On 8 November 2016 Mervyn Davidson was released to parole. He was 42 years old. He had spent only a few months out of custody since 2003. He has a long criminal history. This record includes crimes involving violence however the penalties imposed indicate none were as serious as these matters. He was not well equipped for normal community life.
On 29 January 2017 Davidson 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 Rail. His intention was robbery. While some of his earlier offences involved violence; they generally related to comparatively minor assaults in a domestic context or resisting police.
On that date, just after 5pm, Davidson ran into the store. He ran straight toward the cashier, Ms Brenda Rowan. Ms Rowan would not have had time to react. She may not have even seen him coming. With a two handed grip Davidson swung the bat. He hit Ms Rowan's head. She collapsed unconscious. Davidson then went to the till. As he did so he kicked Ms Rowan while she lay prone at his feet. Davidson held up the bat and yelled: "Open the register. Give me money. Open the till."
A customer pushed his trolley at Davidson. The customer and Robert Guevara, one of the ALDI staff, tried to get him away from the register. Mr Guevera was hit 3 or 4 times to the head with the bat. Other customers intervened and together they wrestled Davidson to the ground, holding him until police arrived. Another, a nurse went to help Ms Rowan. The incident was caught on CCTV: exhibit B.
Ms Rowan was taken to Wollongong Hospital. She had bleeding within her brain tissue and a skull fracture but surgery was not required. She spent 5 days in hospital before being released into the care of her family. It was months before she was able to drive or return to work. She has not yet resumed full shifts.
Mr Guevera had bruising to his head and suffered headaches for some days.
Davidson was arrested. He appeared to be drug affected. At Lake Illawarra Police Station he was allowed to phone the Aboriginal Legal Service. His son and a friend came to the Police Station to support him. Davidson complained of back pain. He asked if he could lie down. Sergeant Peter Willis moved him to a new and bigger cell. As the Sergeant laid out a mattress Davison punched him to the face knocking him down. Davidson was restrained by his support people. Sergeant Willis was treated for concussion, cuts to his mouth and scalp and jaw and neck pain.
Davidson was remanded in custody and sent to the MRRC, Silverwater. On 1 February 2017 he was placed 'two out" in a cell with Jamie Robin. Mr Robin noticed Davidson was pacing up and down. Davidson took off his t-shirt. Meals were delivered. As Mr Robin collected his meal Davidson put the T-shirt around his neck and choked him until he fell unconscious to the ground. He then kicked him while pulling on the T-shirt. A Corrective Services Officer heard a noise and looked into the cell. He tried to get into the cell but Davidson was too aggressive. The cell was locked while he got support from an Immediate Action Team (IAT) and medical help. Davidson continued his attack on Mr Robin until the IAT arrived and removed him from the cell.
Mr Robin was taken, still unconscious, to Westmead Hospital. He was examined and soon after returned to custody. Apart from marks on his neck and facial petechiae no medical follow up was required. Facial petechiae are burst blood vessels indicative of strangulation.
[2]
Seriousness
Davidson had armed himself with a bat. He intended robbery. He entered a supermarket at a busy time of the day. He used the bat on a cashier. She was defenceless. The attack was ferocious. Considerable force was used. He kicked Ms Rowan while she was on the ground. She suffered serious harm but thankfully her injuries resolved without need for surgery. It takes no imagination to find that there will be continuing psychological harm as her delayed return to work demonstrates.
A number of members of the public, including a child, witnessed the attack. Some bravely intervened to protect Ms Rowan. Objectively this was a serious example of this type of offence and falls above the middle of the range because of the ferocity of the attack on Ms Rowan.
Mr Guevera was struck a number of times with the bat when he went to help his co-worker. Actual harm was caused to him and pain persisted for some days. These circumstances call for a custodial penalty.
Sergeant Willis was doing his best for Davidson. He was punched in the face for his trouble. While the injuries resolved relatively quickly this assault must have had a continuing impact on the Sergeant. These circumstances call for a custodial penalty.
Mr Robin was vulnerable to attack because he was locked in a cell with Davidson. He had nowhere to go and security concerns meant help took time getting to him. He was choked into unconsciousness placing him at considerable risk. The attack continued for some time. It did not stop until specialist Corrective Services staff intervened. He then had to return to gaol having first-hand knowledge that his safety could not be guaranteed. These circumstances call for a substantial custodial penalty.
[3]
Absence of a VIS
No victim impact statements were provided to me. The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s29 (3) Crimes (Sentencing Procedure) Act 1999.
[4]
Maximum penalty and standard non parole period
Assault with intent to rob and inflict grievous bodily harm whilst armed, carries a maximum penalty of 25 years imprisonment: s 98 Crimes Act 1900. Parliament has fixed a standard non-parole period of 7 years for an offence that taking into account only the objective factors affecting its relative seriousness is in the middle of the range of seriousness.
AOABH carries a maximum penalty of 5 years imprisonment: s 59(1) Crimes Act 1900.
Assaulting a police officer in the execution of their duties carries a maximum penalty of 7 years imprisonment: s 60(2) Crimes Act 1900
Intentionally choking a person, being reckless so as to rendering them unconscious carries a maximum penalty of 10 years imprisonment: s 37(1) Crimes Act 1900.
Careful attention to the maximum penalties and standard non parole period is required. Both provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said, I do not look first to a maximum penalty or standard non parole period and then proceed by way of making a proportional deduction from them: Markarian (2005) 228 CLR 357 at [30] and [31].
I am required to give content to the standard non parole period. In doing so I am required to assess objective seriousness without reference to matters personal to Davidson and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]. The reasoning in Muldrock has been described as "opaque:" R Hulme, Judicial Officer's Bulletin: 24 no 10, November 2012. In Stewart [2012] NSWCCA 183, whilst not determining the issue, Button J observed that in relation to some features personal to an offender the dividing line between classification of them as objective or subjective could not be sharply drawn.
Davidson's drug induced psychosis was here causally connected to the commission of each offence but given what fell from the High Court in Muldrock, I cannot take his mental state into account when giving content to the standard non parole period. However, as the court made clear neither can I engage in a staged approach to sentencing: Muldrock at [28]. Accordingly, my finding that the offence is above mid-range does not compel any one result. That standard non parole period assessment, the causal connection between the psychosis and the crime and Davidson's deprived background must all be synthesised along with other relevant matters.
Not every matter has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves: "a synthesis of competing features, which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money": Weininger v The Queen (2003) 212 CLR 629. Despite my finding only objective factors put the attempt armed robbery offence above the middle of the range there are reasons in the early guilty plea and the subjective case of Davidson for variation from that guide.
Ultimately I must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors relevant to offending behaviour and the offender: Muldrock; Markarian; Hili v The Queen 920101) 242 CLR 520.
Where citizens are assaulted, where weapons are used on them, where robbery is attempted, it can have a terrible impact on them. Such crimes, particularly where they occur near places we all have to use, such as supermarkets, can have more serious consequences. People lose confidence in others. They feel that public places are not safe. They can feel that the police cannot protect them. They can learn to fear others and lose trust in others. Where people are fearful, the entire community suffers. As a consequence, we lose our freedom to go out and participate in community activities.
When offences occur in police stations or gaols courts must also be alert to ensure that the harm done to victims and to the institution is acknowledged. The community is dependent on the hard work and at times courage of police officers. Police officers take substantial risks in the execution of their duties. The court, by the imposition of penalties, which while always proportionate to the crime, must indicate the courts support for their authority in maintaining law and order: Attorney General's Application No 2 of 2002 [2002] 137 A Crim R 196.
Where a person is imprisoned they lose most of their rights. They are not imprisoned to be further punished by having violence inflicted on them by those with whom they are forced to share a cell.
Where criminals are caught committing offences such as these the community can lose trust in the courts if they do not punish such crimes and punish them severely.
[5]
Other factors aggravating the sentence
Davidson had been released to parole on 8 November 2016 for an offence of aggravated break enter and commit a serious indictable offence. The sentencing judge allowed a substantial period of parole as it was indicated Davidson was at a turning point in his life, was at risk of institutionalisation and needed an extensive period of rehabilitation to allow for rehabilitation in the community. It was intended as a condition of parole that he be assisted and engage in rehabilitation programmes: see Criminal History Exhibit A-Tab 3. He was obliged to be of good behaviour until 20 August 2018. The use and abuse of illicit drugs and the commission of these offences breached that parole thus requiring greater retributive weight be given to these sentences.
His criminal record is relevant to determining the proper sentence. This offending was unusual because of the level of violence but Davidson's offending and offending while on parole was not an uncharacteristic aberration. Since he was a young man he has demonstrated his continuing disobedience towards the law. Prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offences however here that history warrants a more severe penalty with additional focus on retribution, deterrence and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
His criminal record also indicates that Davidson has spent more time in gaol than in the community since 2001. In more recent years his time free in the community has been measured in months or days. Previous sentences have had no discernible deterrent effect on him. He is institutionalised.
Davidson told me, and I accept that he took up using "ice" soon after his release to parole. He told his psychologist Ms Hubner that he'd been "on a bender for a couple of weeks". By the time he committed these offences he claimed to be experiencing intense paranoia and auditory hallucinations: Exhibit 1.
Professor Greenberg, forensic psychiatrist, examined Davidson after he was returned to custody. He also conducted a review of his Justice Health file: Exhibit 2. He did not believe Davidson suffers a developmental disability but as the Professor did not have access to Ms Hubner's test results that conclusion cannot be accepted. I prefer her conclusion in this, her area of expert assessment.
Professor Greenberg did however, applying his undoubted expertise, conclude Davidson had an amphetamine induced psychosis in partial remission, poly-substance abuse disorder and personality disorder with antisocial features. He concluded Davidson's further abuse of alcohol and other illicit substances, such as crystal methamphetamine, is likely to exacerbate his personality problems and potentially precipitate further episodes of psychosis. He reported Davidson needs mental health follow up, psychological counselling and to continue with psychiatric medication. Ms Hubner makes similar recommendations, including referral to the Additional Support Unit at Long Bay Hospital overseen by the Statewide Disability Services.
The need to acquire funds to support a drug habit, even a severe habit, is not an excuse to attempt an armed robbery or any similar offence. The commission of an offence while affected by illicit drugs does not mitigate or excuse any crime. Drug abuse can however explain the impulsivity of the offence and the extent of any planning for it. It is relevant here as a subjective circumstance as the origin or extent of the addiction, and any attempts to overcome it, impact upon the offender's prospects of recidivism or rehabilitation: Henry v R 1999) 46 NSWLR 346.
Here too the offender's background including early exposure to alcohol, drugs and violence and his learning and cognitive difficulties help explain why he took up and continued drug use.
He has a moderate to high risk of reoffending in some form. Were he to take up again the use of methyl amphetamine he would present, as he did in January 2017, a very real risk to the community.
As with many sentencing factors these factors require a nuanced approach. They do not all point toward uncompromising severity. Davidson must eventually be released. His institutionalisation does not mean he is imprisoned for the maximum allowed and never granted parole. Rather community protection demands the sentence be structured so that focus may again be placed on ensuring that there is a sufficient period of conditional and supervised liberty to protect the community by minimising the chance of recidivism. The risk of institutionalisation, even in the face of entrenched and serious recidivism, here justifies a finding of special circumstances: Jackson [2010] NSWCCA 162 at [24]; Jinette [2012] NSWCCA 217 at [103].
[6]
Multiple Sentences
Each count involved discrete acts of criminality. The sentences should be partly cumulative. The aggregation of all of the sentences must be a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J & Cahyadi [2007] NSWCCA 1.
The severity of the combined sentences should not operate to destroy prospects of rehabilitation and reform. An extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Further, it is recognised that the severity of a sentence increases at a greater rate than any increase in the length of the sentence: M.A.K. & M.S.K. [2006] NSWCCA 381. That said, public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: Knight (2005) 155 A Crim R 252 at [112].
[7]
Commencement date
The principle of totality has some relevance when sentences are being served alongside each other. Here despite a short period on parole this sentence will be served effectively cumulatively upon the earlier sentence whose balance of parole is currently being served. I can commence the sentence today or I can backdate it some earlier date from when Davidson was arrested on 29 January 2017: s 47 Crimes (Sentencing Procedure) Act 1999; Callaghan [2006] NSWCCA 58. It is appropriate to backdate the sentence as the breach of parole was brought about by his commission of these offences. Further, as I have taken into account as an aggravating factor the commission of these offences while on parole I must be careful not to double count or doubly punish the offender.
[8]
Subjective factors
Davidson entered a guilty plea at an early opportunity. He professes no memory of any of the incidents. Given his psychosis this may be the case. His early acceptance of responsibility requires a reduction in each indicated sentence of 25% particularly because no witnesses were required to relive their experiences in court with the consequent aggravation of trauma that that so often causes. The reduction also recognises and rewards the saving of time and expense of a trial.
A report by Ms Hubner, psychologist, sets out Davidson history: Exhibit 1. He adhered to that history when he gave evidence. He said of the attempt robbery and it ferocity "I had to see it to believe it". He told me he feels sorry for what he did to Ms Rowan. He said if Ms Rowan was in court he'd apologise to her. He said that that he feels bad for what he did to the Sergeant and his cellmate. He said he will stay away from ice.
Davidson's lack of capacity to express emotion was explained by the history taken and testing done by Ms Hubner. However when the CCTV exhibit was played in court I saw Davidson's reaction. He was obviously upset by being confronted with the awful reality of what he had done to Ms Rowan.
Born in Port Kembla in 1973 and raised in Matraville Davidson, is a Dunghati man from the McLeay River, his father's country. His mother, also an Aborigine, was from the South Coast. He is deaf in one ear, since birth. He was placed in "special classes'" as a child. He has limited literacy skills. Ms Hubner's testing shows "profound cognitive impairment." She places him in the bottom 1% of the population for intellectual capacity.
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."
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 (2103) 249 CLR 571.
Davidson's mental problems and cognitive disabilities operate to reduce his moral culpability. Consequently the need to denounce the crime can be modestly reduced with a corresponding reduction in sentence. He is less appropriate a vehicle for general deterrence than those who do not have his particular constellation of problems.
He is however well adjusted to custodial life, in fact too well adjusted. It has become his norm. There is also considerable significance here in specific deterrence. Davidson needs to be constantly reminded of the enormity of what he did and the consequences of his actions when he uses illicit drugs, particularly crystal methamphetamine.
Care needs to be taken here. Social deprivation may impact on the purposes of sentencing in different ways. There may be countervailing factors, such as the protection of the community, which might reduce or eliminate its effect: Engert (1995) 84 A Crim R 67. Davidson's history, while it must be sympathetically considered, also means he has a number of antisocial pathologies that are resistant to treatment. They mean greater weight must be given to specific deterrence and community protection. They mean Davidson presents as a potential danger to the community, particularly if he is released without support and participation in drug rehabilitation programmes. There is a particular need here both in the sentencing process, and when Davidson becomes eligible for consideration for release to parole, to give consideration to the protection of the public.
[9]
Retribution
A significant sentencing principle is retribution, "a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment": Ryan (2001) 206 CLR 267, per McHugh J. However, a proper purpose of the criminal law is not to give effect to the irrational prejudices of ill-informed public opinion: Windle [2012] NSWCCA 222 at [46].
[10]
Special Circumstances
The non-parole period is the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and the subjective circumstances. Parole is important not just to the offender but to the community. It is an important part of the rehabilitation process. A Bureau of Crime Statistics study reveals, offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn. httpp://www.bocsar.nsw.gov.au/Documents/parolesupervisionandreoffending.pdf
Mervyn Davidson must be released into the community. He must get assistance in custody. His release to the community must be staged. He will need considerable help and resources in order to learn how to live as a member of the community. It is in his and the communities interest that he be assisted and supervised. If he is not given assistance inside and out of gaol he will reoffend. If he takes up the use of methamphetamine that offending could be very serious. Notwithstanding past failures the effort needs to be made again. A finding of special circumstances must be made to extend the period on parole to enable that assistance and supervision to occur for as long as practicable.
[11]
Synthesis
Davidson must be adequately punished. Mitigating factors must be given appropriate weight but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of an offence.
The purposes of sentencing overlap, none can be considered in isolation. Some contradict others; some undermine others. For example, as here, in some cases retributive punishment can seriously impede rehabilitation and an offender's capacity to resume normal community life.
I must attempt to deter Davidson from committing future crimes and make an attempt to deter others who might commit offences such as these. A clear message must be sent that custody will be the inevitable consequence of such behaviour. Specific deterrence remains an important factor but it must be recognised that the prospect of long gaol sentences has not deterred him from committing crimes and long gaol terms have reduced Davidson's capacity to lead a normal community life. However, sentences have other purposes; purposes that recognise the legitimate interest of the general community in the denunciation and punishment of brutal, drug-fuelled violence.
Courts play a role in the maintenance of civil society, primarily by signalling by the severity of sentences imposed the community's disapproval and abhorrence for acts which hurt others and disturb the civil peace. Courts must also, by the sentences they impose, recognise the harm done to victims of crime, particularly violent crime, and the harm those crimes cause the community. The courts must attempt, so far as possible, to vindicate the dignity of innocent victims of random violence.
What was done by Mervyn Davidson must be denounced. It should be stated clearly, as has been stated by many courts on many occasions, that when someone acts aggressively toward and causes harm to others, the courts will impose severe sentences.
These remarks were prepared and ready to be delivered on 8 February 2018. On that day I was informed Davidson was physically unwell and could not remain in the dock for any period. I adjourned the matter to 13 February 2018. An adjournment was sought as there had been an incident in the gaol leading to a serious charge being laid against Davidson. I was told he had seen another psychiatrist. The defence wanted time to consider whether to reopen their case and tender further evidence. When the matter came before me today no applications were made. I was not asked to consider additional material. Accordingly, apart from this additional paragraph this judgment is as it was when prepared for 8 February 2018.
[12]
Orders - an aggregate sentence
The 25% discount for utilitarian value of the early pleas of guilty will be applied to each indicative sentence. I have taken care not to erode the benefit of the plea by the process of accumulation.
In respect of each count and in accordance with your guilty plea you are convicted.
The aggregate sentence and its non parole period and the indicative sentence for offence 1 reflects a finding of special circumstances.
The indicative sentences to be applied are as follows:
with respect to offence 1- s 97(2) Crimes Act, imprisonment for 7 years 6 months with and an indicated non-parole period of 5 years 3 months;
with respect to offence 2 -s 59(1) Crimes Act, 1 year 6 months imprisonment.
with respect to offence 3 -s 60(2) Crimes Act, 1 year 10 months imprisonment
with respect to offence 4 - s 37(1) Crimes Act, 4 years six months imprisonment
Having considered issues of accumulation, concurrency and totality, I am satisfied that an aggregate sentence of 11 years imprisonment with a non-parole period 7 years 8 months should be fixed
The sentences should date from 29 January 2017. You will be eligible for consideration for release to parole on 28 September 2024. Sentence expires 28 January 2028.
[13]
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Decision last updated: 09 March 2018