R v Jason Russell DAVIS [2008] NSWSC 55

New South Wales Supreme Court

CITATION : R v Jason Russell DAVIS [2008] NSWSC 55

HEARING DATE(S) : 27, 28, 29, 30 November 2007 3, 4, 5, 6 December 2007

JUDGMENT DATE : 14 February 2008

JUDGMENT OF : Mathews AJ

DECISION : Offender is sentenced to imprisonment consisting of a non-parole period of 18 years commencing on 8 November 2005 and expiring on 7 November 2023. The balance of the term of imprisonment will be 6 years, commencing on 8 November 2023 and expiring on 7 November 2029. The earliest date offender will be eligible for release on parole will be 7 November 2023.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

CATEGORY : Sentence

PARTIES : R v Jason Russell DAVIS

FILE NUMBER(S) : SC 2007/244

COUNSEL : A J Robertson (Crown) A C Haesler SC (Accused)

SOLICITORS : Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MATHEWS AJ

Thursday 14 February 2008

2007/244 Regina v Jason Russell DAVIS

REMARKS ON SENTENCE 1 HER HONOUR: On 7 December 2007 the offender, Jason Davis, was convicted by a jury of murdering Vikila Avimeleki. The background of the matter is as follows: 2 In October 2005 the deceased, Mr Avimeleki, was a large, fit 73 year old islander man. He lived in an apartment in Bexley Road only a short distance from the Bexley North railway station. His flatmate in the two- bedroom apartment was a young woman who was generally away at work during the day. The deceased himself was working as a security guard at that time, and was on night shift. The apartment was on the first floor of a two storey building, immediately above commercial premises. It had two entrances: a front entrance from Bexley Road, which led to internal stairs going up to the apartment. At the rear of the premises a set of external stairs led to another doorway which opened directly into the kitchen of the apartment. 3 On Thursday, 27 October 2005 the deceased left the apartment at about 11.00 am and spent much of the day with his cousin. He returned home at about 5.00 pm. He entered through the front door, which he locked behind him, and went up to his apartment. 4 In the meantime the offender had entered the deceased's apartment through the back door by opening some shutters beside the door and unlocking the door from the inside. The offender had never met the deceased. His object in breaking into the apartment was to steal property. At some point the offender took the deceased's mobile phone which had been left in the lounge room. He went into the deceased's bedroom where he disturbed a number of items, leaving objects and papers littered on the bed and the floor. At this point the deceased arrived home. The offender tried to escape by running down the steps towards the front door. The deceased ran after him. Unfortunately the door was locked and the offender was unable to escape. In the confrontation between the two men the offender stabbed the deceased three times. He then ran back up into the apartment and out again through the rear entrance. The deceased went straight to a nearby medical centre. There he received emergency treatment. An ambulance was called and he was taken to St George Hospital. Emergency surgery was performed. The deceased was found to have been stabbed by a long instrument, presumably a knife. The most significant wound was to the front of the abdomen which had lacerated the liver and caused very significant blood loss within the abdominal cavity. The other two wounds were much less serious. Dr Chu, who performed the operation, said that without surgery the deceased would have been dead within about an hour. 5 The deceased appeared to be making a good recovery from these serious injuries until suddenly, three days later, his recovery reversed and he suffered fatal cardiac failure. As it transpired, the deceased had, for some considerable time, been suffering from chronic heart disease. This had apparently been symptomless. Indeed the deceased had presented as a very fit man who had never complained of any coronary episodes. The condition was only detected on post mortem examination. 6 Because of this pre-existing condition a significant issue arose during the trial as to whether it was the stab wound inflicted by the offender which caused the deceased's death; or, more accurately, whether it materially contributed to his death. The jury's verdict means that it found this matter in the affirmative, and there was ample evidence to support this finding. 7 The only other significant issue at the trial was whether it was the offender who stabbed the deceased. There was clear evidence that the offender had been an intruder in the deceased's home. Indeed this was never put into issue, nor could it have been , realistically speaking, for the forensic evidence clearly identified the offender as the person who had disturbed the various items in the deceased's bedroom. Moreover, the deceased's mobile phone was later shown to be in the possession of the offender, who sold it to a friend the following day. The offender did not give evidence at his trial, but Mr Haesler SC on his behalf suggested that there was insufficient evidence to establish that he was the person who stabbed the deceased. The jury found this issue in favour of the Crown, which is hardly surprising in the circumstances. 8 That is the background of the offence. I now turn to say something about the offender himself. 9 The offender is 26 years old, having been born on 15 June 1981. He has a formidable record, running into nine pages, most of it relating to offences committed before he turned 18. His first attendance before the Children's Court was at the age of 16. Thereafter he came before various Children's Courts charged with many offences. These included driving under the influence, shoplifting, larceny, malicious damage to property, various charges of assault and one of attempted armed robbery. For these offences he was dealt with within the juvenile justice system, and he spent a great deal of time in detention. Indeed many of the assaults upon his record were committed while he was in juvenile detention. 10 Since the middle of 1999, when the offender reached legal adulthood, he has been convicted in the local court of two charges of assault and one of assault occasioning actual bodily harm. Very significantly, in November 2000 he was sentenced at the Gosford District Court in relation to an offence of armed robbery to four years imprisonment, commencing on 9 March 2000, with a two year non-parole period. On 7 May 2001 he was sentenced in the Parkes District Court to a sentence which was made wholly concurrent with the Gosford sentence, namely four years imprisonment with a two year non-parole period commencing on 9 March 2000. The most serious of the three offences in this case was malicious wounding. 11 The circumstances of that offence were remarkably similar to the present case. The offender had been disturbed whilst he was trying to steal from a private dwelling. He lashed out at the householder with scissors, but inflicted no injury. However during the course of trying to make good his escape, he used the scissors to stab a man who was trying to apprehend him, causing him serious injury. 12 Since his release from prison in relation to these offences no further convictions have been recorded against him. However it is unclear how much of the intervening time he has been in the community. The documents before me indicate that one of the Local Court sentences – a fixed term sentence – extended the offender's time in custody until 23 September 2002. He was released to parole on that date, but it appears that his parole was later revoked and he was returned to custody where he remained, for at least part of the time, until May 2004. 13 Mr Haesler tendered a psychologist's report dated November 2000 which attests to the offender's extremely disrupted and unhappy childhood. He spent most of his childhood in Parkes. His parents separated when he was an infant. He was, at first, cared for by his maternal grandparents until his grandfather died when the offender was four. At that stage he was put into the care of an aunt and uncle. They, particularly his uncle, subjected him to very serious emotional and physical abuse. When the offender was nine years old his father re-entered his life. He then lived primarily with his father until his father's death when the offender was seventeen. The offender completed his primary schooling. However his secondary schooling was constantly disrupted by his being placed into juvenile detention. He has acquired no particular trade or skills since leaving school. 14 The psychologist found that the offender was articulate and cooperative. He had clearly taken advantage of educational courses whilst incarcerated. However he had a serious problem of drug and alcohol abuse. The psychologist noted that the offender had very poor self-esteem and might well attract a diagnosis of Attention Deficit Disorder. He exhibited a marked dislike of authority figures. Somewhat presciently, the psychologist remarked that the offender, when challenged, would be likely to become angry, resentful, vindictive or vengeful. 15 The standard non-parole period for murder is twenty years. This can be extended or reduced, upon appropriate grounds. 16 The starting point for determining whether the standard non-parole period should apply is assessing where the particular offence lies on the spectrum of offences of its kind, having regard to the objective features of the offence. If the particular offence falls above or below the middle range of seriousness for that offence, then this provides a good reason, at least in the first place, for reducing or increasing the non-parole period. 17 Mr Haesler has urged that the present offence, viewed objectively, falls below the mid-range for murder. In particular he points out that there was no pre-meditation and that there was no intention to kill. The offender's intention was to wound and incapacitate the deceased and thereby make good his escape. The Crown Prosecutor conceded that the offence itself was not pre-meditated, although there are qualifications to this, as I shall discuss shortly. He also conceded that there was no intention to kill. 18 On the other hand, the fact that a knife was used by the offender is clearly an aggravating feature. The deceased's flat mate gave evidence that, shortly after these events, a sharp knife was found to be missing from the kitchen in the apartment. It must be assumed that this was the knife used by the offender against the deceased. The lay out of the apartment was such that the offender would have had to walk through the kitchen when he first entered the premises through the back door. After the deceased returned home, the offender ran from the deceased's bedroom to the front door and down the front steps. He could not have gone back into the kitchen. Had he done so, he would have left the way he had arrived, namely through the back door at the end of the kitchen. Accordingly, the offender must have armed himself with the knife when he first entered the apartment, against the possibility that he might be disturbed during the course of the burglary. This imports an element of pre-meditation, albeit not a direct one. 19 Mr Haesler also urged that I should take into account, as a mitigating feature, that the stab wound inflicted by the offender was not the sole cause of death. The deceased could have died at any time as a result of his underlying heart disease. The stab wound merely accelerated a process which was bound to occur in any event. It substantially contributed to the death of the deceased, but it was not he sole cause of death. 20 I do not accept that this is a relevant consideration on sentence. An offender takes his victim as he finds him. In this case the principal stab wound was clearly a potentially fatal one. Indeed the evidence is that, absent surgical intervention, it would have killed the deceased within a very short time. 21 Nevertheless, I accept that the absence of an intention to kill, combined with the other circumstances mentioned by Mr Haesler, brings this case below the middle range for offences of this kind, albeit not by a great deal. 22 However other matters require consideration. By far the most significant, in the offender's case is his appalling record, which includes many crimes of violence. This is a serious "aggravating factor" under s 21A of the Crimes (Sentencing Procedure) Act 1999. Had the sentence I am about to impose been a shorter one, I would probably also have taken into account the protection of the community, given the offender's serious history of violent crime. But I accept Mr Haesler's submission that it is very difficult to predict how a lengthy term of imprisonment will affect this offender. He has shown himself to be willing to undertake educational and vocational courses while in prison, and he might well benefit from these. He will be into his middle years by the time he is released from prison, and he might be a completely different person by then. 23 A further matter I have thus far not mentioned is that, when this offence was committed, the offender was on bail in relation to another charge which was subsequently dismissed. The fact that he was on conditional liberty at the time is a further aggravating factor under s 21A. 24 It is clear law that considerations such as these cannot justify the imposition of a sentence which exceeds the upper boundary of that which is proportionate to the objective circumstances of the offence. These considerations will justify imposing a sentence in the higher range appropriate to the objective circumstances, which is what I propose to do. In the offender's case, I consider that a non-parole period slightly below the standard one is appropriate in all the circumstances. 25 The offender has been in custody in relation to this matter since 8 November 2005 and his sentence will commence on that date. 26 Jason Davis, in relation to the murder of Vikila Avimeleki, I sentence you to imprisonment consisting of a non-parole period of 18 years commencing on 8 November 2005 and expiring on 7 November 2023. The balance of the term of imprisonment will be six years, commencing on 8 November 2023 and expiring on 7 November 2029. The earliest date upon which you will be eligible for release on parole will be 7 November 2023.