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Supreme Court 16 March 2021

R v Blake Davis

[2021] NSWSC 235

Assault & violenceHomicide
SENTENCING REMARKS ON SENTENCE MANSLAUGHTER EXCESSIVE SELF DEFENCE PLEA OF GUILTY

Citation: R v Blake Davis [2021] NSWSC 235
Court: Supreme Court of New South Wales
Date: 16 March 2021
Judge(s): N Adams J

Background

The offender was convicted of manslaughter by a jury that acquitted him of murder. The victim had committed a violent home invasion of the offender's residence, armed with a balaclava, knuckledusters, pepper spray, cable ties, and an imitation pistol (which constituted a prohibited firearm under the Firearms Act 1996 (NSW)). During the invasion, the victim threatened to kill the offender's family, pointed the pistol at the offender's partner, and struck the offender in the eye with the knuckledusters, causing an orbital fracture.

After the victim fled the premises, the offender pursued him along the street with a samurai sword. The offender inflicted a fatal head wound during that pursuit. The jury's verdict of manslaughter rather than murder reflected a finding that the offender had used excessive force in self-defence, meaning the force used was not reasonably necessary in the circumstances as the offender believed them to be.

The proceedings before Adams J were the sentencing hearing following the guilty verdict. The offender was 30 years old at sentence. He had pleaded guilty after the jury returned its verdict and had a history of anxiety, PTSD and depression. He had no prior criminal record. The sentencing remarks also confirmed, to the criminal standard, that both the offender and his partner had been small-time cannabis dealers at the relevant time, which was relevant to the factual context of the offence.

  • What facts, consistent with the jury's verdict, should form the basis for sentencing?
  • What was the appropriate objective gravity of the offence, given the extreme provocation of a violent home invasion?
  • How should the offender's mental health history, vulnerability in custody, and prospects of rehabilitation affect the sentence?
  • What weight should be given to mitigating factors including the guilty plea, lack of prior record, and good prospects of rehabilitation?
  • What sentence, including the non-parole period, was appropriate for manslaughter in these unusual circumstances?

Decision

Adams J accepted the general account given by the offender and his partner about what occurred inside the premises, finding it corroborated by physical evidence, DNA, CCTV, and multiple eyewitnesses. The court found beyond reasonable doubt that the victim had committed a serious, premeditated home invasion, threatened the occupants' lives, and assaulted the offender with knuckledusters before fleeing. The court was also satisfied beyond reasonable doubt that the offender and his partner had been involved in small-time cannabis supply, a fact the offender continued to deny but which was relevant to why he was targeted.

On objective seriousness, the court recognised that manslaughter encompasses an extraordinarily wide range of circumstances, and that this case sat at the lower end of the scale. The victim had not only invaded the offender's home but had assaulted him before fleeing. The pursuit and fatal blow with the sword were nonetheless unlawful, constituting the element of excessive force that distinguished the conduct from a complete self-defence.

The court identified significant mitigating factors: the offender had no prior convictions, had entered a guilty plea (albeit after the jury verdict), had excellent prospects of rehabilitation, held genuine remorse, and had suffered and would continue to suffer genuine hardship in custody due to his mental health conditions and the nature of his offence. His vulnerability as a person convicted of killing someone during a home invasion created specific risks in the custodial environment.

Taking all factors into account, Adams J imposed a sentence of imprisonment. The structure of the sentence reflected the court's view that the offender's rehabilitation prospects and the significant mitigating circumstances, particularly the extreme circumstances of provocation by the victim, warranted a non-parole period that allowed for relatively early supervised release.

Orders Made

• For the offence of manslaughter, the offender is convicted and sentenced to imprisonment for a term of 5 years and 3 months to commence on 16 November 2020 and expire on 15 February 2026.

• The non-parole period is 2 years and 9 months to commence on 16 November 2020 and expire on 15 August 2023.

Key Takeaways

  • Manslaughter by excessive self-defence carries a maximum penalty of 25 years' imprisonment under s 24 of the Crimes Act 1900 (NSW), but there is no standard non-parole period because manslaughter encompasses a uniquely wide range of circumstances affecting culpability.
  • Where a victim initiates a violent, premeditated home invasion and assaults the offender before fleeing, those circumstances are highly relevant to the objective seriousness of the offender's subsequent use of fatal force, even where that force was found to be excessive.
  • A sentencing court must establish facts adverse to the offender to the criminal standard (beyond reasonable doubt) and facts favourable to the offender on the balance of probabilities, and may not make adverse findings it cannot reach to either standard.
  • Vulnerability in custody arising from the nature of an offence or from pre-existing mental health conditions is a recognised mitigating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i).
  • Excellent prospects of rehabilitation, absence of prior criminal history, genuine remorse, and the extreme provocative circumstances of a home invasion can, in combination, substantially moderate the sentence imposed for an unlawful killing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 25D(2)(a), 30D, 30E(3), 44(2), 67(1)(a)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Firearms Act 1996 (NSW), s 4(1)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Lavender (2005) 222 CLR 67; [2005] HCA 37
- York v The Queen (2005) 225 CLR 466; [2005] HCA 60
- R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
- R v Loveridge [2014] NSWCCA 120
- Abbas v R [2014] NSWCCA 188
- R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299
- Regina v Hemsley [2004] NSWCCA 228
- R v Edwards (1996) 90 A Crim R 510
- R v Raquel Hutchison [2019] NSWSC 25
- R v Jarrod Mitchell [2016] NSWSC 1855
- R v Charters [2020] NSWSC 842
- R v Hansell [2007] NSWSC 1136
- Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37
- R v Isaacs (1997) 41 NSWLR 374
- R v Youssef (District Court (NSW), 8 November 2019, unrep)