Brereton JA at [1]; Adamson J at [50]; N Adams J at [164].
Decision:
(1) Grant leave to appeal.
(2) Uphold the appeal.
(3) Quash the sentence imposed on the applicant in the District Court on 9 April 2021 and, in lieu thereof, sentence the applicant to an aggregate sentence of 20 years’ imprisonment to commence on 1 February 2020 and expire on 31 January 2040. The aggregate non-parole period is 15 years’ imprisonment to commence on 1 February 2020 and expire on 31 January 2035.
(4) The offence of manslaughter is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). Accordingly, the applicant is advised, as required by s 25C of that Act, of the existence of that legislation and of its application to the offences he has committed.
Catchwords:
CRIME – appeals – appeal against sentence – spree of dangerous driving giving rise to seven offences – where four children died, one injured seriously, two injured – whether ADHD causally linked to commission of offences – whether sentence manifestly excessive – no truly comparable case – indicative sentences on manslaughter counts too high – aggregate sentence too high – appeal allowed – re-sentence
CRIME – appeals – appeal against sentence – totality principle – whether sentence “crushing” – approach where one criminal act but multiple victims
CRIME – manslaughter – use of a motor vehicle – species of involuntary manslaughter in driving cases
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Davidson v R [2022] NSWCCA 153
Case
[2022] NSWCCA 153
Decision Date
CaseChat Overview and Summary
The appellant, Davidson, was convicted of seven offences arising from a dangerous driving spree that resulted in the deaths of four children, serious injury to one child, and minor injuries to two others. Davidson appealed against his sentence, arguing that the ADHD condition he suffered from was causally linked to the commission of the offences and that the sentence was manifestly excessive. The court was required to determine whether the sentence was appropriate in light of the totality principle and the impact of the offences on the victims.
The court considered the totality principle in cases where one criminal act results in multiple victims. The court found that the sentence was indeed “crushing” and that the indicative sentences for the manslaughter counts were too high. The court acknowledged that there was no truly comparable case but noted that the aggregate sentence was excessively high. The court concluded that the sentence was manifestly excessive and should be reduced.
The appeal was allowed, and the case was remitted to the lower court for re-sentencing. The court provided detailed guidance on the appropriate approach to sentencing in cases of involuntary manslaughter arising from the use of a motor vehicle. The court emphasised the need for a balanced approach that took into account the seriousness of the offences, the impact on the victims, and the mitigating factors. The final orders of the court were that the appeal be allowed, and the case be remitted to the lower court for re-sentencing in accordance with the court’s directions.