Citation: R v Davidson [2021] NSWDC 164
Court: District Court of New South Wales
Date: 9 April 2021
Judge: Bennett SC DCJ
Background
On the evening of 1 February 2020, the offender drove a Mitsubishi Triton utility through suburban streets in Oatlands, New South Wales, while heavily intoxicated and affected by cocaine and MDMA. Throughout the day and into the evening he had consumed significant quantities of alcohol and illicit drugs. Footage from the evening captured his erratic, aggressive driving in the lead-up to the fatal collision.
Witnesses described the offender driving at speed, tailgating another vehicle to within half a metre, swerving repeatedly, traversing a roundabout on the wrong side of the road, and laughing throughout. His passenger was observed making obscene gestures at other road users.
The offender's vehicle struck a group of children walking near Bettington Road, killing four of them: three siblings and their cousin, all aged between approximately 9 and 14 years. Three other children were injured in the collision. The offender was arrested that night and remained in custody from 1 February 2020 onward.
Legal Issues
- What aggregate sentence was appropriate for four counts of manslaughter, one count of aggravated dangerous driving occasioning grievous bodily harm, and two counts of causing bodily harm by misconduct in charge of a motor vehicle?
- What indicative individual sentences applied to each offence prior to aggregation?
- What discount, if any, applied for the plea of guilty?
- How should the court balance objective seriousness, moral culpability, intoxication, and subjective factors including the offender's mental health condition (ADHD)?
- What licence disqualification should be imposed and when should it operate?
Decision
Bennett SC DCJ found the offending to be of the gravest objective seriousness. The offender had driven in an overtly dangerous and menacing manner while significantly affected by alcohol and drugs, and had shown complete disregard for public safety. The conduct was captured on video and supported by multiple eyewitness accounts. The court treated the manner of driving before the collision as aggravating the overall criminality of the offences.
Each of the four manslaughter counts attracted an indicative sentence of 14 years and 3 months. The aggravated dangerous driving occasioning grievous bodily harm attracted an indicative sentence of 6 years. Each of the two charges of causing bodily harm by misconduct in charge of a motor vehicle attracted an indicative sentence of 1 year and 4 months. All indicative sentences had already been reduced by 25 percent to reflect the utility of the guilty pleas entered in the Local Court, with the offender adhering to those pleas before the District Court.
The court imposed an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999, reflecting appropriate concurrence and accumulation across the entirety of the offending. The offender's ADHD was acknowledged as a factor requiring management in custody, and the court took it into account in calibrating the punishment.
The court fixed a non-parole period of 21 years, with a head sentence of 28 years commencing on 1 February 2020. The offender becomes eligible for parole on 31 January 2041. A three-year licence disqualification was imposed for the four manslaughter charges and the aggravated dangerous driving charge, deferred to operate from the point of the offender's release.
Orders Made
- Aggregate sentence of imprisonment imposed: non-parole period of 21 years commencing 1 February 2020, with a head sentence of 28 years.
- Eligible for release on parole on 31 January 2041.
- Three-year licence disqualification imposed for the four manslaughter offences and the aggravated dangerous driving occasioning grievous bodily harm offence, to operate from the date of the offender's release.
- Administration of the disqualification period referred to Transport for New South Wales.
- The two section 166 matters (brought before the court for administrative withdrawal) to be withdrawn at the conclusion of proceedings.
Key Takeaways
- The District Court imposed an aggregate sentence of 28 years (non-parole period 21 years) for offending involving four counts of manslaughter and related dangerous driving charges arising from a single driving episode.
- A 25 percent discount for a guilty plea was applied to each indicative individual sentence, reflecting the utility of early pleas entered in the Local Court and maintained before the District Court.
- Intoxication by alcohol and drugs was treated as a significant aggravating feature of moral culpability in the sentencing exercise, not as a mitigating circumstance.
- Under the aggregate sentencing regime in the Crimes (Sentencing Procedure) Act 1999, the court was required to identify indicative individual sentences as well as the aggregate, with the aggregate reflecting the court's view of appropriate accumulation and concurrence across all offences.
- Licence disqualification for serious driving offences can be deferred to operate from the point of release, with Transport for New South Wales responsible for administering the disqualification period from that date.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 53A and Part 4 Division 1A
- Criminal Procedure Act 1986 (NSW), s 166
- Road (Transport) Act 2013 (NSW), s 118
- Crimes Legislation Amendment (Victims) Act 2018 (NSW)
Cases
- Crowley v The Queen [2021] NSWCCA 45
- Henderson v R (NSWCCA, unreported, 5/11/1997)
- Imbornone v R [2017] NSWCCA 144
- Muldrock v The Queen [2011] HCA 39
- R H McL v R [2000] 203 CLR 452
- R v Burton [2008] NSWCCA 128
- R v Glen (NSWCCA, unreported, 19/12/1994)
- R v Qutami [2001] NSWCCA 353
- Ryan v R [1982] 149 CLR 1
- Sheehan v R [No 2] [2006] NSWCCA 332
- The Queen v Borkowski [2009] NSWCCA 102
- The Queen v Holder [1983] 3 NSWLR 245
- The Queen v Palu (2002) 134 A Crim R 174
- The Queen v Pearce [1998] 103 A Crim R 372