REGINA v. DAVIS [1999] NSWSC 876

New South Wales Supreme Court CITATION : REGINA v. DAVIS [1999] NSWSC 876 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70002 of 1999 HEARING DATE(S) : 19.8.99, 23.8.99, 24.8.99, 27.8.99 JUDGMENT DATE : 27 August 1999

PARTIES : REGINA v. DAVIS, Troy Clayton JUDGMENT OF : Greg James J at 1

COUNSEL : Crown: P. Barnett Prisoner: J. Booth SOLICITORS : Crown: S.E. O'Connor Prisoner: Ray Finlayson & Associates CATCHWORDS : Plea to murder - cowardly killing while affected by alcohol and under brother's influence - belief in provocative acts of decesed - suffering from some degree of depression. ACTS CITED : Crimes Act 1900 Sentencing Act Ellis (1986) 6 NSWLR 603; CASES CITED : Baldacchino (unreported 7 July 1998); Dodd (1992) 57 A. Crim. R. 349 DECISION : Sentenced to penal servitude for 16 years, comprising minimum term of 12 years and additional term of four years

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

No. 70002 of 1999

GREG JAMES, J.

NEWCASTLE: FRIDAY 27 AUGUST 1999

REGINA v. TROY CLAYTON DAVIS

SENTENCE

1 HIS HONOUR: On 1 July 1999, the prisoner, Troy Clayton Davis, pleaded guilty to one count of murder before his Honour Justice Graham Barr. He was convicted of that count and remanded in custody. 2 Before me on 19 August 1999 the prisoner confirmed that plea, and proceedings on sentence were then held in Sydney, those proceedings continuing on Monday 23 August 1999 at Newcastle. I have regard to that plea and the circumstances of it as I will later detail, and have, in accord with s.439 of the Crimes Act 1900, reduced the sentence accordingly. 3 The prisoner was charged as a principal in the first degree that on or about 12 November 1998 at Beechwood in the State of New South Wales he did murder Robert Christopher Spradbrow. 4 The shooting of the deceased was committed in circumstances such as to show that the crime was both vicious and cowardly. I will refer to those circumstances later in these remarks. 5 It was common ground in these proceedings that the prisoner had been procured to commit the crime by his elder half-brother, Dean Richard Lulham. 6 Subsequent to the conclusion of the proceedings and before I came to pass sentence on the prisoner, Dean Lulham was arraigned before me at Newcastle on 24 August 1999 and pleaded guilty to murder. This was no doubt in consequence, at least partly, of the prisoner having given an undertaking, Exhibit E, to give evidence against his brother and Bradley John Moran in respect of offences arising out of the fatal shooting of Robert Christopher Spradbrow at Beechwood on 12 November 1998, and having given evidence before me on these proceedings of his willingness to comply with that undertaking and give evidence against his brother. 7 The proceedings in respect of the sentencing of Dean Lulham are still to be heard, but it is intended that the prisoner will give evidence at those proceedings and will give evidence in accordance with his undertaking. 8 I am cognisant firstly of the prisoner's plea and secondly of his co-operation. 9 I will turn in due course to the detailed circumstances surrounding the prisoner's admission of his involvement in the offence, his cooperation with the police, and his plea of guilty which came about, it is conceded by the Crown, at the earliest possible occasion after the prisoner was afforded legal aid and legal advice and the specific application of the criteria in s.442B of the Crimes Act 1900. 10 In respect of the plea of guilty, I have afforded some reduction on that account, even though it would seem that in the small town of Beechwood, and in the light of the evidence to which I will refer, it was highly likely that the prisoner would have been apprehended and brought to trial upon a very strong Crown case. I accept that the prisoner almost immediately expressed contrition and was remorseful. 11 In respect of the matters referred to in s.442B, it is apparent that there should be a more substantial reduction because of the detail and reliability of the prisoner's cooperation, of which I was informed in evidence by Detective Lysaught, and because the effect of that cooperation, it appears, has been to induce pleas of guilty from Moran and Lulham. The detail and truthfulness of the evidence of the prisoner is confirmed by those pleas. 12 Further, I am satisfied that the prisoner truthfully described circumstances in which he was, whether for proper cause or not, at the least apprehensive and resentful of the deceased. His evidence and the other evidence persuades me that his brother also was apprehensive and resentful of the deceased. 13 The prisoner's family, comprising his mother, Mrs. Ernice Davis, and his elder step-brother, Dean Lulham, resided in the small community of Beechwood west of Wauchope on the mid-north coast. For some time both Lulham and the prisoner had cherished grievances against the deceased, who was another resident of that community. 14 The brother, Dean Lulham, was some 10 years older than the prisoner, and the relationship was such that he had the ability to exercise considerable influence over the prisoner. 15 It was asserted in evidence, and had been asserted before the offence to others by the prisoner, that Spradbrow had threatened him with gross sexual abuse, in consequence of an apparent belief by Spradbrow that the prisoner had pushed Spradbrow's car into the river, unless the prisoner paid Spradbrow some $5,000, and had made a threatening gesture at him. The prisoner also asserted that Spradbrow had deliberately acted provocatively to him by offensive conduct with former girlfriends of the prisoner for whom the prisoner had cherished and still cherishes great respect. 16 In addition to the other matters, the prisoner gave evidence, and it was corroborated by other evidence, that during a time at which he was severely depressed following the break up of a relationship, he had camped on Kooree Island and had surprised the deceased, who had taken his camp and tent and thrown it in the back of a motor vehicle, heaping it under rocks. He said, and it does not appear disputed, that his apprehension in relation to the deceased included some degree of physical fear of the deceased. He also referred to incidents where the deceased's conduct had the prisoner evicted from the caravan park in which he lived. 17 In the prisoner's belief, there was plainly a substantial basis for him to resent and fear the deceased. 18 I summarise the facts of the offence from the agreed facts as supplemented by the evidence, particularly that of the prisoner and as appears in the statement of Miss Battle and in the prisoner's interviews with police. 19 On the afternoon of Thursday 12 November 1998 the prisoner and Dean Lulham were at Kooree Island, which is in the Hastings River on the outskirts of Beechwood. They had both been consuming alcohol. Originally, they had shared half a dozen stubbies of beer and two cans of bourbon. 20 While they were there, the victim and his girlfriend arrived and went to an area of the riverbank away from the prisoner and his brother. The prisoner and his brother discussed their prior involvements with the victim, and Dean Lulham suggested that the prisoner should shoot the victim. Lulham then left Kooree Island and travelled to a nearby dairy farm where he worked on a casual basis, and obtained an old .22 calibre rifle and ammunition, returning to Kooree Island where further discussions took place in relation to shooting the victim. 21 At the time at which the victim arrived at Kooree Island, there was also present with the brothers Miss Rebecca Battle and her boyfriend Robert Davis. Miss Battle noted the brothers' drinking, the arrival of the victim, and recalled the prisoner telling her that he had caught the victim taking his tent and putting it in the back of his car under river rocks, and that the victim had accused him of pushing his car into the river and threatened him with gross sexual abuse. She noted that Dean Lulham had left and had been gone for some time. Whilst he was away, the prisoner was hiding behind trees, saying that he did not want the victim to see him. 22 After Dean Lulham returned, he enquired as to whether the victim was still present, and the prisoner said that he had just gone off into the bushes. They consumed more beer and Lulham produced an old-looking rifle, saying, "I'm gonna give him a warning shot". A shot was then fired off over the river. Miss Battle became frightened. Lulham started to talk to the prisoner, patting him on the arm and saying, "This is it, brother boy, I think this is gonna be it". Miss Battle said, "What are you talking about, what's going on?" Lulham said, "We're gonna kill him". The prisoner kept carrying on about the threat concerning the car and the tent and then said, "We've got to kill him", saying to Miss Battle, "You'd better not tell anyone". 23 Lulham went over to the victim and his girlfriend and talked to them for some time, during which time the prisoner said to Miss Battle, "Dean and I have had a heart to heart and we've decided to kill Porky" (ie. Robert Spradbrow). When Lulham returned, he said that the victim had been unwilling to fight him, and at this point Miss Battle and her boyfriend determined to leave. Lulham invited them to come to his home later for some drinks. She and her boyfriend then left. She says that she had thought they were not really going to do anything, as they were "all talk". She and he boyfriend went and had dinner at her house and then went to the pub and then to Dean Lulham's house, arriving there at about 8.30 pm. They drank for some time at that house. 24 The two brothers left the island and went home, where they continued drinking. They were joined by Bradley Moran. Discussions continued between the brothers as to the victim Spradbrow and what he had done to the prisoner in the past. 25 In due course, the prisoner told the police that his brother manipulated his mind: "He knew what buttons to push"; "He knew how to fire me up and how to use my anger towards Chris". The prisoner said his brother referred to an altercation between Lulham and the deceased over $500, and if that is what he could expect in respect of such a small sum, what could the prisoner expect if the victim considered him responsible for a $5,000 debt. 26 The brothers and Moran returned to the island where the victim and his girlfriend were asleep upon a mattress. At Lulham's insistence, the prisoner walked to where the victim and the girlfriend were sleeping, with the loaded rifle. He was unable at this stage to shoot the victim, and returned, trying to talk his brother out of it. After renewed importuning by his brother, who had turned on the lights of their vehicle so the prisoner could see, he returned to where the victim was still asleep, put the rifle very close to his head, and pulled the trigger. He and Lulham then drove away from the scene, throwing the rifle into a gully near the Beechwood Cemetery. They then went home. 27 When at home, the prisoner became concerned that the rifle would be found, and at 4.00 am woke his mother. With Moran, he attempted to utilise his mother's vehicle, pushing it down the driveway. She questioned both men, and although he told his mother what he had done, she did not initially believe him. In order to avoid them driving drunk, she drove them on a mission which it turned out was to move the murder weapon to secrete it in another location. 28 The prisoner was arrested in the early hours of Saturday 14 November 1998. During the time subsequent to his return to his mother's home and his arrest, the prisoner had expressed his contrition to his mother, who had urged him to turn himself in. 29 Following his arrest he was taken to the Port Macquarie Police Station, where he participated in an electronically recorded interview in which he made extensive and detailed admissions. He made reference to the incidents between himself and the victim that I have referred to above, but in addition, he referred to other occasions in which he asserted the victim had acted towards the prisoner's female companions in a way designed, he believed, to be offensive both to them and to him. Subsequently, in the presence of his counsel, he was interviewed on 17 June 1999, particularly as to the involvement of his brother, and again made detailed admissions. It was as a consequence of that interview that the undertaking to which I have referred was obtained from him. 30 Evidence was given before me by the prisoner confirming the detail in the electronically recorded interviews. Both oral and written evidence was also given before me by Detective Senior Constable Lysaught, the investigator, who confirmed that:- "The prisoner made full and frank admissions ... in relation to his involvement in the murder of Spradbrow. He also supplied information in relation to the involvement of his half-brother, Dean Richard Lulham. He has also indicated he is prepared to give that evidence at the trial of Lulham which is to commence at the Supreme Court Newcastle on 23 August 1999 With the additional information supplied by the prisoner and his willingness to give evidence on behalf of the Crown, this will strengthen the case against Lulham." 31 Superintendent Cranna gave evidence in an affidavit sworn 17 August 1999 that he had conducted the appropriate enquiries to ascertain that the content of the evidence of Detective Senior Constable Lysaught was true, accurate and that the letter containing that evidence was authentic. 32 Detective Lysaught gave evidence that the prisoner had been in custody since 14 November 1998, that his admissions were immediate upon his arrest and at the station, and prior to entering into the electronically recorded interview in which he confirmed those admissions. Further, that he participated in showing the police the location of the killing at Kooree Island and the various locations of the weapon as confirmed on video, Exhibit G. 33 He gave evidence that in his opinion the evidence was complete, truthful and reliable, offered for no benefit other than the benefit of the reduced sentence under s.442B, and that the prisoner was liable to suffer a harsher custodial regime should it become known within the gaol community, as it inevitably would, that he had given evidence, or offered to give evidence, against his brother. 34 He gave evidence that the prisoner had shown instant remorse at the police station and had said, "I'm not going to lie to you. I fuckin' did it", and that the prisoner was crying and upset during the taping of the electronically recorded interview. He confirmed that the prisoner's information was valuable information and his undertaking valuable in that his half-brother had denied involvement and had attempted to inculpate the prisoner. 35 During his evidence in these proceedings, the prisoner produced to the authorities a signed confession sent to him whilst he was in gaol by his brother. It is valuable, although on the Crown case, only partly true. It is in that sense of some limited assistance to the prosecution. 36 It was no doubt as a consequence of the prisoner's plea, cooperation and evidence that Bradley Moran pleaded guilty to concealing a serious offence under s.316 of the Crimes Act , and gave a similar undertaking to that given by the prisoner, and as I have said, Dean Lulham has now pleaded guilty to murder on the basis of being an accessory before the fact. 37 However, in considering the prisoner's version of events, it is necessary for me to remind myself that neither the deceased nor Mr. Lulham are available to give evidence in these proceedings. Whilst I consider that the prisoner's sentence should be reduced substantially for his co-operation; that I should find in his favour contrition and remorse; and that at the time of the commission of the offence he was severely affected by intoxicating liquor and emotionally vulnerable to his brother's importuning, nonetheless I find he retained sufficient composure not to kill on the first occasion when he went to the victim and to seek to talk his brother out of the crime, albeit changing his mind and killing. 38 As I have said, the killing was cowardly and vicious. It was a deliberate commission of the most serious of criminal offences. The prisoner had sufficient composure to know well what he was doing and that the consequences of his crime would involve for him a lengthy prison sentence. 39 That said, despite the reservations I might have arising from the absence on the plea of any contrary version, it nonetheless seems to me that I am bound on the evidence before me to deal with the matter as it was presented by both the Crown and the defence as to the role of the prisoner and his brother. I note that the prisoner's account is supported by other evidence, including that of Miss Battle and Miss Wallis, the latter at least as to Lulham's resentment and hostility towards the victim. 40 Turning to subjective matters, the prisoner has a limited prior record for cultivating prohibited plants, possession of equipment to administer a prohibited drug and possess prohibited drug for which he was fined in 1993, but no other criminal offences. 41 The prisoner's family broke up when he was six, and the subsequent involvement of his mother with another man was accompanied by alcohol abuse and domestic violence. The prisoner came to depend upon his brother and his two-year-older sister. 42 The prisoner was the subject of a closed head injury at the age of 10, and medical records were provided to me in that regard. They indicated that he had suffered some degree of injury to his left parieto-temporal region. A neuro-psychological assessment by Miss Jill Farrelly, clinical psychologist, indicated test results consistent with such an injury. Neither the discharge summary from Port Macquarie Hospital nor the assessment of Miss Farrelly, however, indicated that such injuries as he may have sustained in that accident were implicated in the commission of this crime, nor do they appear to be of relevance to the circumstances in which the prisoner will serve his sentence. 43 Those test results and the psychiatrist's report provided by Dr. Olav Nielssen suggest that there was no developmental disability, psychotic illness, major mood disorder or character disorder of relevance to the commission of this offence. 44 Dr. Nielssen, while noting the significant depression after the breakdown of a relationship with one of his girlfriends, to which I have earlier referred, and the effects of alcohol abuse and the prisoner's adverse social circumstances, suggests that the combination might be considered severe enough to attract a diagnosis of adjustment disorder with depressed mood. Dr. Nielssen is of the following opinion:- "A combination of perceived provocation, acute intoxication and the influence of his older half-brother contributed to Mr. Davis shooting Mr. Spradbrow. Although he reported significant depressive symptoms extending for nearly a year after the breakdown in his relationship with Sandy he had recovered sufficiently to be able to continue in the training scheme and did not describe symptoms of depression of sufficient severity to be considered to have substantially impaired mental responsibility. I did not elicit a history of pathological intoxication associated with underlying brain damage, or impaired emotional regulation or control likely to be due to brain damage. In my opinion Mr Davis is fit to enter a plea. If the account of Mr. Davis' half-brother's involvement in the offence is correct, and I understand the forensic evidence supported his account, then he should share responsibility for the death of Mr. Spradbrow. Mr. Davis said that he looked to his half-brother as a father figure during his childhood and that Dean had considerable influence over him. Mr. Davis' prospects for rehabilitation appear to be good, as he did not exhibit traits or report features of any form of personality disorder, has been employed for most of the previous 10 years, and his substance abuse disorder appeared to be mainly in response to the depression which followed the breakdown of his long-term relationship. Moreover, he does not have a psychiatric disorder or brain damage likely to interfere with his rehabilitation." 45 The certificates and references in respect of the prisoner's attainments in custody and his personal qualities, in particular as observed by Miss Ayling, are such as to support Dr. Nielssen's conclusion. 46 The Probation and Parole Service report tendered in evidence sets out the prisoner's background and is consistent with what information was provided to Dr. Nielssen. It discloses that the prisoner is now aged 25, having been born on 19 February 1974. The report refers in detail to the two relationships with girlfriends to which I have earlier made reference. The first of those relationships continued for some 10 years, breaking down at the end of 1997. It was obviously a relationship of great intensity and the break-up caused the prisoner to have difficulties coping so that he turned to both cannabis and alcohol abuse. The break-up of a second relationship also adversely affected the prisoner emotionally and was the occasion for his camping on Kooree Island to which I have referred. 47 The officer notes that the prisoner attributes the relationship break-ups and subsequent events to the victim. 48 The prisoner had limited education and has had a limited range of employment, but has obtained a horticulture certificate and had worked in a Government employment programme. His use of drugs and alcohol was noted as intense. Other evidence showed that use to be so intense that his sister, who gave evidence before me, had in fact spoken to Dean Lulham prior to the commission of the offence about how worried she was concerning the prisoner drinking and living off on the island in a tent. She said the prisoner had threatened suicide. She told Dean Lulham not to let the prisoner have a gun because he might hurt himself or someone else. She relied on Dean Lulham to avoid her brother causing injury to himself or another. He undertook to her not to allow his brother to come in contact with a gun. Her evidence confirms the prisoner's vulnerability. 49 However, the Probation and Parole Service officer refers to the prisoner's attitude to the offence now as follows:- " Attitude to offence - the prisoner acknowledged his guilt to the offence. However, he appears to have difficulty in accepting full responsibility for his actions. He tends to apportion blame to the urgings of others for him to shoot the victim and the consumption of a large quantity of alcohol. Whilst he has expressed remorse for his actions, the victim and the victim's family, this appears to be counted (sic) by feelings of self-pity and the ruination of his life." 50 The prisoner gave detailed evidence before me of his circumstances and of the commission of the offence. That evidence was in accord with the detailed histories given to Dr. Nielssen and the Probation and Parole Service officer. He gave detailed evidence of the incidents that had occurred between the deceased and himself involving the girlfriends, the allegation over the car, and the taking of the tent. 51 I was left in no doubt that the conclusion of the Probation and Parole Service officer as to the prisoner's attitude to the offence had been entirely accurate. The prisoner referred to his state of mind at the time of the commission of the killing. He said that he had left his conscience in his brother's lap in the car, "I know the real meaning of facing your fears and living your nightmares". He gave evidence that he wished to take full responsibility for his own actions but that he did not want to be responsible for his brother's. In court he apologised in an emotional scene to the family of the deceased. He expressed the view that he had destroyed that family and his own too. 52 In cross-examination, although he asserted he was in fear of the deceased, he agreed that, even taking into account those incidents to which I have referred, there had never been any physical attack upon him by the deceased, although he asserted there had been a physical attack upon his brother. Again as to his state of mind at the time of the killing he said: "I lost it for 30 seconds because of his" - I interpolate, meaning the brother's - "pressure". He agreed that he was aware at the time of the killing of its moral wrongness. 53 I accept that without the urging of his brother and the effects of intoxication, the prisoner would not have committed the crime. I add to those findings my further findings of the prisoner's depression and emotional vulnerability as compounding the effects of the intoxication and the brother's urging. I accept that the brother's manipulation of this prisoner in his vulnerable circumstances was extremely powerful. 54 I further accept that although it was likely he would have been arrested and prosecuted successfully on a strong Crown case, in the events that have transpired he has made the strength of the Crown case both against himself and his brother. Consequently, I have regard to the principles in The Queen v. Ellis (1986) 6 NSWLR 603 at 604, and those to which I referred in The Queen v. Baldacchino (unreported 7 July 1998) at pp.16-17. 55 I have regard to the plea, the co-operation, the immediacy of the prisoner's contrition and co-operation which are matters of weight not only in themselves, but also as pointing towards the prospects of rehabilitation to which Dr. Nielssen directly and the Probation and Parole officer less directly have referred. 56 I also, however, have regard to the general principles which I must apply referred to by the Court of Criminal Appeal in Regina v. Dodd (1992) 57 A. Crim. R. 349 at 354 to which I again refer in Baldacchino (supra). 57 It would be in error to under-estimate the objective gravity of this crime, and I should not because of subjective circumstances, reduction for plea or co-operation or otherwise, pass a sentence unreasonably disproportionate to the serious criminality. 58 It is submitted that the violence the prisoner showed that night was out of character. I accept that, as according with the finding that I made, that in the absence of the urging of the brother and the degree of intoxication he had that night, he would not have committed the crime. However, just as the alcohol is not, in my view, a mitigating or aggravating circumstance in the commission of the present crime, the vulnerability to the brother's importunings which underlay and was aggravated by the alcohol sets the context for that violence and the commission of the crime, but it does not excuse what occurred. At most the alcohol and importuning go only some way to offset the hours of deliberating on the prospect of killing the deceased, leading up to what was, on any view, a premeditated, vicious killing. 59 The Crown submits that the appropriate range of sentence prior to application of the s.442B criteria is for a head sentence of some 18 to 22 years, but that the circumstances would warrant a substantial reduction by the application of those criteria. 60 The defence submits that the range is some 12 to 18 years without the application of those criteria, and submits that the frailty and weakness of the prisoner is not to be treated as though thereby he was as culpable as the principal moving party. 61 Neither party has submitted that there is any particular requirement in the present sentence for some element peculiar to the prisoner of personal deterrence. There seems no issue but that he realises the enormity of what he has done and the enormity of the consequences for others and for himself. 62 There does seem a real prospect for rehabilitation, and that process seems to me to have substantially proceeded already. 63 I have been provided with the relevant Judicial Commission statistics, but I find them of limited utility in a case of such unusual circumstances. 64 In my view this is a case in which, absent the elements of co-operation and assistance that I have already referred to, and which were underlined by the production of the brother's confession, a sentence might well have been warranted in excess of 20 years. 65 There clearly is in the present matter, both in the youth of the offender; the length of the sentence he will be required to serve; the possibility that it may be served, as to some part at least, in circumstances in which he might be confined in more onerous conditions by reason of his co-operation; and in the co-operation itself and the prospect of rehabilitation, ample evidence of special circumstances. However, in the context of the length of the sentence that I intend to impose, it appears to me that there is no need for a variation of the statutory proportion prescribed by s.5(3) of the Sentencing Act, as there does not seem to me to be a need for a longer period of supervision than the statutory proportion would require, nor any need for a longer period at liberty during which the prisoner's conduct in the community should be subject to the sanction that he be returned to custody to serve out the balance of the sentence. 66 Having regard, in particular, to the circumstances of the prisoner's plea, past co-operation and future cooperation, in my view the appropriate sentence is a sentence of 16 years, comprising a minimum term of 12 years to date from 14 November 1998 and to expire on 13 November 2010, and an additional term of four years to commence on 14 November 2010 and to expire on 13 November 2014. 67 Mr. Davis, I sentence you to penal servitude for 16 years, that sentence to comprise a minimum term of 12 years to date from 14 November 1998 and to expire on 13 November 2010, and an additional term of four years to commence on 14 November 2010 and to expire on 13 November 2010. The earliest date on which you will be eligible for release on parole is 13 November 2010.