R v Davis
[2010] VSC 274
•17 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0030 of 2010
| THE QUEEN |
| v |
| LLOYD CAMPBELL DAVIS |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2010 | |
DATE OF SENTENCE: | 17 June 2010 | |
CASE MAY BE CITED AS: | R v Davis | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 274 | |
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CRIMINAL LAW – Murder – Guilty plea – Fratricide - Remorse – Good prospects of rehabilitation – Lack of prior convictions – Absence of detail regarding reason for offending – Applicability of sentencing principles – R v Verdins (2007) 16 VR 269.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O’Doherty | Office of Public Prosecutions |
| For the Accused | Mr J. Kennan SC | Galbally Rolfe |
HIS HONOUR:
On 28 April 2010, you pleaded guilty before me to the murder of your elder brother, Evan Rhys Davis.
The circumstances of the murder are that on Wednesday 8 July 2009 at approximately 11.15 am, Gavin Poulter, a work colleague of your brother, attended at your brother’s home in Craigieburn to establish why he had not been to work for two days. Poulter noted bloodstains at the front door and contacted the police. At 11.03am, police attended the scene and a short time later entered via the rear garage and discovered your brother lying facedown in the lounge-room of that address. Dr Melissa Baker, a pathologist who attended with police, examined the unidentified male in situ. She pronounced him dead at approximately 6.00pm.
Dr Baker conducted a post mortem on 9 July 2009 and concluded your brother had died of “multiple incised stab wounds to the head and neck”. There were severe wounds to his skull and neck. His spinal cord had been severed. Dr Baker’s assessment noted “the overall degree of force required is estimated to be extreme given the penetration of the full thickness of the skull”. Your brother had a number of defensive wounds. Dr Baker made the following comments:
Whilst it is not possible to comment on the order in which the injuries were inflicted, several comments can be made in relation to this;
a. The presence of air embolism indicates the deceased was alive at the time the incised injury to the anterior neck was inflicted.
b. Following transection of the spinal chord, the deceased would not have been capable of any form of defensive activity due to being completely paralysed. This suggests the defence injuries to the hands, and hence other injuries, were inflicted prior to the spinal chord being transected.
c. It is possible that some of the injuries were inflicted after death or whilst the deceased was in the process of dying.
A toxicological analysis revealed that he had recently used cannabis.
Details of the Offence
On Monday 6 July 2009, your brother commenced work at 1.36am. He completed his shift as usual and left work at approximately 10.30am. Police are unsure of exactly how he got home. At approximately 1.00pm a work colleague, Koronia Tuhi, attended at his address in Craigieburn. He heard noises that sounded like a struggle inside. He knocked on the door and your brother opened the door covered in blood. He was immediately pulled back inside by his jumper.
Tuhi recognised you at the door. You said, “Fuck off, cunt” and slammed the door shut. Thinking it was an argument best sorted by brothers, Tuhi drove home. At approximately 12.00pm, you rang Marcus Bardon and asked him to pick you up. At approximately 2.30pm, Bardon collected you from the Epping Railway Station. You told Bardon you had a fight with your brother. You then said words to the effect, “I smashed him. Ah fuck. I wrecked him. I killed him in a fight”. Bardon noticed blood on the left leg of your jeans and the jeans were ripped. He drove you home and dropped you off.
On Wednesday 8 July 2009, Tuhi was notified that your brother had been found by Poulter at his house. A short time later, Tuhi spoke with police. Bardon saw the incident on the television news that evening and went straight to the police station. Subsequently, you were arrested and conveyed to the Homicide Squad for interview.
You were interviewed by the Homicide Squad on 8 July 2009. You made no admissions, instead stating you had not seen your brother since the afternoon of Saturday 4 July 2009 at his home. You stated that you had been at the gym on Monday morning and had then gone home.
Background
You were born on 20 August 1981, and are therefore around 15 months younger than your brother. Your parents had married in 1976 and separated in 1983. It was an amicable separation and there was shared access, however your father could not always exercise his as he was often away from Sydney and Melbourne. Your father held a position as an army officer from 1972 through until 2007.
After living initially in New South Wales, you and your brother moved to Melbourne, where Evan completed his schooling. All of your own schooling was in Melbourne. Both you and your brother attended a number of schools, including Mowbray College, Alphington Grammar and finally University High School.
Each of you completed Year 12, Evan in 1998, and you in 1999. You went on to do approximately 12 months of a construction management course at RMIT, however did not finish. In 2000 you lived with your brother in an apartment in Parkville before Evan moved to Sydney to work a job associated with the Olympic Games. You moved into an apartment with your mother in Newmarket and lived there until 2001.
It was in 2001 that your mother, who works in the computer industry, moved to Korea on what was initially intended to be a one-month project. In the result, she ended up working there for three years, before relocating and working in the United States for some five and a half years and then on to Singapore for some years. So, from the age of about 18, your mother was in infrequent contact. Your father, as I have said, was stationed at various locations with the army.
You also went to Sydney in 2001 and worked in a number of jobs, including the demolition of houses and as a security guard with a number of different companies. Whilst there, you again lived with your brother for some of the time, before residing with your father for a period of eight months in 2003.
In November of 2008 you returned to Melbourne. Your brother, the deceased, had returned to Melbourne in 2006 and prior to your arrival had bought the house in Craigieburn where the murder occurred.
Upon your return to Melbourne, you stayed briefly with the deceased before your mother arranged for you to live with your grandmother, her own mother, Mrs Wardaugh. From November 2008 until February 2009, you were on unemployment benefits and then enrolled at the Epping Campus of the Northern Melbourne Institute of TAFE, doing a course in the installation of solar panels. At that time, your mother was still resident and working in Singapore. Your father, having achieved the rank of major, had left the army in 2007 and since then has been working for a Danish company which has a fuel contract with NATO in Afghanistan. He has been able to visit during those periods where his roster permits some consecutive weeks off.
It appears from your grandmother’s affidavit, which was tendered on the plea, that during 2009 you began to become confused. Mrs Wardaugh described you as “looking inwards”. She says you seemed to, “To turn in on himself.” She apparently asked you if everything was all right, however you failed to volunteer any information about any particular problems.
Your grandmother was aware that you were smoking cannabis regularly, despite your never doing so in her immediate presence. She says that in April or May she broached the question of your suggested sexual molestation as a young boy and that she told you that your brother had also been sexually molested by the same person. Further, she had previously informed your mother that you would shower three to four times a day, behaviour which your grandmother saw as consistent with someone with a history of sexual abuse.
Your grandmother deposes that there were some occasions of anger in 2009 where you would yell at her. She recalls you had said that things had gone wrong between yourself and your brother when you were at University High. She stated that in the weeks before the murder, you had become increasingly quiet and were using cannabis.
It was put on your plea that whilst in Year 9, you were sexually assaulted for some months by your brother. You would have been about 15 or 16 years old and your brother about 16 or 17.
It was further submitted that apparently both you and your brother were molested when you were three or four years old by the son of a babysitter – conduct which apparently continued for about six months. Neither of you were aware that the other brother had also been molested until recent years. The conduct was said to have happened when you were living in Sydney. It was explained that conduct was not reported to police because neither of the parents were aware it had occurred. Your mother was only made aware of the allegations three or four years ago when the deceased, your brother Evan, told her about them.
It appears that both you and your brother began using cannabis whilst in secondary school.
The material indicates that your brother worked as a driver, and that to you at least, he did not appear to have much of a social life. You say you felt that your brother was negative towards you, that you felt humiliated by him and by the sexual abuse you say he subjected you to. You have also described feeling that your parents had, to some extent, abandoned you from the time you were 18. You murdered your brother on 6 July 2009.
Matters on the Plea
On the plea, I received the affidavit from your grandmother to which I have referred, and heard evidence from both your mother and father. You have the support of all of them.
The evidence demonstrated that you were becoming increasingly angry as the year 2009 progressed. Both your mother and father, as well as Dr Sarah Miller, a psychologist employed in the prison system, observed that you were very upset and anxious at the time you were admitted to prison. Your mother said that you had also been hysterical when she had spoken to you on the phone towards the end of June 2009. During that conversation, you asked whether Evan had raped her. She had difficulty contacting you after that.
Since being in custody, the three witnesses have noticed improvement in your condition. Dr Miller had seen you on approximately 14 occasions at the time of the plea. It emerged from Dr Miller’s evidence that she regards you as remorseful and that you were determined to make active use of your time in prison.
Two reports from Professor Graham Burrows, Professor of Psychiatry at Melbourne University, were tendered on the plea. One report was dated 14 September 2009, that is, about five weeks after your arrest, and the other report was dated 16 March 2010. Professor Burrows observed much of what had been observed by your parents and Dr Miller in his first report.
In his second report, Professor Burrows described the following:
We discussed his brother’s murder which he is pleading guilty to. He says that he realises now that he was ‘quite upset, angry and distressed’ and under the influence of alcohol and drugs at the time of the incident. He expected to be sentenced for his action. He is obviously a very vulnerable person and it is good that he has been seeing a counsellor regularly.
Mr Davis has obviously benefited from counselling and finds that talking about things has been helpful.
At the second interview he appeared to be more settled but he still has some problems in talking freely. He has at times appeared to be thought blocking and that was the reason I was keen for him to have the MRI. Of course there are limitations to a MRI. In the ideal situation I would have been interested in him having a Positron Emission Tomography (PET) scan because people with his background can have quite obvious cellular or neurodegenerative changes in their brain. He has never had a Minnesota Multiphasic Personality Inventory (MMPI) which would be helpful with his ongoing management.
In summary he has had long standing difficulties. He has had problems with emotional control and as I have stated above Alcohol and Drugs would have had an adverse effect on his ability to behave rationally and logically.
I believe that at the time of the offence Mr Davis would have had an impairment of his mental functions.
His ongoing volutional disturbance with relative lack of interest, vagueness and detachment raised the question that there were some Schizo typical personality characteristics and whether he had ‘psychotic thinking’ at the time of the offence.
I would be recommending that following the court’s decision and his ongoing prison sentence that he continues with counselling. He is obviously very vulnerable and requires support.
In my view, the difficulty in that respect is knowing what is meant by the phrase “an impairment of his mental functions”. It is an important consideration, as I was urged on the plea to have regard to that finding and give weight to the principles arising from R v Verdins,[1] where the Court of Appeal set out a number of principles which might be applied to those who are suffering from mental disorders.
[1](2007) 16 VR 269.
In one sense, you had a disrupted upbringing; you were sexually abused when you were quite young, you regarded yourself as having been raped by your brother. It appears that notwithstanding the cause, you harboured anger toward your brother and bore him some resentment for an extended period of time. It also appears you had a general problem with anger.
Professor Burrows’ report does not address any matter in relation to the circumstances surrounding your offending, or, for that matter, the motivation behind it.
I am prepared to conclude that there was some interference with your mental functioning on the day you killed your brother. I say that based on the evidence of your grandmother and mother in particular. The cause of that impairment is almost impossible to determine. It may be said that alcohol and drug abuse, together with your attitude toward your brother (caused by either what actually happened or what you perceived to have happened), played a significant part. I make some allowance for that.
You pleaded guilty at a very early stage. You are remorseful and your prospects of rehabilitation are probably good. You have no prior convictions. In the absence of any detail with regard to what occurred or, more importantly, why it occurred, I have expressed the reservations that I have about your prospects.
No victim impact material was submitted. In somewhat understandable circumstances, your family have devoted themselves to you.
A 39 year old man, experiencing his own difficulties and coping with them to a large degree, is dead. He was murdered in the most brutal of circumstances without any actual explanation as to why.
The principles of just punishment, general deterrence and, although moderated to some degree, specific deterrence, are all aspects I have considered in sentencing.
You will be sentenced to be imprisoned for 18 years with a non-parole period of 14 years.
I declare that you have served 344 days by way of pre-sentence detention.
I am obliged to state what sentence I would have imposed had you not pleaded guilty. Your case, and those of its kind, prove extremely difficult ones in which to make that assessment because at the conclusion of a trial, many of the features which influence this plea would be absent. Attempting to isolate that particular circumstance, had you not pleaded guilty, you would have been sentenced to a period of 20 years’ imprisonment with a non-parole period of 17 years.
I direct that this declaration and statement and their details be entered in the records of the Court.
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