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District Court 9 March 2018

R v Mervyn Davidson

[2018] NSWDC 45

Assault & violenceDrugsTheft & propertyPublic order & justice offences

Citation: R v Mervyn Davidson [2018] NSWDC 45
Court: District Court of New South Wales
Date: 9 March 2018
Judge: Haesler SC DCJ

Background

The offender, a 42-year-old man with an extensive criminal history, had been released on parole in November 2016 after spending most of the preceding 13 years in custody. On 29 January 2017, while in the grip of a drug-induced psychosis, he armed himself with a baseball bat and entered an ALDI supermarket at Albion Park Rail intending to commit robbery.

He struck the cashier to the head with the bat, knocking her unconscious, then kicked her while she lay on the ground. A staff member who intervened to protect his colleague was also struck multiple times with the bat. Members of the public wrestled the offender to the ground and held him until police arrived.

Later that day, at the police station, the offender punched a sergeant in the face as the officer was arranging a mattress for him. Three days later, while on remand at the MRRC Silverwater, he strangled his cellmate with a t-shirt until the cellmate lost consciousness, and continued the attack until specialist corrective services staff intervened.

  • How to fix an appropriate aggregate sentence across four separate offences: aggravated attempted armed robbery causing grievous bodily harm, assault occasioning actual bodily harm, assault of a police officer in execution of duty, and intentional choking
  • How to apply the standard non-parole period (SNPP) framework under Muldrock v The Queen (2011) 244 CLR 120, including the proper treatment of objective versus subjective factors
  • What weight to give the offender's drug-induced psychosis and deprived background (so-called Bugmy factors) in the overall sentencing synthesis
  • How to balance the principles of denunciation, deterrence, and victim vindication against the offender's subjective circumstances, including institutionalisation and an early guilty plea

Decision

Haesler SC DCJ found the primary offence (aggravated attempted robbery with grievous bodily harm) to fall above the middle of the range of objective seriousness, owing to the ferocity of the attack on the cashier, the use of a weapon in a busy public setting, and the serious injuries sustained. His Honour emphasised the vulnerability of the cashier, who had no time to react, and the ongoing psychological harm her delayed return to work demonstrated.

On the SNPP question, the court followed Muldrock in holding that content must be given to the SNPP by reference to objective factors only, without regard to matters personal to the offender. However, the court also confirmed that a staged approach is not permissible; the SNPP assessment, the causal connection between the drug-induced psychosis and each offence, and the offender's deprived background all had to be synthesised into a single value judgment, alongside the utilitarian value of the early guilty pleas.

The court applied Bugmy principles, acknowledging that the offender's severely deprived background and long-term institutionalisation were relevant mitigating considerations. Nonetheless, the gravity of the conduct, particularly the unprovoked attacks on the cellmate and the assisting sergeant, and the need for denunciation and victim vindication, required substantial sentences of imprisonment on all counts.

A 25 per cent discount was applied to each indicative sentence to reflect the utilitarian value of the early guilty pleas. After considering the principles of accumulation, concurrency, and totality, the court fixed an aggregate sentence and took care to ensure the discount for the guilty plea was not eroded by the accumulation process.

Orders Made

  • Offence 1 (s 97(2) Crimes Act 1900, aggravated attempted armed robbery): indicative sentence of 7 years 6 months imprisonment, with an indicated non-parole period of 5 years 3 months (special circumstances found)
  • Offence 2 (s 59(1) Crimes Act 1900, assault occasioning actual bodily harm): indicative sentence of 1 year 6 months imprisonment
  • Offence 3 (s 60(2) Crimes Act 1900, assault of police officer): indicative sentence of 1 year 10 months imprisonment
  • Offence 4 (s 37(1) Crimes Act 1900, intentional choking): indicative sentence of 4 years 6 months imprisonment
  • Aggregate sentence: 11 years imprisonment with a non-parole period of 7 years 8 months
  • Sentences dated from 29 January 2017; eligible for parole consideration on 28 September 2024; sentence expires 28 January 2028

Key Takeaways

  • Following Muldrock, the standard non-parole period must be assessed by reference to objective factors only, but the sentencing court cannot then adopt a staged deduction approach; all relevant considerations, including the offender's mental state and background, must be synthesised into a single sentencing judgment.

  • A drug-induced psychosis that is causally connected to the commission of offences cannot be taken into account when giving content to the SNPP under the Muldrock framework, but it remains a relevant factor in the broader sentencing synthesis.

  • Bugmy factors, including severely deprived background and long-term institutionalisation, carry weight in mitigation even for serious violent offences, though their significance must be balanced against the objective gravity of the conduct and the community's interest in denunciation and victim vindication.

  • Where multiple serious offences arise from related events across a short period, courts must carefully consider accumulation, concurrency, and totality to ensure the aggregate sentence is proportionate and does not erode the benefit of an early guilty plea.

  • The absence of victim impact statements does not permit an inference that a victim suffered little or no harm; s 29(3) of the Crimes (Sentencing Procedure) Act 1999 expressly precludes that inference.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 37(1), 59(1), 60(2), 97(2), 98
  • Crimes (Sentencing Procedure) Act 1999 (NSW), s 29(3)

Cases

  • Muldrock v The Queen (2011) 244 CLR 120
  • Bugmy v The Queen (2013) 249 CLR 571
  • Markarian v The Queen (2005) 228 CLR 357
  • Hili v The Queen (2010) 242 CLR 520
  • Weininger v The Queen (2003) 212 CLR 629
  • Veen v The Queen (No 2) (1988) 164 CLR 465
  • Postiglione v The Queen (1997) 189 CLR 295
  • Ryan v The Queen (2001) 206 CLR 267
  • Henry v R (1999) 46 NSWLR 346
  • Engert (1995) 84 A Crim R 67
  • Stewart [2012] NSWCCA 183
  • Cahyadi [2007] NSWCCA 1
  • Callaghan [2006] NSWCCA 58
  • R v M.S.K. [2006] NSWCCA 381
  • Attorney General's Application No 2 of 2002 (2002) 137 A Crim R 196