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Supreme Court 14 February 2020

R v Davidson (No. 3)

[2020] NSWSC 58

Assault & violenceHomicide
SENTENCING MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT SELF INDUCED INTOXICATION UNDERLYING MENTAL ILLNESS

Citation: R v Davidson (No. 3) [2020] NSWSC 58
Court: Supreme Court of New South Wales
Date: 14 February 2020
Judge: Davies J

Background

The offender was an inmate at the Metropolitan Remand and Reception Centre at Silverwater when, on 9 February 2018, he entered the cell of a fellow prisoner and subjected him to a sustained, prolonged assault. The deceased suffered catastrophic injuries, including compression of the neck and extensive bilateral rib fractures, and died despite hospital resuscitation attempts. The offender was housed alone at the time because he had previously choked a prior cellmate with a T-shirt in February 2017.

Following a judge-alone trial, Davies J returned a verdict of not guilty of murder but guilty of manslaughter on 14 August 2019. The basis for the manslaughter verdict was that the offender's self-induced intoxication with two drugs had rendered him incapable of forming the specific intention required for murder.

The offender came before the court for sentencing on the manslaughter conviction. He had already been sentenced by the District Court for separate violent offences, including the earlier choking of a cellmate and an armed robbery committed during a drug-induced psychosis. That existing sentence was a critical factor in determining how and when the new sentence should be served.

  • What was the appropriate objective seriousness of the manslaughter, given the sustained nature of the attack and the offender's underlying mental illness?
  • How should the offender's mental illness, self-induced intoxication, and long history of violent offending interact in the sentencing exercise, including under the principles in Bugmy v The Queen?
  • How should the new sentence be structured relative to the existing sentence to avoid a crushing total sentence while reflecting the separate criminality involved?
  • Whether special circumstances existed warranting a departure from the standard non-parole period ratio?
  • What parole period was appropriate given the regulatory limit on supervision periods and the risk of reoffending?

Decision

Davies J assessed the objective seriousness of the manslaughter as falling within the mid-range. The court found the attack was sustained and prolonged, as required to explain the severity of the injuries, even though self-induced intoxication negated the specific intention for murder. The offence was aggravated by the offender's record of prior serious violence, including strikingly similar conduct against another prisoner just one year earlier.

The offender's mental illness, present before and during the assault, was a central and pervasive consideration. Consistent with the High Court's approach in Bugmy, the court accepted that a long history of severe deprivation and disadvantage does not diminish in relevance as an offender accumulates further convictions. The court also found that the offender was deeply institutionalised, having spent the majority of his adult life in custody since 2001, a fact that required adjustment to the non-parole period to address rehabilitation needs upon eventual release.

On totality, the court rejected full accumulation of the new sentence on the existing one. Full accumulation would have produced a crushing sentence incompatible with any realistic prospect of rehabilitation, even though the criminality of the two matters was entirely separate. The sentence was therefore partially concurrent and partially accumulated, commencing partway through the existing sentence.

The court found special circumstances existed, arising from the offender's institutionalisation and the significant assistance he would need to reintegrate into the community. The four-year parole period was structured to account for the three-year maximum supervision period under the relevant regulation, with the remaining year functioning as a continued incentive against reoffending while on parole.

Orders Made

  • The offender was convicted of the manslaughter of the deceased.
  • Sentenced to imprisonment with a non-parole period of seven years commencing 29 September 2022 and expiring 28 September 2029.
  • Balance of term of four years expiring 28 September 2033.
  • The offender was warned that, as a person convicted of a serious violence offence, an application could be made under the Crimes (High Risk Offenders) Act 2006 (NSW) before the expiry of his sentence.

Key Takeaways

  • The Supreme Court confirmed that manslaughter by unlawful and dangerous act, even where specific intent is negated by self-induced intoxication, can still be assessed at mid-range objective seriousness when the physical assault was sustained and caused catastrophic injuries.
  • Under the Bugmy principle, the relevance of an offender's background of severe deprivation and resulting mental illness does not recede merely because the offender has a lengthy prior record of violence. The court applied this in mitigation notwithstanding the seriousness of the offender's history.
  • Totality requires that the combined effect of multiple sentences not be crushing, even where the separate criminal episodes involve entirely distinct conduct. Here, partial concurrence was adopted to avoid that outcome.
  • Where an offender is assessed as deeply institutionalised, this constitutes a special circumstance justifying a lower non-parole period ratio to allow for a longer period of supervised reintegration into the community.
  • Regulatory constraints on parole supervision periods (capped at three years under cl 214A of the Crimes (Administration of Sentences) Regulation 2014) are a relevant structural consideration in fixing the balance of term, particularly where reoffending risk is elevated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 97
- Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 214A
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 56
- Mental Health Act 2007 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Jinette v R [2012] NSWCCA 217
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- R v Bell (1985) 2 NSWLR 466
- R v Davidson (No. 2) [2019] NSWSC 1011
- R v Fyffe [2002] NSWSC 751
- R v Hemsley [2004] NSWCCA 228
- R v Jeremiah [2016] NSWCCA 241
- R v Mervyn Davidson [2018] NSWDC 45
- Tabbah v R [2019] NSWCCA 324