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Supreme Court 28 June 2024

R v Davies

[2024] NSWSC 786

Homicide
CRIMINAL LAW SENTENCE MANSLAUGHTER OBJECTIVE FEATURES OBJECTIVE SERIOUSNESS MORAL CULPABILITY

Citation: R v Davies [2024] NSWSC 786
Court: Supreme Court of New South Wales
Date: 28 June 2024
Judge: Walton J

Background

The offender, a 31-year-old man, was tried for the murder of Kenneth Campbell on 6 May 2020 at Parkes, New South Wales. After a jury acquitted him of murder, it returned a verdict of guilty on the alternative count of manslaughter. The offender had consumed a substantial quantity of home-brew rum and told police in a recorded interview that he had no memory of the relevant events.

The case had a lengthy procedural history. A plea of guilty to the lesser counts was offered at a case conference in January 2022 but rejected by the Director of Public Prosecutions. A fitness hearing in August 2023 confirmed the offender was fit to stand trial, and the jury verdict was ultimately returned in April 2024.

In addition to the manslaughter conviction, the offender was also sentenced for two related offences dealt with by certificate under s 166 of the Crimes (Sentencing Procedure) Act 1999: intimidation with intent to cause fear of physical harm and intentional destruction of property. He pleaded guilty to both upon confirmation of the manslaughter verdict.

  • What is the appropriate level of objective seriousness for this manslaughter offence?
  • How should the offender's social deprivation and mental health background affect moral culpability?
  • What weight should be given to aggravating features, including the vulnerability of the victim and the offender's criminal history?
  • What mitigating weight, if any, attaches to the offender's guilty plea and subjective circumstances, including rehabilitation prospects and remorse?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.
  • How should the totality principle apply to the aggregate sentence across the three offences?

Decision

Walton J confirmed the applicable sentencing framework for manslaughter: there is no hierarchy of manslaughter verdicts, and objective gravity is assessed by reference to the factual circumstances of the killing rather than its legal category. The Crown conceded this was not a case warranting the maximum penalty of 25 years, but submitted the offence fell within the high range of objective seriousness.

The court considered the offender's background of social deprivation and its contribution to his mental health difficulties and tendency toward violence. Consistent with the High Court's approach in Bugmy v The Queen (2013), the court accepted that this background explained, though did not excuse, the offender's resort to violence when frustrated. The court also weighed aggravating features, including the vulnerability of the victim and the offender's criminal history, against mitigating factors including the guilty plea and evidence of remorse and rehabilitation.

On special circumstances, the court accepted the offender's complex mental health and personality disorder issues, emotional dysregulation, impulsivity, and significant alcohol abuse as justifying a reduction in the non-parole period below the standard ratio. The court noted the need to manage these issues over an extended period, both in the interests of the offender and community safety. However, Walton J applied the constraint that subjective circumstances must not reduce the non-parole period beyond what is necessary to punish the offender, citing Goodbun v R [2020] NSWCCA 77.

Orders Made

  • The offender was convicted of manslaughter, intimidation with intent to cause fear of physical harm, and intentional destruction of property.
  • An aggregate sentence of 9 years imprisonment was imposed, commencing 6 May 2020 and expiring 5 May 2029.
  • A non-parole period of 6 years was set, expiring 5 May 2026.
  • Indicative sentences: manslaughter, 9 years; intimidation offence, 6 months; destroy property offence, 6 months.
  • The earliest eligible parole date is 5 May 2026.
  • The offender was advised of the existence and potential application of the Crimes (High Risk Offenders) Act 2006 pursuant to s 25C.

Key Takeaways

  • There is no hierarchy of manslaughter verdicts in New South Wales: objective seriousness is assessed by reference to the factual circumstances of the killing, not the legal basis on which the verdict was returned.
  • A background of social deprivation can reduce an offender's moral culpability where it has contributed to mental health difficulties and a tendency toward violence, even absent a direct causal connection to the specific offending, consistent with the High Court's reasoning in Bugmy v The Queen (2013) 249 CLR 571.
  • Special circumstances warranting a reduced non-parole period were established on the basis of complex mental health issues, personality disorder, emotional dysregulation, and serious alcohol dependency requiring extended supervision and management.
  • Under Goodbun v R [2020] NSWCCA 77, the reduction in the non-parole period for special circumstances remains constrained by the principle that it must not fall below what is necessary to punish the offender for the criminality involved.
  • Where an offender faces sentence for multiple offences including manslaughter, the totality principle requires the court to construct an aggregate sentence that reflects the overall criminality without being disproportionate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 18(1)(b), 24, 25A(2), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 166

Cases
- Baumer v The Queen (1988) 166 CLR 51
- Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
- BM v R [2019] NSWCCA 223
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Casey v R [2015] NSWCCA 142
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Dunn v Regina [2007] NSWCCA 312
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- GG v R [2018] NSWCCA 280
- Goodbun v R [2020] NSWCCA 77
- Goundar v R [2012] NSWCCA 87
- Hawkins v R (1993) 67 A Crim R 64
- Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
- Katsis v R [2018] NSWCCA 9
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McDowall v R [2019] NSWCCA 29
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nguyen v R [2021] NSWCCA 118
- Paterson v R [2021] NSWCCA 273