Regina v Davis

MEAGHER JA : I will ask Smart AJ to deliver the first judgment.

SMART AJ : Troy Clayton Davis seeks leave to appeal against the severity of a sentence for murder comprising a minimum term of twelve years imprisonment and an additional term of four years. The judge sentenced both the applicant and his stepbrother, Lulham, a co-accused, but on different occasions and on somewhat different materials leading to different findings being made in the two cases on factual matters.

The applicant's family, comprising himself, his mother and his elder stepbrother, resided in the small and closely knit community of Beechwood, west of Wauchope on the mid-North Coast. For some time the applicant and Lulham had cherished grievances against the deceased, another resident of that community. In the applicant's case the judge found that Lulham was ten years older than the applicant and able to exercise considerable influence over the applicant.

The judge, after detailing conduct on the part of the deceased relied upon by the applicant and harmful to him, held that in the applicant's belief there was a substantial basis for him to resent and fear the deceased.

The judge summarised the facts of the offence based on the agreed facts and the evidence, including the applicant's interviews with the police. What follows is principally taken from the judge's remarks. It is mainly a precis of what the judge found as to the applicant and Lulham. The facts are set out in fuller terms in those remarks.

On the afternoon of Thursday, 12 November 1998, the applicant and Lulham were at Kooree Island, a swimming hole in the Hastings River on the outskirts of Beechwood. They had been consuming alcohol. While they were there the deceased and his girlfriend arrived and went to a nearby but different area of the river bank. In the course of discussing their prior involvement with the deceased, Lulham suggested that the applicant should shoot the victim. Lulham left and travelled to a nearby dairy farm where he worked on a casual basis, obtained an old rifle and ammunition and returned to Kooree Island, where further discussions took place about shooting the deceased.

Also present at Kooree Island was another couple who talked with the applicant and Lulham. At one stage Lulham fired a warning shot and the lady became frightened. Lulham patted the applicant on the arm saying, "This is it, brother boy, I think this is gonna be it". The lady inquired, "What are you talking about? What's going on?" Lulham replied, "We're going to kill him". The applicant said, "We've got to kill him".

While Lulham went over and talked with the deceased and his girlfriend, the applicant said to the lady, "Dean and I have had a heart to heart and we've decided to kill Porky" (the deceased). On Lulham's return the lady and her boyfriend decided to leave.

The brothers left Kooree Island and went home where they continued drinking and discussed the deceased and what he had done in the past. The applicant told the police that Lulham had fired him up. The brothers and a male friend, who had joined them at their home, returned to Kooree Island. According to the applicant, at his stepbrother's insistence, the applicant carrying a loaded rifle, walked to where the deceased and his girlfriend were sleeping. At that stage the applicant was unable to shoot the deceased and returned to his stepbrother and tried to talk his stepbrother out of the venture.

The applicant asserted that after renewed importuning by his stepbrother he returned to where the deceased was sleeping, put the rifle close to his head and pulled the trigger. He and Lulham drove away from the scene, throwing the rifle into a gully near the Beechwood Cemetery. They then went home.

At about 4 am on 13 November 1998 the applicant had his mother drive to the place where the rifle had been discarded. It was collected and shifted to another location and secreted. The applicant's mother begged him to turn himself in to the police.

The applicant was arrested in the early hours of Saturday, 14 November 1998. He made extensive and detailed admissions in his recorded interview. He also showed the police the location of the killing at Kooree Island and the various locations of the rifle. He was interviewed again on 17 June 1999, particularly as to the involvement of his stepbrother and again made detailed admissions. He undertook to give evidence against his stepbrother and Bradley John Moran.

By June 1999 the applicant was probably aware that his stepbrother was seeking to attribute the responsibility for the shooting to him (the applicant). His stepbrother had denied involvement.

Detective Senior Constable Lysaught, the investigating police officer, believed that the information supplied by the applicant was valuable and correct. He said: "With the additional information supplied by the prisoner and his willingness to give evidence on behalf of the Crown, this will strengthen the case against him." [Lulham] 15 The officer stated that the applicant showed instant remorse at the police station. The applicant was liable to suffer a harsher custodial regime when it became known within the gaol community that he had given evidence, or offered to give evidence against his stepbrother. 16 The judge found that as a consequence of the applicant's plea, co-operation and evidence, Bradley Moran (the friend present at the home of the brothers and, it seems, at the time of the murder) pleaded guilty to concealing a serious offence under s 316 of the Crimes Act and gave a similar undertaking to that given by the applicant and the stepbrother pleaded guilty to murder on the basis of being an accessory before the fact. 17 The judge, after reminding himself that neither the deceased (?) nor Lulham had given evidence, said: "Whilst I consider that the prisoner's sentence should be reduced substantially for his co-operation; that I should find in his favour contrition and remorse; and that at the time of the commission of the offence he was severely affected by intoxicating liquor and emotionally vulnerable to his brother's importuning, nonetheless I find he retained sufficient composure not to kill on the first occasion when he went to the victim and to seek to talk his brother out of the crime, albeit changing his mind and killing." 18 Despite his reservations, the judge held that he was bound to deal with the question of sentence on the evidence before him. 19 The applicant was born on 19 February 1974. Apart from a few minor matters in 1993, he had no previous convictions. His family broke up when he was six. His mother's subsequent relationship with another man was accompanied by alcohol abuse and domestic violence. He came to rely upon his stepbrother and older sister. Whilst he suffered a closed head injury at the age of ten, this could not be regarded as a factor contributing to the crime or relevant sentence. 20 Dr Olav Nielssen, a consultant psychiatrist, has written: "A combination of perceived provocation, acute intoxication and the influence of his older half-brother, contributed to Mr Davis shooting Mr Spradbrow ... he did not describe symptoms of depression of sufficient severity to be considered to have substantially impaired mental responsibility. Mr Davis' prospects for rehabilitation appear to be good as he did not exhibit traits or report features of any form of personality disorder, has been employed for most of the previous ten years, and his substance abuse disorder appeared to be mainly in response to the depression which followed the breakdown of his long term relationship. Moreover, he does not have a psychiatric disorder or brain damage likely to interfere with his rehabilitation". 21 The judge noted that the applicant had had limited education and a limited range of employment. He had obtained a horticulture certificate. His use of drugs and alcohol was intense. His sister was concerned about his survival and had urged her stepbrother not to allow the applicant to come into contact with a gun. Lulham agreed. The applicant was a vulnerable person. 22 The judge accepted the assessment of the probation and parole officer as to the applicant's attitude to the offence. "Attitude to offence - the prisoner acknowledged his guilt to the offence. However, he appears to have difficulty in accepting full responsibility for his actions. He tends to apportion blame to the urgings of others for him to shoot the victim and the consumption of a large quantity of alcohol. Whilst he has expressed remorse for his actions, the victim and the victim's family, this appears to be counted (sic) by feelings of self-pity and the ruination of his life." The judge further found: "I accept that without the urging of his brother and the effects of intoxication, the prisoner would not have committed the crime. I add to those findings my further findings of the prisoner's depression and emotional vulnerability as compounding the effects of the intoxication and the brother's urging. I accept that the brother's manipulation of this prisoner in his vulnerable circumstances was extremely powerful. I further accept that although it was likely he would have been arrested and prosecuted successfully on a strong Crown case in the events that have transpired he has made the strength of the Crown case both against himself and his brother. Consequently I have regard to the principles in The Queen v Ellis (1986) 6 NSWLR 603 at 604, and those to which I referred in The Queen v Baldacchino (unreported 7 July 1998 at pp 16-17), I have regard to the plea, the co-operation, the immediacy of the prisoner's contrition and co-operation which are matters of weight not only in themselves, but also as pointing towards the prospects of rehabilitation to which Dr Nielssen directly and the Probation and Parole officer less directly have referred". 23 The judge stated: "It would be in error to under-estimate the objective gravity of this crime, and I should not because of subjective circumstances, reduction for plea or co-operation or otherwise, pass a sentence unreasonably disproportionate to the serious criminality". The approach taken by the judge was correct. 24 The judge also said: "At most the alcohol; and importuning go only some way to offset the hours of deliberating on the prospect of killing the deceased, leading up to what was, on any view, a premeditated, vicious killing". 25 The judge recorded that the Crown had submitted that the appropriate head sentence prior to application of the criteria in s 442B of the Crimes Act 1900 was eighteen to twenty-two years, but that the circumstances would warrant a substantial reduction by the application of those criteria. The applicant had submitted that the range was twelve to eighteen years. I would have regarded the range as twenty to twenty-four years. The judge expressed the view that, absent the elements of co-operation and assistance, a sentence in excess of twenty years may well be the correct starting point. I agree. 26 The judge found that there was ample evidence of special circumstances. He added: "However, in the context of the length of the sentence that I intend to impose, it appears to me that there is no need for a variation of the statutory proportion prescribed by s.5(3) of the Sentencing Act, as there does not seem to me to b a need for a longer period of supervision than the statutory proportion would require, nor any need for a longer period at liberty during which the prisoner's conduct in the community should be subject to the sanction that he be returned to custody to serve out the balance of the sentence". Appeal ground 1 : 27 The applicant submitted that the judge had treated the plea of guilty and the giving of assistance as part and parcel of the same discount to be applied. It was submitted that there should be a separate discount for a plea of guilty and a separate and additional discount where there had been significant assistance given to the authorities. Reliance was placed on the guideline judgment in R v Thomson and Houlton (2000) NSWCCA 309. It was submitted that this case should have attracted a discount of approximately twenty per cent by reason of the plea alone. I do not agree. 28 The judge's remarks indicate that he understood that there had to be a discount for the plea, and a discount for the assistance to the authorities. The judge did not state what discount he gave for each consideration but, in my opinion, the head sentence of sixteen years which he imposed indicates strongly that he must have given the applicant credit for the two discounts. The judge is not bound to specify each discount individually. 29 This was a vicious and premeditated crime, decided upon over some hours in which the applicant fired the gun at point blank range into a sleeping man. It should not be overlooked that the applicant and Lulham were each trying to attribute blame and responsibility to the other in the process of lessening their own punishment and in Lulham's case, saving his skin. 30 I would reject this ground of appeal. Appeal ground 2 : 31 The applicant submitted that having regard to the sentence imposed upon Lulham, being a head sentence of eighteen years with a non-parole period of thirteen and a half years, the sentence imposed on the applicant was excessive by reason of disparity. 32 The applicant submitted that Lulham was the principal offender and that he only pleaded guilty because he knew that the Crown case against him was substantially stronger by reason of the applicant's evidence. Reliance was placed on the applicant's assistance and Lulham's lack of assistance, the early confession by the applicant and his plea of guilty. 33 When the judge sentenced Lulham he proceeded on a somewhat different factual basis from the one which the evidence suggested in the applicant's case. In particular, in Lulham's case there was a challenge to certain of the findings made in the applicant's case; notably, that the applicant had been procured to commit the crime by Lulham and that Lulham had manipulated the applicant's mind to kill the deceased (see R v Lulham (2000) NSWSC 703 para 11). 34 In Lulham's case the Crown accepted that Lulham and the applicant should be treated as equally culpable (paragraph 12). 35 In Lulham at paragraph 13 the judge said: "I am not satisfied on the evidence before me in the present proceedings that I should make any finding that the role of the offender extended beyond providing the fatal weapon to DT, driving him to the scene at which the crime was committed, realising when he did so that DT would kill the deceased if the deceased was still there and present". 36 The judge accepted that there had been earlier discussions including threats to kill the deceased and that, "There was a real basis believed in by Lulham to support the apprehension he had of the deceased and his resentment towards the deceased". The judge regarded Lulham's assent to the killing and the role he played in assisting that killing as vicious and cowardly. The judge held that it was the production by Lulham of the gun that enabled the intention to kill the deceased to crystallise when it did, and to be carried out. He continued: "Nonetheless, the role this offender (Lulham) performed was not that of the assassin, even though the aid and assent to the assassination were his. In this respect I do not accept entirely the Crown's submission that both offenders should be treated alike". 37 The judge in sentencing Lulham held: "(a) the applicant did not do anything other than that which he had willingly agreed to do. (b) he did not accept that Lulham played the more dominant role attributed to him by the applicant. (c) Lulham knew at the time that he and the applicant returned to Kooree Island that the applicant was going to kill the deceased. (d) the penalty should be reduced slightly for the assistance given by Lulham. (e) Lulham's application for leave to withdraw his plea of guilty had occasioned considerable cost and inconvenience and court time, but the plea of guilty avoided the costs of a trial. (f) he was not satisfied of those matters relied upon by the applicant to "aggravate (Lulham's) culpability above that of the applicant". 38 In Lulham's case the judge carefully considered the applicant's subjective features. He had had a difficult and disadvantaged life. He suffered from alcoholism and drug abuse. The judge accepted Associate Professor Tate's opinion that Lulham suffered from brain dysfunction with notable deficits leading to thought processes of a disorganised kind which adversely impacted upon his recall. On testing he became increasingly confused and incompetent in discriminating correct from incorrect information and his cognitive skills broke down completely. 39 The judge reached these conclusions as to Lulham: "I conclude that there is little to choose between the two offenders, but that although the offender was not the actual assassin, he should not receive such parity as would produce an identical sentence to that imposed upon DT. I have concluded that I should pass upon the offender, having regard to the matters in mitigation to which I have referred, and in particular having regard to the sentence I passed upon DT, a sentence which will also embrace the prospects for rehabilitation referred to in the Probation and Parole Service report. I do not consider that there are any special circumstances such as s.44(2) of the Crimes (Sentencing Procedure) Act 1999 refers to in the context of the sentence I propose. I do not consider that there is a need for a variation of the statutory provisions since then there does not seem to me to be a need for a longer period of supervision that that which would operate by imposition of a sentence reflecting the statutory proportion". 40 A review of the judge's remarks in Lulham shows that while there were many matters common to the applicant and Lulham, there were significant differences in the two cases considered by the judge as to the levels of culpability, pleas, assistance, prior records and subjective features. 41 In dealing with Lulham and the evidence adduced in that case, the judge did not accept that Lulham dominated and influenced the applicant as he contended. 42 The applicant cannot here fairly complain of a lack of parity when there were such significant differences between the basis on which he was sentenced and that on which Lulham was sentenced. The applicant received the benefit of findings that he was less culpable than Lulham who urged him on. Lulham did not give evidence at the sentence hearing of the applicant. On the other hand, Lulham was dealt with on the basis that he was an accessory before the fact and that he was not as culpable as the applicant had suggested. 43 If all of the applicant's allegations had been accepted in Lulham's case, Lulham would have received a much higher sentence and no question of parity would have arisen. 44 The principles of parity do not assist the applicant in the existing circumstances. 45 I reject appeal ground 2 based on parity. Appeal ground 3 : 46 The applicant submitted that the judge, having found that there was ample evidence of special circumstances, should have imposed a minimum term less than three quarters of the total sentence. 47 I agree with the judge that there were special circumstances. The question is whether the special circumstances required that a lesser minimum term be fixed. The judge found that they did not. 48 An additional term of four years is a long time and more than long enough to enable the requisite supervision and support to be given. A longer period is, in the present case, unrealistic. 49 The judge did not err. 50 I reject appeal ground 3. 51 I am of the opinion that the sentence actually imposed by the judge in the present case was correct. I would grant leave to appeal but dismiss the appeal. 52 MEAGHER JA : I agree. 53 HULME J : I also agree. 54 MEAGHER JA : The orders of the Court, therefore, will be that the appeal is dismissed.