R v Davis
[2021] ACTSC 335
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Davis | |
Citation: | [2021] ACTSC 335 | |
Hearing Date: | 9 April 2021 | |
DecisionDate: | 15 April 2021 | |
Before: | Refshauge AJ | |
Decision: |
(a) be required to comply with the core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order; (b) be directed to undergo any program of treatment or counselling and urinalysis, case management or other program as may be required by any member of the Treatment Order Team or by order of the Court from time to time; and (c) be directed to comply with any direction of the Court from time to time about attendance at the Court in person or by electronic means.
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Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Common Assault – Aggravated Burglary – Animal Cruelty – Property Damage – Strangulation – Possession of a Weapon with Intent – Pre-Sentence Custody – Plea of Guilty – Drug and Alcohol Treatment Order – Rehabilitation | |
Legislation Cited: | Animal Welfare Act 1992 (ACT) s 7 Crimes (Sentencing) Act 2005 (ACT) ss 12A, 33, 46J, 46K, 63 Supreme Court Act 1933 (ACT) pt 8 | |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Vic) v Derby [2007] VSCA 92; 171 A Crim R 302 Ross v The Queen [2012] NSWCCA 161 | |
Texts Cited: | David Hanson, ‘Historical Evolution of Alcohol Consumption in Society’ in Peter Boyle et al, Alcohol: Science, Policy and Public Health (Oxford University Press, 2013) Gail Mason and Paul R Wilson, ‘Alcohol and Crime’ (1989) 18 Trends & Issues in Crime and Criminal Justice Jason Payne and Antonette Gaffney, ‘How Much Crime is Drug or Alcohol Related? Self-Reported Attributions of Police Detainees’ (2012) 439 Trends and Issues in Crime and Criminal Justice | |
Parties: | The Queen (Crown) M Davis (Offender) | |
Representation: | Counsel C Muthurajah; S Janackovic (Crown) A Gordon (Offender) | |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender) | ||
File Number(s): | SCC 259 of 2020 SCC 260 of 2020 | |
REFSHAUGE AJ:
Introduction
1. Since its inception in December 2019, the Supreme Court's Drug and Alcohol Sentencing List (the List) has almost exclusively involved participants who were dependent on illicit drugs, mostly amphetamine, ice or heroin. That is not to say, however, that alcohol was not part of the history of such participants, as many had habitually consumed alcohol, especially at an early age.
2. Psychoactive substances appear in the earliest human records: see Marc-Antoine Crocq, ‘Historical and Cultural Aspects of Man’s Relationship with Addictive Drugs’ (2007) 9(4) Dialogues in Clinical Neuroscience 335, 355-361. A relationship between the of abuse of them and criminal offending has been well documented: see Jason Payne and Antonette Gaffney, ‘How Much Crime is Drug or Alcohol Related? Self-Reported Attributions of Police Detainees’ (2012) 439 Trends and Issues in Crime and Criminal Justice 1, 1-6.
3. Alcohol is, also, a mind-altering or psychoactive drug. It, too, has been used since early human history. Control of its use can be found as long ago as in the Hammurabi Code of Law, composed by the then King of Babylon from 1755 to 1750 BC: see David Hanson, ‘Historical Evolution of Alcohol Consumption in Society’ in Peter Boyle et al (eds), Alcohol: Science, Policy and Public Health (Oxford University Press, 2013). A relationship has been made between alcohol use, mainly abuse, and the commission of criminal offences: see Gail Mason and Paul R Wilson, ‘Alcohol and Crime’ (1989) 18 Trends & Issues in Crime and Criminal Justice 1, 2.
4. In that context, I have now to sentence Mark Anthony Davis on his pleas of guilty to an offence of aggravated burglary, an offence of property damage, an offence of strangulation, three offences of common assault, two offences of animal cruelty and one offence of possessing a weapon with intent.
5. The Crown Sentencing Tender Bundle was admitted into evidence without objection. It included the formal committal and transfer documents, an Updated Agreed Statement of Facts, five photographs of the weapon (the subject of one of the charges, and which was used in a number of the others), Mr Davis' Criminal History, a Pre-Sentence Report dated 22 December 2020 and the Alcohol and Drug Service Eligibility Assessment dated 19 February 2021. It also referred to a disc or USB containing mobile footage of some of the incidents from which the charges arose. It was not actually included, but the contents were played at the sentence hearing and it was admitted into evidence.
6. Also tendered separately were Drug and Alcohol Service Treatment Assessments (Suitability Assessments) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), by the ACT Corrective Services of Justice and Community Safety Directorate dated 29 March 2021 and by the Alcohol and Drug Services of Canberra Health Services dated 1 April 2021, together with a Case Plan. There was no objection to the tender of the Suitability Assessments and no challenge to the contents of any of this material.
7. On behalf of Mr Davis, the following items were tendered without objection and admitted into evidence: a reference from Mitchell Smash Repairs and Services dated 6 April 2021, a letter from Foresite Training and Licensing of 15 October 2020 advising on the educational and training programs it provides in which Mr Davis had engaged at the Alexander Maconochie Centre, and a statement of the employment of Mr Davis at the Alexander Maconochie Centre dated 30 January 2021. The contents of none of these documents were challenged.
8. From these documents and the mobile footage, I make the following findings.
The facts
9. On 3 July 2020, Mr Davis approached three brothers aged 24, 16 and 14 years old, who knew him as he had grown up in the same street. The boys were kicking a football in the street. Mr Davis was under the influence of alcohol and was speaking to himself and swearing. He asked why they were hanging around 'the junkie's house' and told them that they should not be there. He called the eldest boy an offensive description, who responded that Mr Davis should leave him alone.
10. Mr Davis then walked to a shed on a property of his godfather in the street, obtained a small knife and threatened the eldest brother saying, 'I'm going to stab you. I'm going to kill you. I have had issues with you. Why are you still here?' The young man felt scared and believed that Mr Davis was going to stab him. I had a photograph of the knife, which was relatively small and short, but bore quite a menacing blade. These facts constituted the first charge of common assault.
11. A neighbour, living in the house outside of which the boys were playing, heard the confrontation and came outside, yelling at Mr Davis, telling him to leave the boys alone. She had known Mr Davis for years as they were previously neighbours and Mr Davis had been in a long-term relationship with a friend of hers.
12. Mr Davis shouted at her that he was going to kill her, using offensive and crude language. He ran towards her holding the knife in his right hand. She feared for her safety and ran back into her house. This was the second offence of common assault.
13. Mr Davis continued to chase her. As the neighbour attempted to close her front door, he continued to shout abuse at her, which caused her two dogs to begin barking at him. He managed to force his way into the residence by squeezing through the partly shut door, but did not cause any damage on entry. These were the events that constituted the offence of aggravated burglary, the circumstance of aggravation being that he had the knife, an offensive weapon, with him and the intent of the burglary was to commit an offence that involved causing harm or threatening to cause harm to the neighbour in the residence.
14. Once Mr Davis was inside the residence, the two dogs began moving towards him and he retreated to the porch. He was only inside for a short period of time. One of the dogs followed him and he stabbed it in the top of its head, being the first offence of animal cruelty.
15. The neighbour then attempted to protect herself and her dogs by taking a pole with her outside. She struck Mr Davis’ head with it. This, and the subsequent altercation, was shown on the mobile video footage. I saw the footage, which showed a quite vicious and nasty altercation of Mr Davis hitting the neighbour as he then punched her in the face a number of times. This constituted the third offence of common assault.
16. The other dog started biting Mr Davis but the neighbour called him off and she and the dog went inside.
17. Mr Davis left but returned shortly afterwards and shouted to the neighbour, 'I am going to kill you, I am going to kill you,' and used a trolley to break two of the windows in the residence. That action was the basis for the offence of damaging property.
18. The neighbour came out of the house and Mr Davis took her to the ground, placing his arm around her neck, and dragged her from the porch towards a garden bed. He was straddling her with one arm around her throat and pushing her head on the ground with his other hand. She struggled to breathe, to the point where she thought that she was going to die. She did not appear to have lost consciousness. This constituted the offence of strangulation.
19. She bit Mr Davis' arm in an attempt to have him let her go and her other dog bit his other arm. In the struggle, Mr Davis stabbed the dog in the torso with the knife he was still holding. These facts were the basis for the second offence of animal cruelty.
20. The neighbour managed to take the knife from Mr Davis and stab him twice in the lower legs, causing him to release his hold on her head. She threw the knife into the garden in an attempt to stop him using it again.
21. Two of her own neighbours ran to her rescue and tackled Mr Davis off her. She was gasping for breath.
22. A third neighbour called the police who arrived, but Mr Davis had left. The neighbour he had attacked was left with redness around her neck, spoke with a hoarse voice and had lacerations on both forearms, but no severe bruising. She was upset about the injuries to her dogs.
23. The dogs were taken to a veterinary hospital where they received emergency treatment. The dog whose head had been stabbed had to have the wound stapled and provided with pain relief. The other dog, with a deep laceration to the left torso, also had to be stapled and provided with pain relief. The neighbour was able to take them home once they were treated. There was no evidence of more permanent disability to the dogs.
24. Mr Davis, later that day, called the ACT Ambulance Service, claiming to have bitten by a dog in the leg. Police attended with the paramedics and arrested him.
25. He was later taken to the Canberra Hospital where his injuries were treated. His possession of the knife throughout the altercation was the basis for the charge of possessing a knife with intent.
The proceedings
26. As noted above (at [24]), Mr Davis was arrested on the day of the offending, 3 July 2020, and appeared in the ACT Magistrates Court the next day. He was charged with the offences of aggravated burglary, strangulation, property damage, possession of a weapon and assault on the neighbour. He was remanded in custody. After a number of adjournments, he entered a plea of not guilty to these charges on 11 August 2020.
27. Further adjournments followed. On 17 November 2020, the remaining charges of animal cruelty and assault were preferred and Mr Davis pleaded guilty to all charges. By that time, the prosecution had prepared and served the Brief of Evidence. The charges against Mr Davis were then committed for sentence to this Court, so far as they were indictable offences, and the non-indictable offences were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under pt 8 of the Supreme Court Act 1933 (ACT).
28. He was subsequently charged with numerous charges of breaching a Family Violence Order and sentenced in the ACT Magistrates Court to imprisonment for one month, from 3 July 2020 to 2 August 2020, on a rolled-up count.
29. After transfer, the proceedings were initially before the Registrar but referred to this Court and Eligibility Assessments were ordered.
30. On 19 February 2021, Mr Davis was granted bail with conditions. No breaches of bail have been recorded. In particular, he was required to attend Belconnen Police Station every week and to be subject to breath tests. He has not tested positive to alcohol during this period.
31. Also, on 19 February 2021, he was assessed as eligible for Suitability Assessments and those Assessments were directed to be prepared and the matter listed for sentence.
32. Mr Davis has spent 202 days in custody solely for these offences. More than six months of the custodial period of that he spent in custody was served as a sentence for the family violence offence.
The offences
33. Each of the offences is a statutory offence proscribed by legislation. The legislature prescribes, also, a maximum penalty which is an important matter to which a sentencing court must have regard. As noted by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31], ‘the maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence’.
34. Aggravated burglary is an offence contrary to s 312(b) of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 20 years imprisonment or a fine of $320,000, or both. It is, thus, a very serious offence, not though the most serious in the criminal calendar. As with all offences, the courts have identified various factors which make the particular version of the aggravated burglary more or less serious a form of the offence. I have set out in R v Foster [2021] ACTSC 229 at [35]-[38], the relevant factors. I do not need to set them out here in full.
35. In this case, it was more serious because it was committed at a residence, the owner was present and, indeed, was the target of the intended harm for which Mr Davis committed the trespass. That, however, would not make it more serious than any other aggravated burglary where the intent was to cause harm, as that is the nature of the action and intent that is an element of the offence. Nevertheless, it makes it more serious than an aggravated burglary where the intent was to commit a theft.
36. It would also appear to me that it would be more serious, for an aggravated burglary where the intent was to cause harm in a residence, than, say, in commercial premises, because an occupant should feel safe there and would likely be more vulnerable as they may well be alone. This is distinct from commercial premises, where the target of the intended harm, or threat of harm, would more likely be present during business hours when other people would likely be present.
37. On the other hand, the entry was for a relatively brief period and no damage was done on entry nor during the trespass, which was an element of the offence, though Mr Davis did use some force against resistance to gain entry.
38. There was no premeditation or planning. The obtaining of the knife cannot, in my view, be so described and, even if it invoked the subsequent burglary and altercations, the aggravated burglary does not seem to have been in original contemplation, but occurred because of the way the events unfolded.
39. No long-term injury was actually caused to the neighbour, the occupant of the premises.
40. The use of a knife, however, is a matter that the courts view seriously: see R v Forrest (No 2) [2017] ACTSC 83 at [87]. As Higgins J (as his Honour then was) said in R v Griggs [1999] ACTSC 22 at [41], 'a knife, [is] always “loaded”’.
41. The neighbour must have been very frightened of this assailant with a knife who forced his way into her home after threatening to kill her. She had the presence of mind to resist him and later defend herself and her dogs, but this would likely have been motivated and generated by fear. Unfortunately, she made no Victim Impact Statement. She later died in circumstances unrelated to these events. Nevertheless, the Court can accept a general level of response - in this case, in particular, fear - in such circumstances of a quite terrifying incident.
42. Damaging property is made an offence by s 403 of the Criminal Code and renders Mr Davis liable for a maximum penalty of 10 years imprisonment or a fine of $160,000, or both. It is quite a serious offence.
43. It is, however, an offence that can be committed in a very wide variety of ways. It can be the smashing of a glass or a cup or the destruction of a building. As is clear from this comment, a significant factor, as stated in R v Miles [2016] ACTSC 83 at [39], is the circumstances in which property damage is committed, but also relevant is the amount of damage caused: see R v Halden (1983) 9 A Crim R 30, approved in Director of Public Prosecutions (Vic) v Derby [2007] VSCA 92; 171 A Crim R 302 at [23].
44. While all offences have an effect on the community, this offence is serious also because of the effect on the wider community. Many people insure their property from damage and the more damage which occurs, the greater the premium for that insurance which affects all in the community who insure. Also, the inconvenience of the owner including the need to make claims, arrange repairs and live with the damage until it is repaired is an additional burden.
45. In this case, as not infrequently occurs, I have no evidence of the value of the damage, though I did have a photograph of the damage. It was not entirely clear but, so far as I can make out, there were two parts to the window both cracked, though no hole appears to have been caused. One part, however, was quite large and both would need to be completely repaired. It would not be an insignificant cost.
46. While there was no particular sentimental or other value than monetary to this property, it would have caused inconvenience.
47. The damage was deliberate. Indeed, Mr Davis returned to the property and then caused the damage with a trolley - not a small means with which to do so.
48. These facts are all relevant to an assessment of the seriousness of the offence and need to be taken into account.
49. Strangulation is an offence prohibited by s 28(2)(a) of the Crimes Act 1900 (ACT), which attracts a maximum penalty of five years imprisonment.
50. It is, very fortunately, a relatively rare offence. Only 2 cases were recorded in the Supreme Court and 29 in the Magistrates Court in the ACT Sentencing Database. The vast majority were dealt with by non-custodial sentences, but the more serious kind, such as Intensive Corrections Orders or Suspended Sentences.
51. Nevertheless, this Court has had occasion to consider the offence and the relevant factors to which a sentencing court should have regard. Thus, in R v Cowling [2019] ACTSC 138 at [19], Loukas-Karlsson J said:
While the prosecution submitted that there was an absence of authority on the relatively new offence, factors such as duration, amount of force, extent of obstruction of breath, resulting injuries and other conduct involved should inform objective seriousness. Accordingly, the fact that the victim felt as though she would pass out, the significant length of the choking and the accompanying threats are relevant considerations.
52. The relevance of loss of consciousness of the victim and its importance in determining the seriousness of the offence was affirmed by Mossop J in R v Ayuel [2020] ACTSC 213 at [15]. I respectfully agree.
53. In this case, the attack was, it appears, not of long duration, but the force was by no means insignificant, though it did not leave bruising on the victim's neck. It did, however, leave redness and soreness and affected her speaking, making it hoarse. It was a relatively serious version of the offence.
54. Section 26 of the Crimes Act makes common assault an offence and specifies a maximum penalty of two years imprisonment.
55. It, too, can be committed in a wide variety of ways, involving actual violence as well as threat of violence.
56. Clearly, the circumstances of an assault are highly important. For example, if the victim has been relevantly provocative, that can reduce the criminality: see R v Ferguson [1999] NSWCCA 214 at [29]. Ross v The Queen [2012] NSWCCA 161 at [20] set out the relevant matters to consider where the Court said:
The sentencing judge correctly acknowledged that the assessment of the objective seriousness of an offence under section 35(2) will significantly depend upon the harm suffered by the victim. R v Mitchell; R v Gallagher [2007] NSWCCA 296; [2007] 177 A Crim R 94; R v Thawer [2009] NSWCCA 158. Her Honour recognised that other factors such as the nature of the attack and the surrounding circumstances were also relevant to the objective seriousness of the offence. McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439.
57. As noted in R v Byrne [2015] ACTSC 113 at [61], although the offence there under consideration was a much more serious offence, the principles there seem to be applicable to offences of violence more generally. I consider that such principles are applicable here.
58. There was clearly no provocation for any of the victims.
59. The elder brother suffered no physical harm. I did not have a Victim Impact Statement, so I am not aware of any special harm suffered by him, but I can accept that they were serious and intimidating threats. As noted above (at 40]), the use of a knife is a matter of concern for the courts. The threat was accompanied by Mr Davis brandishing the knife which would have made the threat more menacing, as it would seem more likely to be carried out.
60. The threats were made in public, in broad daylight and in front of the victim's young brothers. The courts have regularly stated that the commission of offences of violence in a public place is more serious: Grimshaw v Mann [2013] ACTSC 189 at [51].
61. I am not satisfied that there was any premeditation in the relevant sense. As I have noted (at [38]), the fact that Mr Davis walked away and then returned with a knife does not, in my view, amount to premeditation, but does make the offence more serious.
62. There were two assaults of the neighbour. In neither case was there any provocation. There was no actual violence in the first assault. It was similar to the assault on the elder brother though, of course, the boys were not related to her. The other matters, as I have raised above at [56]-[61], were also relevant.
63. As to the second assault on her, there was actual violence - Mr Davis punched her a number of times in the face with a closed fist. The face is, as other parts of the head, a vulnerable part of the body. These facts make the assault more serious than the others.
64. The offence of possessing a knife with intent to use it to commit an offence involving actual threatened violence is an offence contrary to s 381 of the Crimes Act for which one year imprisonment or a fine of $2,000, or both, is the maximum penalty.
65. As already noted at [40] and [59], the courts treat the possession of a knife seriously and its use also seriously.
66. In this case, the offences were committed in broad daylight on the neighbour's front lawn. In my view, the comments above (at [60]), that offences of violence committed in a public place are more serious, apply to this offence also.
67. The knife, however, was used in all the other offences. It was also deliberately obtained to commit the assault. It is difficult to see, given the number of offences in which it was used and thereby aggravates them, that it adds much as a separate offence to the overall criminality of the episodes.
68. The final offences are two offences of animal cruelty. These are prohibited by s 7 of the Animal Welfare Act 1992 (ACT) and attract a maximum penalty of two years imprisonment or a fine of $32,000, or both.
69. This Act is a recognition that we, as humans, have a duty not to inflict unjustifiable, unnecessary or unreasonable pain on animals, especially those that we have brought into our society and limited, thereby, their capacity to protect themselves.
70. The injuries were significant and, as well as causing actual injury, which the evidence made clear, I accept that they would have caused pain and stress for the dogs. No contrary submissions were made. They were also serious enough to warrant emergency treatment from a veterinary surgeon. There was no evidence to suggest any long-term consequences, especially disability, from the injuries, though they were serious. In one case, it was a stab to the dog's head and, in the other, a deep enough stabbing to penetrate the superficial musculature.
71. Understandably, the dogs were reacting to threats to their owner and their injury would have caused stress on her, their carer. While they threatened Mr Davis, there was no evidence to suggest that he needed to act as he did to protect himself from serious injury. He certainly could have stopped acting violently towards their owner, in which case continuing attack by the dogs may have then justified some further response.
Subjective circumstances
72. Mr Davis was born about 45 years ago, the only child of his parents. His mother, however, separated from his father and he has had no significant contact with him for many, many years. His mother re-partnered and he has three step-siblings: a step-sister with whom he has a good and ongoing relationship and two step-brothers with whom he has no real and, therefore, no positive relationship.
73. He had a very turbulent upbringing. Initially, he lived in New South Wales, but the family later moved to Canberra. His mother was effectively an alcoholic and his step-father was, according to Mr Davis, physically abusive, though his step-sister felt that his treatment was perhaps justified punishment. He moved to live with his grandmother, although she was very, very poor; they had a good relationship and she was supportive of Mr Davis.
74. He suffered a terrible accident when he was six years old, being run over by a car and, because the driver was listening to music and could not hear his cries, was dragged about 20 or 30 metres before he was rescued. He suffered an acquired brain injury and spent a long time in hospital, needing skin grafts, which he said were very painful. The accident also affected his cognitive abilities and prejudiced his schooling. He has limited literacy and left school at year nine to care for his step-siblings, thus he had, clearly, a severely disadvantaged childhood.
75. This is, of course, very relevant to the sentencing exercise and helps to understand how his mother's situation made him likely to be more susceptible to becoming dependant on alcohol. The incidents of violence also make it likely that he saw that as a way to behave in the community. It, thus, may mitigate the sentence, as the effects of such disadvantage do not diminish over time: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [41]–[44].
76. Mr Davis completed a parks and gardens course after he left school, but could not get work in that area, as he was unable to obtain a driver licence due to his literary deficits preventing him completing the written test.
77. Soon after he left school, he started working with his uncle in a bakery in Queanbeyan. He has, since then, been generally consistently employed as a qualified panel beater, a car detailer, at an abattoir and as a bandsaw operator. He has obtained casual employment now from a friend who conducts a smash repair service. He is described by that friend as 'a competent and reliable employee' and his employer is 'extremely happy with his work'.
78. He has undertaken some further courses while on remand in the Alexander Maconochie Centre, where he was described as 'showing a keen interest in learning new skills and has demonstrated an engaging attitude in class'. He was also employed while in custody and was described as 'a good employee' who is 'on time for work every shift and had a good work attendance record'. He is described further as having 'a good work ethic' and the area in which he works, through his efforts, is 'always organised & tidy' and 'he works well in a team environment but also works independently'.
79. Mr Davis has never been married but had a long-term relationship with a woman who had a son. The son had no relationship with his biological father and Mr Davis took on the role as a father figure to him. He and his partner had a daughter, who is now three years old, but he presently has no contact with her, though he is seeking it. The breakdown of the relationship was difficult as the relationship itself was toxic, due to the physical violence and illicit substance use by both parties. He blamed the victim of his strangulation and other offences, who is a friend of his ex-partner, as provoking and encouraging his ex-partner to insist on the lack of contact with his daughter.
80. He has no current accommodation. His step-sister is prepared to have him reside with her in Inverell, New South Wales, but he wishes to be closer to his daughter, which will keep him in Canberra. He is able to reside with a friend in Evatt. She has agreed to him living in her place and the residence has been considered by ACT Corrective Services for suitability and no concerns have been identified. The owner is, however, somewhat concerned at some offensive behaviour by Mr Davis towards her daughter. He proposes to seek accommodation of his own as soon as it becomes available.
81. Mr Davis has a long history of alcohol and other drug use. He used to swig from his mother's alcohol at age 10 to 13 and then did not consume alcohol for the rest of his teenage years, when he commenced smoking cannabis, but became a regular drinker in his twenties. By his late twenties, he was regularly drinking each day. When employed he would abstain from drinking in the morning, but his employer did not object to him drinking at lunchtime and he continued into the evening, consuming up to 20 or 30 drinks a day.
82. He started smoking cannabis at age 15 and continued regularly, three or so times a day, until he was employed at the abattoir in about 2018 when he was subject to drug testing.
83. He has also used methamphetamine, first during the relationship with his former partner and continuing since it ended. He used initially every day but it later became every few days.
84. Alcohol dependence is his main problem and he was heavily intoxicated at the time of the offending. He is assessed as having a severe substance disorder, primarily for alcohol. He has, however, been abstinent since he was remanded in custody after his arrest.
85. Mr Davis has had no alcohol and other drug treatment or counselling of any kind until he entered the Alexander Maconochie Centre, where he has undertaken some courses that may be relevant.
86. Apart from the consequent and ongoing effects of the traumatic car accident he suffered, he is in reasonable physical health. He has been diagnosed with anxiety and depression. He has seen some mental health professionals and has been prescribed some medication which he found helpful, though he stopped taking his medication for a year and resumed about two months before the current offences. He experienced a toxic suicide episode in July 2020 after being remanded in custody.
87. He acknowledges that the current offences have been precipitated by his overuse of alcohol, but also by his methamphetamine use. He has limited recall of the events of the day. He has, however, given some background. He has acknowledged that what he did was wrong and expressed regret. He accepts that he should not hit a woman and he wishes to live by those values.
88. On the other hand, it has been suggested, in the Suitability Assessments, Pre-Sentence Report and by the Crown, that he tried to minimise or justify his actions. It is difficult to accept this, based only on these reports, without hearing from Mr Davis himself. His counsel, for example, accepted that Mr Davis had offered some justification for the offences, but pointed out that the victim and Mr Davis had 'a very difficult history prior to the incident', as she noted 'they had known each other for quite some time' and previously 'had been quite good friends'. In circumstances noted above (at [79]), he believed she was trying to keep her daughter from having contact with him.
89. Mr Davis’ counsel further noted that Mr Davis had 'acknowledged some responsibility for his actions' and has gained a much greater insight into what happened since he has become sober'. For example, he acknowledged, as reported in the Pre-Sentence Report, that 'he should have listened to his godfather' and 'walked away and shut my mouth'.
90. Some of the comments he made are factual and descriptive. It seems to me that offenders are entitled to give a context or background to events, without necessarily being regarded as minimising or trying to justify their actions.
91. Some of his comments, such as suggesting that the victim is a drug dealer, are irrelevant and may be intended to justify himself by painting her in a bad light. Other matters, such as that she had assaulted and threatened him on several occasions, may legitimately explain, though not justify, his actions. That he was scared of dogs would also give some explanation and was a proper matter to raise; though it did not justify his actions, it explained his response.
92. He advised that his actions were impulsive. That is consistent with the facts as given and the only premeditation identified by the Crown was in the obtaining of the knife. That the victim had been instrumental in denying him access to his daughter again would explain his anger, especially as he was disinhibited by intoxication, but again not justified.
93. Mr Davis did express remorse for how the situation escalated.
94. Mr Davis has a relatively short criminal record, commencing from 1998. He has six offences on his record as presented to the Court, which is significant for a man of 45 with a disadvantaged childhood, literacy challenges, a major alcohol dependence and some drug dependence.
95. Unsurprisingly, three of these are related to driving while intoxicated with alcohol. One is a speeding offence and two relate to damaging property. Apart from the latter, his current offending is not a repeat of prior offending.
96. Since this record was prepared, he has been convicted of a rolled-up plea of breaching a Family Violence Order, as noted above (at [28]), and which should be added as a seventh offence.
97. Mr Davis has had the nature of a Treatment Order explained to him, has had an opportunity to ask questions and has signed a consent to the making of such an Order.
Sentencing practice
98. Section 33(1)(za) of the Sentencing Act requires a court, when sentencing an offender, to take into account current sentencing practice.
99. To some extent, this is encompassed in the descriptions I have given about what the nature of each of the offences is and, in particular, the relevant factors which might be described as the principles relating to particular offences, which the courts have applied to assess the objective seriousness of the actions and, therefore, assist in arriving at the sentence to be imposed.
100. In addition, counsel, from time to time, provide a reference to other current decisions which might be said to be comparable and which, therefore, help to identify the collective wisdom of sentencing judges and courts of appeal. These can be very helpful in identifying the approach that the courts have taken in sentencing for particular offences or groups of offences. Such comparable decisions do not provide a permissible range of sentences, boundaries or limits for the exercise of the sentencing discretion, but assist with consistency in sentencing and inform a court tasked with sentencing.
101. In this case, neither counsel did so. That was not at all inappropriate. It perhaps recognises the paucity of decisions for particular offences and the fact that a particular version of the offence is not often encountered.
102. Nevertheless, sometimes it can be helpful to look at sentencing statistics, which may also provide not only historical information, but to stand as a yardstick against which to examine a proposed sentence. I have discussed the appropriate approach to such statistics and ranges in R v Mathews [2020] ACTSC 364 at [44]-[48] and I follow that here.
103. One of the difficulties is that some of the important factors in sentencing cannot be identified from the raw statistics. For example, burglary can be committed with an attempt to commit an offence of dishonesty or with an intent to commit an offence of violence. The latter will usually be more serious, though the statistics rarely identify such a characteristic.
104. Thus, for example, among the records for offences of burglary with intent to commit a theft is to be found the offence of burglary with an intent to commit an offence of violence, such as; in R v Sila [2015] ACTSC 64, where Mr Sila trespassed on his former wife's house to have sexual intercourse with her without her consent and then did so. For that burglary, he was sentenced to 4 years and 10 months imprisonment. That case was simply included in the records of offences of burglary with intent to commit a theft.
105. On the other hand, in the R v Elphick [2021] ACTSC 9 at [154], it was noted, accepting the limitations on statistics, that the offence of aggravated burglary usually results in a sentence of between 18 months and 3 years and 6 months imprisonment. That is, in fact, approximately the range of 80% of sentences imposed, as shown in the ACT Sentencing Database. The Database shows two years and six months as the mid-point of such sentences.
106. Damaging property is another offence where such information is even more complicated, because of the dependence on the value of the damage caused for the seriousness of the offence. The Database shows that, in this Court, 57.7% of sentences were of imprisonment and those ranged between 6 months or less and 3 years and 2 months, though only 3 sentences were longer than 18 months imprisonment.
107. Thus, in the R v Bell [2020] ACTSC 37, Ms Bell drove a motor vehicle into the front lounge of a residence, significantly damaging the glass sliding door to the room and the surrounding brickwork, as well as to the electronic mains. She was sentenced to 15 months imprisonment, reduced from 20 months for the plea of guilty.
108. There are few cases of strangulation, insufficient to show any patterns of sentencing practice.
109. Common assault is also an offence committed in a wide range of circumstances. For that offence, 47% of sentences are of imprisonment. Of the 31 sentences recorded, all but 3 were for between 3 months and 12 months in the Supreme Court.
110. In R v Nyuon [2020] ACTSC 171, Mr Nyuon punched and kicked the victim but in circumstances where the victim had been detained and seriously abused but where the Court described Mr Nyuon as being 'a moderating influence' on the other assailants who were attacking the victim at the time. He was sentenced to imprisonment for 102 days.
111. In R v Crowther [2019] ACTSC 338, Mr Crowther, in the course of an aggravated robbery with a knife, assaulted the petrol station attendant, on whom the robbery was being committed, by grabbing the front of his shirt and, in the course of the victim pulling away from him, he received a small cut from the knife. For the offence, he was sentenced to four months imprisonment.
112. No offences of animal cruelty have been subject to a sentence in this Court. In the Magistrates Court, only nine offences are recorded in the Database, of which most were of non-custodial sentences, with two sentences of imprisonment, both for four months. No relevant details were available.
113. Only six sentences under s 381 of the Crimes Act are recorded in the Database in this Court and the item possessed cannot be identified. In the Magistrates Court, many more sentences are imposed but again, the item possessed cannot be identified. While only 21% of sentences are of imprisonment, all but four out of 37 are of 6 months imprisonment or less in length.
114. None of these statistics provide a definitive range of sentences, but show the historical pattern, often without showing any direct similarities with the particular circumstances here to be considered.
Consideration
115. The purposes of sentencing is set out by the legislature in s 7 of the Sentencing Act and the sentencing court must have regard to them.
116. In this case, the seriousness of the offences, as offences of violence, require a degree of punishment, which, of course, must be both just and appropriate.
117. Violence is a significant harm to a peaceful and civilised society, thus general deterrence is also required to prevent such crimes, but also to thereby protect the community from violent offences committed by offenders.
118. The sentence must make Mr Davis accountable for his actions and clearly to denounce the conduct. It is also important to recognise the harm done to the victims, even though no Victim Impact Statements were prepared. As I noted above (at [41] and [59]), the Court is able to identify, in general terms, harms to victims from offences of this kind.
119. That does not mean that there is no place for rehabilitation if it can be achieved. Further, the criminal record for Mr Davis is not so bad that specific deterrence features prominently, though, if his offending can be prevented from continuing to escalate, that is highly desirable.
120. I shall approach the task of sentencing with these purposes clearly in mind.
121. I take into account the facts of the events as I have found them that constitute the offences, the nature of the offences and the seriousness of them as actually committed, the personal circumstances of Mr Davis as I have found them, including particularly but not limited to his disadvantaged childhood, the age at which he first used alcohol and other drugs and the depth of his dependence, his employment record and his short and limited criminal record together with current sentencing practice.
122. I also take into account the effect on victims who, of course, are the recipients of the offences that offenders commit and often are not given due weight in sentencing remarks.
123. Importantly, Mr Davis pleaded guilty to all the offences. He did so in the Magistrates Court which is an important early stage, though the pleas were entered after provision of the prosecution Brief of Evidence which reduces, to a certain extent, the utilitarian value of the plea, but I also note that the pleas in some cases were entered after negotiations between prosecution and defence. Nevertheless, the pleas are of value to the criminal justice system and, in this case, requires application of a discount.
124. I note that the evidence presented by the prosecution was very strong. It is not entirely clear whether it would amount to overwhelming, but it may approach that. Even taking that into account, I believe that a significant discount should be afforded to Mr Davis for the utilitarian value of the pleas.
125. The pleas of guilty are also some, but limited, evidence of remorse. Mr Davis has also expressed remorse; though this is perhaps moderated to an extent by the attempt he made to justify the offences. As I noted above (at [90]-[91]), there is some uncertainty as to how much is justification or minimisation and how much is merely legitimate explanation of relevant circumstances. Nevertheless, I accept that Mr Davis is to be credited with some remorse and some insight.
126. I note, too, that Mr Davis has spent a significant period in Pre-Sentence Custody. I consider that this period of 202 days should be taken into account in accordance with s 63(2) of the Sentencing Act, by backdating the sentences.
127. I note, to his credit, that Mr Davis has not consumed alcohol since he was arrested. That has continued since he has been on bail. That is some evidence to suggest that rehabilitation is possible and, of course, if so, is a desirable outcome for him but also for the community. He has also not breached his bail since his release.
128. I accept that Mr Davis complied with the process for preparation of the Suitability Assessments.
129. There are, of course, multiple offences for which I must sentence Mr Davis. I have followed for this the precepts laid down by the courts including, and especially, the High Court.
130. Appropriate sentences have been fixed for each offence and, for that purpose, I have carefully considered the length of each to ensure that they are just and adequate. I must also ensure that he is not punished twice.
131. I have then considered whether any of the sentences should be wholly or partly concurrent because, for example, they are part of the same course of conduct. To some extent, that is true here for the events were all connected and the occurrence of them was over a short period of time. Concurrency may also be required where there are common elements. As noted above (at [67]), the possession of the knife, a separate offence, was an integral part of each of the other offences; except the offences of strangulation and damaging property, but including the aggravated burglary for, while it was not used in the commission of that offence in the way it was used in the others, it was the circumstance of aggravation - a critical element to the offence itself. As a practical matter, possession of the knife will have to be expressed to be concurrent with one of the other offences, but really is concurrent with all.
132. I must then consider the principle of totality and I have, therefore, reviewed the length of the total sentence imposed - in light of the total criminality - to ensure that it is both adequate to reflect that, but no more than that and that the total sentence is not excessive and will leave open the realistic prospect of reform and hope for Mr Davis to take an effective part in the community and with his family upon his release.
133. That may be seen by some as leniency in the construction of the sentence, but is necessary to respect the criminal justice system and ensure fairness for all affected by it.
134. I am satisfied, however, that no other sentence than a sentence of imprisonment is appropriate for the total criminality committed by Mr Davis for the offences he has committed.
Sentence
[His Honour then spoke directly to the offender]
135. Mr Davis, please stand.
136. I convict you of the first count of common assault and I impose a sentence of three months imprisonment, to commence on 25 September 2020 to take into account the 202 days of Pre-Sentence Custody. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
137. I convict you of the second count of common assault and I sentence you to three months imprisonment, to commence on 25 November 2020. That is to be cumulative as to two months on the sentence of the first count of common assault. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
138. I convict you of aggravated burglary and I sentence you to 22 months imprisonment, to commence on 25 December 2020. That is to cumulative as to 20 months on the sentences of the second count common assault. Had you not pleaded guilty, I would have sentenced you to 28 months imprisonment.
139. I convict you of the first count of animal cruelty. I sentence you to four months imprisonment, to commence on 25 September 2022. That is to be cumulative as to three months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.
140. I convict you of the third count of common assault and sentence you to six months imprisonment, to commence on 25 October 2022. That is to be cumulative as to three months on the sentence of the first count of animal cruelty. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
141. I convict you of damage to property, and I sentence you to five months imprisonment, to commence on 25 April 2023. That is to be wholly cumulative on the sentence for the third count of common assault. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
142. I convict you of strangulation, and I sentence you to 12 months imprisonment, to commence on 25 March 2023. That is to be cumulative as to six months on the sentence for property damage. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
143. I convict you of the second count of animal cruelty. I sentence you to four months imprisonment, commencing on 25 January 2024. That is to be cumulative as to two months on the sentence for the offence of strangulation. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.
144. I convict you of possessing a weapon with intent and sentence you to five months imprisonment, to commence on 25 December 2023. That is to be wholly concurrent on the sentence for the second count of animal cruelty and, indeed, all the other sentences. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
145. That is an overall sentence of three years and eight months, commencing on 25 September 2020 and expiring on 24 May 2024.
146. You may be seated.
147. I have now sentenced Mr Davis and need to consider his wish that I make a Treatment Order in respect of him.
148. In the first place, I have sentenced Mr Davis to a total of three years and eight months imprisonment - less than the maximum permissible under s 12A of the Sentencing Act and, for the aggravated burglary one year and eight months, more than the permissible minimum.
149. I am also satisfied that he is not currently subject to any other sentencing order within the meaning of s 12A of the Sentencing Act and I am further satisfied that, despite the fact that he has no immediate secure accommodation of his own, given the offer of a friend, his wish to remain close to his daughter and his past history of remaining in Canberra, he will reside in Canberra for the next 18 months.
150. I am also further satisfied that Mr Davis is dependent on alcohol and illicit drugs and that the dependence on alcohol substantially contributed to his commission of the current offences.
151. Accordingly, I am satisfied that he is eligible to be the subject of a Treatment Order.
152. I have carefully read the Suitability Assessments and the Pre-Sentence Report referred to earlier. They are thoughtful, helpful and comprehensive documents and have been expertly prepared. I have also carefully considered the recommendations in the Suitability Assessments, which both recommend that he is suitable for a Treatment Order.
153. I have also considered the Case Plan prepared for him by the Alcohol and Drug Service of Canberra Health Services. I accept that it is appropriate and is likely to assist him to gain the rehabilitation that he says he is now ready to seek and achieve and which will benefit him and the community. In particular, I note as well as drug and alcohol rehabilitation, the Case Plan includes programs in Respectful Relations, a theme that is evident in his personal history and for these offences.
154. The Crown expressed some reservation about his prospects of rehabilitation. This is based on his attitude to his offending and the problematic use of alcohol and history of drug abuse. I have carefully considered these issues.
155. As to his attitude to the offences, I have addressed that earlier and while I do not necessarily agree with his perception of the role of the victims in his offences, they obviously led him to feel aggrieved and, when disinhibited by alcohol and probably also methamphetamine, then offend. Though he may feel even some justification for the offending, he has accepted that it requires some remorse on his part and the stern sentence I have imposed will make it clear to him that there is no justification.
156. Lengthy alcohol and drug use, were it to be a bar to the making of a Treatment Order, would mean that there would be few offenders who would ever qualify for a Treatment Order.
157. Regrettably, some participants subject to a Treatment Order fail to participate in the programs adequately. For some, the Treatment Order has to be cancelled. For example, R v Bell (No 2) [2020] ACTSC 83, R v Tonna (No 2) [2020] ACTSC 362 and R v Lyons (No 2) [2021] ACTSC 11. On the other hand, two have now graduated and three have completed the program. They had long histories of dependence, but the Treatment Order regime was able successfully to assist in their rehabilitation.
158. I accept that there is no guarantee of success in the program and it may be that the Crown's caution is well based, but I do not see it as requiring me to deny a Treatment Order in this case.
159. I accept that Mr Davis has shown an initial commitment to a readiness for rehabilitation by his abstention from alcohol since July, especially since he has been on bail. I also note, as further evidence, that he has been willing to undertake programs in the Alexander Maconochie Centre and engage with the Alcohol and Drug Service while on bail. Despite these being tentative, I note that, ultimately, the Crown accepted that it was appropriate to make a Treatment Order.
160. I have not identified any indicators of unsuitability for a Treatment Order as set out in Table 46K of the Sentencing Act.
161. Finally, I note that, although I have commenced the sentence of imprisonment imposed on Mr Davis prior to today that, were a Treatment Order to be made, the sentence would have to be partly suspended from today, given that Mr Davis has served part of that sentence of imprisonment already. I am satisfied, for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111], that this does not preclude me from making a Treatment Order.
162. Accordingly, I am satisfied that Mr Davis is suitable for a Treatment Order and that it is appropriate to make one.
Drug and Alcohol Treatment Order
[His Honour then again spoke directly to the offender]
163. Mr Davis, please stand again.
164. I make a Drug and Alcohol Treatment Order under s 12A of the of the Crimes (Sentencing) Act 2005 (ACT) in respect of you, Mark Anthony Davis, for 18 months from today, 15 April 2021, to 14 October 2022 for the offence of aggravated burglary committed on 3 July 2020, the primary offence.
165. I extend the order to the offences of common assault, animal cruelty, property damage, strangulation and possession of a weapon with intent, all being associated offences.
166. I hereby incorporate the convictions and sentences for primary offence and the associated offences into the Drug and Alcohol Treatment Order in the Custodial Part of that order.
167. I suspend the total sentence of three years and eight months under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 15 April 2021, to 24 May 2024.
168. You are required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 15 October 2022 to 24 May 2024, with a probation condition that you accept supervision of the Commissioner of ACT Corrective Services, or his delegate, until 24 May 2024 or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you.
169. For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, I make the following conditions:
(a)I require you, Mark Anthony Davis, to comply with the core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT);
(b)you are directed any program of treatment or counselling and urinalysis, case management or other program as may be required by any member of the Treatment Order team or by order of the Court from time to time;
(c)you are directed to comply with any direction of the Court from time to time about attendance at Court in person or by electronic means; and
170. I direct you to attend Court on 23 April 2021, that is next Friday, at 11.30 am in person.
171. I direct you to attend the Court Registry before you leave the Court Precincts today, 15 April 2021, to sign a sealed copy of this Order.
172. Mr Davis, that is the formal sentence and you may not understand a lot of it. Your counsel will carefully explain what is necessary, but I have set out your history, the facts of these events as you now understand them, the legal consequences of those and how I need to approach it. I have said, adding it all up together, that your behaviour on this day - which was awful really, to put it mildly, whatever history you had had with these people, was quite unacceptable and would justify a substantial term of imprisonment of three years and eight months.
173. In these particular circumstances, however, I do not require you to serve any more time in custody and I have made a Treatment Order. That Order requires you to engage, as you have had explained to you, in treatment for your alcohol and drug addiction, but also for other issues that might assist you to reintegrate into the community and make something of yourself.
174. You have obviously got a good employment record. There is no reason why you should not build on that and, if you can keep yourself out of trouble and start to become a model citizen, then there is no reason why you should not have contact with your daughter. Although that is not a matter over which I have any control, but one would hope that that would happen in due course.
175. What is important for you to understand is that this is a particular type of rehabilitation process and it has got judicial supervision, so you will see a lot of me in the next few months. You will come back every week for a check-in to see how things are going - for me to congratulate you if things are going well and to punish or warn you or take other steps if things are not going so well.
176. It is also important that these check-ins are an occasion where, if things are creating difficulties for you or if you are having problems, you raise them. You can also raise them with your case manager; they are very experienced people who understand and have resources available to them to assist. If there are difficulties, it is better to talk about them in Court so that we can hear them and understand them. If you feel uncomfortable about raising anything in Court but wish to speak to me about it, then you can speak to your lawyer and arrangements can be made for it to be done in a relatively, but not completely, closed and private way. Courts are fundamentally open, but in certain circumstances it can be closed.
177. It is better that you raise any issues you are having, rather than let them fester and become too great a problem, which risks you doing something stupid, landing you back in custody and potentially, ultimately, spending all or a large part of the rest of that three years and eight months in prison. So, that is important for you to understand.
178. What is also important is that in rehabilitation from alcohol and other drugs, one of the fundamentals is honesty - to be honest with yourself and with those who are counselling and assisting you in case management and otherwise. That is really important.
179. It can be difficult. It will be a bumpy process. Having used alcohol since you were 10, that is 35 years ago. That is a long-ingrained habit and for you to manage that appropriately and to stay off the illicit drugs completely is not going to be easy, there will be ups and downs and difficulties.
180. If you are really committed to this and put your heart, mind and shoulder into it, as you obviously proved you are able to in some of your employment, then with the help that is offered to you – the substantial help through this Court - you can achieve rehabilitation. You will see, over the course of your time in this Court, other people who have done that, have proven it is possible, and hear of their experiences. That support is really what this is all about, but it is, ultimately, up to you.
181. Only you can manage your own life, but other people can assist you, give you ideas, help you and, at the end of the day, I can punish you if you do not live up to those expectations.
182. I hope it will be successful. I wish you all the best. I wish you good luck. As I say, I will see you regularly and we will have the opportunities to talk and I will say good things and to say bad things to you, if that has to be, from time to time.
183. I should say one other thing, you have been extraordinarily well represented by Ms Gordon and her firm so far, but once you come into this Court you will be assigned a lawyer from Legal Aid who will act for you. You will be able to speak to them and get as comfortable with them - they are very experienced, highly experienced in the work of this Court and they will become your lawyer, in effect, for the balance of the period of this sentence.
184. You may be seated.
| I certify that the preceding one hundred and eighty-four [184] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: Date: 15 March 2022 |
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