Director of Public Prosecutions v Davidson

[2023] VCC 809

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00350

THE DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
LEE DAVIDSON	Defence

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2024
DATE OF SENTENCE:	4 June 2024
CASE MAY BE CITED AS:	DPP v Davidson
MEDIUM NEUTRAL CITATION:	[2023] VCC 809

SENTENCE
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Subject:Attempted aggravated carjacking

Catchwords:              Early Guilty plea – relevant criminal record – mid range offending – remorse – background of disadvantage –Verdins principles engaged

Legislation Cited:     Sentencing Act1991 (Vic); Confiscation Act 1997 (Vic).

Cases Cited:Boulton v The Queen [2014] 46 VR 308; Darcy Leishman v The Queen (2019) VSCA 270; Carter (a pseudonym) v R (2018) 272 a Crim R 170, [75]; Bugmy v R (2013) 249 CLR 571; Cody Hermann [2021] VSC 160, Sabbatucci [2021] VSCA 340, Roosevelt Newton (a pseudonym) [2023] VSCA 22; Bugmy v R (2013) 249 CLR 571; R v Verdins & Ors [2007] VSCA 102.

Sentence:Three years imprisonment; non-parole period of one year and nine months.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Hogan	Office of Public Prosecutions
For the Defence	Ms E Byrt	Emma Turnbull Lawyers

HIS HONOUR:

1Lee Davidson, you have pleaded guilty to one charge of attempted aggravated carjacking.

2You have also pleaded guilty to the related summary offences of:

(a)   unlawful assault with a weapon (charge four); and

(b)   possess a controlled weapon (charge seven).

Circumstances of offending [1]

[1] Summary of Prosecution Opening (Exhibit A). They are agreed facts.

3Your offending occurred on 18 July 2023 at the APCO Service Station at Hoppers Crossing.

4Around 8:30 PM, you approached a man who was filling his car with petrol. His mother was a front seat passenger in the car. You had two machetes in one of your hands (possess controlled weapon). You put the machetes to his throat and demanded he “get in the car and drive” (attempted aggravated carjacking).

5When you did, his mother, who was a front seat passenger got out of the car.

6In fear, the motorist got into the driver’s seat of his car. When you got into the rear passenger seat behind him he quickly got out and locked the car doors.

7You moved into the front passenger seat and unlocked the door. As you were getting out of the car, another motorist tried to stop you. You still had the machetes in your hands. You swore at him and told him to mind his own business. You chased him as he ran away (assault with a weapon).

8After that, you walked to a friend’s home nearby.  You still had one of the machetes. Police arrived soon after. As your friend took the machete from you, you said “I want the fuckers to kill me”. And, “I want them to shoot me”

9Police arrested you. You were taken to Werribee Police Station where you were assessed as unfit for interview because you were obviously substance affected.

10The incident was captured on CCTV footage. [2]

[2] CCTV footage of the incident (Exhibit C).

11I viewed it in court.

Objective seriousness of carjacking

12The two motorists were filling their cars with petrol. People are entitled to feel safe in that environment.

13They did nothing to provoke you.

14Your attempt to steal the car was only thwarted when the owner locked you inside.

15The weapons, which you used to threaten them, were sizeable and dangerous.

16While neither of them made victim impact statements, the first motorist told police, when you put the knives to his neck, touching his skin, he was scared you were going to slash him.

17He said he didn’t think you were going to kill him, just that you were crazy.

18He also said you didn’t hurt him and when his mother intervened, you said to her “go away I won’t hurt him”.

19The other motorist, who tried to help the first motorist, told police when you confronted him, he ran away in fear for his safety. He said as he reached the road you stopped running after him and walked away from him. He saw you throw one of the machetes at a passing car. He described you as acting erratically. He said he returned to his car, and, when he asked the first motorist’s mother if she was okay, she replied “yes, thank you”.

20While your armed and unprovoked confrontation of the two motorists will no doubt have been frightening, it appears they regarded you as “erratic” rather than malicious.

21You caused them no physical harm. Fortunately, they appear to have been emotionally robust.

22The episode was relatively quick; some two minutes from the time you confronted the first motorist until you chased the second motorist away.

23There was no sophisticated planning to your crimes. You wore no disguise. Your actions were impulsive.

24Overall, I assess the objective gravity of your crime of attempted aggravated carjacking to be below mid-range.

25The day before you offended, a Magistrate released you on a Community Corrections Order for driving and bail offences. You told a forensic psychiatrist, Dr Trainor, before you committed the index offences, you were celebrating the court outcome, with methamphetamine, prescription medications and whiskey at a friend’s house. You said you had a vague feeling persons who had some grievance with you were chasing you and, when you went to the shops to get more alcohol, you took two machetes with you “for protection”. You said you decided to take a car to escape from your perceived assailants.

Procedural chronology

26At the Committal Mention stage, you pleaded guilty to the charge on the indictment.

Criminal record

27You have admitted a criminal record. Relevantly:

(a)   on 18 August 2004, you were sentenced to a 12-month Community Based Order for intentionally cause injury and assault with a weapon;

(b)   on 11 January 2007, you were sentenced to 3 months imprisonment, wholly suspended, for recklessly cause injury;

(c)   between 2008 and 2013, you appeared in court three times to answer driving and drug charges;

(d)   on 16 May 2016, for weapons offences you were sentenced to a 12-month Community Corrections Order;

(e)   on 10 July 2018, you were sentenced to 9 months imprisonment, with a 12-month Community Corrections Order, for aggravated burglary, intentionally cause injury and firearms offences;

(f)    on the same day, you were re-sentenced to 3 months imprisonment for the offences for which you had been sentenced in 2016; and

(g)   on 17 July 2023, you were sentenced to a 12-month Community Corrections Order for driving and weapons offences.

28Your index offending is a serious escalation in criminality.

Personal circumstances

29You were born in August 1980.  You were 42 years old when you offended.  You are now 43.

30You grew up in Melbourne’s south-western suburbs. Your father worked as a cleaner; your mother in data entry.

31You told Dr Trainor, the family struggled financially, although you were always provided with food and clothing.

32You described your mother as being caring and kind, while your father was an angry and violent man, particularly when under the influence of alcohol.

33You idolised your father, but also feared him. You saw him get into many bar fights. He introduced you to cannabis when you were 15 years old.

34At school, when you were bullied, your father encouraged you to respond with violence.

35You had difficulty focusing and were easily distracted. You left school at the end of Year 10 to start a year plumbing apprenticeship. You worked in that job for three years, but didn’t complete your apprenticeship. You drove a forklift for three months and then worked as a furniture removalist is for six months until you injured your back.

36You have been medically unfit for work since March 2012.[3]

[3] Medical Certificate of Dr Stella Kwong (Consultant Psychiatrist) (Exhibit 1).

37You have been a heavy drinker since your early teens. You have used methamphetamine, since your 20s, to calm yourself down. You have also misused prescription medications.

38In 2012, following a diagnosis of Asperger disorder, you were certified for a disability support pension. [4]

[4] Ibid.

39It appears you were under the care of a psychiatrist for four years prior to your diagnosis. [5]

[5] Ibid.

40In 2023, you were attending drug health services at Western health to assist you with your addictions. [6]

[6] Western health, Drug Health Services, Certificate dated 12 July 2023 (Exhibit 3).

41You told Dr Trainor you have collected weapons, swords, knives and axes, since you were 10 years old.

42When you were 21, after someone stabbed you in the back, you began carrying weapons for protection.

43You had one significant relationship. When you were in your early 30s, you lived with a woman for 3 to 4 years. The two of you had a mutual interest in methamphetamine.

44You said you felt low mood for most of your adult life. You associate it with chronic drug and alcohol use. You said your mood worsened after the death of your father, in 2001, and then your brother, in 2019.

45In Dr Trainor’s opinion: Your childhood development, marked by economic disadvantage, learning difficulties and bullying at school, and a fearsome father, resulted in your chronic impulsivity, emotional and anger dysregulation, diminished trust in others, low self-esteem and a tendency to respond with violence when feeling emotionally or physically threatened. He believes you meet the criteria for a personality disorder of moderate severity. He also believes, as a result of the serious stabbing, you meet the criteria for PTSD.

46In his opinion, the deaths of your father and brother will have exacerbated those symptoms.

47You started abusing illicit drugs and alcohol in adolescence. In his opinion, chronic alcohol and substance abuse will have made your personality disorder symptoms worse.

48On your account, you meet the criteria for severe substance use disorders which are in early remission in the prison environment.

49He also noted your Aspergers diagnosis, now part of Autism Spectrum Disorder.

50In his opinion, alcohol and drug intoxication contributed directly to your offending. He believes you were likely in a substance induced psychosis when you offended.

51He also believes your personality disorder and PTSD, because they will have made you more susceptible to believing you were in danger and overestimating any potential threat to your safety, were also contributors.

52Additionally, he believes those conditions, which reduce your capacity to deal with disagreement and distress, make you vulnerable to conflict with others in prison.

53In prison, you are treated with an antidepressant and an opioid substitute.

54You told Dr Trainor your mental health has improved.

55Since September 2023 you have been working as a welder in the workshop at MRC. It is impressive and much sought after work. It is to your credit you have obtained work there.

56You hope to use the skills you have learned to obtain work when you return to the community.

57Your mother supported you at court. She visits you regularly in prison. She will have you home with her when you are released.

58According to her, [7] despite your criminal record you are “an extremely caring person underneath it all”. She believes “… this time he is aware that he needs to make extreme changes in his life to be able to improve himself and make a better life for himself”. [8]

[7] Letter of Faye Davidson (Exhibit 4).

[8] Ibid.

59You read a letter of apology to the victims of your crimes. [9]

[9] Letter of Apology (Exhibit 6).

Defence submissions

60Ms Byrt, who appeared on your behalf, acknowledged your offending was very serious.

61In mitigation of penalty, she relied on:

(a)   your guilty plea;

(b)   your remorse;

(c)   your background of disadvantage;

(d)   your psychiatric diagnosis;

(i)to reduce your moral culpability; and

(ii)to moderate general deterrence.

62She also submitted, because of your mental health profile, prison is significantly harder for you than a person of normal health and prison conditions will lead to deterioration in your mental health. In oral submissions, Ms Byrt accepted Dr Trainor’s findings do not support her argument your mental health will materially deteriorate in prison.

63Relying on Boulton [10] principles, she submitted a composite sentence of a prison term and a Community Corrections Order would meet sentencing objectives in your case.

[10] Boulton v The Queen [2014] 46 VR 308, [114].

Prosecution submissions

64Ms Hogan, who appeared for the Prosecution, fairly conceded:

(a)   you are entitled to a sentencing benefit for your guilty plea made at the earliest opportunity; and

(b)   Bugmy principles and Verdins principles are engaged to moderate your sentence to a limited degree.

65She submitted, because of the seriousness of your offending, general deterrence is another important sentencing factor.

66She also submitted, considering you have relevant prior convictions for violence and weapons and firearms offending and you offended the day after a Magistrate released you on a Community Corrections Order, specific deterrence is an important sentencing factor.

67She submitted, overall, the appropriate sentence is the imposition of a prison term with a non-parole period fixed.

Consideration

68As the maximum penalty of 20 years imprisonment demonstrates, your crime of attempted aggravated carjacking is inherently serious.

69The maximum penalty for the crime of aggravated carjacking is 25 years imprisonment. It attracts a mandated minimum non-parole period of three years.

70The Prosecution submitted that mandatory provision has no application to the attempted offence for which you are to be sentenced. In my view that is correct.  

71I accept you were acting more erratically and less malevolently to your victims. I also accept you did not intend to harm them. You did nevertheless intend to put them in fear of serious danger.

72That you were highly intoxicated on a mixture of alcohol and illicit drugs, which likely induced you into a brief psychotic episode, is no excuse.

73Because of the seriousness of the crime of attempted aggravated carjacking, general deterrence is a primary sentencing consideration. A crime of the type calls for stern punishment. [11]

[11] Darcy Leishman v The Queen (2019) VSCA 270, [15]

74Both the fact of your criminal record for violence and weapons offences and the fact you committed these crimes the day after you were released on a community correction order are relevant to the need for specific deterrence.

75In my view, your offending is too serious to warrant a composite sentence of imprisonment with a CCO.

76I have reached that conclusion mindful my responsibility is to impose a sentence which is no more severe than that which is necessary to achieve sentencing purposes.

77There are a number of mitigating factors which I take into account to moderate the sentence I will impose.

78Firstly, you are entitled to a demonstrable sentencing benefit for your guilty plea, and its timing, for its utilitarian value, particularly because you have spared your victims the stress of any trial. [12]

[12] Carter (a pseudonym) v R (2018) 272 a Crim R 170, [75]

79Secondly, I am satisfied you are genuinely remorseful.

80Thirdly, relying on Dr Trainor’s opinions, which were not challenged, I accept your background of disadvantage[13] and your related mental health difficulties [14] reduce your moral culpability to a moderate degree.

[13] Bugmy v R (2013) 249 CLR 571; Cody Hermann [2021] VSC 160, Sabbatucci [2021] VSCA 340, Roosevelt Newton (a pseudonym) [2023] VSCA 22.

[14] R v Verdins & Ors [2007] VSCA 102, limb 1.

81I also accept prison will be harder for you than a person without your mental health problems. [15]

[15] Ibid, limb 5.

82Regrettably, all too often, persons with backgrounds of disadvantage and mental health problems, commit serious violent crimes while in a self-induced drug psychosis.

83I am not able to conclude the need for general deterrence should be given appreciably less weight in your case. [16]

[16] Ibid, limb 3.

84Your rehabilitation is also a significant sentencing factor.

85Your contrition does reduce the weight to be given to specific deterrence. And, with other factors I will refer to, it increases my confidence in your prospects of rehabilitation.

86Importantly, you have used your time in prison productively. You are working for the first time in a number of years. The MRC metal workshop is an impressive workplace. I am aware inmates must earn selection for work there with good behaviour and industriousness.

87With work to occupy you and drug abstinence, your mental health has improved.

88And, with the work skills you have learned, you are optimistic about obtaining work in the community when you are released from prison.

89Your mother stands by you. She will have you to live at home with her.

90Hopefully, her intuition, that the positive changes you have made in prison will endure, proves to be accurate.

91As a man, now in his 40s, to avoid reoffending, you need to make permanent change now.

92I am optimistic, provided you continue to work hard, and address your mental health and remain drug abstinent, your prospects of rehabilitation are favourable.

93Because you are to be sentenced for several offences, I have had regard to the totality principle to ensure your sentence is an appropriate measure of your overall criminality.

94Mr Davidson, by the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

95Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:

(a)   On the charge of attempted aggravated carjacking, you are sentenced to two years and nine months imprisonment. This is your base sentence.

(b)   On the charge of unlawful assault with a weapon you are sentenced to nine months imprisonment.

(c)   On the charge of possess a controlled weapon you are sentenced to two months imprisonment.

96I direct three months of your sentence on the charge of unlawful assault with a weapon be served cumulatively upon your base sentence.

97Your total effective sentence is three years imprisonment.

98To mitigate punishment and promote your rehabilitation, I fix a minimum non-parole period of one year and nine months.

99I declare you have served 322 days of your sentence by presentence detention.

100While there is some artificiality in the process, I declare, under section 6AAA of the Sentencing Act1991 (Vic), but for your plea of guilty, I would have imposed a total effective sentence of four years and six months imprisonment and fixed a minimum non-parole period of three years.

101Pursuant to subsection 78(1) of the Confiscation Act 1997, I make an order for disposal of the two machetes and a machete sheath.

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