in the light of Judge Haesler's determination that the offender's background should be considered as falling within the principles in Bugmy, I am prepared to sentence the offender on that basis as well. I accept, therefore, that full weight must be given to those matters.

Remorse, rehabilitation and reoffending

1. The offender claims to have no memory of what he did to the deceased. As I determined in my earlier judgment, I do not believe the offender's evidence, which was repeated on the sentence proceedings, in that regard. Not only is there the evidence contained in the recorded phone call between the offender and his mother on 16 February 2018 (paragraph [111] of my previous judgment), there was also what the offender told Dr Nguy including what I regard as a fairly transparent lie that the deceased hanged himself.
2. He gave evidence that he was very sorry for what he had done but said he did not remember anything. Despite the claimed lack of memory, given the extent of the offender's mental problems, I accept on the balance of probabilities that the offender does show some remorse for what he has done.
3. In his latest report, Dr Nielssen said that the offender's prospects of rehabilitation were obviously guarded, based on the lack of efficacy of rehabilitation to date and the further limitations arising from a disabling form of mental illness. He said that his prospects of rehabilitation would be improved by the involvement of a multidisciplinary team available at one of the medium secure forensic hospitals. I would observe that the problem in that regard is that it does not seem likely that the offender will be transferred to a forensic hospital. Not the least reason for that is that his mental health problems appear to be reasonably well controlled at the moment by the injections he is receiving every two or three months.
4. In her report of 9 January 2018, Ms Hubner said that the offender was at moderate to high risk of reoffending, with his risk related to his criminal history, alcohol and drug use and antisocial associates. Significantly, the medication being administered to the offender has changed since the report was written. Further, and by reason of his close confinement in custody, he scarcely comes into contact with other prisoners.
5. Dr Nielssen's said in his report of 28 October 2019: With regards [to] the likelihood of reoffending, the history of a near homicide followed by a homicide in an institutional setting is alarming. However, the second offence took place before Mr Davidson had the benefit of effective treatment and was hence effectively in his first episode, and after treatment the likelihood of serious offending is greatly reduced.
6. Since the offence for which the offender is being sentenced was committed, he has been held in close confinement in custody. He is in a one-out cell and is only permitted outside that cell into a compound attached to it for one hour per day. He is not allowed contact with other prisoners. This arises, not because of any application on the offender's part for protection, but by reason of ensuring prison discipline and safety. The offender viciously attacked two other prisoners within a 12 month period, the second attack leading to the present conviction.
7. Two things flow from that. First, whilstever he is held in such close and solitary confinement (and there is no evidence suggesting how long that might be), the offender's time in custody will be much more onerous than if he was confined within the general prison population.
8. Secondly, the likelihood of his being able to obtain illicit drugs is very considerably reduced or eliminated. As Dr Nielssen made clear, the offender is at risk of an acute exacerbation of his mental illness if he were to use methylamphetamine again.
9. However, given the offender's long history of drug use, I am not confident that, were he returned to the general prison population, and certainly after any release on parole, he would not relapse into drug taking with the concomitant exacerbation of his mental illness. In such circumstances his risk of reoffending would be moderate to high.
10. In terms of his rehabilitation after any release on parole, I hold considerable reservations for the same reasons as I have given in relation to reoffending.

Effect of offender's mental illness

1. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prevents me from taking into account the self-induced intoxication of the offender at the time the offence was committed. On the other hand, the fact that I did not find that the offender had made out a defence based on mental illness or substantial impairment does not prevent me from considering those matters when reaching a view about the sentence that should be imposed. The offender's mental illness and substantial impairment may amount to a mitigating factor: R v Bell (1985) 2 NSWLR 466 at 485. It may do that by reducing his moral culpability.
2. The conclusion I reached in my earlier judgment was that two matters pointed strongly to a conclusion that the cause of the offending was not the underlying schizophrenia but was the consumption of the drugs. I accept, nevertheless, that the offender had an underlying mental illness, being schizophrenia, which is likely to have been a contributing factor to the offending. Accordingly, the offender's mental illness is a mitigating factor to some extent.
3. I bear in mind the principles variously set out in R v Hemsley [2004] NSWCCA 228 at [33]-[36] and Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178] in relation to the sentencing of an offender suffering from a mental illness. Whilst the offender's moral culpability is reduced by virtue of the mental illness from which he was suffering, the finding in my earlier judgment that the offender knew that what he was doing was wrong means that denunciation and both general and specific deterrence assume greater importance than they might in other cases involving mental illness. In particular, people who are held in custody are entitled to feel that their safety is protected by the State (R v Fyffe [2002] NSWSC 751 at [33]), the more so when they are in their own cell. Further, those who assault fellow prisoners for whatever reason must understand, as was said by the Court of Criminal Appeal in R v Jeremiah [2016] NSWCCA 241 at [9]: [T]hat violence and disorder between prisoners in custody will not be tolerated by the courts. Indeed, the prima facie statutory position is that a sentence for such a crime will be accumulated on any existing sentence: s 56(2) of the Sentencing Act.
4. Moreover, in the light of the offender's history, particularly in relation to the offending in 2017, together with my reservations about his rehabilitation and risk of reoffending, I consider that the matter of danger to the community assumes some importance.

Totality

1. At the time of the present offending the offender was in custody, serving out a parole period for an offence of aggravated break, enter and commit a serious indictable offence in company. The offender had been sentenced to imprisonment for four years commencing 21 August 2014 and concluding 20 August 2018 with a non-parole period of two years concluding 20 August 2016. The offender had been released to parole on 8 November 2016. On 29 January 2017 he committed the offences I made reference to earlier ([25]-[26] above). The offender was arrested on that day and returned to custody. On 9 February 2017 his parole was revoked with the commencement date for the revocation being 29 January 2017.
2. On 1 February 2017 he committed the choking offence on Mr Robin ([27] above) and was subsequently charged.
3. On 9 March 2018 Judge Haesler SC sentenced the offender for the offences committed on 29 January 2017 and for the offence of intentionally choking Mr Robin on 1 February 2017. An aggregate sentence was imposed of 11 years imprisonment commencing 29 January 2017 and expiring on 28 January 2028. A non-parole period of seven years and eight months expiring on 28 September 2024 was imposed. It may be observed that the present offence was committed a little over one year after the commission of the earlier offences and at a time when the offender was serving out his parole for the offence of aggravated break, enter and commit a serious indictable offence.
4. In all of the circumstances I must consider the issue of totality in conjunction with the earlier sentences imposed. Although the sentence for the aggravated break, enter and commit a serious indictable offence expired in August 2018 it is still a relevant consideration.
5. The present offending was unrelated to the offending in respect of which the offender was being held in custody. In those circumstances I consider that the orthodox approach to setting the sentence from Mill v The Queen (1988) 166 CLR 59 at 63 should be engaged, that is, first to set the appropriate sentence for the present offence and thereafter to consider questions of concurrency.
6. As I have said earlier, the sentence must be considered in the light of the developed principles for sentencing an offender suffering from a mental illness in De La Rosa. It is also necessary to consider the issue of institutionalisation. As Judge Haesler observed at [31], the offender has spent more time in gaol than in the community since 2001. His Honour regarded the offender as institutionalised at that time. All that can be done in that regard is to impose a sentence, particularly a non-parole period adjusted having regard to the existing sentence being served, that seeks to reduce the adverse consequences of that institutionalisation: Jinette v R [2012] NSWCCA 217 at [103]; Tabbah v R [2019] NSWCCA 324 at [137].
7. I find that there are special circumstances arising from the institutionalisation of the offender, and the very considerable assistance he will need to re-integrate into the community.
8. In my opinion, the appropriate sentence is one of 11 years with a non-parole period of seven years. I note clause 214A(2)(a) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) which provides for no more than a three year supervision period on parole. Lest the supervision period is not extended under sub-clause (3), I do not think there should be greater than a four year parole period, bearing in mind the risk of reoffending that I have noted. The hope is that the three years of supervision will be sufficient for re-integration into the community, with the further year operating as a reminder to the offender that his parole may still be revoked in that period if there is further offending.
9. If the sentence I propose was to be entirely accumulated on his existing sentence, because of the entirely separate criminality, the result would be a crushing sentence that would be inimical to the offender's rehabilitation and his prospects of not re-offending. In those circumstances, I consider that the sentence should commence on 29 September 2022 with the non-parole period expiring 28 September 2029 and the balance of term expiring 28 September 2033.
10. Mervyn Keith Davison, also known as Mervyn Keith Davidson, for the unlawful killing of Alfredo Pengue, I convict you, and I sentence you to imprisonment consisting of a non-parole period of seven years commencing 29 September 2022 and expiring 28 September 2029 with a balance of term of four years expiring 28 September 2033.
11. I am obliged to warn you that because you have been convicted of a serious violence offence, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006 (NSW).

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