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Court of Criminal Appeal 15 July 2022

Davidson v R

[2022] NSWCCA 153

Also reported as (2022) 300 A Crim R 214
HomicideDrugsTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE NO TRULY COMPARABLE CASE AGGREGATE SENTENCE TOO HIGH

Citation: Davidson v R [2022] NSWCCA 153
Court: Court of Criminal Appeal, NSW
Date: 15 July 2022
Judges: Brereton JA; Adamson J (dissenting on manifest excess); N Adams J

Background

The applicant pleaded guilty in the Local Court to seven offences arising from a single driving incident on 1 February 2020 in Oatlands, NSW. Having consumed alcohol, cocaine and MDMA throughout the day, he drove his utility vehicle at speeds well above the 50km/h speed limit on Bettington Road. His vehicle mounted the kerb and struck seven children from behind, dragging some along a cyclone fence. Four children died almost instantly; a fifth suffered serious brain injuries; two others sustained less severe injuries. The applicant and his passenger were unharmed. A roadside breath test taken approximately an hour after the incident returned a blood alcohol reading of 0.182g/210L, with blood analysis also confirming the presence of cocaine and MDMA metabolites.

The District Court sentenced the applicant on 9 April 2021 to an aggregate term of 28 years' imprisonment with a non-parole period of 21 years. The four manslaughter offences carried indicative sentences of 14 years and 3 months each (after a 25% discount for early guilty pleas), with additional terms imposed for the dangerous driving and bodily harm offences.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentencing judge erred in rejecting a causal link between his ADHD and the offending, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the applicant's ADHD did not materially contribute to his offending conduct
  • Whether the aggregate sentence of 28 years' imprisonment with a 21-year non-parole period was manifestly excessive
  • How comparative cases and sentencing statistics may be used when assessing manifest excess in a sentence of this kind
  • How the totality principle applies where a single criminal act causes death or harm to multiple victims
  • Whether a "crushing" sentence operates as a standalone principle or merely as a factor within manifest excess

Decision

ADHD causal link (unanimous): All three judges agreed that the sentencing judge was entitled to find no material causal connection between the applicant's ADHD and the offending. The factual basis on which the expert's evidence was premised did not align with the facts as found by the sentencing judge, making it open to her Honour to discount that evidence. The appeal on this ground was dismissed.

Manifest excess (majority: Brereton JA and N Adams J; Adamson J dissenting): The majority accepted that the absence of any truly comparable case, where a single motor vehicle incident caused so many deaths and generated so many charges, did not preclude appellate intervention. Comparison with other vehicular manslaughter cases involving equally dangerous driving but fewer deaths was a permissible analytical tool. After examining those comparators and applying a "gross up" methodology to account for the early guilty plea discount, the majority concluded that the indicative sentences of 14 years and 3 months on each manslaughter count were excessive.

On totality, the majority held that where one criminal act harms multiple victims, most of the purposes of punishment are reflected in the first or longest indicative sentence. The accumulation of remaining sentences may legitimately reflect retribution, denunciation and recognition of the individual dignity of each victim, but the aggregate must still pass the totality test. The majority found the aggregate of 28 years manifestly exceeded what was warranted, even accounting for the gravity of the offending, the four deaths and the serious injuries inflicted.

Adamson J dissented, taking the view that the indicative sentences and the aggregate were within the range available to the sentencing judge given the exceptional objective seriousness of the conduct. The majority noted they were not required to convene an enlarged bench to resolve this difference and proceeded on the basis that the appeal should succeed.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence of the District Court quashed
  • Applicant re-sentenced to an aggregate term of 20 years' imprisonment, commencing 1 February 2020 and expiring 31 January 2040
  • Aggregate non-parole period of 15 years, commencing 1 February 2020 and expiring 31 January 2035
  • Applicant notified that the manslaughter offences constitute "serious violence offences" under the Crimes (High Risk Offenders) Act 2006 (NSW), and of the potential application of that legislation

Key Takeaways

  • A sentencing judge may reject expert evidence about a mental health condition's causal role in offending where the factual premises underpinning that evidence do not accord with the facts as found at sentence.
  • Comparative case analysis and sentencing statistics remain legitimate tools when assessing manifest excess, even where no truly comparable case exists; a court may look to cases with similar culpability but fewer victims to construct a workable comparison.
  • Where an appeal concerns an aggregate sentence, the appeal lies against the aggregate and not the individual indicative terms. However, erroneously high indicative sentences may reveal error in the aggregate.
  • A "crushing" sentence is a relevant consideration within the manifest excess ground; it does not operate as a separate, standalone principle when applying the totality test.
  • Where a single criminal act causes harm to multiple victims, the majority confirmed that accumulating sentences beyond the first may appropriately reflect retribution, denunciation and recognition of each victim's individual dignity, though the aggregate must remain proportionate overall.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 24, 52A, 53, 66A
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 28, 30E, 32, 44, 45D, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Road Transport Act 2013 (NSW), ss 110(5), 117(2), 118

Cases:
- House v The King (1936) 55 CLR 499
- Lowndes v The Queen (1999) 195 CLR 665
- Dinsdale v The Queen (2000) 202 CLR 321
- Hili v The Queen (2010) 242 CLR 520
- Bugmy v The Queen (2013) 249 CLR 571
- Hughes v R [2018] NSWCCA 2
- JM v R [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218
- Lees v R [2019] NSWCCA 65
- Atai v R [2020] NSWCCA 302
- Chartres-Abbott v R [2021] NSWCCA 239
- GS v R [2016] NSWCCA 266
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Crowley v R [2021] NSWCCA 45
- Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
- Moananu v R [2022] NSWCCA 85
- Bubner v R [2022] SASCA 27
- Guode v R [2018] VSCA 205