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22
Court of Criminal Appeal 8 May 2015

Davis v R

[2015] NSWCCA 90

Homicide
APPEAL SENTENCING MURDER “MULDROCK ERROR” GROUND UPHELD APPLICANT RE

Citation: Davis v R [2015] NSWCCA 90
Court: Court of Criminal Appeal (NSW)
Date: 8 May 2015
Judge(s): Basten JA, Simpson J, Adamson J

Background

The applicant was convicted of murder following a jury trial in the Supreme Court in December 2007. The offence arose from a daytime break-in at the victim's apartment in October 2005. The applicant, then 24 years old and of Aboriginal heritage, entered the apartment intending to steal property, armed himself with a kitchen knife, and stabbed the 73-year-old victim three times when the victim returned home unexpectedly.

The victim initially appeared to be recovering well from emergency surgery for internal bleeding. However, on the third day after surgery, he suffered a cardiac arrest and died. It subsequently emerged he had been suffering from chronic, previously undiagnosed heart disease. Whether the cause of death was the stab wounds or the pre-existing cardiac condition was a live issue at trial; the jury's verdict established the stabbing was at least a material contributing cause.

In February 2008, the sentencing judge imposed a term of 24 years' imprisonment with a non-parole period of 18 years. The applicant filed a notice seeking leave to appeal against the severity of the sentence in June 2013, well outside the ordinary time limits, requiring an extension of time. The Crown ultimately withdrew its opposition to that extension.

  • Whether the sentencing judge made a "Muldrock error" by applying the approach to the standard non-parole period prescribed in R v Way, which the High Court subsequently held to be erroneous in Muldrock v The Queen [2011] HCA 39.
  • Whether the victim's underlying, undiagnosed heart condition (which contributed to his death) was a mitigating circumstance relevant to the objective seriousness of the offence.
  • How the Court of Criminal Appeal should approach re-sentencing under s 6(3) of the Criminal Appeal Act 1912 after identifying a sentencing error, and what relevance, if any, the original sentence retains.

Decision

Muldrock error: The Court found that the sentencing judge had applied the Way methodology, treating the standard non-parole period as a "starting point" and assessing where the offence fell on a spectrum of seriousness as the primary analytical step. The High Court's decision in Muldrock had since established this approach was wrong. The standard non-parole period remains a "statutory guidepost" under the correct approach, but is not to be treated as of primary or determinative significance. The error was established, and the appeal was allowed on this ground.

Victim's heart condition: The Court considered whether the victim's pre-existing cardiac condition bore on the objective seriousness of the offence. Basten JA, with whom the others agreed on this point (subject to some clarification), held that a victim's age, frailty, or ill health does not in itself generate a mitigating factor. The value of all lives must be treated equally. However, the relevance of the heart condition here was narrower: none of the stab wounds directly caused death. Death resulted indirectly, through blood loss triggering cardiac arrest in a person susceptible to it. This indicated the attack was not of the ferocity almost inevitably causing death in any victim. To that limited extent, the cardiac condition was relevant, not as diminishing the value of the victim's life, but as a factor bearing on the severity of the attack and, therefore, the offender's moral culpability. This ground of appeal was rejected as a freestanding ground but the factor was recognised in re-sentencing.

Re-sentencing: Having identified a Muldrock error, the Court conducted an independent re-sentencing exercise. It did not treat the original sentence as a benchmark or ceiling; rather, it considered all relevant factors afresh. Those factors included the applicant's youth at the time of the offence, the unplanned and opportunistic nature of the offending, the absence of an intention to kill (the intention was to cause grievous bodily harm), a significantly disadvantaged background, an adverse criminal record, that the offence was committed in the victim's home in the course of a burglary, and that the applicant was on bail at the time. Evidence of the applicant's improved engagement with Aboriginal culture and more promising rehabilitation prospects in custody was also taken into account. The Court imposed a reduced sentence of 22 years with a non-parole period of 16 years and 6 months.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 28 June 2013.
  • Leave to appeal granted.
  • Appeal allowed; sentence imposed on 14 February 2008 set aside.
  • In lieu thereof, the applicant sentenced to imprisonment commencing 8 November 2005, with a non-parole period of 16 years and 6 months expiring 7 May 2022, and a balance of term of 5 years and 6 months expiring 7 November 2027.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Way methodology for applying standard non-parole periods remains a recognised source of sentencing error ("Muldrock error"), and that the standard non-parole period functions only as a statutory guidepost, not a starting point or primary determinant.
  • A victim's pre-existing vulnerability or ill health does not, of itself, mitigate an offender's culpability; the principle that all lives are equally valued in sentencing for homicide was affirmed.
  • Where a victim's underlying condition was a contributing cause of death, that circumstance may be relevant in a narrower sense: it can shed light on the severity of the attack itself and, consequently, the degree of the offender's moral culpability. The Court of Criminal Appeal applied this distinction carefully and confined it to its facts.
  • Under s 6(3) of the Criminal Appeal Act 1912, once a sentencing error is found, the Court conducts an independent re-sentencing exercise. Following Kentwell v The Queen [2014] HCA 37, the original sentence does not operate as a benchmark; the Court arrives at its own assessment of the appropriate sentence by considering all relevant factors afresh.
  • Post-sentence conduct in custody, including engagement with rehabilitation programmes and cultural activities, formed part of the re-sentencing assessment, illustrating that such evidence can be placed before the Court of Criminal Appeal in re-sentencing proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, ss 3A, 21A, 54A, 54B
- Crimes Act 1900 (NSW), s 19A
- Criminal Appeal Act 1912 (NSW), ss 6(3), 10(1)(a)
- Criminal Appeal Rules, r 3B(1)(b)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- R v Matthews [2013] NSWSC 659
- LAL v R; RPN v R [2007] NSWSC 445
- R v Todd Munter [2009] NSWSC 158
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Liles v R (Cth) [2014] NSWCCA 289
- R v Previtera (1997) 94 A Crim R 76
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282