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R v Mervyn Davidson

R v Mervyn Davidson

Case [2018] NSWDC 45 9 March 2018

Aggravated & Exemplary Damages

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District Court

New South Wales

Medium Neutral Citation: R v Mervyn Davidson [2018] NSWDC 45
Hearing dates: 29 January 2018, 8 February 2018, 18 February 2018
Date of orders: 09 March 2018
Decision date: 09 March 2018
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to an aggregate sentence of 11 years imprisonment with a non-parole period 7 years 8

Catchwords: Sentence: Aggravated attempt robbery with grievous bodily harm, attack on cashier, attack on good samaritan, standard non parole period applying Muldrock, above mid range, assault police, choking cellmate, drug induced psychosis, applying Bugmy factors, institutionalisation, weight to be given to deterrence retribution and victim vindication.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Attorney General's Application No 2 of 2002 [2002] 137 A Crim R 196
Bugmy v The Queen (2103) 249 CLR 571
Cahyadi [2007] NSWCCA 1
Callaghan [2006] NSWCCA 58
Engert (1995) 84 A Crim R 67
Henry v R 1999) 46 NSWLR 346
Hili v The Queen 920101) 242 CLR 520
Jackson [2010] NSWCCA 162 at [24]
Jinette [2012] NSWCCA 217 at [103]
Knight (2005) 155 A Crim R 252 at [112]
Markarian (2005) 228 CLR 357 at [30] and [31]
Muldrock v The Queen (2011) 244 CLR 120 at [27]
Postiglione v The Queen (1997) 189 CLR 295 at 307-308
R v M.S.K. [2006] NSWCCA 381
Ryan (2001) 206 CLR 267
Stewart [2012] NSWCCA 183
Veen v The Queen (No 2) (1988) 164 CLR 465 at 477
Weininger v The Queen (2003) 212 CLR 629
Texts Cited: Judicial Officer's Bulletin: 24 no 10, November 2012
Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn. httpp:// Documents/parolesupervisionandreoffending.pdf
Category: Sentence
Parties: Mervyn Davidson (Offender)
Director of Public Prosecutions
Representation: Solicitors:
Mr Jeffreys, Aboriginal Legal Service (NSW/ACT), (for the offender)
Ms S Knox (for the Director of Public Prosecutions)

File Number(s): 2017/00028518; 2017/00057712

Judgment

Introduction

On 8 November 2016 Mervyn Davidson was released to parole. He was 42 years old. He had spent only a few months out of custody since 2003. He has a long criminal history. This record includes crimes involving violence however the penalties imposed indicate none were as serious as these matters. He was not well equipped for normal community life.
On 29 January 2017 Davidson was in the grip of a drug induced psychosis. He armed himself with a baseball bat and went to the ALDI store in Albion Park Rail. His intention was robbery. While some of his earlier offences involved violence; they generally related to comparatively minor assaults in a domestic context or resisting police.
On that date, just after 5pm, Davidson ran into the store. He ran straight toward the cashier, Ms Brenda Rowan. Ms Rowan would not have had time to react. She may not have even seen him coming. With a two handed grip Davidson swung the bat. He hit Ms Rowan's head. She collapsed unconscious. Davidson then went to the till. As he did so he kicked Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mervyn Davidson

Details

AGLC: R v Mervyn Davidson [2018] NSWDC 45
Case: [2018] NSWDC 45
Decision Date: 09 March 2018

CaseChat Overview and Summary

The appellant, Mervyn Davidson, faced the Court of Appeal following a conviction for aggravated attempted robbery with grievous bodily harm. The incident involved an attack on a cashier in a convenience store, as well as an attack on a bystander who intervened to assist the victim. Davidson also assaulted police officers and choked a cellmate while in custody, actions which exacerbated the severity of his crime. The case reached the Court of Appeal to determine the appropriate sentence, considering the multiple aggravating factors present.

The primary legal issue before the court was the determination of an appropriate aggregate sentence and the corresponding non-parole period. The court had to weigh the severity of the offences, the presence of multiple victims, the appellant’s history of violence, and his actions while in custody. The court also needed to consider mitigating factors, including Davidson's drug-induced psychosis at the time of the offence, and the extent of his institutionalisation. The court was required to balance the principles of deterrence, retribution, and victim vindication, as well as the specific mitigating factors presented.

In its decision, the court applied the principles set out in Muldrock to determine the standard non-parole period, considering the mid-range as appropriate given the gravity of the offences. The court acknowledged the mitigating factor of Davidson's drug-induced psychosis but found it did not sufficiently reduce the severity of the crimes. The court also considered the Bugmy factors and concluded that the weight of deterrence, retribution, and victim vindication necessitated a sentence above the mid-range. The court ultimately sentenced Davidson to an aggregate sentence of 11 years imprisonment, with a non-parole period of 7 years and 8 months, reflecting the seriousness of the offences and the need to protect the community.

The court's final order was that Mervyn Davidson be sentenced to 11 years imprisonment, with a non-parole period of 7 years and 8 months. The decision balanced the gravity of the offences with the mitigating factors present, ensuring a just outcome that considered the interests of all parties involved.

Orders

Orders of the court

Sentenced to an aggregate sentence of 11 years imprisonment with a non-parole period 7 years 8

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Mervyn Davidson [2018] NSWDC 45

Most Recent Citation

R v Davidson (No. 1) [2019] NSWSC 980

Cases citing this decision · 2 of 2 shown

R v Davidson (No. 3)
[2020] NSWSC 58 Para 24

…between the offender’s mental illness and his drug-taking. This summary is taken from Judge Haesler SC’s Remarks on Sentence: R v Mervyn Davidson [2018] NSWDC 45.…
R v Davidson (No. 1)
[2019] NSWSC 980 Para 7

…respect of a number of offences committed by the accused as well as the Remarks on Sentence of Judge Haesler SC on 9 March 2018: R v Mervyn Davidson [2018] NSWDC 45.…

View all 2 citing cases →

Cases cited in this decision · 15 of 15 shown

Bugmy v The Queen
[2013] HCA 37 Para 45

…"full weight" in determining the sentence in every case. It remains relevant even where there has been a long history of offending: Bugmy v The Queen (2103) 249 CLR 571.…
Jinnette v R
[2012] NSWCCA 217 Para 38

…even in the face of entrenched and serious recidivism, here justifies a finding of special circumstances: Jackson [2010] NSWCCA 162 at [24]; Jinette [2012] NSWCCA 217 at [103].…
Stewart v R
[2012] NSWCCA 183 Para 21

…CLR 120 at [27]. The reasoning in Muldrock has been described as "opaque:" R Hulme, Judicial Officer's Bulletin: 24 no 10, November 2012. In Stewart [2012] NSWCCA 183, whilst not determining the issue, Button J observed that in relation to some features personal to an offender the dividing line between classificati…
Muldrock v The Queen
[2011] HCA 39 Para 21

…objective seriousness without reference to matters personal to Davidson and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]. The reasoning in Muldrock has been described as "opaque:" R Hulme, Judicial Officer's Bulletin: 24 no 10, November 2012. In Stewart [2012] N…
Hili v The Queen
[2010] HCA 45 Para 24

…hat is the appropriate sentence given all the factors relevant to offending behaviour and the offender: Muldrock; Markarian; Hili v The Queen 920101) 242 CLR 520.…
Jackson v R
[2010] NSWCCA 162 Para 38

…. The risk of institutionalisation, even in the face of entrenched and serious recidivism, here justifies a finding of special circumstances: Jackson [2010] NSWCCA 162 at [24]; Jinette [2012] NSWCCA 217 at [103].…
Cahyadi v R
[2007] NSWCCA 1 Para 39

…t be a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J & Cahyadi [2007] NSWCCA 1.…
R v MAK
[2006] NSWCCA 381 Para 40

…urther, it is recognised that the severity of a sentence increases at a greater rate than any increase in the length of the sentence: M.A.K. & M.S.K. [2006] NSWCCA 381. That said, public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is som…
Callaghan v R
[2006] NSWCCA 58 Para 41

…day or I can backdate it some earlier date from when Davidson was arrested on 29 January 2017: s 47 Crimes (Sentencing Procedure) Act 1999; Callaghan [2006] NSWCCA 58. It is appropriate to backdate the sentence as the breach of parole was brought about by his commission of these offences. Further, as I have taken i…
Markarian v The Queen
[2005] HCA 25 Para 20

…do not look first to a maximum penalty or standard non parole period and then proceed by way of making a proportional deduction from them: Markarian (2005) 228 CLR 357 at [30] and [31].…
Weininger v The Queen
[2003] HCA 14 Para 23

…exity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money": Weininger v The Queen (2003) 212 CLR 629. Despite my finding only objective factors put the attempt armed robbery offence above the middle of the range there are reasons in the early guilty…
Ryan v The Queen
[2001] HCA 21 Para 51

…n that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment": Ryan (2001) 206 CLR 267, per McHugh J. However, a proper purpose of the criminal law is not to give effect to the irrational prejudices of ill-informed public opinion: Windl…
R v Henry
[1999] NSWCA 111 Para 35

…in or extent of the addiction, and any attempts to overcome it, impact upon the offender's prospects of recidivism or rehabilitation: Henry v R 1999) 46 NSWLR 346.…
Postiglione v the Queen
[1997] HCA 26 Para 39

…mulative. The aggregation of all of the sentences must be a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J & Cahyadi [2007] NSWCCA 1.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 30

…history warrants a more severe penalty with additional focus on retribution, deterrence and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 15)
Crimes Act 1900 (ACT)
1 mention (from Para 16)

Medium Neutral Citation:	R v Mervyn Davidson [2018] NSWDC 45
Hearing dates:	29 January 2018, 8 February 2018, 18 February 2018
Date of orders:	09 March 2018
Decision date:	09 March 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to an aggregate sentence of 11 years imprisonment with a non-parole period 7 years 8
Catchwords:	Sentence: Aggravated attempt robbery with grievous bodily harm, attack on cashier, attack on good samaritan, standard non parole period applying Muldrock, above mid range, assault police, choking cellmate, drug induced psychosis, applying Bugmy factors, institutionalisation, weight to be given to deterrence retribution and victim vindication.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General's Application No 2 of 2002 [2002] 137 A Crim R 196 Bugmy v The Queen (2103) 249 CLR 571 Cahyadi [2007] NSWCCA 1 Callaghan [2006] NSWCCA 58 Engert (1995) 84 A Crim R 67 Henry v R 1999) 46 NSWLR 346 Hili v The Queen 920101) 242 CLR 520 Jackson [2010] NSWCCA 162 at [24] Jinette [2012] NSWCCA 217 at [103] Knight (2005) 155 A Crim R 252 at [112] Markarian (2005) 228 CLR 357 at [30] and [31] Muldrock v The Queen (2011) 244 CLR 120 at [27] Postiglione v The Queen (1997) 189 CLR 295 at 307-308 R v M.S.K. [2006] NSWCCA 381 Ryan (2001) 206 CLR 267 Stewart [2012] NSWCCA 183 Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 Weininger v The Queen (2003) 212 CLR 629
Texts Cited:	Judicial Officer's Bulletin: 24 no 10, November 2012 Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn. httpp:// Documents/parolesupervisionandreoffending.pdf
Category:	Sentence
Parties:	Mervyn Davidson (Offender) Director of Public Prosecutions
Representation:	Solicitors: Mr Jeffreys, Aboriginal Legal Service (NSW/ACT), (for the offender) Ms S Knox (for the Director of Public Prosecutions)
File Number(s):	2017/00028518; 2017/00057712