R v Davis (No 2)

[2016] NSWSC 1785

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Davis (No 2) [2016] NSWSC 1785
Hearing dates:	12 December 2016
Decision date:	13 December 2016
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Imprisonment for a term of 40 years with a non-parole period of 30 years
Catchwords:	CRIMINAL LAW – sentence – two counts of murder – one of attempted murder – nursing assistant who injected aged care facility residents with insulin – intention to kill – vulnerable victims – extreme breach of trust – criteria for life sentence not established – offences well above midrange – subjective circumstances do little to mitigate penalty – good character – no guilty plea – where offender maintains his innocence – no basis for a finding of special circumstances – strong need for general deterrence and recognition of harm caused – aggregate sentence imposed
Legislation Cited:	Crimes Act 1900 (NSW) ss 18, 19A, 27 Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	R v Davis [2016] NSWSC 1362
Category:	Sentence
Parties:	Regina Garry Steven Davis
Representation:	Counsel: Mr L Carr (Crown) Mr C Watson (Offender)   Solicitors: Solicitor for Public Prosecutions Ramsland Laidler
File Number(s):	2014/370401

Judgment

1. HIS HONOUR: Garry Steven Davis ("the offender") was arraigned before me on 29 August 2016 and pleaded not guilty to the following counts in the indictment:

1. Murder of Ms Gwendolyne Fowler contrary to s 18 of the Crimes Act 1900 (NSW).

2. Administer poison with intent to murder Ms Audrey Manuel contrary to s 27 of the Crimes Act.

3. Murder of Mr Ryan Kelly contrary to s 18 of the Crimes Act.

2. The offender stood trial before me without a jury. On 28 September 2016 I returned verdicts of guilty on each count: R v Davis [2016] NSWSC 1362. The offender is now to be sentenced for each of those offences.

3. The crime of murder is one that carries a maximum penalty of imprisonment for life (s 19A of the Crimes Act) and a standard non-parole period of 20 years. The offence of administer a poison with intent to murder carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years. These are the statutory guideposts that I must bear in mind when assessing the appropriate sentences to be imposed in the light of all of the relevant facts and circumstances.

Facts

4. A detailed analysis of the evidence in the circumstantial Crown case can be found within my reasons for verdict. My task now is to set out the facts upon which the offender is to be sentenced.

Overview

5. The offender was employed as a Team Leader Certificate IV Aged Care worker at SummitCare aged care facility at Wallsend. There are four wards at SummitCare which provide for up to 142 residents. The victim of each offence was a resident in the Mountview ward.

6. In short, the offender injected Ms Gwendolyne Fowler on 18 October 2013 and Ms Audrey Manuel and Mr Ryan ("Greg") Kelly on 19 October with insulin in a non-therapeutic setting. Each victim was subsequently found in a hypoglycaemic state. Medical attention was promptly provided in each instance but Ms Fowler and Mr Kelly could not be saved.

7. The sole issue at trial was the identity of the person who injected the victims. There was no dispute that each victim was deliberately injected with insulin and that there was no medical need for it. In these circumstances, it was common ground that the person who injected the victims did so with an intention to kill. I am satisfied beyond reasonable doubt that this was the case.

Expert evidence

8. A number of medical expert witnesses gave evidence in the trial. As I have indicated, there was no dispute that each victim received an injection of insulin. Testing was inconclusive as to which specific type of insulin was used. Uniformity in the medical opinion indicated that long-acting insulin was used; it was uncertain, however, whether this was in conjunction with fast-acting insulin. Nonetheless, it was clear that the injections occurred up to about eight hours before the victims displayed significant symptoms of hypoglycaemia. This meant that Ms Fowler was injected sometime after about 8.00am on Friday 18 October; Ms Manuel was injected sometime after about 3.30am on Saturday 19 October; and Mr Kelly was injected that day sometime after about 7.00am. The offender was at work on both days from about 6.30am until about 3.00 to 3.30pm.

Gwendolyne Fowler - 18 October 2013

9. Ms Gwendolyne Fowler was aged 83. She suffered from Alzheimer's disease, diabetes mellitus type 2, rheumatoid arthritis and osteoporosis. Her general practitioner visited her on Thursday 17 October 2013 and observed her to be in reasonable health given her condition.

10. On the morning of Friday 18 October Ms Fowler was attended to by nursing staff in the ordinary way. They noticed nothing untoward about her. At lunch time she became frustrated with a staff member assisting her to eat; there was a verbal outburst and she attempt to bite the staff member. The staff member was not troubled by this, being of the opinion it was not out of character for Ms Fowler. A different staff member who observed the interaction was of a contrary opinion, believing it to be odd.

11. Apart from the lunchtime encounter, everything seemed normal until Ms Fowler's daughter, Ms Julie Ross, came to visit at 4pm. Ms Ross found Ms Fowler in her room in a state that prompted her to seek immediate assistance from nursing staff.

12. Ms Fowler was suffering from hypoglycaemia and she was taken to hospital. She was later returned to SummitCare that evening for palliative care, ultimately passing away at about 12.50pm the following day. There were no suspicions about Ms Fowler's death until after Ms Manuel and Mr Kelly were taken to hospital with similar symptoms.

13. An autopsy revealed the direct cause of Ms Fowler's death was "bilateral bronchopneumonia" with the antecedent causes being "hypoglycaemia" and "insulin overdose".

Audrey Manuel - 19 October 2013

14. Ms Audrey Manuel was aged 91. Ms Manuel was a dementia patient who also suffered from osteoporosis, depression, glaucoma and gastro-oesophageal reflux. Ms Manuel's doctor visited her on Thursday 17 October and she appeared to be very well, consistent with her medical condition.

15. On the morning of Saturday 19 October Ms Manuel was attended to in the usual manner and everything appeared normal.

16. The first time Ms Manuel was observed to be in a "confused" state compared to normal was at about 10.30am when she was sitting in the foyer of the ward. This was supported by the observations of another staff member at around 11.15am. At 11.30am Ms Michelle Sutherland was visiting her mother who was a resident of SummitCare. Ms Sutherland noted that Ms Manuel did not respond to an attempt to gain her attention. Ms Manuel's hand began to shake and then it became more pronounced. The offender, who was nearby in the nurses' station, noticed the trembling and came over. His attempts to gain a response from Ms Manuel were unsuccessful. Other staff came to assist and the registered nurse took charge.

17. Ms Manuel was at this stage hypoglycaemic and hypothermic. She was taken to hospital where testing and clinical observations concluded that her symptoms were caused by the administration of a very high dose of insulin.

18. Ms Manuel remained in hospital until 1 November 2013. Her condition improved but she never attained the same level of functioning she had prior to her admission; her prognosis was poor. She was transferred to a different hospital before being moved to another nursing home where she later passed away from unrelated causes.

Ryan ("Greg") Kelly - 19 October 2013

19. Mr Ryan ("Greg") Kelly was 80 years old. His medical conditions included Alzheimer's dementia, ischaemic heart disease and hypertension. He was observed to be in his usual health in the days leading up to the incident.

20. On the morning of Saturday 19 October Mr Kelly received his usual care and assistance. At about 2.40pm he was seen fussing about with some of his belongings at the foot of his bed but this did not raise any alarm. At about 3.15pm he was sleeping in the chair in his room, which was said to be normal. He was woken for a sip of thickened drink and he then went back to sleep.

21. At about 4.30pm Mr Kelly was observed to be in a very deep sleep and attempts were made to wake him, but he was ultimately left alone. Around 5.30pm further unsuccessful attempts were made to wake him. He was now in a state that caused concern and the registered nurse was approached. He was hypoglycaemic and hypothermic at this time. He was taken to hospital as a result, where he remained until he passed away on 29 October 2013. An autopsy revealed the direct cause of death was "aspiration pneumonia" with the antecedent cause, "insulin overdose".

The offender as the perpetrator

22. The basis upon which it was proved beyond reasonable doubt that the offender was the person who administered the injections can be found within my reasons for verdict.

23. There were many strands in the cable of the circumstantial Crown case. The offender was working in the Mountview ward when each of the injections was given to the three victims and he was a person who had access to insulin stored in the ward treatment room. Although security to that room was imperfect, the offender could, and was in fact required to, readily and regularly access the room. It was normally kept locked but he had a key.

24. The offender possessed the necessary training, skill and experience in the administration of insulin, having done so in the course of his employment. He had in fact injected insulin to two insulin-dependent residents in the Mountview ward on 17 and 18 October, despite it being SummitCare policy that only a registered nurse should do so.

25. The offender had worked at SummitCare for a little over two years. He had access to the victims and thus the opportunity to give the injections, as his job required him to administer oral medications to all residents in the Mountview ward. The nature of that position as "primary medication giver" also meant that he had a relationship with the victims such that they would be less likely to object to him giving them an injection than anyone else aside from a registered nurse.

26. A police search of the offender's home located a number of syringes and needles as well as literature concerning insulin. That literature contained information concerning a number of types of insulin that were on hand in the Mountview treatment room at the relevant time. It also included a description of overdosing causing hypoglycaemic effects that could result in death.

27. Text messages the offender sent suggested foreknowledge of the impending or prospective demise of Ms Manuel and Mr Kelly.

28. In reaching the verdicts of guilty, all other potential perpetrators were eliminated. This was the result of an extensive police investigation, including the examination of CCTV footage covering every point of entry to the facility. I indicated in my reasons for the verdicts that I was satisfied beyond reasonable that the Crown had eliminated any possibility that there were multiple perpetrators or that the perpetrator was a resident, a visitor, another staff member, a woman, an unidentified person who entered without being captured on CCTV, or someone else.

29. The combined force of these circumstances left me with no doubt that the offender committed the offences for which he was indicted.

Seriousness of the offences

30. Three features are of particular significance in the assessment of the gravity of these offences: the vulnerability of the victims; the extreme breach of trust by the offender; and, of course, the tragic and extreme consequences of his conduct.

31. The victims were of advanced age and they were in the SummitCare facility for reasons relating to their frailty and inability to care for themselves. As the Crown Prosecutor described it, they were "compromised, disempowered and vulnerable". Great trust was thereby placed in those charged with the responsibility of attending to their daily needs; particularly the more senior members of staff. As a Team Leader, the offender was second in charge in his ward under the registered nurse. To act in the way I have found the offender did in relation to each of these three patients was a gross violation of his position of trust.

32. The offender's position of trust transcended that which he owed to his patients. A substantial degree of trust was placed in him and the other carers for residents at SummitCare by families and friends. They were entitled to expect that their loved ones would be treated with dignity and respect; as people who had lives of value.

33. The offences cannot be characterised as spontaneous. Clearly there was some time, thought and preparation involved. Just how much forethought is impossible to determine, however, because it remains a complete mystery why the offender carried out these terrible crimes. Why he chose these particular victims among the various residents of the Mountview ward is also a mystery. He later told police that they were "not problem residents"; they were "perfect residents"; "easy to look after"; and "they weren't really a bother".

34. The deaths of Ms Fowler and Mr Kelly are elements of the two offences of murder. The attempted murder of Ms Manuel had consequences going beyond the elements of the offence. Although she survived and ultimately died of unrelated causes, her recovery was slow and she had a reduced level of functioning because of what the offender did to her.

35. The Crown Prosecutor submitted that the offender's actions in killing Ms Fowler could inform the assessment of the seriousness of the killing of Mr Kelly and the attempted killing of Ms Manuel the following day. As I understood the submission, it was that he had seen the "success" of what he had done to Ms Fowler and that he had not attracted any suspicion and in this way was emboldened to go on to do what he did to the others. That may very well be so but where the offender acted in each case with an intention of causing death I do not think this adds much, if at all, to the assessment.

36. In killing two and attempting to kill another vulnerable patient of an aged care facility the offender acted with extreme callousness. It is as if he thought their lives were worthless. With no specific motive being known there is some force in the Crown's submission that the offender's actions were carried out simply for the sake of killing. I am not satisfied of that beyond reasonable doubt; but I am satisfied that there is no explanation that would reduce the very grave seriousness of these crimes. Although I am not satisfied that they are in the worst case category, they are well above the midrange of offending for these types of crimes.

37. I have seriously considered the Crown's submissions that the criteria for imposing a life sentence in this case are established. In the end, however, I am not satisfied that they are, even though the multiplicity of offending is a particularly significant matter in this respect. It was conceded on behalf of the offender that a "very lengthy sentence" that would see his release when he is of "very advanced years" must be imposed nonetheless.

Victim impact statements

38. Family victim impact statements were provided by Ms Julie Ross and Ms Gail Russ, daughters of Ms Fowler, and by Ms Beverley Hogue, daughter of Ms Manuel. They are very moving documents to read and they have been written in a very brave and dignified manner. As one would expect, the loss of their loved ones has had very significant impacts upon them. I am also mindful of the fact that this would also be the case for all of the family members of each of Ms Fowler, Ms Manuel and Mr Kelly. Again, I extend my sincerest sympathy to them all.

Personal circumstances of the offender

39. The offender did not give evidence in the trial and he has once again exercised his right to silence in the sentence proceedings. Tendered on his behalf, however, was a report of Dr Olav Nielssen, psychiatrist, dated 11 November 2016. Dr Nielssen took a history and made an assessment of the offender in an audio-visual link interview.

40. The offender was born in 1987 and so he was aged 26 at the time of the offences. He has lived in the Newcastle area for most of his life. He was an only child in his parents' relationship but gained some half-siblings after his parents separated when he was aged three or four. He said he was subjected to severe physical punishments by his mother and her new partner and that is why he went to live with his grandparents at age thirteen. His father died at about that time. I interpolate that it was submitted that the offender's upbringing was one of deprivation which should mitigate his sentence because his moral culpability is less than that of an offender whose formative years have not been marred in such a way. With respect, I do not accept that submission.

41. The offender applied to study nursing at university after completing high school but switched to a TAFE course. Ultimately he completed traineeships and attained certificates in aged care and then, subsequent to the offending and before being charged, completed a Diploma of Nursing and became an endorsed enrolled nurse.

42. He told Dr Nielssen that he had been employed as an aged care nurse since 2006 in four different facilities in the Newcastle area and one on the Central Coast. When he was aged around 20 or 21 he was picked on at the aged care facility at which he was working and he took to self-harming by cutting or starving himself. However, he told the doctor that he "woke up to that" and was fine until he relapsed at some stage during the police investigation of the current matter.

43. There is no history of physical ill-health and no alcohol or substance abuse issues.

44. The offender said that he had seen a psychiatrist and a psychologist since coming to gaol. He has been prescribed antidepressant medication.

45. The offender had no previous convictions at the time of the offences. However on 4 December 2014 he was convicted at the Newcastle Local Court for three offences of possessing a prescribed restricted substance and four offences of stealing. He was placed on a good behaviour bond for a period of 3 years.

46. Those offences were said to have taken place on 5 December 2013, and between 17 July 2006 and 5 December 2013, respectively. The property the subject of each of the charges was found when police carried out a search of the offender's home on 5 December 2013. There were various medications which he admitted he had stolen during his employment at aged care facilities. Most of the medications were of a type only available by prescription. Police also found what is described as "a vast amount of new and unused medical equipment routinely used in the aged care environment".

47. The offender told police that he stole these things during his employment at the Cranebrook Care "William Cape Gardens" facility at Kanwal. Police were unable to confirm this was true and so they framed the charges to allow for the thefts to have occurred at other facilities as well. They also alleged that the offender's explanation that he stole the items because of personal need was false.

48. The offender described to Dr Nielssen being in a "fine" and "happy" state of mind in October 2013 (when the offences were committed). He denied being depressed or anxious or feeling in any way angry or frustrated by his work or the people under his care.

49. Dr Nielssen made the diagnosis of "Depressive illness, in partial remission". He said that the offender's longer term prognosis "would appear to be good compared to many accused in similar circumstances". In this regard he referred to his lack of prior convictions or a substance use disorder and his training and employment history since leaving school. Somewhat ironically, the doctor concluded his report by noting that the offender's skills were likely to be very much in demand in prison because of the aging of the prison population with much of the care for elderly inmates being provided by other prisoners. I would expect the authorities might be cautious about this while the underlying cause of the offender's crimes remains unknown.

Other matters relevant to the assessment of sentence

50. There is very little in the offender's personal circumstances which operate in mitigation of sentence.

51. He should receive the benefit of his otherwise good character, aside from the possession and stealing offences; although in the scheme of things they pale into insignificance.

52. It was submitted that the offender should receive credit for facilitating the administration of justice by limiting the facts in issue in the trial. There was the potential for the Crown having to call up to 319 witnesses (in fact I was told at the start of the trial there were potentially 370 witnesses) with such a trial being estimated to take 6 weeks or more. With co-operation, the need to do so and the length of the trial were significantly reduced. I have taken this into account.

53. The offender maintains his innocence and it has not been suggested that I should find he is remorseful.

54. Dr Nielssen wrote in positive terms about the offender's prospects of rehabilitation. It is not apparent that he took into account that there is a complete void when it comes to understanding why the offender did what he did. It is worrying that this remains a mystery. In these circumstances I am unable to find that he is unlikely to reoffend, or that he has good prospects of rehabilitation.

55. There is a need for a strong element of general deterrence in sentencing in this case. Any mistreatment of elderly people in our community is not to be tolerated. This is particularly the case in aged care facilities which are usually not places in which people choose to live but do so out of necessity because of physical and/or cognitive frailties. Nurses and carers who misplace the trust in them to provide dignified and respectful care for elderly patients by committing gross criminal acts should know that they will be held accountable and will be met with heavy punishment.

56. Recognition of the harm done to the victim of the crime and to the community is another purpose of sentencing. In this case, the former is obvious but the latter has a number of dimensions. It includes the tendency of the offender's crimes to damage the faith and trust the community places in aged care facilities to care for the ever increasing number of its vulnerable and frail elderly members.

57. The offender has been in custody since his arrest on 17 December 2014 and so his sentence should be backdated to that time.

58. As the offender is convicted of a "serious violence offence" it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW). At my request, the applicant's solicitor will do so.

59. Having regard to the length of the sentence I will impose I must reject the submission that the parole component should be enlarged to assist the offender's reintegration into the community. The parole period that will be allowed by imposing a sentence in the usual proportions will be more than adequate for that purpose.

Indicative sentences for each offence

60. I propose to impose an aggregate sentence. That means I must indicate the sentences I otherwise would have imposed for each offence. It does not mean that I then add them up and that becomes the aggregate sentence. Sentencing principles require me to consider the overall criminality of the offender's crimes and impose what I believe is a just response.

61. For each of the murders of Ms Gwendolyne Fowler and Mr Ryan Kelly, I would have imposed sentences of 30 years with a non-parole period of 22½ years.

62. For the attempted murder of Ms Audrey Manuel I would have imposed a sentence of 16 years with a non-parole period of 12 years.

Sentence

63. Convicted.

64. Sentenced to an aggregate term of imprisonment of 40 years with a non-parole period of 30 years. The sentence will date from 17 December 2014. The non-parole period will expire on 16 December 2044 at which time the offender will become eligible for release on parole. The total term will expire on 16 December 2054.

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Decision last updated: 29 October 2018