On 21 August 2021, Matthew Davis, a loved, quiet, kind young man was bashed and left for dead in his home at Lake Illawarra by people who did not know him. He died as a result of head injuries and neck compression, with the forensic pathologist, Dr I'Ons, concluding that Mr Davis was lying on the floor for a period of possibly up to 35 minutes from the time of the first blow, before he died of his injuries. One of the people who went to the house that night was the offender, Stephen Staff.
The offender was arraigned on indictment charging him with the murder of Mr Davis on 22 April 2024. He pleaded not guilty and was tried before a jury. After five days of evidence and concise closing addresses, and after some days of deliberations, on 9 May 2024 the jury found the offender not guilty of murder, but guilty of manslaughter.
It was open to the jury to find the offender guilty of manslaughter rather than murder if they were not satisfied that the Crown had proved its case on murder beyond reasonable doubt. It is clear from the jury's verdict that they concluded that killing Mr Davis or causing Mr Davis grievous bodily harm (really serious injury), was not the plan or the intention. Their verdict is consistent with the conclusion that what occurred here was the terrible but unintended consequence of senseless violence.
The verdict of manslaughter means that the jury concluded that the Crown had proved beyond reasonable doubt that the offender was party to a plan to assault Mr Davis and, on that basis, the offender is liable for the acts of his co-offenders in bringing about the death of Mr Davis, whether or not the offender delivered any blow to Mr Davis, and whether or not he was the person who caused him neck compression.
The factual basis of the sentence to be imposed derives from the evidence adduced at the trial and the sentence hearing. The verdict indicated that the jury was satisfied beyond reasonable doubt that the offender is guilty of manslaughter by unlawful and dangerous act.
It remains for me to sentence the offender today in a way that is consistent with the jury's verdict and the facts as I find them to be.
The offence of manslaughter is one that carries a maximum penalty of imprisonment of 25 years.
As the sentencing judge, I may not take facts into account in a way that is adverse to the offender unless those facts have been agreed or established beyond reasonable doubt. Facts or circumstances that favour the offender only need to be found on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
[2]
Facts
The day before he died was an ordinary day. Mr Davis was visited by his friend Jeremy McTiernan, who offered to repay money he owed him ($200 in cash). Mr Davis told Mr McTiernan to put the money into his online poker account. After Mr McTiernan left, Mr Davis went to see his GP in Gerringong with his nan, Shirley Davis. She spoke to him regarding his efforts to try and get on top of his problems with drugs and gambling. Mr Davis told his nan he was going to have a quiet weekend.
On the afternoon of 21 August 2021, Mr Davis walked to Warilla Grove shopping centre and bought groceries, returning home at about 1:30pm. He spoke to his mother by phone at 2:00pm. She described him as being in a really good place, telling her that he was looking forward to watching the football that night.
Mr Davis lived in a housing commission home at 7 Thomas Street, Lake Illawarra with his father until his father's death the year before. Mr Davis had complex health issues including steroid induced osteoporosis, type 2 diabetes, and Cushing's syndrome. Dr I'Ons, Forensic Pathologist, gave evidence that Cushing's syndrome causes muscle wasting and the osteoporosis made Mr Davis more vulnerable to bone fractures.
Mr Davis was home alone when Mr Staff and two other men walked towards the house at about 8:21pm. They arrived in two vehicles travelling in convoy. They parked their vehicles a short distance away from the house. The two other men are seen on CCTV footage 14 minutes later, walking back the way they came and leaving in one of the vehicles. Neither of these men appeared to be carrying anything observable in the CCTV footage.
Mr Staff was captured on CCTV footage leaving the area of Mr Davis's house at about 1:41am walking to his Holden Rodeo. He was carrying a white plastic bag apparently containing something or some things. I am unable to make any finding as to what was in the bag. The Crown Prosecutor submitted that the CCTV footage shows that the items were heavy and square in shape and were likely to be the PlayStation and modem later found to be missing from Mr Davis's home. They may have been, but it is not a finding I can make on the limited evidence. I understand that the Crown Prosecutor submits that this shows a larger role in the planning and execution of the attack than the offender admits. However, much more significant to my assessment of his role in the crime is the fact that the offender, in an appalling exhibition of callousness and cowardice, left Mr Davis on the floor either dead as he claims, or more likely, at least initially, in the process of dying, alone and unassisted.
The forensic evidence showed that Mr Davis was assaulted in his lounge room. He suffered significant facial injuries, described by Dr I'Ons as multiple bruises and abrasions, particularly on the forehead, eyes, left cheek, as well as a torn frenulum. CT scans taken post-mortem showed a Le Forte fracture (that being part of the hard palate) and an orbital fracture around the right eye. Examination of the brain showed traumatic axonal injury. There was also petechiae to both eyes, a fracture of the hyoid bone and a C5 vertebra fracture, consistent with neck compression.
Dr I'Ons observed a ligature mark on Mr Davis's neck that he hypothesised could have been caused by the seam of the hooded garment Mr Davis was wearing at the time he was attacked being held tightly across the neck. Dr I'Ons also noted a mark consistent with a fingernail mark above that ligature line and was of the opinion that the mark was consistent with Mr Davis using his fingers to try to get something away from his neck.
Dr I'Ons concluded that the ligature mark and the fingernail mark, in combination with the fractures in the neck area and the petechiae, indicated that Mr Davis's neck had been compressed. Overall, he concluded that the cause of death was a combination of head injuries and neck compression. He was unable to say whether it was one or the other, or both, that caused Mr Davis to die. He was also unable to conclude which act occurred first, in what order or how long the attack would have taken. He accepted that the ligature could have been caused by a momentary jerk or pull.
The offender made a statement to police on 28 October 2021 denying any involvement. He was arrested on 18 May 2022 and maintained in his interview with police on that day that he had never been to Mr Davis's house. He maintained that his statement that he had made on 28 October 2021 was true.
The offender told a number of lies, big and small, to police and family and his girlfriend at the time, Jansel Arif, about what he did that night and what he knew (Ms Arif lived close to Mr Davis's house). He claimed that he could not identify anyone in the CCTV footage of the three men heading to Mr Davis's house on the night of 21 August 2021, although he was in fact one of them and another was the partner of his daughter Candice, KJ Lightowlers, and that he had never been to Thomas Street with Mr Lightowlers, knowing those things were untrue.
In covertly recorded conversations prior to his arrest, the offender told his estranged wife that he was not the person in the CCTV footage. He told Ms Arif that he was not the person in the footage and that it was not his car as his car was "not going" at that time. This was also a lie.
A number of phone calls were later made by the offender from custody which were recorded. At the time these calls were made, the offender had been charged with the murder of Mr Davis. At the beginning of each call there was a recorded message which stated that the conversation would be recorded. I find that the offender was well aware of this fact and sought to put into the public domain, using this as a tool, his exonerative versions of what occurred.
Various phone calls the offender made from gaol to relatives and Ms Arif between 31 May and 18 August 2022 were played before the jury. In them, the offender made contradictory assertions about what role he played in Mr Davis's death, including assertions that he was not involved at all in the killing of Mr Davis. His version of events developed over time and in my view comprised attempts to minimise his involvement in the killing of Mr Davis and to construct a false narrative that he did not know what the other men were going to do, and that an explanation for his DNA being on clothing worn by Mr Davis, and on Mr Davis's fingernails was because he checked his pulse on his clothes, neck and arm to "try and help him". In some calls he claimed to have "only (seen) the last little bit", and that "they'd already done what they had done". However in one call in response to a suggestion that a hammer had been used in the attack he said this: "No, well, that's totally wrong. I know what he fucking - what he'd done He's fucking hit him. That's what he'd done and I didn't see him do all of it anyway. I only saw the last little bit…". This conversation rather suggests he saw more of the attack than he has acknowledged.
I do not accept the offender tried to help Mr Davis at all. The obvious way to try and help him would be to place him in a recovery position, and call 000. He did none of those things.
Instead, in cold disregard for this man, who had just been bashed about the head and was obviously injured and bleeding, Mr Davis was left on his back to die over the ensuing minutes, unable to protect his airways while dying.
I accept the Crown Prosecutor's submission that given the offender has repeatedly lied and never provided a complete version of events, I must exercise great caution in accepting the more favourable aspects of the offender's account. His description of his role evolved over the various phone calls and was deliberately self-serving. This self-serving narrative continued in the account he gave to psychologist, Ms Bennett, during his interview for the May 2024 report prepared for the sentence hearing.
As submitted by the Crown Prosecutor, in the absence of a coherent and complete version of events from the offender that was able to be examined and tested by cross-examination, or from any other witness, it remains for me to draw inferences from the CCTV footage, phone records, the results of the post-mortem examination, the observations of crime scene officers including the blood spatter analysis expert evidence, and the results of the DNA testing.
I find that Mr Davis suffered multiple forceful blows to his face and head. I find that at some point his airways were compressed and his neck injured by a ligature likely to have been the hooded garment (known as an "oodie") that he was wearing when he died, and that a seam of that garment was pulled up and tight across his neck. The axonal injuries to Mr Davis's brain were caused by rotational forces being applied to his head - that is, by being beaten or punched. The blood spatter pattern across the wall in the lounge room, more concentrated in the lower areas, and the injuries suffered to Mr Davis's face and skull demonstrate beyond reasonable doubt that Mr Davis was initially struck while upright but then continued to be struck in a position where he was closer to the ground but still sufficiently above the ground for his head to rotate, causing the blood spatters and resulting axonal injuries.
The crime scene photographs showing the different trajectories of blood on the walls, together with the nature of the injuries Mr Davis suffered, demonstrate that the assault comprised multiple punches to his face and head.
Two wallets found in locations in the main areas of the house would support an inference that there was a demand for money, however I am not able to conclude beyond reasonable doubt that is what occurred at the time of the physical attack, nor do I need to make any finding about that. One aspect of the offender's gaol call account(s) that I do accept is when he said on 22 July 2022 to Ms Arif that he knew that one of the men he went to the house with, Mr Lightowlers, "… just goes there to fucking, like he always does, give blokes a touch up, you know. Boom boom boom. Over money, you know, bang bang bang".
I find that the offender knew that before they went to the house. I also find that the offender identified the house of Mr Davis to the other two men, knowing that the reason they were to go there was to give Mr Davis a "touch up", that is, to assault him. There is however no evidence that the offender or the other men knew of Mr Davis's health vulnerabilities.
In terms of what was demonstrated by the offender's DNA being found on fingernail clippings taken from the left and right hand of Mr Davis post-mortem, on the left shoulder of the "oodie" and on the tape lift from the outer edges of the hood, the evidence of the DNA expert could not exclude the possibility of secondary or indirect transfer and so I am not prepared to find beyond reasonable doubt that the location of DNA on those items proved that the offender was in close physical proximity during the assault, or was instrumental in the physical aspects of the assault by holding the offender by his clothing, as submitted by the Crown Prosecutor.
I am not prepared to infer beyond reasonable doubt that the reason the offender's DNA was on a tea towel found in the laundry was because the offender cleaned up some of the blood staining with the tea towel, which he later placed in the laundry. It remains unclear how and when the offender's DNA came to be on the tea towel and whether it was by primary or secondary transference. In any event, if some effort was made to clean the crime scene, it was marginal. As the police crime scene photographs demonstrate, there were multiple blood spatters still left on the walls when Mr Davis was found two days later. Whether it was the offender or someone else who wiped a wall or replaced furniture, or vacuumed or tidied up the scene, it is not an important matter and I make no finding about that.
The CCTV footage shows that the offender did not walk back down the street with the other two men seen to do so 14 minutes after they had arrived. There was a series of lights going on and off in Mr Davis's home during later periods that night. There was a light on for a second at 9:46pm. Between 1:07am and 1:36am the following morning, there was a series of lights coming on and off apparently at various locations in the house, shortly before the offender then is seen on CCTV footage at 1:41am walking back from the direction of Mr Davis's house to his Holden Rodeo carrying the white plastic bag. Although the lights seen on the CCTV footage may have been operated by the offender, I cannot find beyond reasonable doubt that was so.
The Crown Prosecutor submitted that I should infer from this evidence that the offender went back to the house and was in the house for a period of about half an hour while Mr Davis lay dead on the floor, and that during this period the offender tidied the house and vacuumed. The Crown Prosecutor submitted that this conduct is relevant to the degree of planning involved in the execution of the joint criminal enterprise and the role of the offender, and that it is also relevant to the offender's moral culpability and whether he has really shown any remorse for his actions. As I have said, I cannot conclude what, if any, cleaning was done by the offender. I have concluded that this does not matter and is a neutral consideration to the role the offender played in Mr Davis's death, and its objective seriousness and his moral culpability for it. Far more significant is that the offender was, on his own admission, in the house, and despite his claim that he "tried to assist", there was an utter failure by him to assist Mr Davis after the attack.
I accept the submission of the Crown Prosecutor that the unlawful killing of Mr Davis is a serious example of manslaughter by unlawful and dangerous act. He was a man home alone, where he is entitled to feel and be safe, confronted by three men, even if the offender only came in at the end of the attack. Mr Davis had a number of health conditions which caused him to have low muscle mass and reduced his capacity to physically defend himself. I note, however, that the fact that the offence was committing in company does not aggravate the offence because it is an element of the (joint criminal enterprise) offence: Kukovec v R [2014] NSWCCA 308 at [26].
There is evidence that the offender, who did not know Mr Davis, spoke to him on the Thursday before the killing. The offender lied about this, denying that he had ever spoken to him. This version then developed to acknowledge that he had spoken to him, but just to say "hello" and exchange pleasantries about the house. There was also CCTV footage showing the offender driving around the neighbourhood past Mr Davis's home at intervals on 21 August 2021, but I am not prepared to find beyond reasonable doubt that this driving past comprised some kind of planning or preparation for the attack. I accept Mr Evers's submission that it probably just illustrates the offender driving around the neighbourhood checking on his ex-girlfriend Ms Arif, who lived close to Mr Davis, or proceeding to the local shops.
Whilst we do not know what was said, tendered phone records show that the offender may have made contact with Mr Lightowlers via his partner Candice's phone, between 7:08pm and 7:57pm on the evening of 21 August 2021, just prior to the offender arriving in convoy with the other men. I do not know whether the phone call adds much to their arrival together, very obviously in convoy, followed by them walking together towards Mr Davis's house. Without knowing the precise content of any conversation, the fact that a phone call was made does not add anything to the known facts in terms of planning.
Mr Lightowlers twice attempted to contact the offender's phone at 10:52pm that night. There were calls made the following day by the offender to Candice's phone. We do not know what was said and there is insufficient evidence to draw any inference about those calls, other than the bare fact that they were made.
I am, however, able to infer beyond reasonable doubt that a "touch up" was planned and that the evidence establishes that the offender was involved in the plan to assault Mr Davis from at least the evening of 21 August 2021, if not before. I have also concluded that he showed the other men the house and that he was physically present in the house when some of the assault occurred, if only for the last phases of it, and that he was in the house when Mr Davis lay on the floor, dying.
I have difficulty accepting the offender's account that Mr Davis was already dead when he first checked on him, which he says he did just after the other men left. Dr I'Ons's evidence was to the effect that it would likely have taken some minutes and up to probably 35 minutes for death to ensue. More importantly, it was not for the offender to decide Mr Davis was beyond help.
I reject the offender's account that he did not know what the men might be doing in the house and only went in later to find out. I have concluded that the offender did not call 000, because he had in fact been part of the plan to assault Mr Davis, and well knew that was why the men went there and so he did not want to have to explain his involvement to the police or ambulance officers.
I conclude that Mr Davis's underlying health problems, in particular his steroid-induced osteoporosis, meant that he was more likely to suffer fractures to his hyoid bone, vertebra and orbit and there is no evidence that these health problems were known to the offender.
I consider the narrative constructed by the offender that he "wanted to help" but was scared to be blamed for what others had done to be untrue and made up after the event, when he realised that he had in fact been part of the planned beating of this young man that had caused his death. He did nothing to help him. An obvious step to help would be to call 000. Even if he truly thought Mr Davis was dead, any prospect of resuscitation or assistance was denied by the offender's failure to help. Even placing Mr Davis in the recovery position would have assisted. Instead, he was left on his back where he was found by his good friend Mr Grieg two days later.
I consider the offender's moral culpability in those circumstances to be marked, even if he was not a person whom I can conclude beyond reasonable doubt, delivered any of the blows, or that he held Mr Davis to enable or to assist with the physical assault, so causing the neck compression by that holding, or by any other physical act. He went there to identify Mr Davis's home to two other men, one of whom he knew went to people's homes to "bash them for money", and then he left him dying on the floor.
[3]
Guilty plea
The offender offered to plead guilty to manslaughter when the matter was in the Local Court and so, in accordance with s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW), he is entitled to a mandatory 25% discount on his sentence.
[4]
Victim impact statements
The task of sentencing an offender requires me to make a number of personal assessments of the offender and of the evidence tendered by the Crown Prosecutor, and counsel for the offender that covers those matters.
Before I do so, however, I wish to acknowledge and highlight the very moving victim impact statements provided by Mr Davis's mother, stepfather, cousin and best friend Benjamin Greig.
Matthew's mother, Ms Brightmore, described her heartbreak at losing her only child through circumstances too difficult to bear. She spoke of never being able to feel the joy of holding a grandchild, how much she misses her beloved son and the terrible effect his loss has had on her health. She spoke of how loved he was and of the lasting impact his death has had on all the people who loved him.
Mr Prestage spoke of all the chats and laughs they had together, and his overwhelming distress when his thinks about what happened to Matthew, the horrible way he died, and in particular the callous failure by the offender to help him.
Cousin Rebecca Goodwin spoke of what a loving and exuberant man Mr Davis was and how much she misses him. She described her family as fractured by the loss of such a lovely man. She described herself as a resilient person before, but now she feels her grief physically, feels broken and exhausted emotionally and is plagued by what happened to Mr Davis in his final moments. She also spoke of the distress caused to Matthew's beloved grandmother, Shirley Davis, with whom he had been close.
Benjamin Greig, whom I observed attended court every day (as did Ms Brightmore and Mr Prestage), asked his mother to read his statement for him. He described the pain of being the one who found Mr Davis but was relieved that a family member did not have to do go through that. He spoke of his distress at the disgusting actions of the men who attacked Mr Davis and of his own struggles with mental health issues since this occurred, including flashbacks, uncontrolled crying, the inability to continue with his work or complete his studies and an overwhelming feeling of grief and sadness.
I acknowledge that no sentence that I impose will ever seem to be enough to recognise and reflect the harm caused and the loss suffered by all of you and everybody who loved Matthew as a result of this senseless and violent crime. I acknowledge your grief and distress at the loss of Matthew and convey my sincere condolences.
[5]
Aggravating and mitigating factors: ss 21A and 22 Crimes (Sentencing Procedure) Act
I am required by s 21A of the Crimes (Sentencing) Procedure Act to consider aggravating and mitigating factors relevant to the offending. In this case, the fact that the offence occurred in Mr Davis's home, a place where he is entitled to feel safe, is an aggravating factor, as is the fact that he was vulnerable because of his disabilities. As conceded by Mr Evers, this applies as an aggravating factor whether the offender was aware of those disabilities or not.
In terms of mitigating factors, I accept that the offender has a limited criminal history. I have concluded that he is unlikely to reoffend, and in at least some recognition of his role in this offending, he entered an early guilty plea to the crime of manslaughter. I consider he has reasonable prospects of rehabilitation and there are no reports of misconduct in custody. I have some doubt, however, about the legitimacy of the cursory expressions of remorse and remain doubtful as to whether there is any persuasive reliable evidence of true remorse.
I accept the submission made by Mr Evers pursuant to s 22A of the Crimes (Sentencing Procedure) Act that the early guilty plea and the approach taken to the issues in the proceedings, narrowing those issues and agreeing on many factual matters, meant that the trial ran quickly and efficiently and notably lessened the hearing time required.
[6]
The offender's circumstances and the question of remorse
The offender is 68 years old. He left school at the end of year 10 and has worked in various trades and labouring jobs. He obtained a qualification as a personal trainer and worked as a fitness instructor in casual or part-time roles. He has been on a disability pension for the eight years prior to the offending on the basis of his coronary artery disease.
A report of a psychologist, Ms Bennett, dated 25 June 2024, obtained for the purposes of sentencing, outlined a history of particular social isolation and alcohol abuse in the period leading up to the offending. The offender was estranged from his ex-wife and family and made a suicide attempt on 4 August 2021 which required hospital treatment related to a split with his girlfriend Ms Arif. Ms Bennett observed that there had been problematic alcohol abuse all through his adult life as well as regular use of cannabis. There were some symptoms of and treatment for depression. The offender described to her "feeling guilty" following the offending.
Ms Bennett concluded that the offender had a low mood with passive suicidal ideation, difficulties with sleep, periods of low motivation and low energy and ongoing anxiety and tension regarding the case. Ms Bennett concluded that the offender was at low to moderate risk of reoffending and that he needed ongoing antidepressant medication.
Reports of Dr Carlyle, the offender's treating cardiologist, were tendered. They outlined a diagnosis of coronary artery disease dating back to 2010, with angiogram and stent placement in 2010, 2013 and 2014 with ongoing angina and necessary medical management.
GP records confirmed that the offender has lumbar spine pathology in the nature of disc bulges, stenosis and facet joint arthrosis requiring pain management.
After his arrest in May 2022, the offender had chest pain requiring investigation. In July 2022 he had treatment in the nature of angiography with ongoing medical management of his angina and heart disease.
Letters from the offender's daughter, ex-wife and a close friend of 18 years indicated that there would be some support available for the offender upon his release into the community.
A handwritten letter from the offender addressed to the Court was tendered claiming that he "has taken ownership of his actions", however I assess this letter as empty words on a page continuing to propagate a distancing of himself from responsibility for Mr Davis's death. I perceive the letter to be more in the nature of an expression of distress about the position in which he finds himself: in custody as a result of his own decisions and behaviour.
The Crown Prosecutor accepted that there is evidence of problematic use of alcohol in the context of a failing personal relationship and a suicide attempt prior to the commission of the offence, but submitted that these background matters do not explain the offender's decision to be involved in the planned attack on Mr Davis. I agree. I also accept the Crown Prosecutor's submission that the offender's current depressive symptoms exist in the context of him facing sentence for a serious crime, rather than something more long-term, although there is some suggestion of low mood in the context of his relationship breakdown.
Whilst I consider that there is a low likelihood of reoffending, I have a question mark in my mind about whether remorse has been shown by the offender for his role in the death of Mr Davis. To my mind he continues to try and distance himself from responsibility, and whilst in his letter to the Court he acknowledges the pain he has caused to Mr Davis's family and friends, the overall impression is that he continues to minimise his role, and this remains an impediment to anything approaching true remorse.
Both general and specific deterrence have a role to play in sentencing the offender. Engaging in this kind of callous thuggery has serious consequences. It must be discouraged. An innocent and much loved young man paid with his life.
I have taken into account the fact that the medical and psychological issues the offender has will make his time in custody more onerous than it would be otherwise. I make a finding of special circumstances, given in particular the significant coronary artery disease and low back issues. I take into account also the requirement that the non-parole period reflect the criminality of the offending, and that the sentence I will impose incorporates a significant period of supervision on parole even if the usual parole ratio was applied.
[7]
Sentence
I sentence the offender as follows:
1. For the offence of the manslaughter of Matthew Davis on 21 August 2021, applying a discount on sentence of 25% as required by law, the offender is sentenced to a term of imprisonment of 6 years with a non-parole period of 4 years 3 months. The sentence will commence on 18 May 2022. The non-parole period will expire on 17 August 2026.
2. The provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to you, and I notify you accordingly and direct your legal representatives to explain the possible application of that Act to you.
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Decision last updated: 22 November 2024