Regina v Brett Arthur Davenport

[2001] NSWSC 1083

CITATION:	Regina v Brett Arthur DAVENPORT [2001] NSWSC 1083
FILE NUMBER(S):	SC 70019/01
HEARING DATE(S):	10/9/01, 11/9/01, 12/9/01, 13/9/01, 14/9/01, 17/9/01, 18/9/01, 19/9/01, 20/9/01, 9/11/01
JUDGMENT DATE:	7 December 2001
PARTIES :	Regina Brett Arthur DAVENPORT
JUDGMENT OF:	Bell J at 1

COUNSEL :	Patrick Power (Crown) Catherine Lyons (Accused)
SOLICITORS:	S E O'Connor Legal Aid Commission of NSW - T A Murphy
CATCHWORDS:	Sentence
LEGISLATION CITED:	Criminal (Sentencing Procedure) Act 1999
CASES CITED:	R v Bollen (1998) 99 A Crim R 510 R v Dang (unreported) NSWCCA, 2 March 1999 R v Previtera (1997) 94 A Crim R 76
DECISION:	Sentenced to a term of fifteen years imprisonment to date from 14 May 2000; Non-parole of eleven years and three months; First date on which prisoner is eligible for consideration for release to parole is 13 August 2011

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70019/01
BELL J
7 December 2001

REGINA v Brett Arthur DAVENPORT

Judgment

: On 10 September 2001 the prisoner was arraigned before me on an indictment charging him with the murder of Eric Henry Norris at Leppington on 14 May 2000. He entered a plea of not guilty. A jury was duly empanelled. On 20 September 2001 the jury returned a verdict of guilty of murder.

2 The prisoner and the deceased were friends. It was common for them to drink together with another associate named Larry Wiseman. When the group were intoxicated it was common for them to have physical fights. These did not result in lasting animosity. Within a day or two they would be back on good terms.

3 14 May 2000 was Mother’s Day. The prisoner had arranged to meet his mother for lunch at Lockies Hotel, Leppington. The prisoner was living at premises at Croatia Avenue, Leppington. Larry Wiseman was staying with the prisoner at the time. Mr Wiseman had spent the previous week staying with the deceased. The prisoner and Mr Wiseman set out for Lockies Hotel in the morning. They ran out of petrol in the course of their journey at a spot not far from Leppington Rentals, a unit complex at which the deceased lived. The deceased invited them over to his unit for a drink. The three of them drank a beer at Leppington Rentals and the prisoner and Mr Wiseman invited the deceased to go with them to Lockies hotel.

4 A little later that morning the deceased joined the prisoner and Larry Wiseman at Lockies Hotel. They spent the day there. By the early evening they were all significantly affected by alcohol. There was some incident between the deceased and Larry Wiseman. The deceased punched Mr Wiseman to the face. Shortly after this the prisoner walked over to the deceased and punched him. Bar staff intervened at this point and prevented any further exchange between the two. The deceased was asked to leave the Hotel. He did so. He had suffered some injury to his nose as the result of the blow. He was taken home by some friends who had been drinking with the group during the course of the afternoon.

5 The prisoner and Larry Wiseman remained at Lockies Hotel. They left at about 9:10 that night. During the course of the afternoon the prisoner had won a prize in a raffle consisting of six bottles of wine. Before leaving the Hotel, he and Mr Wiseman purchased a carton of stubbies of VB beer. They travelled from the Hotel in a utility driven by Mr Wiseman. They had both the beer and the wine with them. Their journey took them past Leppington Rentals. The prisoner told Mr Wiseman to pull in at Leppington Rentals. It was Mr Wiseman’s account that the prisoner said “pull in and we’ll see him like just to smooth things over like after the argument” (T 26).

6 There was a conflict between the evidence of Michael Bass, the Manager of Leppington Rentals, and the prisoner concerning what took place during the course of this first incident at the deceased’s unit that night. The prisoner was significantly intoxicated at the time. Michael Bass was sober. I accept Mr Bass’s evidence and reject the prisoner’s version where the two conflict. In this respect I am satisfied beyond reasonable doubt.

7 Mr Bass saw the prisoner knocking on the deceased’s door. He did not realise that the deceased had returned home. He called out to the prisoner “Rick’s not home”. The prisoner replied “yes he is”. Mr Bass considered that the prisoner was acting in an aggressive manner. He had a wine bottle in his right hand. He was swinging it about at shoulder height. Mr Bass said to him “you’re pissed. Go home”. The conversation continued in this vein. Mr Bass asked “what are you doing with the bottle?”. The prisoner replied “I’m going to kill this bludger with this”.

8 Mr Bass who remained of the view that the deceased was not at home, dismissed the incident and commenced to make his way back to his own unit. As he was walking away he heard a door open and he turned and saw the prisoner lunging through the front door of the deceased’s unit. The next moment he saw the prisoner coming out of the unit backwards with the deceased punching him. He saw that the deceased was bleeding from the nose. The deceased was raining blows on the prisoner who collapsed not far from the entry to the deceased’s unit. He appeared to be unconscious. Mr Bass intervened, telling the deceased to leave the prisoner alone.

9 Mr Wiseman came over to the scene saying “I didn’t bring him here, I didn’t bring him here”. The deceased walked up to Mr Wiseman and hit him with an open hand saying “you did bring him here”. Mr Wiseman returned to his vehicle. The deceased armed himself with a stick and struck Mr Wiseman across the face with it.

10 The deceased then walked back to where the prisoner was lying and struck him on the head with the stick. The prisoner got to his feet and was assisted by Mr Bass and the deceased to walk over to Mr Wiseman’s utility. He pulled away from them saying that he was alright. As he and Mr Wiseman drove away the prisoner called out “I will be back. I’ll be back and kill you bludger”.

11 Mr Wiseman and the prisoner then returned to the Croatia Avenue premises.

12 After about half an hour Robyn Farlow, the owner of the Croatia Avenue premises, returned home. The prisoner and Larry Wiseman were sitting in the lounge room drinking beer. Both had facial injuries. Ms Farlow asked what had happened to them. She was told “Rick bashed us up”. She got a tea-towel and told them to clean themselves up.

13 The prisoner said that he wanted to go back to Leppington Rentals to see the deceased. He was talking of driving Mr Wiseman’s Ute. Ms Farlow considered that he was not in a fit state to drive. She was planning on going out to buy a takeaway meal from a Chinese restaurant which was close to Leppington Rentals. She offered to give the prisoner a ride.

14 The two left the Croatia Avenue premises in Ms Farlow’s vehicle. She parked close to the Chinese restaurant. The prisoner got out of the car and headed across to Leppington Rentals. Ms Farlow did not see any weapon on him.

15 After the first incident at Leppington Rentals that evening, the deceased went to the Bass unit. He had a cut to the bridge of his nose which was bleeding. Mrs Bass gave him tissues to help staunch the flow.

16 While the deceased was still present in the Bass’ unit there was a knock at the front door. He went to answer the door saying “I will go, probably those bludgers back”. Mr Bass followed him. As the front door opened Mr Bass saw the prisoners arm come around the door and strike the deceased in the vicinity of the chest. The deceased ran back past him into one of the bedrooms of the Bass unit. He collapsed and later died at that scene. He had suffered a wound to the left chest, which penetrated the heart.

17 Mrs Bass gave evidence that after the deceased had run through the unit bleeding she heard the prisoner calling out “come on you bastard, I’m going to kill you”. Mr Bass said that immediately after the stabbing he had confronted the prisoner who was holding the knife up saying words to the effect “come out you coward and fight, I’m going to kill you”. Mr Bass said that the prisoner had tried to come into the unit. He, Mr Bass, had restrained him. The prisoner fell stumbled and fell backwards. Mr Bass closed the door.

18 The prisoner returned to the car and Ms Farlow drove him home. Shortly thereafter the police arrived at the Croatia Avenue premises and arrested him.

19 The prisoner described the knife which he had used to stab the deceased as being similar to the pen-knife, Ex B which was located in the Croatia Avenue premises sometime after the killing. It is a small knife, which would be readily able to be concealed. The Crown submitted that it was open to me to conclude that this was a premeditated attack in which the accused had deliberately armed himself with the knife prior to his second, fatal, visit to Leppington Rentals. While such a view is open on the evidence I am not able to conclude beyond reasonable doubt that he did so.

20 Michael Bass identified the knife, Ex B, as one which looked to be like a knife which he had owned. He said he had lost this knife sometime prior to the killing. He told the police he had kept the knife both inside and outside his unit. Mr Bass was accustomed to doing handyman work in an area immediately outside the front of his unit.

21 It was the prisoner’s account in evidence at the trial that he returned to Leppington Rentals that night because he wanted to talk to the deceased. He had not taken a knife with him. On arrival he had firstly sought out Mr Bass to get his account of what had happened during the earlier incident. After he knocked on the front door of the Bass unit and after hearing the deceased calling out he turned around and picked up a knife which was lying on top of a pile of bricks next to the entry to Mr Bass’ unit.

22 The prisoner claimed to have picked up the knife in fear that the deceased would renew his earlier assault upon him. The jury by its verdict rejected the prisoner’s claim to have acted in self defence. That was unsurprising. The deceased was calling out from behind a closed door. The prisoner might readily have left the scene and returned to Ms Farlow’s car. Instead he picked up the knife which was the first weapon which came to hand and returned to the front door of the unit to challenge the deceased. He was angry with the deceased over the earlier episode and in that state he stabbed the deceased as soon as the latter opened the door.

23 The statements made by the prisoner both at the time of the first incident at Leppington rentals and immediately after the stabbing are capable of establishing that at the time of the stabbing it was his intention to kill him. I am not able to conclude beyond reasonable doubt that this was the prisoner’s state of mind.

24 The evidence pointed to the prisoner, Mr Wiseman and the deceased having a friendship characterised by frequent, aggressive episodes in the context of drinking bouts. Robyn Farlow described the relationship between the three in these terms:

“They were boys that liked to drink a lot and knock about and often had fights but were often good friends afterwards. There was never animosity on a level which was unfriendly, the fights are more of a sporting sort of game (T 192)”.

Ms Farlow’s observation as to the nature of the relationship gained support from the evidence of the proprietor of Lockies hotel and the bar staff. I bear in mind that expressions such as “I’ll kill the bludger” viewed in the context of a relationship such as that described are not necessarily to be taken as evidencing the formation of an intention so to do. This is not to say that a drunken intention to kill may not be formed by a person who is otherwise on good terms with his victim. The issue is whether I am satisfied beyond reasonable doubt that it was.

25 In many cases the fact of a stab wound to the vicinity of the heart would be eloquent of an intention to kill. I do not conclude that it is to be so viewed in this case. Mr Bass was standing immediately behind the deceased as he opened the front door. Mr Bass saw a hand come around from outside the door, striking the deceased in the left chest at the moment the door was opened. It was not clear from this evidence that the blow was one aimed in the vicinity of the heart.

26 For these reasons I propose to sentence the prisoner upon the basis that his state of mind at the time he stabbed the deceased was that he intended thereby to inflict grievous bodily harm upon him.

27 The crime remains an objectively serious one by reason of the fact that the prisoner employed a knife to carry out his assault upon the deceased.

28 A victim impact statement prepared by Gail Webb, the sister of the deceased was received, without objection, pursuant to the provisions of Division 2 of the Crimes (Sentencing Procedure) Act 1999. The Crown, properly, referred me to the principles governing the approach to the receipt of such statements in cases involving unlawful homicide; R v Previtera (1997) 94 A Crim R 76; R v Bollen (1998) 99 A Crim R 510 and R v Dang (unreported) NSWCCA, 2 March 1999. I approach the receipt of the statement with the considerations outlined in those cases in mind.

29 The deceased was one of six children. Gail Webb prepared the victim impact statement on behalf of the family. It is apparent that Rick Norris was a much loved uncle, brother and son. The family were proud of his achievements. He was an accomplished horseman. He started riding in rodeos at the age of fourteen. He had represented Australia in international competitions and won numerous trophies throughout his career. Rick Norris enjoyed a reputation as one of Australia’s best saddlebronc riders. Throughout his life he remained very close to his siblings and to his nieces and nephews all of whom looked up to him. He was a vibrant man, in the prime of his life and Ms Webb paints a moving picture of the devastation to the Norris family brought about as the result of his murder. The Court extends its sympathy to Ms Webb and to the family.

30 The prisoner gave evidence at the trial. He did not give evidence at the sentence hearing. Such information as I have concerning his background is drawn largely from the report of Dr Christopher Lennings, psychologist who interviewed the prisoner on 24 October 2001.

31 The prisoner is aged thirty-nine years. He has a criminal record which includes convictions for driving offences and for the possession of a prohibited plant and utensils used in connection with smoking a prohibited drug. The record discloses no offences of violence. In May 1993 the prisoner was convicted before the Liverpool District Court on charges, which included the supply of a commercial quantity of a prohibited drug. He was sentenced to a term of seven years imprisonment comprising a minimum term of four years and an additional term of three years.

32 At his interview with Dr Lennings the prisoner described an uneventful childhood in a household with caring parents. Dr Lennings was inclined to the view that, in truth, the prisoner’s upbringing had been one marred by his father’s alcohol abuse and bullying behaviour. Mrs Davenport, the prisoner’s mother, described a history of paternal violence. She also observed that her eldest son had been abusive and aggressive towards the prisoner.

33 The prisoner left school at the end of Year Eight. Thereafter he obtained employment as a labourer. At the age of seventeen he suffered a significant back injury at work. He was treated with pain killers for several years following this accident. He told Dr Lennings that the pain killers had caused him to become quite groggy. It appears that his ability to work and his social adjustment fell away in the period following the accident. Since that time he has supported himself on the disability pension augmented by occasional casual work. A combination of the pain, distraction and lack of income led to the prisoner’s one relationship of any significance breaking down.

34 The prisoner described a family history of alcohol abuse. He began drinking alcohol at the age of fifteen years. From an early age he was drinking heavily and in order to get drunk. His only reported period of abstinence was the period of his custody following his conviction for the drug offence. Upon his release on that occasion he had maintained a degree of sobriety for a period of eighteen months. Since being in custody on the present occasion the prisoner reports feeling well and he acknowledges that abstinence from alcohol is good for him.

35 The prisoner told Dr Lennings that he was genuinely shaken by the fact that he had killed his mate. He was horrified at his actions. Dr Lennings reports that the prisoner was visibly agitated and upset during the consultation. He demonstrated insight into the feelings which the deceased’s family might entertain towards him. In Dr Lennings’ opinion the prisoner’s remorse was genuine. In the light of the whole of the evidence, including the accounts of the prisoner’s friendship with the deceased I accept Dr Lennings’ opinion and approach the matter upon the basis that the prisoner is remorseful for his conduct.

36 Dr Lennings conducted a number of psychological and cognitive tests on the prisoner. He reports an unusual result on the Wechsler Abbreviated Scale of Intelligence. The prisoner’s average non-verbal intelligence level was assessed at better than the bottom thirty four percent of the population. By contrast his verbal skills were assessed as exceptionally poor. His ability in this respect placed him in the borderline mentally retarded range. Dr Lennings states:

“In summary, the assessment suggests that Mr Davenport is suffering from some kind of functional neurocognitive deficit. These deficits appear to impact especially on verbal skills and reduce his ability to plan and correct behaviour, to self-regulate and to recall and remember verbally presented information. It is possible that at least some of the difficulties he is evidencing are due to the accretion of damage caused by his alcohol abuse or history of mild head injury. However, the self-report of Mr Davenport raises the possibility that when he was a child he suffered from some kind of developmental or educational disability that may have selectively impaired verbal abilities as a young child.”

37 The assessment of the prisoner’s prospects for rehabilitation, which emerges from a reading of Dr Lennings’ report, depends to a large degree on whether the prisoner can overcome his long-standing addiction to alcohol. The prisoner’s lengthy history of unemployment and his educational limitations are identified by Dr Lennings as risk factors for continued alcohol abuse.

38 I approach the matter upon the basis that the prisoner is not without prospects for rehabilitation. In this regard I take into account that necessarily the term of the sentence which I must impose having regard to the objective gravity of the offence means that he will be of mature years before he is eligible for release on parole. I also take into account the content of three references that were tendered on his behalf and which describe a man well regarded by his associates for his trustworthiness and generally easygoing disposition.

39 I have given consideration to whether there exist special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 such as to justify a departure from the statutory proportion between the head sentence and the non-parole period. It will be necessary for the prisoner to have the benefit of supervision upon his release from custody with a view to ensuring that he does not lapse back into alcohol abuse. However, the sentence which I feel it necessary to impose is such that the application of the statutory ratio will produce an adequate period under supervision. I am not persuaded that special circumstances are established in this case.

40 Brett Arthur Davenport I sentence you to a term of fifteen years imprisonment to date from 14 May 2000. I specify a non-parole of eleven years and three months. The first date on which you will be eligible for consideration for release to parole is 13 August 2011.

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Last Modified: 12/10/2001