Citation: Regina v Brett Arthur DAVENPORT [2001] NSWSC 1083
Court: Supreme Court of New South Wales
Date: 7 December 2001
Judge(s): Bell J
Background
The prisoner was convicted by jury of the murder of a man he considered a friend, following events on Mother's Day 2000 at a residential complex in Leppington. The two men, along with a mutual associate, had spent the day drinking heavily at a local hotel, where a physical altercation broke out between the deceased and the prisoner.
Later that evening, the prisoner attended the deceased's unit and a further violent confrontation occurred, during which the prisoner was beaten and left collapsed on the ground. As he was driven away, he called out a threat to return and kill the deceased.
Approximately half an hour later, the prisoner returned to the complex. When the deceased opened the door of a neighbour's unit, the prisoner stabbed him once in the chest, penetrating the heart. The deceased died at the scene. Police arrested the prisoner shortly afterwards at his residence.
Legal Issues
- Whether the Crown had established the requisite intent for murder, particularly given the prisoner's significant intoxication at the time of the killing
- Whether the attack was premeditated, specifically whether the prisoner had deliberately armed himself before returning to the complex
- The appropriate head sentence and non-parole period, including whether the prisoner's personal circumstances (intoxication, cognitive deficits, history of alcohol abuse) warranted a departure from the standard sentencing proportions under the Crimes (Sentencing Procedure) Act 1999
- Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify extending the parole period beyond the statutory ratio
Decision
Bell J accepted the evidence of the complex manager, who was sober at the time, over the prisoner's own account of the first incident that evening. The manager's evidence established that the prisoner had made explicit threats to kill the deceased on both visits to the complex and had attempted to force entry. Her Honour was satisfied beyond reasonable doubt as to these facts.
On the question of premeditation, Bell J acknowledged it was open on the evidence to conclude the prisoner had deliberately armed himself before the fatal return visit. However, her Honour was not satisfied beyond reasonable doubt that premeditation was established, and did not sentence on that basis. The Crown's submission on that point was therefore not adopted.
In assessing the objective gravity of the offence, Bell J identified it as a serious example of murder. Relevant factors included the prisoner's explicit threats to kill before and after the stabbing, his return to the scene to carry out those threats, and the use of a concealed knife. The prisoner's intoxication was treated as a mitigating factor in relation to moral culpability, though it did not diminish the seriousness of the crime overall.
Regarding the prisoner's personal circumstances, Bell J took into account neuropsychological evidence indicating cognitive deficits, likely linked to alcohol abuse and a possible childhood developmental disability. She found the prisoner was not without prospects for rehabilitation, noting the lengthy sentence would mean he would be of mature years before parole eligibility. Bell J was not persuaded that special circumstances existed under s 44(2) to justify altering the statutory ratio between the head sentence and non-parole period, concluding the standard proportion would produce an adequate period of post-release supervision.
Orders Made
- Sentenced to 15 years imprisonment, commencing 14 May 2000
- Non-parole period of 11 years and 3 months
- First eligible date for consideration for release on parole: 13 August 2011
Key Takeaways
- Bell J applied the principle that significant intoxication may reduce moral culpability but does not diminish the objective gravity of a murder, particularly where the offender made repeated explicit threats and returned to carry them out.
- Where the Crown's case for premeditation rested on circumstantial evidence, the sentencing court declined to find it proven beyond reasonable doubt and did not treat it as an aggravating factor.
- A finding of intent for murder can be sustained notwithstanding extreme intoxication, where surrounding conduct, including threats and deliberate return to the victim, supports the inference.
- Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances were not made out merely because the prisoner would benefit from supervision on release, where the statutory ratio already produced a sufficient supervisory period given the length of the head sentence.
- Neuropsychological evidence of cognitive deficits, attributed to long-term alcohol abuse and possible developmental disability, was treated as relevant to the sentencing assessment without operating as a decisive mitigating factor.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases
- R v Bollen (1998) 99 A Crim R 510
- R v Dang (unreported, NSW Court of Criminal Appeal, 2 March 1999)
- R v Previtera (1997) 94 A Crim R 76