Director of Public Prosecutions v Davey
[2022] VCC 1505
•5 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No. CR-21-01155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM DAVEY |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 5 September 2022 | |
CASE MAY BE CITED AS: | DPP v Davey | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1505 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr N. Rudston | Tyler Tipping & Wood |
HIS HONOUR:
1
Adam Davey, you have pleaded guilty to one charge of armed robbery, one charge of causing serious injury recklessly and one charge of theft of a motor vehicle. Those crimes carry maximum penalties of 25 years, 15 years and
10 years respectively.
2 You are now 26 years of age and were about 25 years of age at the time of the offending. I accept that you have a verbal IQ of about 72, which is right on the cusp of a mental impairment.
3 You have now been in custody on these matters for 461 days. I accept that your plea was made to a settled indictment and you, therefore, get the benefit of that. I accept that there is appropriate remorse expressed. You must, of course, get the utilitarian benefit of that plea of guilty, and that it must also take into account the fact that the time that you have already served has been done under significant COVID conditions and that the time to be served will also to a certain extent, that I cannot ascertain, be served under COVID conditions. You have saved the victim of giving evidence and I also take into account the decision of Worboyes that pleas of guilty in these times are of real significance.
4 You do have very concerning prior convictions, albeit for one so young. On my calculations you have been gaoled on something like five occasions that is separate occasions, for assaults and violence towards people. You have a prior for robbery. Your history is very problematic and very concerning. However, as I have said, you are still 26 years of age and on the cusp again of being a young offender.
5 The circumstances of the offending are that on 28 May 2021, one Peter Joyce was invited with one Peter Halvey to visit Brooke Dalrymple in McMillan Court in Newborough. Mr Joyce accepted that invitation and he and Halvey attended the residence at approximately 7.22 pm on 28 May 2021. This is where I become concerned about the whole Crown summary in this matter. I realise perhaps deals have to be done, but it seems to me there is a number of people getting away with it here and you, Mr Davey, are left as the sole miscreant.
6 But, in any event, after that arrival you and one Morgan Dalgleish, who I have heard nothing further about, ran to the residence from nearby bushes where you had been hiding. You were brandishing a large hunting knife - and I have seen a photo of it and it is indeed a large hunting knife. You entered the residence and made your way into the lounge room. You pointed the knife at Mr Joyce and immediately begin yelling at - the Crown opening says 'victims', I say victim - demanding that they empty the contents of their pockets onto the floor.
7 Mr Joyce complied and emptied his pockets. At that time Halvey, who should have been a co-accused, followed by Dalrymple, who also should have been, ran from the house via the rear door and waited in the rear yard. I accept that Mr Joyce tried to leave the premises and tried to push past you. You thrust the knife at his abdomen. He was able to deflect the knife away from his body and it is a situation, as I sentence on, that you then thrust at him a second time, stabbing him in the abdomen. He pushed past you and made his way to the front door. As he was stumbling towards the front door you said, 'If anything comes of this you are dead'.
8 You have in the course of your interview, as I understand it and on instructions, disputed how that second wound came about. I am prepared to accept that it is not displaying a lack of remorse on your part. It may indeed be an inability to come to terms with, in fact, what has occurred and I place your denials of that deliberateness - sorry - your denials of that deliberateness cause you no extra problems in my view.
9 Mr Joyce went to a neighbouring house where he knew the occupants. They called Triple 0 and police and paramedics attend. Dalgleish, Dalrymple and Halvey left. I do not know where you were, but left in Mr Halvey's car and drove to her address.
10 I did not notice this before - according to the Crown opening she informed you - even though you perhaps do not even seem to have been there - Dalgleish and Dalrymple that she needed to go home and you could have the car but she wanted it back. Eventually it was refused. You at this stage were in custody anyway and I do not really understand how all that is supposed to have taken place, but, in any event, you have pleaded guilty to a charge of theft and, as I indicated, it plays no part in this sentencing process in my view.
11 In any event, you were arrested and I suspect that your admissions were probably true. You said that on that day you spent it at the residence in the company of both Dalgleish and Halvey. During the course of the day the group had devised a plan to rob Joyce of drugs and cash that involved Dalrymple inviting him to her residence, Halvey conveying him there, and once at the residence you and Dalgleish would commit the armed robbery. During the evening you apparently received a message from Halvey letting you know that she was on the way to the residence with Joyce. At that time you left the residence with Dalgleish and made your way to a bush, and you ran into the bush when you saw them arrive.
12 You were armed with a hunting knife, demanded they hand over cash and drugs. You said there was a scuffle and in the course of that struggle you said that you accidentally stabbed Joyce and I am not - that is not causing you any grief here. You have to be sentenced on the basis that you deliberately did it. It is the recklessness goes to the serious injury.
13 In any event, you said that after being stabbed Joyce emptied his pockets. I sentence on the basis that he emptied his pockets before that happened and was endeavouring to escape. Accordingly, in that sense the violence, whether it be reckless or deliberate or whatever it might be, in my view was gratuitous. He suffered a 'penetrating injury to the left upper quadrant, with a grade 3 liver laceration predominantly involving segment 3, with associated likely pseudoaneurysm and hemoperitoneum'. Your counsel puts that that is likely to be life threatening. It is a difficult concept because of this new definition that they have brought in. No one seems to know quite what it means, but, in any event, it seems pretty clear to me that insofar as actual injuries are concerned, I would regard it towards the lower end of serious.
14 The offending is clearly serious. Of course the application of general and specific in the normal course of events. I am well aware of your IQ or at least your verbal IQ. Denunciation, punishment and appropriate punishment.
15 In this situation there are a couple of things that really concern me. You with an IQ of 72 would be unlikely to be the brains behind this outfit - if I can speak in the colloquial. None of the others have been charged at all, as I understand it. They are all just as guilty as you, yet they all walked scot-free. There may be all sorts of reasons for that and I cannot see why the four of you or five of you could not have been put in the one dock and just see what happens, but anyway it is what it is.
16 I accept in these circumstances that you were probably egged on by the others and, as I have already indicated, I accept that you certainly would not have been the brains behind the outfit. I look at the milieu in which all this took place and whilst that does not in any way, shape or form excuse it, it does put it into a context. You had only been out of gaol, as I understand it, for about three or four weeks before all this happened.
17 I have read the victim impact statement of Mr Joyce and he quite articulately describes the long psychological effects that it has had on him, getting flashbacks from being attacked, being afraid and anxious and having panic attacks in public. He does not feel safe any more and the attack invades his dreams, and he describes those dreams as trying to get away, sweating, scared and confused. He just says he cannot socialise as he used to and is worried that one day you will turn up in the street. They are the effects of assaults such as this and armed robberies such as this.
18 It is a pretty scary weapon and - not a pretty scary weapon, a very scary weapon, and you used it on him. It is impossible to think that someone could use a weapon of that size and not have real considerations as to what would happen to the other person. I say this to you at the outset, Mr Davey, and I am going to give you a minimum term, lower than what I otherwise would. Having been here for a long time offending such as this often ends up where the judge has got red robes on and you are getting 30 to the 20. If you cannot come to terms with that no one is going to be able to help you. But that is just how serious this could be, though I sentence you for what you have done, obviously not what you might have done, as your counsel has pointed out.
19 The only sentencing option here is a significant gaol sentence with a minimum term. As I have already indicated, I am going to give you an earlier opportunity for parole than might otherwise have been the case for a number of reasons which will become self-evident.
20 You were born in 1996 and your mother has been in receipt of a disability pension since you were very young. Your parents separated early and you, during your childhood, suffered from eczema all over your face and body (impetigo). You had asthma and, indeed, had been hospitalised a couple of times for eczema and asthma.
21 You struggled to learn with other children in school and would become extremely frustrated. I accept that you were mocked at school because of your eczema and weight issues and outside school. You say, and I did not disbelieve it, that you were subject to bullying. You went to South Street Primary School and two months at Lowanna College, and a few months at Berry Street School here in Morwell, which caters for children that experience difficulties in mainstream education. I am well aware of the sort of kids who get taken into Berry Street, just round the corner here. And, in any event, your education ceased entirely in Year 12. They do take kids with serious problems and I accept that. When you were assessed at the Royal Children's Hospital your mother endeavoured to get you teaching resources, but she was not apparently equipped to be able to do that herself.
22 You were good on a scooter and went in competitions from around about the age of 12. From 14 to about 16 you started self-harming. At 16 you left home. You found a girlfriend and she fell pregnant. She moved in with you and your mother, and you lived with your mother effectively until you were remanded on these matters. You do have a child that you wish to have contact with obviously and I take that into account as a motivating factor in your rehabilitation. You have had the odd job, but you have never been really able to hold down a work position.
23 In custody you have done a couple of programs and a parenting program. I realise that has been difficult during times of COVID. To your credit, since you have been in gaol, you have the care of an 87-year old inmate on a full‑time basis and that is, again, also very much to your credit. I have already indicated I am taking into account the Worboyes aspect of all this, plus the effect of isolation on a young prisoner of COVID lockdowns.
24 You have clearly had difficulties in life because of a low IQ. You say that you had learning difficulties throughout your educational history and described that you had been earlier diagnosed as having ADHD. When one looks at the nature of your priors, and the nature of this offending, that is not a difficult diagnosis to accept. I take all those matters into account. It is hard to define which of all these, but it appears to me that you have a certain degree of the Muldrock principles involved, a certain degree of the Verdins principles involved, and in those circumstances I think they are probably less of a - less potential must be paid to general deterrence, but specific deterrence for you brings in the very strong aspect of community protection in this case.
25 As I have already indicated, every alarm bell goes off in terms of what you might ultimately do, Mr Davey, and it is all going to be, if it pans out, a matter for you. You have been using amphetamine from the age of about 16 or 17 and this - so this armed robbery and serious assault were apparently carried out to get drugs and the like. And, as I have already indicated, there is no point going over it again, you had only been out of gaol for three weeks when it happened.
26 You say you wish to engage in residential drug rehabilitation upon your ultimate release. That, of course, is to your credit that you wish to do that and it will be a matter for the authorities. It is also indicated that a neuropsychological report may be of assistance. I am a bit amazed that there has not been one done in the past, bearing in mind your criminal history, but be that as it may I would ask the authorities that, prior to your release, that such an assessment be carried out to endeavour to assist your rehabilitation back into the community, not only from your point of view, but from the community's point of view as well.
27 I have taken into account the helpful submissions made by your counsel. Insofar as remorse is concerned it is difficult to assess, but I have already indicated I am prepared to sentence on the basis that it is appropriate. Your mother describes you as a 'follower and not a leader'. In this particular situation you were the one with the weapon. You were the one who caused the injury and it would appear that you at least on the day, even though you may have been egged on by the others, were the principal assailant - if I can put it that way.
28 It is put in the materials that you were egged on by one of the others saying that this man was selling drugs to their daughter or something along those lines, and I would accept that the probabilities are that you were acting on such information. It is not uncommon in these circumstances for that to be used to egg on someone who is capable of doing what you did. But, in any event, the prospects of rehabilitation are going to be up to you and the authorities and a lot of common sense. The risk of you reoffending, as it stands at the moment, were you to be released without significant community control - if I can put it that way - and also a definite prospect of rehabilitation, I think would have to be regarded as high.
29 Those matters all sound very depressing and they are, but on the other hand you are still only 26 years of age. You are at an age where you may be able to turn your life around and be released into the community and be a useful member of the community without placing other members of the community at serious risk.
30 Taking all those matters into account as best I can - it was always a difficult sentencing situation - on Charge 1 you are sentenced to imprisonment for a period of four years; Charge 2 four years; Charge 3 seven days concurrent. As I have already indicated, I think one day suspension of licence. I direct that two years of the sentence imposed on Charge 2 be served cumulative on the sentence imposed on Charge 1. That is because I regard the second crime as being gratuitous and having occurred after the first one. That gives an effective head sentence of six years.
31 What I am going to do - and others may consider it lenient, that is a matter for them - I am going to direct that you serve a minimum term of three years before becoming eligible for parole, and I direct that 461 days be reckoned as having been served under this sentence. I make that sentencing order with the underlying fear, from experience, of you, if you had served that entire sentence, becoming institutionalised. That will be of no benefit to either yourself or the community and is part of the factors I take into account in giving that lower than usual, or lower than might otherwise have been the case, minimum term.
32 Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to be imprisoned for a period of nine years with a minimum term of six.
33 Now, were there any summary matters, gentlemen? I can't find a record of them if there were. Does anybody know? If there are I will simply convict and discharge.
34 MR O'DOHERTY: I'm not sure.
35 HIS HONOUR: No, look, I've got a message - I've got a note here 'Summary offences' but I don't - do you know, Mr Rudston? I don't think there were any. If there were I'll simply convict - - -
36 MR RUDSTON: (No audible response.)
37 HIS HONOUR: I'll simply convict and discharge on any offences if there are such, but other than that I don't think I have - there's no other orders I have to make, gents, I don't think.
38 MR RUDSTON: Thank you, Your Honour.
39 HIS HONOUR: I'm just checking to see if there are any other orders. I haven't got any. I'm amazed there isn't one for the knife.
40 MR O'DOHERTY: We've got the knife so - - -
41 HIS HONOUR: Look, if there's any other - disposal of the knife, Mr Rudston. I'll sign that in chambers rather than keep everybody sitting here.
42 MR RUDSTON: Certainly, Your Honour. Of course, no objection.
43 HIS HONOUR: All right. Yes, thanks for that. Do you want a moment with your client?
44 MR RUDSTON: If I may, Your Honour. Thank you.
45 HIS HONOUR: Yes.
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