New South Wales District Court CITATION: R v Luke William DAVIDSON [2007] NSWDC 297 HEARING DATE(S): 23 October 2007 JUDGMENT DATE: 23 October 2007 EX TEMPORE JUDGMENT DATE : 23 October 2007 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: See Paragraphs [39] & [40] CATCHWORDS: Unlawful or negligent act or omission - Grievous bodily harm - Vulnerable victim - Addiction to drugs LEGISLATION CITED: Crimes Act CASES CITED: R v De Simone (1981) 147 CLR 383 R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; PARTIES: The Crown Luke William Davidson FILE NUMBER(S): 07/31/0116 COUNSEL: H. Wilson - The Crown J. Booth -Offender SOLICITORS: NSW DPP Legal Aid Commission SENTENCE 1 HIS HONOUR: Luke Davidson appears for sentence after having pleaded guilty, on an earlier occasion, to two offences that he, by his unlawful or negligent act or omission, caused grievous bodily harm to CS, a young girl then of the age of three. 2 Mr Davidson was in a de facto relationship with CS's mother. CS received two particular injuries, one to her arm and one to her forehead. The injury to her arm consisted of a fracture to her humerus and the injury to her forehead consisted of a significant and lengthy laceration. 3 The offender should have, clearly, sought medical attention for both of those injuries. He did not do so however, for two reasons. The first is that the woman with whom he was in a de facto relationship, that is CS's mother, asked him not to as she was concerned that if the authorities became aware of the injuries to CS, the authorities would remove CS from her care. 4 The second reason was eloquently put by the offender himself. The second reason that he did not seek any treatment for CS was that, as he said, "All I was concentrating on was alcohol and drugs". 5 It cannot be denied that the offender's illegal activity in continually using drugs, particularly ice, played a very big part in the offender failing to do what he should have done, namely to seek medical treatment for CS. 6 The offences came to light as a result of a domestic incident. A neighbour went to investigate what was going on at the house where the offender and his de facto partner Ms Dean lived. As a result of that incident the neighbour took CS and two other children to her home and she realised that CS had significant medical problems. 7 Medical reports reveal that CS was in a very poor way. She had been the subject of longstanding neglect or poor nutrition. However I have to be very careful here because the offences to which the offender has pleaded guilty are quite specific. They do not relate to a failure to provide food or shelter or things of that nature to CS, they relate to his failure to obtain medical treatment in relation to the injury to her arm and to her forehead. 8 I also have to be careful because there are suggestions in the material tendered by the Crown on sentence, that these injuries were not accidental. Of course, I will not sentence Mr Davidson on the basis that he is in any way responsible for having caused either of the injuries. 9 The opinion of Dr Vimpani who examined CS is that the scar to her forehead will leave a permanently unsightly mark and she is likely to have an angular deformity of her upper arm and also some shortening of her right upper limb which could have been prevented by her receiving prompt medical attention. 10 The offender told police that after he realised that CS's right arm had been broken when she had fallen from a ladder on her way down from her bunk bed, he treated it by obtaining a sling and bandages from a pharmacy and attempted to set the fracture himself. As the medical evidence reveals the arm was not properly set and she has been left with the consequences that I have earlier mentioned. 11 The offender told police that at about the same time CS received a cut to forehead above her right eye. This apparently, according to the offender was caused when CS fell and hit her head on a power point. The offender attempted to treat this injury by using sterile strips and bandaids. It is the absence of proper medical treatment, perhaps including plastic surgery, which has led to CS having a scar. Photographs were tendered showing the extent of the scar. It is a very long one and in these photographs is very red. Perhaps over time the redness will disappear but she will clearly be left with an obvious and as I said, very lengthy scar. 12 Of course, it cannot be denied that this offence would have been much more serious and no doubt the offender would have been guilty of a different offence if he had been the original cause of either of these injuries. But ignoring the plight of a helpless three year old over whom the offender had parental responsibility is, nevertheless, both cruel and seriously criminal conduct. It has left CS suffering life-long consequences. These consequences could have easily been avoided had the offender done the relatively simple thing of taking CS to a doctor. 13 The maximum penalty for each offence is two years imprisonment. I confess to being somewhat surprised that the legislature regards offences of this nature as being of the same seriousness as common assault. But, nevertheless, I will not allow these feelings of surprise to lead me to impose a sentence on Mr Davidson which is disproportionate to the way the legislature clearly views offences of this nature. The offence can be dealt with summarily too, although that is of not much significance given that the maximum penalty is the same as the jurisdictional limit in the Local Court. 14 The offender has had a problem with drugs for some time, and a problem with alcohol for a much longer time. 15 As the offender was growing up he developed a problem with his voice. There are growths on his vocal cords. They developed when he was quite young and have been a problem for him ever since. Mr Davidson missed a lot of school because of surgery on his throat, until he was eventually expelled and home-schooled by his mother thereafter. He completed Year 9 with the assistance of his mother, and then commenced an apprenticeship as a boilermaker. He did three years of that before discontinuing, but since then he has been employed quite consistently. 16 However, he has lost jobs, generally because he was unreliable, and that, in turn, flowed from the fact that he was often intoxicated or hung over due to his substantial drinking problem. When I say substantial drinking problem, Mr Davidson told a psychologist, and gave sworn evidence that this was true, that he was drinking upwards of 6 litres of wine each day. 17 As well as drinking wine, he developed a dependence on cannabis and, once he began living with CS's mother, began consuming crystal methylamphetamines. It was in those circumstances that these offences occurred; circumstances where, as I have said, the offender acknowledges that all that he was concerned about at that time was alcohol and drugs. The offender preferred to indulge in alcohol and drugs rather than care for a person whom he was obliged to protect. 18 The offender has pleaded guilty to these two offences. In determining what level of discount I should give Mr Davidson for the utilitarian value of his plea, I have had to consider a number of things. Firstly, he did not plead at the Local Court. But against this is the circumstance that the alternative counts to which he did plead, and which were accepted by the Crown in full satisfaction of the indictment, were only offered to Mr Davidson after his committal for trial. In addition, he has very belatedly offered to assist the authorities in finding and then prosecuting Ms Dean. That offer of assistance has come very late and I have to assess the utility of that offer of assistance in that light. I will not separately quantify the discount for the assistance and plea of guilty, but will say that because of both of those matters the sentence I will shortly announce is 25 per cent less than it would otherwise have been. 19 The offender says that he has been able to rehabilitate himself now that he is caring for his nine year old son. The Crown makes the point, and it is a good one, that he was not able to rehabilitate himself when he had a three month old son with Ms Dean and that it may only be the fear of being sentenced for these matters which has ultimately led to the offender taking steps he should have taken much earlier. Perhaps all that demonstrates is the value of personal deterrence in a case like this. 20 The offender lives with his mother and his nine year old son. Some of the evidence before me today concerned what would happen to the nine year old son in the event that the offender received a custodial sentence, whether fulltime custody or periodic detention. The offender's mother cares for her mother on the Central Coast. She is ninety years of age, although seems to be reasonably capable of looking after herself. The offender's mother said that, rather than it being her who cooks for her mother, it was usually the other way around, although she does require assistance with some of the harder aspects of life, such as shopping. At the moment the offender's mother spends Monday to Friday living with her mother on the Central Coast but is able, apparently, to change her arrangements so that she is able to care for the offender's son in the event that the offender is unable to do so because he is serving a sentence of imprisonment. I note in that regard that the offender's mother's daughter, presumably the offender's sister, lives near the offender's grandmother on the Central Coast and there are attentive neighbours who are able, therefore, to take some of the burden away from the offender's mother. 21 No doubt any solution is not ideal. No doubt the offender's son will suffer through his father's incarceration. No doubt his grandmother will suffer through not having as much assistance from her daughter as was previously the case. But these sorts of problems are not exceptional. They are, unfortunately, common place consequences of offenders committing offences which require that they be sent to gaol. In the absence of a finding that these circumstances are exceptional, I can make only a limited adjustment to the sentence that I would otherwise impose to reflect the hardship to the offender's son, his mother and his grandmother. 22 I have to be careful when sentencing the offender not to breach the rule in R v De Simone(1981) 147 CLR 383. The offence to which the offender pleaded guilty was in each case an alternative to a more serious offence under s 43A(2) of the Crimes Act. I will sentence the offender on the basis that he did not intentionally fail to provide medical treatment for CS but negligently omitted to do so. As I see it, if I sentence the offender on that basis there is no breach of the rule in De Simone. 23 The offender says that he has been able to abandon his reliance on alcohol and most drugs, although he does continue, at least on occasions, to use cannabis for the purposes of relaxation. The offender fails to understand, I suspect, that when someone promises to obey the law, especially as a result of being put on a good behaviour bond, (which the offender was) it is not for him to choose which laws he will obey and which laws he will not. 24 This is a case which is capable of raising emotions. No one who looks at the photographs tendered by the Crown could fail to react emotionally to what they see. But my job is not to impose a sentence as a result of emotion. My job is to take a dispassionate point of view, and I trust that I have done that in formulating the appropriate sentence. It is undeniable, however, that CS was vulnerable to the point of being helpless. She was in no position to take herself off to the doctor. She relied on people like Mr Davidson and her mother to look after her, and both of them failed miserably to do that. 25 The offender seems at times to have attempted to explain or even excuse his conduct on the basis that CS was not his daughter and that he thought that it was her mother's decision as to what medical treatment should be obtained. That attitude may be appropriate when what we are talking about is a scrape or an upset tummy, but it is not when what we are talking about is an injury such as a fractured arm and severe laceration, both of which the medical evidence suggests would have caused considerable pain and would have been obviously significant and serious injuries. 26 I want to say something about the fact that these offences occurred during a period of addiction to drugs. Addiction to drugs is a common explanation for offences of armed robbery, and for that reason it was considered in the case of R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149;. There the Chief Judge at Common Law spent a great deal of time examining the role of addiction to drugs as a mitigating feature. Consistent with that view, I do not regard the offender's addiction to ice as a significant mitigating feature in the present case. I cannot ignore its power, once addicted, but I can recognise that it was very much the offender's decision to take it. 27 The Crown made a submission that I would be satisfied there was an increasing level of offences such as this, despite there being no evidence of that at all. I was asked to rely on my reading of the newspapers. True it is that there is a particularly tragic case on the front page of the newspapers today and the day before, but I am not satisfied that there is an increasing level of offences such as these. That is not to devalue their seriousness at all, but is to recognise that there does not appear to be a suggestion of increasing prevalence. 28 Mr Booth asked me on a couple of occasions today that I adjourn proceedings in order that his client be assessed, in fact reassessed, as to suitability for periodic detention. It appears that when Mr Davidson was spoken to by the Probation and Parole Service he declined to be assessed for periodic detention because he cared for his nine year old son. Since then it has obviously been made clear to him that one of the consequences of not being suitable for periodic detention may be fulltime detention, and so Mr Booth, as I have said, asked me twice today that I adjourn this matter in order that Mr Davidson's suitability be reassessed. 29 I am prepared to proceed on the basis that if he were reassessed he would be suitable. However, I do not consider that a sentence of periodic detention adequately reflects the objective gravity of the offender's conduct. Nor do I accept that a suspended sentence would reflect the objective gravity of the offender's conduct either. The offender clearly needs to be punished for his omission and those who might find themselves in a similar position to the offender, preferring drugs and alcohol to the care of young children, should be made aware that if they do what the offender did they will be punished by fulltime custody. 30 Submissions were made as regards accumulation. There were two separate offences here and it is inappropriate to simply ignore one of them by imposing wholly concurrent sentences. Although these offences did occur at the one period of time, they each represented a separate act of criminality or, more precisely, a separate omission amounting to criminality, and they each had separate consequences for the unfortunate CS. However, I will not totally accumulate sentences in order to reflect the principle of totality. 31 Mr Booth suggested that there were special circumstances here. I am satisfied that there are. In particular, I find that the offender would benefit from an extended period of supervision whilst on parole in order to ensure that the rehabilitation which has been achieved is continued. 32 I have mentioned only in passing a very important aspect of the offender, and that concerns the problems he has with his voice as a result of growths on his larynx. He will find his time in custody harder than would otherwise be the case, simply because he will find it harder to communicate. His voice is very soft and at times even in this courtroom with everyone remaining quiet he was difficult to hear. Problems in communicating will be felt more keenly in a gaol. 33 It was suggested that perhaps because of his voice Mr Davidson may appear to be one of the weaker members of the gaol society and he might be picked on. My experience of prisons is that prisoners can quite irrationally decide to pick on the weakest. There is a possibility that they will pick on Mr Davidson for that reason. However, the risk to his safety in custody resulting from the nature of his offence are probably more important. If it becomes known that his offences involved injury to a three year old child, there is the possibility of other prisoners seeking a blunt form of retribution. I accept there is the possibility that the offender will serve some of his sentence on protection, and that is a matter I have taken into account. 34 The offender clearly has expressed his remorse. In fact, it would be a remarkably callous person who did not feel sorry for what the offender failed to do in this case. 35 In terms of rehabilitation, it is unlikely that the offender will commit further offences of this nature, but the chances of him committing no further offences in the future I cannot say are good, given the nature of his criminal history and given the nature of his longstanding problems with alcohol and drugs. 36 It may be, and I am prepared to make this finding in the offender's favour, that he was not fully aware of the consequences of his actions. But again, not too much can be made of this because the main reason that he was not fully aware of the consequences of his actions was that he was voluntarily consuming legal alcohol and illegal drugs at the time. It was his decision to put himself in a position where he was not fully aware of the consequences of his actions, which limits, in my view, the use which he can make of that otherwise mitigating feature. 37 The sentences that I've decided to impose are identical in each case, but they have different commencement dates in order to reflect the partial accumulation I spoke of earlier. 39 In each case the offender is sentenced to imprisonment. I set a non-parole period of four months with a total sentence of ten months. The first sentence, which is for count two on the indictment, is to commence today, 23 October 2007. The non-parole period for that matter will expire on 22 February 2008. 40 The sentence for count four on the indictment, as I said, also being an identical one of four months non-parole period and ten months head sentence, will commence on 23 December 2007, that is two months hence and the non-parole period for that offence will expire on 22 April 2008, which I understand is six months hence. The effective sentence as I have intended it, is a total sentence of twelve months, with a non-parole period of six months and I order that the offender be released to parole on 22 April 2008. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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