R v Mervyn Davidson

Case [2018] NSWDC 45


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

  1. 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.

  2. 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.

  3. 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…

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

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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