Director of Public Prosecutions v Davison
[2017] VCC 252
•17 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS MICHAEL DAVISON |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2017 | |
DATE OF SENTENCE: | 17 March 2017 | |
CASE MAY BE CITED AS: | DPP v Davison | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 252 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Culpable driving causing death; conduct endangering life
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991
Cases Cited: R v Sherpa [2001] VSCA 145
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McWilliams | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr I Hill QC with Mr M Allen | Galbally O’Bryan |
HIS HONOUR:
1 Nicholas Davison, on 23 February 2017 you pleaded guilty to an indictment containing five charges, being burglary (Charge 1), theft (Charge 2), culpable driving causing death (Charge 3), conduct endangering life (Charge 4), and failing to stop after an accident (Charge 5).
2 The maximum penalty for Charges 1, 2, 4 and 5 is ten years’ imprisonment, while the maximum penalty for Charge 3 is twenty years’ imprisonment.
3 You have no prior convictions.
4 Tendered as Exhibit A and read aloud in court was the summary of prosecution opening. Your offending can be described in short compass. On Friday, 29 July 2016, the deceased, Tanami Nayler, who was aged 24 years, flew to Melbourne from Sydney at 11.20 pm. She had planned to spend the weekend with her friend Wrenn Harding and to celebrate her promotion to a managerial position at the flagship shop of the clothing company, Bardot that is located in the Sydney Central Business District. She was due to start in her new role the following Tuesday. She met her friend at about 12.26am, and together they travelled to Lonsdale Street, where they dined. After dinner they caught an Uber to Mr Harding’s home, but decided to go for a short walk around the area together before retiring for the evening. The young couple had completed their walk and were returning to Mr Harding’s home when they arrived at the intersection of King and Hawke Streets, where they waited for the pedestrian crossing light to turn green. While crossing King Street with a green signal Tanami Nayler was struck and killed by a car driven by you and you narrowly missed hitting Wrenn Harding
5 On Friday evening, 29 July 2016, you were at home with friends, drinking vodka, intending to go out for the evening. Sometime after midnight your group made its way into the city, eventually splitting up, with some heading to Fitzroy, and you and two others deciding to stay in the city.
6 At 12.48am you together with your two friends attempted to gain entry to the Bottom End Bar located in Collins Street near its intersection with Spencer Street. You were refused entry due to your level of intoxication. Your two friends were granted entry, leaving you outside. CCTV footage depicts you trying to gain entry into the club on ten occasions between 12.48 and 1.42am. The security guard on the door described you as “stumbling on his feet and smelt strongly of alcohol”.
7 Shortly after 1.42am you were recorded on CCTV walking unsteadily along Spencer Street and entering a Hungry Jack’s restaurant in Spencer Street, there you ordered some food. You are recorded in the restaurant as being unsteady on your feet and unable to stand properly.
8
At 2.05am you are recorded on CCTV entering a carpark containing a Thrifty Car Rental office. You were unsteady on your feet and unable to walk in a straight line. You had previously hired a car from this Thrifty dealership, and so to some extent you were familiar with this area. You forced the glass
sliding-door to the office off its runner and entered the office. You forced open the key drop box and picked up a set of keys to a Toyota Corolla and left the office, you located the matching vehicle parked in the carpark (Charge 1, burglary).
9 You entered the Corolla vehicle and drove towards the exit ramp. You stopped at the boom-gate and attempted to raise it manually but were unable to do so, eventually you drove through the boom-gate, smashing it, and then continued to drive down the ramp and onto Spencer Street (Charge 2, theft).
10
At 2.13am you turned left from the car park into Spencer Street against a red traffic light. You drove north to La Trobe Street where you executed a
right-hand turn into La Trobe Street to travel approximately east. At the intersection of La Trobe and King Streets you attempted to execute a left-hand turn into King Street. You mounted the centre median strip and travelled in a northerly direction along the southbound carriageway for a period of time. Your actions left debris from the median strip and your motor vehicle on King Street. You made your way onto the correct side of King Street and you travelled north and increased your speed.
11 You travelled at an excessive speed north along King Street, and as you passed Roden Street you struck the raised centre median strip separating the north and southbound carriageways of King Street. You travelled a short distance with your driver’s-side wheels on the grass in the median strip, before re‑entering the northbound carriageway proper.
12 Your path along King Street was observed by a number of other road users who described you as travelling at well over 100 kilometres per hour.
13 At 2.15am, whilst travelling at a speed of 152 kilometres per hour in a 60 kilometre per hour zone, you entered the intersection of King and Hawke Streets 18 seconds after the light appropriate to you had turned red. You struck Miss Nayler, and killed her instantly (Charge 3, culpable driving causing death). You narrowly missed her companion, Wrenn Harding (Charge 4, conduct endangering life).
14 You propelled the body of Miss Nayler some 84 metres north along King Street to its intersection with Curzon Street.
15 Your vehicle came to rest in the intersection of Curzon and King Streets after colliding with a small tree and a red light camera sign post. Some six seconds later you can be seen on CCTV leaving the vehicle, briefly falling over, and running diagonally across the intersection around Miss Nayler’s body then out of sight towards Spencer Street. (Charge 5, failing to stop after a collision.)
16 CCTV cameras at McMahon’s Hotel on the corner of Spencer and Hawke Streets record you at 2.17am running across the road and removing your clothing as you did so. You were recorded at 2.18am in Mighty Apollo Lane stumbling along, and at this time you sent a text from your mobile phone to a friend. The text was jumbled, but made reference to going to gaol. While in the laneway you removed all your clothing save for your underpants and a belt, and at about 2.21am you were recorded on CCTV running from the laneway. It is apparent that you ran south along Hawke Street. You then ran down Adderley Street to its intersection with Dudley Street, where you stopped on the ramp to the underground carpark to the Australian Red Cross Blood Service at 2.31am.
17 At 2.32am you took photos with your mobile phone of the injuries that you had sustained to both your hands and arms as a result of the collision, and you posted those images on Facebook. Shortly thereafter you called a friend and told him that you had done something really bad, that you did not know where you were, that you were in your underwear, and had blood on your hands. Your friend described you as being highly distressed, vague, and incoherent.
18 Thereafter you commenced to walk back towards your home in North Melbourne. At 3am you were intercepted by police whilst you were walking west along Victoria Street towards Errol Street. You told police that your friends had “messed with” you and that you just needed to go home. When asked about your injuries, you stated you had too much to drink and had tripped and fallen over a median strip. When asked how you were going to get inside your home, you replied that you did not have your house keys and that your flatmates must have them.
19 Later at the scene, you told police that you had been drinking at the Bottom End Bar and that your friends had stripped you and taken your clothes. You said that your friends did such things all the time to each other. You told police that they had taken your wallet along with your clothes. Later you told police that you could not remember where your clothes were, that it was not your friends who had taken them, that you had your credit card in your boxer shorts, and that you had not been allowed into one bar as you were too drunk, but you could not remember the name or location of that bar. You volunteered that you did not own a car and that you did not drive.
20 You were arrested for being drunk, and conveyed to the Melbourne West Police Station, where you were lodged in the cells. It was at this time that you produced your Victorian driver’s licence from your underwear. While in custody, images of the male responsible for stealing the car from Thrifty were compared with you, and you appeared to be the person in those images.
21 At 10am you requested to make a phone call, and you phoned your friend and told him you had “stole a car and crashed it”.
22 Whilst in custody you were seen by a forensic physician who observed “a large number of small punctate red abrasions ... these are a type of injury often seen when there has been contact with shattered and broken glass”.
23 The forensic physician obtained a voluntary blood sample from you at 12.10pm which was subsequently analysed and returned a blood-alcohol concentration reading of 0.031 per cent. The forensic physician opined that your blood-alcohol concentration at the time of the collision would have been between 0.129 and 0.228 per cent, and further opined in respect of you that “his skills would have been adversely affected by the effects of alcohol ... that range can render a person incapable of having proper control of a motor vehicle”.
24 You were interviewed under caution, and told police that you recalled drinking at home with friends for about three hours. You said your next recollection was being refused entry to a club in Little Collins Street. You recalled breaking into the car rental office at Southern Cross Station and stealing a car and driving through the boom-gate. You told police that you had no memory of driving, but recalled the airbag being deployed in the motor car, and then being arrested. You claimed that your memory loss on the night of the collision was due to excessive drinking. You also told police that you were sorry, and that if you could take it back you would; that you just kept thinking about the family of the poor person (a reference to Tanami Nayler), and that if you told your parents of what had taken place it was going to crush them.
25 Your conduct on 30 July 2016 was a shocking example of conduct of its kind and represents a bad example of the offences of culpable driving causing death and conduct endangering life. It was characterised by you being adversely affected by alcohol when driving in a manner and at a speed that made it inevitable that death would result from your actions.
26 Tendered as Exhibit B on the plea was a chart of your movements post-collision.
27 Exhibit C is a diagram of the intersections of King Street with Hawke and Curzon Streets and the movement of your vehicle along King Street between Hawke and Curzon Streets.
28 Exhibit D is a bundle of eight books of photographs depicting various scenes in King Street where you had crossed over or onto the median strip of King Street leaving debris from your car and from the median strip on the road, aerial photographs of the relevant areas, and photographs of the collision scene and your vehicle.
29 Exhibit E consisted of three DVDs containing CCTV images of the movement of your car at the time of the collision at Hawke Street and its travel thereafter to Curzon Street, as well as you entering into the Thrifty car park and your exit from it. The images of the collision and its immediate aftermath are shocking.
30 Exhibit F is a bundle of thirty victim impact statements in respect to the impact on others of the death of Tanami Nayler, some of which were read in court. It is an impossible task to summarise the sentiments expressed in these statements and do them justice.
31 Tanami Nayler was her parents’ only child. Her mother describes her life now as having no meaning, and that she has no reason “to be any more”. She described how her daughter had been her best friend and that they used to communicate daily, despite the fact that she lived in Queensland whilst her daughter lived in Sydney. In short, Mrs Nayler described her life as having been destroyed. Tanami Nayler’s father’s victim impact statement is far more phlegmatic, but equally moving. He simply describes himself as heartbroken.
32 The balance of the victim impact statements come from Tanami Nayler’s uncles and aunts and family friends, as well as many of her contemporaries and friends.
33 Tanami Nayler in her short life had a profound impact on each of the deponents to the victim impact statements. In essence, she brought light into their lives, was supportive of her family and friends, loyal to them, and they are inconsolable in their grief.
34 Tendered as Exhibit 1 on the plea was a folder of materials that included:
· defence submissions,
· reports from Dr Mathew Barth, psychologist, dated 11 October 2016 and 15 February 2017,
· twenty-seven character references, and
· a number of certificates confirming courses of study completed by you, Mr Davison, while in custody.
35 Mr Davison, you are twenty-three years of age, and were but twenty-two years old at the time of the commission of the instant offences. You are a New Zealand citizen, and came to Melbourne in February 2015. You were born into a loving family. You were raised in Christchurch, and you have four siblings. Your father is a forklift technician whilst your mother, a qualified teacher, currently works as library manager. You attended local primary and secondary schools in Christchurch and you were a bright student and performed well academically. You were devoted to your studies, and did not exhibit any behavioural problems whilst at school. However, you described to Dr Barth that you had significant social issues throughout your schooling, in that you had few friends and were bullied.
36 Many of your character referees write of your participation as a youth leader in the Anglican and Presbyterian churches. Until the morning of 30 July 2016 you had led an exemplary and blameless life. Your conduct in the small hours of 30 July 2016 is entirely inexplicable and out of character with the young man described within the many character references tendered on your behalf.
37
In your final year at school you were second in your class academically, you were awarded a scholarship to attend the University of Canterbury, where you excelled academically and completed a Bachelor of Commerce in International Business. While at school and university you maintained part-time work. Your main employment, as a university student was in the banking industry and when you came to Australia you were employed by the Bank of Melbourne on a
full-time basis. After arriving in Melbourne in February 2015 you undertook further study at Deakin University and completed a two-tier accreditation in Banking and Finance.
38 You were regarded highly in the bank and your manager described you as “a very bright, well-mannered young man who was a valued team member and who I would often utilise to mentor my newer staff”. You received two awards for excellence from the bank in January and July 2016. Your manager has visited you while you have been in prison on remand.
39 However, you told Dr Barth that you felt increasing pressure to meet the demands of your employment at the Bank of Melbourne, that you were plagued with feelings of intense self-consciousness in respect to your sexuality, and felt anxious and insecure around your peers unless you were intoxicated from alcohol. It is plain that your alcohol consumption whilst living in Australia became increasingly dysfunctional.
40 You are homosexual in orientation, and revealed this to your family when you were approximately eighteen years of age. It is plain that this revelation caused disquiet in your family, and a dislocation in your participation within the Presbyterian Church as a youth leader. Save for one oblique reference, there is no indication in any of the references from the church members and officials of your sexual orientation, nor the effect that it had on your participation in church life, nor that you lost your faith as a result of the Church’s reaction.
41 You commenced drinking alcohol regularly at eighteen years of age, and began to binge drink on weekends. You told Dr Barth that you enjoyed the feeling of being intoxicated and “not having to worry about stuff”. Your use of alcohol escalated after moving to Melbourne, and you immersed yourself in the nightclub scene on most weekends, binge drinking heavily on Friday and Saturday nights.
42 You told Dr Barth that you had used illicit substances sporadically, being amphetamine, methylamphetamine, and cocaine on one occasion. You used these drugs at nightclubs whilst drunk.
43 You presented to Dr Barth with depressive and anxiety related symptoms of moderate intensity, but he opined that these symptoms were reactive to the position in which you find yourself. You have never been diagnosed with a mental illness. In this respect you are an appropriate vehicle for the application of general deterrence.
44 It is plain that you used alcohol as a coping mechanism, as a means of enhancing your low self-esteem and confusion in respect to your lifestyle and sense of identity.
45 I have read each of the references tendered on your behalf. Your parents write of your close, warm and open relationship with them. They describe you as being very happy in Melbourne, that you had made many friends and that your work was going well. They describe your conduct as “not the Nick we all knew”. Your mother has visited you in prison and you expressed remorse for your conduct to her and your concern for Tanami Nayler’s family.
46 Your aunt writes in similar terms. You regularly write to her and in her reference she writes of you that “He has never once deflected from what he has done.” She wrote that you pray for Tanami Nayler’s family. Other family members, former work colleagues in New Zealand, members of St Margaret’s Presbyterian Church congregation and the Boys Brigade attached to that parish all speak as to your personal qualities as a young person, as do your university friends and one of your former teachers.
47 Your genuine contrition and remorse for your actions is a recurring theme throughout the references tendered on your behalf. I accept the content of these references.
48 You did not make a bail application and intended to plead guilty at the outset of the investigation. You pleaded guilty at the earliest opportunity and you are entitled to the benefits that flow to you from your plea, being that it is evidence of your remorse which I accept is genuine, and it also has utilitarian benefit.
49 While in prison, you have undertaken a number of courses and the certificates in respect of them form part of Exhibit 1. In particular, you have addressed your alcohol problem and have resolved to be abstinent from alcohol, which I accept is a genuine step made by you towards your rehabilitation.
50 Ms Anne Hooker, youth development officer at Port Phillip Prison, was called on your behalf. Ms Hooker coordinates the youth program within Port Phillip Prison and in particular the thirty-five prisoners who are held within the prison in an area reserved for eligible prisoners aged between 18 and 25 years. She described you as being very different from the cohort of eligible young prisoners. In particular you are polite, not manipulative, and not aggressive. You are the only person within the present cohort with tertiary qualifications. She described you as immature, socially inept, extremely fearful and vulnerable. She swore that you accept the horrors and grief that you have caused, and that you have expressed your remorse for your actions to her and have been in tears when doing so.
51 You are trusted by Ms Hooker and work as a billet in the youth unit. She described you as a role model for other prisoners in the youth unit. She expressed genuine concerns for your safety should you be transferred to the mainstream prison population, and intends to use all her endeavours to keep you within the youth unit until you are twenty-five years of age, and then hopes that you will be sent to a medium or low security prison.
52 Mr Hill of Her Majesty’s Counsel, who appeared with Mr Allen, submitted that you were entitled to rely upon your youth, lack of any prior convictions or prior dishonest or antisocial behaviour, your positive good character, excellent education history, exemplary employment history, your early plea, profound remorse and steps made by you towards rehabilitation, as well as strong family support to found a submission that you have excellent prospects for rehabilitation. This submission must be accepted. All of these matters must impact ultimately upon the head sentence and minimum term which I am obliged to impose on you.
53 Reliance was placed by your counsel on your youth and I was referred to the remarks of Callaway JA in R v Sherpa [2001] VSCA 145 at [11]. The passage bears repeating:
“General deterrence must usually be emphasised in the punishment of this offence [culpable driving causing death] and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition. Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed …, the length of the sentence and the time that must necessarily be served. But it is not to be forgotten that a life has been lost.”
54 Will you please stand.
55 By this sentence I must punish you, publicly denounce your conduct and deter others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedence, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1 – 6 months’ imprisonment;
On Charge 2 – 6 months’ imprisonment;
On Charge 3 – 9 years’ imprisonment;
On Charge 4 – 4 years’ imprisonment; and
On Charge 5 – 2 years’ imprisonment.
56 I order that 18 months of the sentence imposed on Charge 4 and 6 months of the sentence imposed on Charge 5 be served cumulatively upon each other and on the sentence imposed on Charge 3. This results in a total effective sentence of 11 years’ imprisonment and I fix the period of 7 years’ imprisonment as the period of imprisonment that you must serve before you will become eligible for parole.
57 I declare that you have spent 230 days by way of pre‑sentence detention.
58 I cancel all licences and permits held by you under the Road Safety Act 1986 and disqualify you from obtaining any such licence or permit for a period of 6 years.
59 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 15 years’ imprisonment with a non-parole period of 12 years.
60 You may be seated.
61 Gentlemen, are there any other matters that need to be attended to?
62 MR McWILLIAMS: No, Your Honour.
63 HIS HONOUR: Mr Allen?
64 MR ALLEN: No, Your Honour.
65 HIS HONOUR: Remove the prisoner.
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