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Supreme Court 13 December 2016

R v Davis (No 2)

[2016] NSWSC 1785

Homicide
CRIMINAL LAW SENTENCE TWO COUNTS OF MURDER ONE OF ATTEMPTED MURDER INTENTION TO KILL VULNERABLE VICTIMS

Citation: R v Davis (No 2) [2016] NSWSC 1785
Court: Supreme Court of New South Wales
Date: 13 December 2016
Judge: R A Hulme J

Background

The offender was a Certificate IV Aged Care Team Leader employed at a residential aged care facility in Wallsend, New South Wales. Over two consecutive days in October 2013, he injected three elderly residents with insulin in circumstances that had no therapeutic basis. Two of those residents died; the third survived but never regained her previous level of functioning.

The offender had been tried without a jury earlier in 2016, and Hulme J returned guilty verdicts on two counts of murder and one count of administering poison with intent to murder: R v Davis [2016] NSWSC 1362. The three victims ranged in age from 80 to 91 and each suffered from serious pre-existing conditions including dementia, Alzheimer's disease, and various other ailments. The sentencing proceedings addressed the appropriate punishment across all three counts.

The offender maintained his innocence throughout and entered no guilty plea. He had worked at the facility for just over two years and held a position that gave him regular, legitimate access to medication rooms, resident care, and insulin administration.

  • Whether the criteria for a life sentence were established under s 19A of the Crimes Act 1900 (NSW)
  • What weight to give to the objective gravity of the offences, including the vulnerability of the victims and the extreme breach of trust involved
  • What weight, if any, to give to the offender's subjective circumstances, including his prior good character and maintenance of innocence
  • Whether special circumstances existed to justify an enlarged parole period
  • What aggregate sentence was appropriate having regard to the overall criminality of the three offences

Decision

Hulme J concluded that the objective gravity of the offences placed them well above the midrange of seriousness for murder. The victims were elderly, cognitively impaired, and entirely dependent on their carers. The offender occupied a position of significant trust as a primary medication giver, and he exploited that position to administer lethal doses of insulin to people who could not protect themselves. His conduct had the additional effect of damaging community trust in aged care facilities more broadly.

The court declined to impose life sentences, finding that the criteria for such a sentence had not been established. However, the offending was treated as extremely serious, and the sentencing judge placed considerable weight on the purposes of general deterrence and community denunciation. The judge noted that nurses and carers who betray the trust placed in them by vulnerable patients must know they face severe consequences.

Hulme J found that the offender's subjective circumstances did little to mitigate the penalty. His prior good character was acknowledged but given limited weight in the context of offences of this gravity. The absence of a guilty plea and the maintenance of innocence meant no discount for remorse was available. No special circumstances were found to warrant an enlarged parole period, as the standard proportions would provide sufficient time for reintegration.

An aggregate sentence was imposed rather than cumulative individual sentences. The judge indicated what he would have imposed for each offence separately before arriving at a sentence that reflected the total criminality of the conduct, as sentencing principles require in such cases.

Orders Made

  • Offender convicted on two counts of murder and one count of administering poison with intent to murder
  • Aggregate term of imprisonment of 40 years imposed, with a non-parole period of 30 years
  • Sentence backdated to 17 December 2014 (date of arrest)
  • Non-parole period expires 16 December 2044; total sentence expires 16 December 2054
  • Offender to be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW)

Key Takeaways

  • The Supreme Court declined to impose life sentences despite the extreme seriousness of the offending, finding that the statutory threshold for such a sentence had not been met on the facts.
  • A conviction for murder in the context of aged care carries significant weight from the vulnerability of victims and the breach of the trust inherent in a carer's role, both of which Hulme J treated as strong aggravating features.
  • Where an offender maintains innocence and enters no guilty plea, no discount for remorse is available, and prior good character provides only limited mitigation against offences of this gravity.
  • No special circumstances were established merely because the sentence was lengthy; the standard parole proportion was found to be adequate for reintegration purposes.
  • In imposing an aggregate sentence across multiple offences, the sentencing court is required to assess the overall criminality of the conduct rather than simply totalling the indicative individual sentences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A, 27
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- R v Davis [2016] NSWSC 1362 (verdict decision in the same proceedings)