STATE OF TASMANIA v MATTHEW JOHN DAVEY 10 DECEMBER 2021
COMMENTS ON PASSING SENTENCE BRETT J
Mr Davey, the jury has found you guilty of attempted murder. You committed the crime by throwing a mixture of petrol and diesel over your partner, and then setting her on fire by igniting the fuel with a cigarette lighter. You did this with the intention of causing her death. The complainant was instantaneously engulfed in flames, and suffered serious and life threatening injuries. The fire caused catastrophic burns to 68% of her body, much of which affected the full thickness of the skin and/or was circumferential. She could easily have died, and her life continued to be in considerable jeopardy for a lengthy period. She was kept under heavy sedation for several weeks and required extensive and repeated surgery, and thereafter further hospitalisation and intensive rehabilitation therapy. She has been left with permanent scarring over much of her body, with consequent permanent impact on her health, as well as ongoing and significant psychological consequences.
You have also now pleaded guilty to the other charge on the indictment, that of persistent family violence. This crime relates to a course of family violence engaged in by you and directed to the complainant over the full course of your relationship up to and including the day of the fire. The unlawful family violence acts which constitute the crime, and the context in which they were committed by you, was the subject of a great deal of evidence during the trial. This evidence was important also in respect of the prosecution case concerning the attempted murder. Because the indictment had been severed, you were not being tried in respect of the persistent family violence count, but the evidence was led to establish tendencies on your part, which contributed to an understanding of the events relevant to the crime of attempted murder, and, in particular, your motivation in committing that crime. The evidence generally pertaining to the relationship, is therefore, relevant to an assessment of your moral culpability for the attempted murder.
I indicate at the outset that I find that the complainant gave substantially credible and reliable evidence, both in respect of the history of the relationship and the critical events surrounding the commission of the crime. The jury was told that to be able to find you guilty of attempted murder, it was necessary to be satisfied beyond reasonable doubt of the credibility and reliability of the complainant’s description of the events in the shed concerning how it was that she caught on fire. It is implicit in the verdict that the jury was so satisfied. In my view, the complainant’s evidence generally can also be accepted. Her evidence was, in substance, consistent with much of the independent and supporting evidence. This is not to say that she was accurate about every detail, but, in substance, I am satisfied of her credibility and reliability.
The crime of attempted murder was committed on 24 April 2017. You were then 34 years of age and the complainant was 20. You had been in a relationship since November 2015. The relationship quickly became toxic and extremely volatile, and was characterised by frequent arguments. These arguments were often related to issues of mutual jealousy and lack of trust. Each of you engaged in controlling, possessive and verbally abusive behaviour. However, I am satisfied that in your case, the evidence established the tendencies asserted by the prosecution, and that it was these tendencies which defined your approach to the relationship. In particular, I am satisfied that you engaged in a continuous and marked pattern of coercive control over the complainant. I accept the complainant’s evidence that you constantly monitored her whereabouts, including by conducting or making her believe that you were conducting electronic surveillance of her communications and movements. You restricted her movements, both by demand but also from time to time by disabling or damaging her motor vehicle. You restricted and controlled her relationships with others, and demanded and expected complete loyalty from her. You regularly utilised verbal threats and threatening conduct towards her in order to maintain this control. These included threats of burning, or the use of fire against her or her property. On a number of occasions, you made it clear to her that if she ever left you, you would find and kill her. You described to her the very specific ways that you would do this. In my view, the complainant’s evidence about the extent of your controlling behaviour was vividly demonstrated by the telephone intercept and listening device recordings, and the surveillance footage, as well as the evidence of independent witnesses who saw particular events. I also accept the evidence of the complainant’s mother about this issue. I found her generally to be a credible and reliable witness.
Of course, this is not to say that the complainant always deferred to you, or that she was only in the relationship because of your control. There is no doubt that she wanted the relationship to work, and, as with any volatile relationship, there would have been times when the reality or perception of each of you was that the relationship was a happy one. Further, the complainant would regularly express her anger and unhappiness to you, and from time to time would leave your presence or stay away from you in order to avoid your threatening and violent conduct. On occasions, she angrily fought back against you. However, I am satisfied that overall there was a significant imbalance of power between you. As a result, the complainant’s invariable response to your controlling conduct, even when she had attempted to defy you, was to eventually capitulate and provide you with the loyalty and reassurance that you demanded from her. I am satisfied also that she was stating things accurately when she told police during the interview in hospital after she had come out of the coma, that you were always telling her that you had something coming for her. There is no doubt that she told the truth about this, because you can be heard explicitly expressing that threat on more than one occasion in a recorded telephone call. Clearly, threats of that nature were intended as a means of maintaining your power over and control of the complainant.
The specific family violence acts which constitute the crime of persistent family violence were committed in this context. They invariably occurred during arguments, and at a point when your control of the complainant was being challenged by her. Much of this was admitted in your evidence, although your explanations for some of the acts differed to that asserted by the complainant. The specific acts of violence and my findings about them, include the following:
(a) On 20 February 2016, you slapped the complainant to the face when she challenged you because you were speaking to an ex-partner. The slap caused bruising to her face. You claimed in evidence that she attacked you and you slapped her as a reaction. It may have happened this way and I will give you the benefit of the doubt about that, but you did apologise to her by text message the next day in a manner that indicates that you realised that you had gone too far.
(b) On 9 March 2016, when you were both in a car driving near Colebrook, you assaulted the complainant during the course of an argument. Aspects of this incident were seen by an independent witness and a police officer. In respect of the assault, I proceed on the basis of the witness’s evidence. Not only was it independent but it was also corroborated by the contemporaneous 000 call she made to police. As the witness drove past, she saw you holding the complainant by the hair and neck and striking her with your right hand. She was concerned enough to check on the complainant’s welfare after she had left the car, and observed her crying and distressed. I accept that at one point you may have been restraining the complainant from leaving the vehicle while it was moving, but this was well into the argument and it is clear that you were being angrily abusive to her. It was telling that the complainant told the witness that she believed that you would kill her. Her conversation with the witness provides some insight into her fear of you and the imbalance of power between you. These aspects of the relationship were also demonstrated when police stopped the vehicle later, and the complainant was concerned to ensure that it did not seem that she was talking to the police officer out of your hearing.
(c) On 26 March 2016, you assaulted the complainant by striking her to the head. The blow caused some swelling. You also damaged her car. The complainant sought refuge with her family. You were told this on the following day and told she would be staying there for a time. You angrily rejected this, went to her brother’s home and assaulted him there in his home. This was a clear demonstration of your possessiveness and exercise of dominance and control over the complainant. It was an example of you not being prepared to accept her decision to leave and stay away from you. Your evidence about this was that you could not recall the surrounding circumstances, but I observe that much of the incident is corroborated by intercepted telephone calls and text messages. I find in accordance with the facts I have described.
(d) On 8 April 2016, there were multiple incidents of abuse and violence over an extended period. Again, much of this is demonstrated by intercepted telephone calls and text messages, as well as surveillance footage and listening device recordings. Specific threats to kill and to burn the complainant’s house down can be heard on these recordings. At one point, the complainant, in a very distressed state, flees from the house and telephones her mother. She can be heard during this call telling her mother that she believes she is going to be killed by you that day. She left your presence more than once that day but on each occasion you followed her and sought to bring her back under your control. At one point when this was happening and she resisted you, you bit her hair causing some hair to be ripped from her head. You then head-butted her and poked in the eye with your finger. On a later occasion, during an argument in a car, the complainant locked herself in the car to keep you out. You violently attacked the car trying to get in. When you were unable to do so, I find that you placed an item of clothing in the fuel tank and appeared to attempt to light it. You deny doing this. Some of this incident was witnessed by passers-by and captured on surveillance footage. Although the threat to set the car on fire is not determined by this evidence, I am satisfied that it did happen. I accept the complainant’s evidence about this. Although you cannot be seen actually doing it, your movements on the surveillance footage are consistent with the complainant’s description of this aspect of the incident. It is an important piece of evidence because it demonstrates your tendency to use fire as a means of threatening, intimidating and therefore controlling the complainant’s conduct.
(e) On another occasion, you threatened to throw a rock through the window of the vehicle in which the complainant was seated. You both agree this happened although you differ as to the timing and circumstances. It is not necessary for me to resolve these differences.
(f) There were multiple incidents of violence in the context of multiple arguments over 22 and 23 April 2016. A concerning incident, in my view, during this course of conduct, occurred when you and others, including your cousin, Dylan Davey, were consuming illicit drugs in a shed outside your house. The complainant expressed anger over you doing this. You responded angrily, and effectively detained the complainant. You had your cousin forcibly search her bag because of your belief that she may have been recording you, and you threatened her safety when she suggested she would call the police. She was not recording you, but the police were, and much of this incident was captured on listening device recordings. It was also described in evidence by the complainant and your cousin, and I accept their evidence about it. I found the incident very telling as to the level of control and intimidation you were prepared to exercise against her, and your general paranoid response to any attempt by her to challenge your authority. In the end, she fled from you during the night and walked through paddocks and then down a road. She called her mother for help. She was found by her mother soon after in a very distressed state, and wearing only underpants and a top. She had obviously walked through the paddocks and on the road barefoot, because she had no shoes or clothing on her lower half.
As a result of these events, that is, the events I have just described, you were arrested by police and then remanded in custody. You were then charged with drugs and firearms offences, and remained in custody until November 2016. There is no question that the complainant willingly continued the relationship with you while you were in custody, and in fact defied court orders and other restrictions to do so. However, before you were released from prison, she also wrote and hid the letter, which was placed in evidence, in which she expresses fears for her life, upon your release from prison. The clear inconsistency between this letter and her apparent attitude to you in wanting to continue the relationship, which was highlighted by your counsel during his closing address and which was partly demonstrated by her discussing wedding plans with you around the time she wrote the letter, is indicative in my view of her confused feelings about the relationship. I do not think that there is any real significance in this inconsistency. I would not have thought it unusual for a person trapped in a violent and unequal relationship, to exhibit confusion and inconsistent responses about the relationship. On one hand, I am sure that she hoped that you were serious about giving up drugs and changing your conduct towards her, and that the relationship would continue. On another level, she was undoubtedly concerned that you would revert to the violent and intimidating conduct which you had displayed prior to your remand in custody, after your release and scared of what this might mean for her. In those circumstances it is not surprising, and consistent with normal human behaviour, that she might express and show one attitude to you, while expressing a different attitude secretly.
I accept the complainant’s evidence that the relationship continued to deteriorate, and your controlling and coercive behaviour escalated, after your release from prison in November 2016. The bizarre incident involving Jarrod Kringle, which occurred not long before your commission of the crime of attempted murder, is a stark demonstration of the paranoid and controlling nature of your approach to this relationship. I am satisfied that this incident unfolded substantially in accordance with the description provided in the testimony of the complainant and her mother. You believed that the complainant had engaged in sexual relations with Mr Kringle while you were in prison. You were quite fixated on this, and continually accused the complainant of this infidelity, often in brutal and demeaning language. On the day in question, you arranged a staged and closely controlled event in which you detained and interrogated both the complainant and Mr Kringle. Eventually, Mr Kringle was assaulted by another man on your instructions, and then by you. The only actual physical violence against the complainant occurred when you threw a phone which struck her. You did this before Kringle’s arrival because you were upset that the complainant was applying makeup and attending to her appearance. You agree this happened but you deny that you threw it directly at her. I will give you the benefit of the doubt about this but the real concern about this whole incident is what it represents in terms of your attitude to her and your claim of dominion over her. It also demonstrates your preparedness to use violence, including against other people, in order to maintain that position.
There were two other acts during the early part of 2017, neither of which are disputed by you. On one occasion, you head-butted the windscreen of the complainant’s vehicle. On another occasion, you slapped her to the face as a response to her angrily smashing your Ice pipe.
I will now move on to the circumstances in which you committed the attempted murder. As I have already stated, it is clear that the jury was satisfied that the complainant gave a credible and reliable account of the critical events surrounding the commission of the crime itself. In my view, her description of all of the immediately relevant events before, during and after the crime, was substantially consistent with and, in some respects clearly supported, by the objective and independent evidence, including the forensic evidence. I am also satisfied that the complainant’s version of the events of the 24 hour period leading up to this crime is largely accurate. Her description of what happened earlier in the day is supported by the evidence of her mother.
I am satisfied that the complainant did not stay with you on the night of 23 to 24 April. She was working for Mr Gough that night, and I am satisfied that she returned to the apartment she shared with her mother at the end of her shift. There had been a lengthy exchange of messages between you and her over Facebook while she was at work. In that exchange, she expressed her desire to end the relationship, and made this clear to you. I accept that this had happened many times before during the course of an argument and, on those occasions, she had eventually changed her mind. However, I am satisfied that, on this occasion, she was, and at all relevant times appeared to you to be, resolute about ending the relationship.
I find that you arrived at the apartment during the course of the day and there was then further argument between you about the relationship and her wish to end it. The complainant clearly communicated to you that she wanted the relationship over. Your response was to spit in her face, throw a soft drink can at her and cause damage in her bedroom. I am satisfied you did those things. The damage caused by the door handle of the cupboard can be clearly seen in the police photographs. Your actions demonstrated your mindset, in particular that you believed that she was serious about wanting an end to the relationship, and that you were not prepared to accept this decision.
You and Ms Rodway then left the house, and acquired some drugs. Your evidence at trial was that although the complainant was still very upset when you returned, you quickly reconciled and the argument was effectively over. This was an important point because on your evidence, the complainant was happy to return to your parents’ home and stay with you that night, as would usually be the case. The complainant’s position was that she had not changed her mind. She continued to be upset and to communicate to you that she did not want to continue the relationship. Her reason for agreeing to take you to your parents’ home was simply to drop you off and she had no intention of staying there with you that night. I accept the complainant’s evidence about these events. You may well have thought that you would successfully convince her to stay, but this was only because you were not open to what she wanted, and you were confident in your ability to exercise control over her. This is consistent with Ms Rodway’s evidence, which I accept, that shortly before you and the complainant left the apartment to return to the house, the complainant again told you that she wanted to end the relationship, begged you to let her go and told you she did not love you anymore. Your response was to tell her that the relationship was not over and it would only be over when you said it was over.
I am satisfied that the complainant’s attitude about ending the relationship was maintained after you both arrived at the house and went to the shed. She clearly went into the shed and continued to engage in conversation with you. She may well have entered the house and taken in a backpack and greeted your father, but I am satisfied that she remained resolute about ending the relationship and continued to make this clear to you. I do not regard the presence of the backpack in the bedroom as significant. As already noted, the pattern of the relationship was that her response to pressure from you was invariably to give in to your demands. Your perception of this was demonstrated in your evidence when you confidently asserted that the complainant would often say she wanted to end the relationship but would never follow through on this, and would always reconcile with you relatively promptly. She may well have taken the backpack as a means of placating you, or because she was genuinely confused about what to do or how to handle the situation. None of this means that she was not persisting with her desire to bring the relationship to an end. In this regard, I again refer to Ms Rodway’s evidence. She confirmed that the complainant was carrying a backpack when she left the apartment, but that she also said to her mother “I’m going to pay dearly for this”, and that she would be back soon. When this is combined with your refusal to countenance an end to the relationship, and to give any credence to her wishes about this, it can be completely understood that she may have done things to avoid a reaction from you. In my view, these equivocal but superficial actions on the part of the complainant, taken together with her obvious and protracted emotional upset during the day, rather than supporting your version of these and subsequent events, vividly demonstrates the power imbalance between you and how difficult it was always going to be for her to break away from you.
In any event, I am satisfied that, after you both entered the shed, the complainant continued to make it clear to you that the relationship was over. I am also satisfied that as events unfolded, you escalated your response to meet the complainant’s resolve. Firstly, there was a physical fight between you, which involved you both rolling on the ground, and hitting each other. You then threw accelerant from the fuel can over her. I am satisfied that you knew that the can contained at least some petrol, and that this was an accelerant capable of being ignited easily. I have no doubt that your purpose in doing this was to threaten, intimidate and demonstrate your physical power over her, and thereby coerce her into backing down and becoming compliant with your demand that she not leave the shed and that she continue with the relationship. In your eyes, her capitulation about the relationship would be demonstrated by her agreeing to stay with you for the night. Your counsel submitted that, notwithstanding the jury’s verdict, I should have a reasonable doubt that you threw the fuel on her, and proceed on the reasonable possibility that, as you testified, she threw the fuel over herself as a gesture of an intention to commit suicide. I reject this submission. There are many reasons for this. Firstly, I believe the complainant’s description of these events. Further, I was not impressed with your evidence about this issue, including your demonstration as to how you claim to have taken the fuel can off her. I am also of the view that it is extremely unlikely that in the agitated and suicidal state that you claim she was in, that she would have the presence of mind or would choose to pick up the heavy red fuel container, screw off the cap and shake the container in a sufficiently effective manner to splash fuel over her, when beside it on the floor was a small 10 litre can without a lid, which also contained some form of ignitable material. The probability is that if she had done what you claimed, then she would have reached for the nearest and most accessible source of accelerant, the smaller open container. Further, your DNA was found on the container, together with the fingerprint. This is not necessarily inconsistent with your version, but it does provide support for the complainant’s version. Finally, there is a logical connection between you throwing the fuel on her and your final act in setting fire to the complainant. Ultimately, the jury was satisfied that you did so with the intention of killing her. Such an intention is inconsistent with your description of the lead-up events, but is completely consistent with the complainant’s version of those events.
Understandably, the complainant became angry when you threw the fuel on her and there was further physical fight. You then used a cigarette lighter to attempt to ignite a section of carpet on the floor of the shed, but could not get the fire to start. Once again, this act is consistent with the physical and forensic evidence. The only evidence of fire or heat in the area in which you claim the fire started, that is the fire that engulfed the complainant, is the small scorch mark on the carpet. I am satisfied this scorch mark was caused by your actions as described by the complainant. You were aware, of course, that the complainant was covered in accelerant and your introduction of fire in the shed in this way was another act intended to intimidate and control her. After this, you told her to clean the fuel off in your parents’ house. A further argument developed over this. The complainant told you that she wanted to leave and return to her own home, but you continued to insist that she clean up inside the house, and stay with you there for the night. You both agree that this argument occurred. The mere fact that there was such an argument is consistent with the complainant’s version that she did not intend to stay the night, and that you were not accepting this. During this argument, she started to walk past you to leave the shed. As she did, you extended the lighter towards her, and flicked it, thereby igniting the fuel and setting her on fire. She was immediately engulfed in flames.
Although the complainant believes that the shed door was down and locked, I am not satisfied beyond reasonable doubt that this was so. In this regard, I proceed on the basis of the opinion of the fire investigator, Mr O’Donnell. On the other hand, I find that she ran from the shed by herself as soon as the fire started, and that you did not carry her out. This conclusion is supported by, among other evidence, Ms Flonta’s identification of the drip trail on the floor of the shed and the expirated blood pattern on the vehicle. It is also supported by there being relatively little fire damage to you and your clothing. However, I accept that within a relatively short time, you took steps to assist the complainant, including by assisting to put out the flames, and then by trickling water from a hose over her in accordance with instructions from the 000 call operator. You suffered some burns to your hands as a result of your actions in the extinguishment of the fire.
I am satisfied that from the outset, after that, you were concerned to avoid responsibility for what you had done. I find that in the immediate aftermath of the fire, as you were waiting for the emergency services to arrive, you asked the complainant to lie to others about how the fire had started. You told her that, if she did not, you were going to go to prison for a very long time. You then told a number of emergency services personnel, police officers and a doctor that the fire had been caused by an accident. These were lies intended to cover up the fact that you had deliberately set the complainant on fire. I do not accept your evidence that while waiting for the arrival of the emergency services, the complainant asked you to provide a false explanation in order to avoid embarrassment. I also do not accept your father’s evidence that she told him that it was an accident. I am satisfied also that your telephone call to her in August 2017 was not a response to a belief that she wanted to speak to you, but rather a final and desperate attempt to call on her loyalty to you to avoid the consequences of your conduct. In my view, this was a particularly cruel and cynical act and undoubtedly caused her considerable distress. It also negates any suggestion of remorse for your conduct in setting her on fire.
The complainant has declined to make an impact statement. However, the impact of this crime on her can be determined having regard to the evidence at the trial, as well as further medical evidence provided to me during the sentencing hearing. The complainant remained conscious in the immediate aftermath of the fire. She was conscious when paramedics arrived. Because of the difficulties associated with transporting her in any other way, there was no option other than for her to walk from the backyard of the residence to the ambulance which was positioned on the roadway. This must have been a painful and difficult process for her. Further, it is clear from comments made by her at the time that she was aware that her life was in jeopardy at this point, and she must have experienced a great deal of terror, shock and pain.
The complainant was taken to the Royal Hobart Hospital, where she received emergency treatment, including surgery. Without this treatment, she would have died. She was transferred to the Alfred Hospital in Melbourne the following day. She remained there in intensive care under heavy sedation for approximately six weeks. According to expert medical opinion, the risk of death was high for at least a month and gradually diminished thereafter. She was ventilated and not breathing independently until 29 May 2017. She has no recollection of this period, effectively being in a coma, but the medical evidence indicates that she woke intermittently in an agitated state and experienced several episodes of hallucinations. She suffered a number of serious complications, including infections, kidney dysfunction, toxicity and significant blood loss. She underwent at least 10 further surgical procedures during this period. Thereafter, she was transferred to a ward, and remained in hospital for a further five weeks. She was then transferred to a rehabilitation hospital in Melbourne, where she stayed until discharge on 29 September 2017. During her time in rehabilitation, she underwent intensive therapy on a daily basis.
The estimate of the specialist in charge of the complainant’s treatment at the Albert Hospital, is that she suffered burns to 68% of her body, most of which were full thickness or third degree burns. The full thickness burns affected her left arm, left and right thigh and torso, back and front. There were also partial thickness burns to her right arm, neck and face. Most of the surgery was concerned with skin grafts to replace the burnt tissue. Most of her body is now affected by either the burns or the donor sites for the grafts. The complainant will have significant lifelong consequences as a result of these injuries. These include extensive scarring, and consequent problems with temperature regulation and skin contractures. There is likely to be disfigurement, including around the neck and mouth. She will require further treatment on an ongoing basis, and this may include multiple episodes of plastic surgery. It is probable that she will experience ongoing pain and discomfort, and will be vulnerable to even minor trauma.
As would be expected, there have also been significant psychological consequences, which will continue well into the future, if not permanently. The evidence indicates that the complainant was diagnosed with post-traumatic stress disorder and depression in the rehabilitation hospital. The medical opinion is that there will be a need for significant and long-term psychological support. Further, I have been told that the complainant has found it necessary to relocate as a result of what happened to her. This has inevitably led to permanent separation from family and friends, and undoubtedly compounded the psychological impact. In summary, as a result of your crime, the complainant suffered catastrophic life-threatening injury with permanent and devastating consequences. The future of this young woman has been irrevocably changed by your selfish and arrogant act.
The impact of a crime such as this, of course, extends beyond the immediate victim, to many others. The complainant’s parents spent significant periods of time with her while she was in treatment on the mainland, and their lives will be forever affected by what happened to their daughter, and by her ongoing suffering. Further, the horrific nature of a crime such as this touches all concerned with it, including emergency workers and medical treaters, who came to the complainant’s aid. I am sure that your father was also deeply affected by his involvement in the immediate aftermath of this crime.
The verdict of the jury establishes that at the time that you flicked the lighter you intended to set the complainant on fire and thereby cause her death. It is not suggested by the prosecution that you had planned to kill the complainant in this way on the relevant night. However, in the circumstances of this case, the lack of premeditation has little impact on your moral culpability. A crime of this nature which is premeditated and planned is generally regarded as more serious than a crime which constitutes a spontaneous reaction to particular and sometimes extraordinary circumstances, or to unexpected emotional distress. The reason for this is that the lack of premeditation will often indicate that the crime was out of character, or is not susceptible to general deterrence. However, this distinction is not relevant to this case. There was no occasion or reason for premeditation because up to this point the complainant had always given into the pressure which you exerted. On this occasion, she did not do so, and although you had not formed a specific plan to kill her prior to the events in the shed, you also took the decision to do so without hesitation and as an immediate extension of the well-entrenched and ongoing pattern of controlling and threatening behaviour which I have already discussed. On this night, setting the complainant on fire was the final step in an escalating and deliberate course of conduct designed to enforce your will and exercise dominion over her. The only possible consequence and purpose of throwing fuel over her body and then attempting to set fire to the carpet was to threaten the complainant with the kind of force you eventually used, and to reinforce to her that you had the power to do this, and were serious about doing so if she did not bend to your will. Accordingly, the act of setting her on fire must have been within your contemplation, at least as an abstract possibility, from the moment that you threw the fuel over her. In pursuing this course of conduct through to its terrible end, you were acting in accordance with the pattern of controlling behaviour which had typified your approach to the relationship. In these circumstances, the absence of premeditation does not mitigate the heinousness of your conduct, nor reduce your moral culpability nor the need for general deterrence.
The crime of attempted murder constitutes family violence of the most serious kind. You treated the complainant as your possession, and when your ability to exert control was strongly challenged by her, you decided to end her life. You did so in a particularly cruel and horrific way, and as an arrogant expression of your dominance over her. This was a shocking breach of the trust inherent in the relationship and deserves severe condemnation. Violence against women, including where it involves lethal or potentially lethal force and/or where it is committed in a family violence context, must not and will not be tolerated in any circumstances. All too often, such violence results in the death or serious injury of the woman concerned. Sentencing courts have a duty to respond strongly to ensure the protection of those who are threatened by and vulnerable to such violence. Denunciation of this conduct and general deterrence are critical sentencing considerations. Further, I am of the view that, having regard to your criminal history and propensity for violence, and the nature and context of this offending, specific deterrence and community protection are also important considerations.
Finally, you were subject to a suspended sentence when you committed this crime, and that sentence will be activated.
The fact that you desisted and helped the complainant relatively quickly provides some general mitigation of your moral culpability, but this factor must be considered in its proper perspective. If you had not helped her, she almost certainly would have died, but you are not being punished for her murder. The attempt to kill her was complete at the moment that you flicked the lighter thereby igniting the fuel. With that act, catastrophic consequences, including serious injury of the nature suffered by the complainant, and the potential for death, were immediately inevitable. These are the predictable immediate consequences of attempting to murder the complainant in this way. By thereafter helping her and preventing her death, you have restricted your criminal responsibility to that of attempted murder, and will therefore avoid punishment for anything more serious. It is difficult to see how that assistance further mitigates in any significant way your moral culpability for an act which itself carried with it inevitable and catastrophic consequences.
There is nothing else that mitigates your culpability for this crime. You have shown no remorse. You are entitled to some mitigation for the utilitarian value of the plea of guilty to the persistent family violence charge. This came at a very late stage, and is not in my view indicative of remorse, but the trial of that charge would have been lengthy and complex, and that has been avoided.
You have also pleaded guilty to discrete crimes committed during the early months of the relationship. These are the crimes of unlawful trafficking in firearms and trafficking in methylamphetamine. The drug trafficking relates to your conduct of a commercial business in the sale of this drug between 18 December 2015 and your arrest by police on 25 April 2016. As with most cases of this type, it is difficult for the prosecution to identify precisely the amount of the drugs trafficked during the relevant period or the overall extent of the business. However, evidence gained by police, including from the covert surveillance methods already discussed, suggest that you were operating a medium level business selling significant quantities of methylamphetamine to both dealers and personal users on a regular basis. It is clear that you were not just selling deal sized quantities to individual users. The evidence demonstrates that from time to time you were selling larger quantities to purchasers who you knew would be on-selling to others. It can be expected that your conduct of the business would have produced considerable cash profit for you, although I accept that you were also heavily using this substance during the relevant period. I accept also the submission of your counsel that there was no particular sophistication about this business. Having listened to a great deal of lawfully intercepted communications involving you during this period, it is clear to me that you suspected that police were investigating you and probably intercepting your telephone calls. I am not sure that you knew the extent of this but it does not seem to me that you were particularly concerned about that prospect. There was no real effort made to cover up what you were doing, although you were concerned to ensure that other people did not speak to the police about you and examples of this are relevant to the charges already discussed. However, I accept the point that your conduct of this business can be distinguished from larger businesses where more sophistication is used to ensure its secrecy. However, drug trafficking to this extent is inevitably a matter of significant concern to the community. Your activity caused the dissemination of a significant amount of a very dangerous and addictive drug throughout the community. Your crime deserves a sentence which reflects the community’s denunciation of this conduct and emphasises general deterrence.
A concerning and aggravating factor in relation to the drug trafficking is its relationship with firearms. On 24 January 2016, you and two associates stole 14 firearms from a residential property in Launceston. You were sentenced for this crime after being found guilty of stealing the firearms by a jury. The sentencing judge imposed a sentence of two years and six months’ imprisonment to be served cumulatively on other sentences, and made it very clear that that sentence was not related to any subsequent charge concerned with trafficking in those firearms. The crime to which you have now pleaded guilty before me relates to the unlawful trafficking of those firearms. It is constituted by the sale of a .22 calibre pistol to a man in exchange for a quantity of methylamphetamine. According to the facts presented to me you had also negotiated, although not completed, the sale of a 9 mm semi-automatic pistol together with magazine and ammunition. The crime of trafficking also includes your possession of all 14 firearms, including those two, for the purpose of sale. It is clear from the material alleged by the prosecution that you contemplated using these firearms as currency to be exchanged for the supply to you of methylamphetamine, most of which you would then on-sell for cash in your drug trafficking business. Unlawful trafficking in firearms at any time is a matter of great concern because of the potential for unlawful and very dangerous weapons to be placed in an uncontrolled way in the hands of criminals. This is precisely the probable effect of what you intended to do with these firearms. Your conduct deserves the severest condemnation, and general deterrence is a very significant sentencing factor.
In terms of mitigation for these crimes, I will take into account the utilitarian effect of your pleas of guilty. Once again, the pleas came at a late stage and I do not believe they are indicative of any true remorse. However, they have avoided the need for lengthy and complex trials and you should receive appropriate credit for this.
You are now 39 years of age. You have four children, two of whom you see regularly. The other two reside with their mother on the mainland. You were brought up in a close and law abiding family, but have experienced significant behavioural problems since you were very young. You were diagnosed with attention deficit hyperactivity disorder at 14, and this has been a lifelong problem for you. You have had a long-term problem also with the use of illicit drugs.
Your lengthy criminal history also commenced when you were 14 years of age. At 16, you were sentenced to a lengthy period of imprisonment, which was subsequently overturned on appeal, but not before you had spent some time in the adult prison. Your counsel tells me that you were the subject of a serious assault during that time, and this has had ongoing impact on you. You continued to offend on a regular basis during your youth and then into adult life. There are many convictions in your record for offences involving dishonesty and traffic related matters. There is also a concerning history of violent offending. This includes a common assault committed in 2001 and an assault on a police officer in 2002. In 2005, when you were 23 years of age, you were sentenced to imprisonment for stealing from a hotel and then committing an aggravated assault on a bystander who attempted to apprehend you. You punched this man to the head and body and kicked him in the body. On 18 April 2018, you were convicted by a jury of the crimes of committing an unlawful act intended to cause bodily harm and assault. These crimes were committed on 7 May 2015, in the course of a violent interrogation of a woman, which was conducted by you and three other people. You were described by the sentencing judge as the ringleader and the interrogation was clearly for your purposes. The woman was detained, intimidated and violently beaten over a lengthy period. You received a sentence of imprisonment, and some suspended sentences were activated. In total, the aggregate term of imprisonment was 15 months and 10 weeks with effect from 27 February 2017. On 3 May 2019, you were sentenced for stealing firearms. This crime had been committed in company with others on 25 January 2016 and it is the one that I have just referred to related to the firearms in your possession in respect of the unlawful trafficking charge. The stealing was a serious crime and the sentence imposed was two years and six months’ imprisonment to be served cumulatively upon the sentences imposed in 2018. You have been in custody on remand since the end of that sentence. In my view, your criminal history demonstrates a propensity for criminal violence which manifested in your commission of the crime of attempted murder of which you have now been found guilty.
Given that I intend to sentence you in respect of all of these crimes, and noting that you have already served four years in prison as a result of sentences already imposed for other crimes, the question of totality does require consideration in this case. The overall sentence must not be unduly crushing, but, on the other hand, you are being sentenced for discrete and very serious criminal conduct and the sentence must respond proportionately to the totality of that conduct. Further, my consideration of totality will take into account that as a matter of reality you may experience some of your time in prison in a high security setting, and this may make it more difficult than would otherwise be the case. My consideration of that question takes into account the context that any such period would occur as a result of the prison authorities’ response to your conduct, which may well change over time. In respect of the firearms trafficking, I must take into account that you have already been sentenced for stealing the firearms in question. Having regard to all of this, I intend to address the question of totality in the following way:
(a) Firstly, totality will be taken into account when assessing the length of each head sentence and the non-parole periods.
(b) Secondly, although I intend to impose global sentences on each indictment, it is appropriate in my view that they be served cumulatively. The criminal conduct relevant to each indictment is completely separate and distinguishable from that relevant to the other indictment. However, having reviewed the cumulative length of the sentences, it is appropriate in my view to moderate the effect of the overall length by backdating the sentences beyond that which would reflect only the time you have already spent in custody unallocated to another sentence. This will also reflect on the cumulative length of the non-parole periods. The effect of this is that, to that extent, the sentence will be served concurrently with other sentences in force during that period.
The final issue is the fixing a non-parole periods. It is appropriate that I do so. Ultimately, you will be required to serve a period without being eligible for parole which is, in my opinion, the minimum period that you should spend in custody having regard to the objective seriousness of the crimes, your moral culpability for them and other relevant sentencing factors. The serious nature of the attempted murder in particular means that on that indictment, the non-parole period will be greater than the statutory minimum.
I make the following orders:
(a) Matthew Davey, you are convicted of the crimes of which you have been found guilty or pleaded guilty.
(b) The suspended sentence of 3 months’ imprisonment imposed by the Magistrates Court on 4 November 2016 is activated. This sentence will be backdated to 23 January 2019. You are not eligible for parole in respect of that sentence.
(c) For the crimes of attempted murder and persistent family violence, I impose a global sentence of imprisonment for a term of 18 years. That sentence will be served cumulatively upon the activated suspended sentence. You will not be eligible for parole until you have served 12 years of that sentence.
(d) For the crimes of unlawful trafficking in firearms and trafficking in a controlled substance, I impose a global sentence of imprisonment for a term of 4 years. That sentence will be served cumulatively upon the sentence imposed for attempted murder and persistent family violence. You will not be eligible for parole until you have served two years of that sentence.
(e) For the purposes of s 92A(3) of the Sentencing Act, I specify that:
(i) The total term of imprisonment which you are liable to serve in respect of all of the above sentences is 22 years and three months commencing on 23 January 2019.
(ii) The total period that you must serve before you become eligible for parole is the aggregate of the non-parole periods relating to the said sentences, which is a total period of 14 years and 3 months. My intention is that the calculation of that non-parole period commence on 23 January 2019. In my view, given the concurrent nature of that part of the sentence, that outcome is consistent with relevant provisions of the Corrections Act.
(f) Pursuant to s 13A of the Family Violence Act, I direct that the crimes of attempted murder and persistent family violence be recorded on your criminal record as family violence offences.
(g) Having regard to the evidence presented to me in the trial and on the sentencing proceedings, I am satisfied on the balance of probabilities that you have committed and may again commit family violence against [the complainant]. Accordingly, I make a family violence order in the following terms:
(i) you must not stalk [the complainant].
(ii) you must not directly or indirectly threaten, abuse or assault [the complainant] and
(iii) you must not be within 100 m of, or contact or attempt to contact [the complainant] directly or indirectly (including by any form of electronic or other communication).
(iv) The order will take effect immediately and will continue indefinitely, that is until it is revoked or varied by a court of competent jurisdiction.
(h) Pursuant to s 36B(2) of the Misuse of Drugs Act 2001, I order that you pay the costs of analysis of the methylamphetamine seized on 5 April 2016 in the sum of $300.
(i) I am satisfied that items 1–11 on property seizure record 70393 and 70394 is tainted property in respect of the crime of unlawful trafficking in firearms, and I order that that property be forfeited to the State of Tasmania. I consider the value of that property in aggregate to be $3140.