R v Davidson (No. 3) - [2020] NSWSC 58

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Davidson (No. 3) [2020] NSWSC 58
Hearing dates: 4 December 2019
Date of orders: 14 February 2020
Decision date: 14 February 2020
Before: Davies J
Decision:
For the offence of manslaughter the offender is sentenced to imprisonment consisting of a non-parole period of seven years commencing 29 September 2022 and expiring 28 September 2029 with a balance of term of four years expiring 28 September 2033.

Catchwords: SENTENCING – manslaughter – unlawful and dangerous act - self-induced intoxication – underlying mental illness – prisoner killed by offender in deceased’s cell – offender with long history of violent offending – Bugmy factors – totality – offence committed while offender serving out revoked parole period – offender subsequently sentenced for violent offences – institutionalisation of offender
Legislation Cited: Crimes Act 1900 (NSW) s 97
Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 214A
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss21A, 56
Mental Health Act 2007 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Jinette v R [2012] NSWCCA 217
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
R v Bell (1985) 2 NSWLR 466
R v Davidson (No. 2) [2019] NSWSC 1011
R v Fyffe [2002] NSWSC 751
R v Hemsley [2004] NSWCCA 228
R v Jeremiah [2016] NSWCCA 241
R v Mervyn Davidson [2018] NSWDC 45
Tabbah v R [2019] NSWCCA 324
Texts Cited: Nil
Category: Sentence
Parties: Crown
Mervyn Keith Davidson (Accused)
Representation:
Counsel:
C Everson (Crown)
A Norrie (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ross Hill & Associate Solicitors (Accused)

File Number(s): 2018/45663
Publication restriction: Nil

JUDGMENT

After a judge alone trial, on 14 August 2019 I returned a verdict of not guilty to murder but guilty of manslaughter in relation to the offender. The basis for the manslaughter verdict was that the offender was incapable of forming an intention to kill or inflict grievous bodily harm by reason of self-induced intoxication with two drugs. He now comes to be sentenced for that offence. The maximum penalty for manslaughter is 25 years’ imprisonment and there is no standard non-parole period.

Facts

In my judgment of 14 August 2019 I set out the relevant facts: R v Davidson (No. 2) [2019] NSWSC 1011. However, so that this judgment is complete in itself I will set out those facts herein.
The accused and the deceased were both inmates at the Metropolitan Remand and Reception Centre (“MRRC”) at Silverwater. They were both housed in Goldsmith Pod 12. There were individual cells on two levels of the pod. The accused was housed in cell 397 by himself on the upper level. The deceased was housed with another inmate in cell 396, directly to the left of the accused's cell.
The accused…

Grounds of appeal

[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.

Continue reading R v Davidson (No. 3)

Details

AGLC: R v Davidson (No. 3) [2020] NSWSC 58
Case: [2020] NSWSC 58
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case of R v Davidson (No. 3) involved the sentencing of the offender, Davidson, for manslaughter, following the death of another prisoner, who was killed in the deceased’s cell. Davidson had a history of violent offending and was serving out a revoked parole period at the time of the offence. The court was required to consider the factors surrounding the offence, including Davidson's self-induced intoxication, underlying mental illness, and the totality of his criminal history. The court also needed to consider the Bugmy factors, which pertain to the circumstances of an offender's background and the nature of the offence, to ensure that the sentence imposed was appropriate.

The primary legal issue for the court was to determine an appropriate sentence for the manslaughter of the deceased while taking into account the various mitigating and aggravating factors present in Davidson's case. The court was required to consider the principles of sentencing for manslaughter, including the nature and circumstances of the offence, the offender's background and history, and the principles of totality and proportionality. Additionally, the court had to balance the need for punishment and deterrence against the need for rehabilitation and consideration of the offender's mental health.

In delivering its judgment, the court acknowledged the significant mitigating factors in Davidson's case, including his self-induced intoxication, underlying mental illness, and his history of institutionalisation. However, the court also considered the gravity of the offence, the fact that it occurred while Davidson was serving out a revoked parole period, and his long history of violent offending. The court found that, despite the mitigating factors, the offence was of sufficient gravity to warrant a custodial sentence. In determining the appropriate length of the sentence, the court considered the totality principle, taking into account the sentences Davidson had already served for the violent offences committed prior to the manslaughter. Ultimately, the court imposed a sentence of imprisonment on Davidson, which reflected the seriousness of the offence while also considering the mitigating factors present in his case.

The final orders of the court included the imposition of a sentence of imprisonment on Davidson, taking into account the various mitigating and aggravating factors present in his case. The court also considered the need for rehabilitation and the principles of totality and proportionality in determining the appropriate length of the sentence. The court's judgment emphasised the importance of balancing the need for punishment and deterrence against the need for rehabilitation and consideration of the offender's mental health.

Orders