Supreme Court New South Wales Medium Neutral Citation: R v Blake Davis [2021] NSWSC 235 Hearing dates: 26 February and 5 March 2021 Date of orders: 16 March 2021 Decision date: 16 March 2021 Jurisdiction: Common Law Before: N Adams J Decision: 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. Catchwords: SENTENCING – remarks on sentence – manslaughter – excessive self-defence – where deceased committed home invasion on offender – where deceased assaulted offender then fled – where offender pursued deceased with samurai sword – plea of guilty – vulnerability in custody – excellent prospects of rehabilitation Legislation Cited: 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) Crimes Act 1900 (NSW), s 24 Firearms Act 1996 (NSW), s 4(1) Cases Cited: Abbas v R [2014] NSWCCA 188 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Charters [2020] NSWSC 842 R v Edwards (1996) 90 A Crim R 510 R v Hansell [2007] NSWSC 1136 R v Isaacs (1997) 41 NSWLR 374 R v Jarrod Mitchell [2016] NSWSC 1855 R v Lavender (2005) 222 CLR 67; [2005] HCA 37 R v Loveridge [2014] NSWCCA 120 R v Raquel Hutchison [2019] NSWSC 25 R v Youssef (District Court (NSW), 8 November 2019, unrep) R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299 Regina v Hemsley [2004] NSWCCA 228 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 York v The Queen (2005) 225 CLR 466; [2005] HCA 60 Category: Sentence Parties: Regina (Crown) Blake Davis (Accused) Representation: Counsel: Mr C Taylor (Crown) / Ms G Edwards Ms M Cunneen SC (Accused Davis) Solicitors: Solicitor for Public Prosecutions (Crown) Bannisters Lawyers (Accused Davis) File Number(s): 2018/249752 Publication restriction: Nil REMARKS ON SENTENCE 1. As at 10 August 2018, Jett McKee was the only son of Joe and Lynn McKee, partner to Averil Bowers, son-in-law to Peter and Michelle Bowers and father-to-be to baby Luther. He was a musician and popular with his friends. Sadly, he was also a user of methamphetamine, more commonly known as "ice," and a severe gambling addict. 2. As at 10 August 2018, Blake Davis was an aspiring actor. He was on workers compensation benefits from his job at the Actors Centre Australia for workplace bullying. He had a history of anxiety, post-traumatic stress disorder ("PTSD") and depression. He lived alone in Forest Lodge. His partner, Hannah Quinn, was a barista and café worker. Evidence was adduced at trial that Mr Davis and Ms Quinn were also small-time cannabis sellers at that time. Mr Davis continues to deny this but for reasons I will expand on below, I am satisfied beyond reasonable doubt that it is the case. 3. Prior to 10 August 2018, Jett McKee had not met either Mr Davis or Ms Quinn, although he knew of them as drug dealers. On that day Mr McKee consumed a toxic to lethal dose of ice and attempted a violent home invasion of Mr Davis' home whilst Ms Quinn was present. He was motivated to steal their drug money in order to secure funds for his unborn child having gambled all of his own money away. 4. Mr McKee died that day from a massive head wound caused by a samurai sword wielded by Mr Davis. 5. On 14 August 2018, Mr Davis was charged with the murder of Mr McKee. He was remanded in custody until 3 December 2018 at which time he was released on bail. 6. On 16 November 2020, Mr Davis pleaded not guilty before me and a jury of twelve to the murder of Mr McKee. On 22 December 2020, the jury found him not guilty of murder but guilty of the manslaughter of Mr McKee. Mr Davis now stands to be sentenced for that offence. 7. It was evident during the trial and proceedings on sentence that both Mr McKee and Mr Davis come from close loving families, the members of which attended every day of the trial and the proceedings on sentence. Four victim impact statements were read on behalf of Mr McKee's family, Mr Davis' mother and brother gave evidence at trial and his mother also gave evidence at the proceedings on sentence. I am left with no doubt that the lives of both the McKee family and the Davis family have been shattered forever as a result of the events that occurred in Hereford Street, Forest Lodge on 10 August 2018. 8. It is in this factual context that I must arrive upon the appropriate sentence to punish Mr Davis for his actions in unlawfully killing Mr McKee, which were in response to Mr McKee's unlawful invasion of his home in the first place. It is necessary for me to determine the facts upon which Mr Davis is to be sentenced consistent with the verdict of the jury. [1] I may not take facts into account in a way adverse to the interests of Mr Davis unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to him are established on the balance of probabilities. [2] If I am unable to find facts to either of those standards I do not propose to do so. [3] 9. In addition to determining the facts in relation to which Mr Davis is to be sentenced, I am required to identify and consider all other factors relevant to the sentence and ultimately make a value judgment as to what is the appropriate sentence given all the factors in the case. [4] 10. The maximum penalty for the offence of manslaughter is 25 years' imprisonment. [5] There is no standard non-parole period ("SNPP") prescribed for obvious reasons: the offence of manslaughter produces the greatest variety of circumstances affecting culpability of any other criminal offence. It follows that a wide range of sentences can be imposed. [6] Facts 1. I propose to sentence Mr Davis upon the following facts. 2. In the period leading up to 10 August 2018 Mr McKee needed money urgently. His partner was pregnant, and he had lost all of his money through gambling in the preceding period. After one significant loss (in excess of $30,000) at The Star Casino, he and his close friend, who was known as Frank O'Connor at the trial, decided that an option to get some money fast would be to rob other drug dealers. As Mr O'Connor described it at trial, they both decided that "maybe robbing drug dealers could be an easy option to make money because they would not go to the police after being robbed." 3. After this discussion Mr O'Connor and Mr McKee first carried out a robbery on another drug dealer they knew, which yielded them about $10,000 and some drugs. Regrettably, Mr McKee gambled his half share of this money away. The two men subsequently attempted a robbery of another drug dealer they knew but retreated at the last moment when he identified them on his premises. 4. As at that time, Mr O'Connor had had previous dealings with Mr Davis and Ms Quinn through their mutual involvement in the supply of cannabis. Mr McKee had heard of the couple through Mr O'Connor but had never met them. Mr McKee suggested them as a possible target. Mr O'Connor was reluctant. He explained to Mr McKee that he could not enter the premises with him this time as he knew Mr Davis and Ms Quinn and might be identified. He ultimately agreed to drive Mr McKee to the premises. Mr McKee made some attempts in the following days to rob Mr Davis but balked at the last minute each time. 5. On 10 August 2018, Mr McKee arrived at Mr O'Connor's home in the morning and asked him to drive him to Forest Lodge to commit the robbery. Mr O'Connor drove Mr McKee to the vicinity of the offender's home. Mr McKee had a balaclava, knuckledusters, pepper spray, cable ties and an imitation pistol with him. Mr O'Connor waited in the car whilst Mr McKee approached the premises some distance away. Mr O'Connor did not believe that the deceased would actually "go through with it" at that time. Mr Davis and Ms Quinn 1. Meanwhile, Mr Davis and Ms Quinn had slept late that day. Ms Quinn had stayed with Mr Davis the night before and got up at about midday. She walked to a nearby café to get breakfast. She is seen on CCTV footage returning home at 12.24pm. As she approached her home, she saw a man outside carrying an ALDI bag who made her feel uncomfortable. She entered the premises and gave Mr Davis his breakfast. She began to mention the suspicious man outside whereupon Mr McKee burst into the premises wearing a balaclava and pointed a pistol at them. Evidence at trial established that, although it was incapable of firing a bullet, it was a prohibited firearm. [7] 2. The only evidence as to what happened next inside the premises comes from Ms Quinn and Mr Davis. Mr Davis did not participate in an ERISP when he was arrested but gave evidence at trial. There was also some surveillance device ("SD") evidence before the court outlining his version of events. Ms Quinn participated in an ERISP on 14 August 2018 which ran for nearly six hours. It was admitted in Mr Davis' case at trial. Although I do not accept some aspects of the accounts given by Ms Quinn and Mr Davis, I am satisfied in general terms of their version of what took place inside the premises because it is supported by other evidence. 3. I am satisfied that after entering the premises Mr McKee yelled something like "[g]ive me all your fucking money or I'll kill you". Mr Davis told him there was no money, Mr McKee then said something like "people know where your fucking family lives, give me all your money or we will kill your family too". At this time, he had the pistol pointed at Ms Quinn's head. Mr Davis took a few steps back and Mr McKee moved the pistol from Ms Quinn, banged it with something metallic and then punched Mr Davis to the eye with a set of knuckledusters. Ms Quinn's account is in similar terms. After Mr Davis was struck and fell to the ground, Mr McKee fled. Ms Quinn chased after him screaming very loudly as she did so. 4. Evidence which supports this version of events includes the fact that Mr Davis was observed by a number of eyewitnesses to have a bleeding face as he emerged from his premises. He was later found to have an orbital fracture consistent with being struck to that area with a set of knuckledusters. The ALDI shopping bag described by Ms Quinn in her ERISP, seen in the possession of Mr McKee in earlier CCTV footage and later found by police inside the premises with cable ties in it, had a DNA profile matching Mr McKee. The version of Ms Quinn that she started screaming at Mr McKee and chased after him is also consistent with the observations of eyewitnesses. Further, the pistol, balaclava and knuckledusters were all located near where Mr McKee first fell. Jett McKee flees the scene 1. At the point in time when Mr McKee, Ms Quinn and then Mr Davis fled the premises and ran up Hereford Street towards Minogue Crescent, there were numerous eyewitnesses either on the street or in their homes who heard and/or saw different portions of what happened next. Some of these observations were consistent with others and some were not. All of the eyewitnesses describe the deceased to be chased by Ms Quinn who was running very fast. All of the witnesses describe Ms Quinn to be yelling loudly at the time words described variously as "[w]ho are you? Who the fuck are you?" "[w]ho are you, bro?" [w]ho the hell are you?" and "[w]hat you think you are?". Mr Davis was observed to be running with either a sword or a stick at this time. 2. The two main points of difference among the eyewitnesses are: how far behind Ms Quinn Mr Davis was as they ran out; and whether Mr McKee had anything in his hands as he fled. 3. As for how far behind Ms Quinn Mr Davis was, Ms Kerrie Sparks saw Ms Quinn and Mr Davis following the deceased. She described seeing them together, with Ms Quinn in front of Mr Davis. Ms Sarah Baker saw the deceased "raise both of his hands and put his hood up over his head" as he continued to run and then observed to Mr Thomas Scott that the deceased was well ahead of "them". Mr Scott described a woman running after the deceased and then Mr Davis running after her. He described Mr Davis (the person with the sword) as being a bit slower and "a little bit further behind". Mr Aaron McCaw saw "a guy run down the street with a woman after him and then another guy behind the woman". Mr Michael Mullan saw a man running up the road and a woman maybe 5 to 10 metres behind him. He then saw another male carrying a sword behind her. Mr Miller saw the female in front chasing the deceased, then Mr Davis. Mr Palmer only saw Mr McKee and Ms Quinn at first. He did not see Mr Davis until later. 4. Having regard to the evidence of the eyewitnesses, as well as the evidence of Mr Davis and Ms Quinn, I am satisfied that Ms Quinn was some short distance ahead of Mr Davis, but they were both running at the same time. That is, it is not the case that Ms Quinn caught up to Mr McKee before Mr Davis was first seen on the street. This is consistent with the evidence that she was running very fast and not carrying anything, that Mr Davis was less fit looking and carrying a heavy sword and that Mr Davis had been punched to the eye with knuckledusters prior to running from the premises and was suffering in a number of ways that I will discuss later in these reasons. 5. The second area of dispute is as to whether Mr McKee was carrying anything in his hands as he fled the premises. I accept that he had knuckledusters and a pistol in his hands inside the premises. I also accept that he took off his balaclava at some time before he ran onto the street and would have had it in his hands. He was seen to use both hands to pull up his hoodie as he ran out of the premises. I shall return later to the question of what else, if anything, Mr McKee had in his hands at that time. The seconds prior to the fatal blow 1. Some of the eyewitnesses describe Ms Quinn catching up to the deceased. Ms Sparks, Mr Palmer, Mr McCaw and Mr O'Connor gave evidence of what happened then. Ms Sparks stated, "I just saw her catch up with the first person and caught him by the collar or the scruff of his neck and pull him down". Mr Palmer saw the deceased and Ms Quinn running and moved to get a better view. When he looked again "[e]verything had stopped" and "she was sort of backing off at this point." 2. Mr McCaw described the woman "grab" a hold of the deceased's hoodie and bring him to the ground. He also described it as a "scuffle" between Ms Quinn and Mr McKee in which they were "constantly moving… never staying still". He stated, "the guy went down on his knees". Mr O'Connor described the deceased falling over and then stated that it "looked like" Ms Quinn tried to kick him while he was on the ground, but Mr McKee got up. He also described how Ms Quinn grabbed Mr McKee's shoulder and it was "like" he tripped over at the same time. He stated: "Hannah was behind, like trying to hold onto him. She was just right behind him… not backing away from him at all, she was trying to fight him. She was screaming at him." Mr O'Connor then drove away to park in a position where he might more readily collect Mr McKee. This meant that he did not see what happened next, including the fatal blow. The fatal strike 1. A number of eyewitnesses saw or heard some or all of the fatal sword strike. 2. Mr McCaw described what he saw in this way: "… I see a guy run down the street with a woman after him, and then another guy behind the woman. The woman and the man started having a scuffle and sort of wrestling. The guy went down on his knees. By that time the other guy had caught and hit him over the head with a samurai sword." 1. He described the hit as making a "loud clap". He described Mr Davis as "pu[lling] the sword back over his right shoulder", with two hands, then dropping it down. 2. Mr Palmer stated that "as the girl was backing away" he saw another man (Mr Davis) come from the same direction that the other two had come from and hit the prone man "on the head". Mr Palmer stated that he (Mr McKee) was on the floor on "all fours" and was getting up off the ground at this point. Mr Palmer physically demonstrated this in court by lying prostrate on the ground and then getting up on his arms and knees. 3. Mr Bradley Miller also saw the strike. He could not tell what part of the body Mr McKee was struck on because he was too far away, but he later learnt it was the head by observing Mr McKee's injuries. He demonstrated that Mr Davis had both hands around the sword and stated that "[i]t didn't look overly aggressive, just sort of, a quick bang on the top of the head and that was it". 4. Mr Michael Mullan did not see the sword strike but described hearing a "clap" sound. Ms Kerrie Sparks did not see the strike but did see "a pole or stick" go up in the air. She looked over at the builders and heard them groaning at the time of impact. 5. At the time of the strike, Ms Charlesworth was upstairs in her home with the French doors open. She heard a woman screaming including the words "no, don't". She then heard this "almighty crack". She described the "crack" as sounding "like a whip cracking. It was very, very loud and very crisp." A few seconds later she heard a sound which was like a body hitting the ground. 6. After the strike with the samurai sword, Mr Palmer heard Ms Quinn say "what the fuck have you done" before running away with the accused. The injury 1. The area on the road where Mr McKee was struck is evident from a pool of blood and brain matter found there, as well as the balaclava with the DNA of Mr McKee on it. Despite his fatal head wound, Mr McKee was able to stagger over to a nearby parked car. A pistol and a pair of knuckledusters with Mr McKee's DNA were found on the roadway near where Mr McKee leaned on the car. He then ran 79.8 metres until he collapsed on Minogue Crescent. His ability to keep running is no doubt explained in part by the high dose of ice he had ingested prior to the home invasion. Mr O'Connor located him where he fell on the road, jumped out of his car to take him away but could see how badly wounded he was and fled, taking his wallet with him which he later gave to Ms Bowers. 2. The post-mortem report found that the cause of Mr McKee's death was a sharp force head injury caused by a single slicing/chop wound to the right side of the head extending from the right lateral upper eyebrow to the right occipital aspect, i.e., to just above the base of the brain and measuring 255mm in length and 21mm in width. The slicing wound went through the skull and the brain and caused extensive associated bones fractures and contusions. Events after the fatal blow 1. It was common ground at the trial that after the blow Mr Davis ran onto a property nearby and stole a car cover from a shed and then wrapped the sword in it and left it in the back yard of his unit. He and Ms Quinn then collected an Uber Eats bag containing two mobile telephones, four sets of metal nunchakus, one set of timber nunchakus, a gold coloured air soft gun in a cardboard box, medication for Mr Davis and $21,380 cash. 2. They jumped over a neighbour's fence and then ran from the scene until they found themselves at a dead end. They left the Uber Eats bag with the cash and weapons in it in the laneway, entered the nearest house illegally, broke out of it and fled. Both Ms Quinn and Mr Davis then spent Friday, Saturday, Sunday and Monday morning booking into various hotels around Sydney and then moving on. Ms Quinn was convicted by the jury of being an accessory after the fact to manslaughter based on these actions and is still awaiting sentence. 3. The defence case as to why Mr Davis fled the scene was that he was so scared by the threats and suffering from the effects of the blow to his head that he did not know what to do. Evidence was adduced at trial that Mr Davis contacted friends and family during this time. He also telephoned police on Sunday morning 12 August 2018, the day before he handed himself in. He also contacted a solicitor. 4. I am satisfied that Mr Davis no doubt felt scared and confused following the violent home invasion he had been the victim of and was suffering from his pre-existing mental health issues, but that does not adequately explain his actions, as described by onlookers of hiding the evidence, taking things of value and fleeing the scene when there were so many onlookers and later police in the area from whom he could have requested assistance and reported the home invasion to. Defence case for self-defence 1. Ms Quinn stated in her ERISP that after Mr McKee punched Mr Davis inside the premises, he grabbed her handbag. They struggled over the bag, but he grabbed it and fled. Ms Quinn chased him. She described how when she caught up to Mr McKee, she tried to snatch her bag back and he turned around and tried to punch her. She stepped backwards, he lost his footing and he fell to the ground. She then said he "was holding the gun up, up at me and I was just frozen and that's when… Blake ran up and he hit the guy". She had thrown this handbag out by the time she was interviewed by police. 2. Only two of the eyewitnesses saw anything in the deceased's hands: Mr O'Connor and Mr Palmer. Mr O'Connor was parked in a car some distance away and was looking through his rear window as Mr McKee ran towards him. He described him having "something like a small bag" in his hands. The evidence of Mr Palmer was that, when he saw the deceased and Ms Quinn running by, he thought he saw a bag and assumed it had been stolen from her. He also stated that it "sort of just looked to me like a sort of purse". He described that when Ms Quinn caught up to him he thought that she "grabbed it off him". That's why he thought she had been "mugged" and was stepping back after she got her bag back. Both of these witnesses did not see what the object was but either presumed or thought it was a small bag. 3. None of the eyewitnesses described seeing a gun in the hands of the deceased when he was running, or a gun being produced by the deceased at any time prior to him being struck. Three of the witnesses who gave evidence that Mr McKee had nothing in his hands were Ms Sparks, Ms Baker and Mr Scott. Ms Sparks' evidence was that she could not see whether Mr McKee was holding anything because she did not see his hands while Ms Baker's and Mr Scott's evidence was that they saw the white of Mr McKee's hands and observed he had nothing in them. This evidence is unreliable given the evidence that Mr McKee was wearing black gloves at the time. 4. It seems unlikely that Mr McKee could have been running away at speed whilst holding in his hands at the same time the balaclava (which he had taken off and was found at the position of the fatal blow), a handbag, a firearm and the knuckledusters. Although most witnesses did not see anything in his hands, he must have at least had the balaclava, which was black and the same colour as his gloves. 5. The only eyewitness to suggest that Mr McKee still had the pistol in his hands was Ms Quinn. 6. Mr Davis gave evidence that after he was struck by Mr McKee he blacked out for a short period. When he came to, the pain in his eye was so severe, he thought he had been shot. He could hear Ms Quinn screaming really loudly and thought she was about to be shot as well. He felt dizzy and his eyesight was impaired due to the blood in his right eye. He stumbled off to find Ms Quinn. He has no recollection of striking the deceased but gave evidence that as he ran from the premises he was motivated to "save Hannah". He believed at the time he ran from his premises that it was necessary to do something to protect her. His last memory inside the premises was of Mr McKee pointing a pistol. 7. I am satisfied that Mr McKee pointed the pistol at them inside the premises, had it somewhere on his body whilst he ran, and dropped it near the car either at or after the fatal blow. Consistent with the jury verdict, I am not satisfied that Mr McKee was pointing a gun at Ms Quinn at the time of the fatal blow. If the jury was satisfied of this aspect of Ms Quinn's ERISP they would have acquitted Mr Davis of manslaughter as well. Basis of jury verdict of manslaughter excessive self -defence 1. Mr Davis did not dispute at his trial that he did the act which caused the death of the deceased. His evidence was at all times that he was acting in self-defence of Ms Quinn. 2. The verdict of manslaughter was left to the jury on two alternate bases: excessive self-defence or extreme provocation. The defence did not rely upon extreme provocation, but I was obliged to leave it to the jury given the evidence that Mr McKee had committed an indictable offence on Mr Davis just prior to the fatal blow and Mr Davis had then killed him in response. For my part, I consider that the evidence at trial fits more easily with a case of extreme provocation than one of excessive self-defence but Mr Davis relied upon the complete defence of self-defence which does not sit easily with an alternate case of extreme provocation. Given the nature of the blow which caused the death, and the weapon used, manslaughter by dangerous and unlawful act was not put to the jury for their consideration. 3. It was common ground at the proceedings on sentence that the jury's verdict is consistent with a case of excessive self-defence and, given the way the trial was conducted, I am unable to find otherwise. Objective seriousness 1. I must sentence Mr Davis on the basis that although Mr Davis believed it was necessary to strike Mr McKee in the head with a samurai sword in order to defend Ms Quinn, this was not a reasonable response in the circumstances as he perceived them. 2. In assessing the objective seriousness of this offence of manslaughter it is pertinent to have regard to the fact that Mr Davis killed Mr McKee in response to a horrific home invasion. There is no doubt that it would have been a horrifying experience for anyone, let alone a man with his vulnerabilities. Had Mr McKee not invaded his home that day he would not be here. Despite this, consistent with the verdict of the jury, he is to be sentenced today for his actions in acting excessively by killing Mr McKee in the manner he did. 3. I am first required to find whether at the time of the fatal blow Mr Davis intended to kill or inflict grievous bodily harm on Mr McKee. The Crown submitted that I would be satisfied beyond reasonable doubt that Mr Davis intended to kill Mr McKee whereas Mr Davis claimed that he would only have intended grievous bodily harm. 4. Mr Davis' lack of memory makes it difficult to assess his state of mind especially given that his accounts on this issue were somewhat inconsistent. 5. The first version given by Mr Davis is recorded from SDs placed in his mother's home where both Mr Davis and Ms Quinn were residing whilst on bail. In a conversation recorded on 31 August 2019 Mr Davis stated to Ms Quinn: "I remember, in my head, I remember thinking, 'Oh fuck, be careful, you might hit Hannah,' so I stepped to the side, and I just swung down .... side of his leg .... I moved out of the way because I was worried about hitting you. And that's why I hit his head. And I even had it in my head, I was like, 'Oh, what do I do? What do I do? Just get Hannah away,' and then you were there and I was like, 'Fuck, don't hit Hannah,' and then, I tell everyone that I can't remember it but I can remember it (cries and sobs in anguish). I know exactly what was going on… … …I just ran up. And I didn't, I didn't aim for a head at all. And then you were there. And then I just thought 'get away from you'. And then and then it happened, and then (pause) I saw it and it was like NOooo, NOooo---NOooo (howling, crying)" 1. At the time of his trial Mr Davis had no recollection of the actual blow nor what he was thinking at the crucial time. His evidence was that his state of mind as he left the house was to "save Hannah" but he was unable to recall the actual blow. He stated that his memory was "disjointed" and "patchy" and that even though pieces of memory of what happened came back to him later, he was not sure if it was his memory or what other people told him had happened. He also stated that he "would not" have intended to kill Mr McKee or aim at his head. 2. At his proceedings on sentence, Mr Davis gave this evidence: "… I had pieces of memory come back later on about what had happened, and I don't have a clear memory of doing that. I know I hit him with a sword, and I know I did that to save Hannah because he had a gun, and I know he had a gun and that was what is in my head the whole time. The whole time it was only to get her away from him. But those pieces of memory didn't come back to me. I could barely remember anything for a long time, for a long time I've been trying to work out exactly what had happened." 1. During the cross-examination at the sentencing hearing, Mr Davis further stated that any memory he now has is the result of flashbacks of what happened and he has since been told by medical professionals that "you can't rely on a flashback as a memory". 2. Dr Allnutt reported on 15 February 2021 about Mr Davis' memory that: "He did not have a clear memory of events but had flashbacks. He said that if he could have protected Hannah without taking a life, he would have done that. He denied intending to take the victim's life and said he did not want to hurt people". 1. Expert evidence was given at trial about Mr Davis' loss of memory. Professor Roy Beran, a neurologist, testified that he suffered a concussion from the punch with the knuckleduster and the fall to the ground. The effects of it would have been to alter his thinking, perception and behaviour. He also suffered from amnesia. Dr Stephen Allnutt, a forensic psychiatrist, gave evidence at trial that in addition to the effects of the concussion, a person with an underlying anxiety disorder, such as Mr Davis, would be prone to experiencing an aggravated perception of what was occurring. Professor Johannes DuFlou also testified in the defence case that the injury to Mr Davis' face was consistent with having been punched with a knuckleduster, that in his opinion Mr Davis was likely concussed by this blow, and that his reported memory deficits are consistent with concussion. 2. Although no contrary expert evidence was called in the Crown case, the Crown challenged those aspects of the expert opinions which were based on self-reporting by Mr Davis. For example, there was evidence that when Mr Davis consulted with the insurer's psychiatrist for the purposes of his most recent workers compensation claim, he told him that he did not take illegal drugs nor suffer from any mental illness. He subsequently told Dr Allnutt, for the purposes of his expert evidence to be given at the trial, that he did suffer from mental illness and took cannabis daily to deal with his anxiety. The Crown relied upon these inconsistencies to raise doubts about the reliability of what Mr Davis had told the experts. 3. Given that there is no evidence from Mr Davis as to what he observed at the time of the fatal blow, I am left to rely on the observations of the eyewitnesses I have already summarised and the nature of the injury itself. The eyewitnesses describe one direct blow coming down on Mr McKee's head whilst he was getting up from the ground. The injury itself was a clean blow down the centre of the head. 4. It was submitted on behalf of Mr Davis that I would not find that Mr Davis was aiming at Mr McKee's head based on the evidence that Mr McKee was moving prior to the blow and given Mr Davis' version in the SD recording that he was aiming for the legs. 5. There are a number of difficulties with this submission. First, Mr Davis in his evidence described the version recorded by the SD as a flashback memory which he accepts must be unreliable. Second, the evidence of the only two witnesses who saw the fatal blow, Mr Palmer and Mr McCaw, was that Mr McKee was on the ground on his knees at the time of the blow. Thirdly, whether the sword was aimed at the head or torso either would be consistent with intent to kill given the nature of the weapon being used. All of the eyewitnesses described one clean intentional blow, which is consistent with the injury itself. Nobody described a hectic thrashing or numerous blows. 6. It was submitted on behalf of Mr Davis that the fact that he maintains, against his own interest, that he cannot remember the fatal blow shows how honest he is and thus I should accept everything he said. Even if I was to accept this submission, the fact remains that there is no version given by Mr Davis as to what he perceived at the time of the fatal blow as he has no memory of it. 7. Having regard to all of this evidence, but in particular the evidence of the eyewitnesses and the injury itself, I am satisfied beyond reasonable doubt that Mr Davis intended to kill Mr McKee at the relevant time. 8. I accept that at the time when Mr Davis grabbed the samurai sword and ran from his premises after Ms Quinn he had just been punched violently in the face by Mr McKee, suffered a concussion, was in severe pain, and had his vision impaired due to the blood in his eyes and the effects of the blow. He was suffering fear and trauma given that he had just had his home invaded by a masked man wielding a gun and was terrified as to what had happened to his girlfriend. It would clearly have been a very traumatic event. I accept, consistent with the verdict that these factors all led Mr Davis to believe that it was necessary to do what he did to save Ms Quinn. The acceptance of these matters is why Mr Davis was convicted of manslaughter rather than murder. 9. I accept that he grabbed the samurai sword, rather than something else, as it was nearby. I accept that the sword was given to him by his brother for his 18th birthday. I accept that it is not illegal to possess a samurai sword. I accept that Mr Davis was not a man usually prone to violence and reacted to the extraordinary circumstances he was facing. I have had regard to the high level of ice in Mr McKee's body at that time and the fact that Mr McKee would have been desperate to flee to avoid the significant gaol time he would have received had he been apprehended. 10. I am satisfied that in all of these circumstances, Mr Davis wielded an extremely dangerous sword and brought it down with his two hands onto the head of Mr McKee causing a significant injury from which he could never have recovered. Although Mr Davis may well have had an image in his head that Ms Quinn was with the man who had previously pointed a gun at him inside the premises, none of the eyewitnesses (besides Ms Quinn who was not cross examined) describe this. The jury's verdict is consistent with them concluding that Mr McKee did not pose any immediate threat to Ms Quinn such as would have made the fatal sword strike a reasonable response by Mr Davis. This verdict is further explicable on the basis that the jury had no evidence from Mr Davis as to what the circumstances were that he perceived at the time of the fatal blow. 11. I soundly reject, as the jury did, the Crown case at trial that Mr Davis murdered Mr McKee in cold blood to teach other thieves a lesson not to rob drug dealers. I am also unable to accept the Crown submission that the objective seriousness of this offence falls above the "mid-range of objective seriousness" because had Mr Davis not struck Mr McKee he could have continued on his way home. This was said to place this offence in a category that would attract the "higher end of the sentence." If I were sentencing Mr Davis on the basis of a vigilante or revenge attack the Crown submission would have some force but I am not. He stands to be sentenced on the basis that he somehow mis-read the situation as to the threat Mr McKee posed to Ms Quinn, having regard to the circumstances as he perceived by him. 12. The submission on behalf of Mr Davis was that I would find the extent of excessiveness to be "so minimal, so marginal, as to just barely fall within the ambit constituting a criminal offence". I do not accept this submission either. For the reasons I have already stated, I am satisfied that the degree of excessiveness was moderate in the circumstances. 13. Overall, I am satisfied that this is a moderately serious case of manslaughter by excessive self-defence but nowhere near as high as that contended for by the Crown. Mr Davis' subjective case 1. The proceedings on sentence were conducted for a full day on 26 February 2021 and a half day on 5 March 2021. A voluminous amount of material was tendered on sentence. It is simply not possible to summarise every document put before me. I have had regard to all of them and propose to summarise them as succinctly as possible. Mr Davis and his mother gave detailed evidence about Mr Davis' experiences in custody. Other affidavit evidence was read from Mr Davis' brother and Ms Quinn provided a long letter of support. 2. Mr Davis was born and raised in Sydney and is the younger of two sons. His parents separated when he was 4 years old after which time he was primarily raised by his mother. Mr Davis has had a close relationship with both of his parents and was brought up in loving and supportive familial environment. His father re-married and his mother moved to Queensland when he was 21 years old. 3. Mr Davis was home schooled from Years 8 to 10 by his mother, who was a high school teacher. He completed his HSC at school. He subsequently completed a number of certificates and diplomas including in acting, tourism, gymnastics, management, occupational health and safety and marketing. He was employed in positions including various hospitality jobs, as a lifeguard, gymnastics coach, participation and development manager, centre manager, events manager and actor's agent. 4. Whilst still engaged in other employment he continued doing acting courses and workshops and was able to obtain some acting work. He appeared in commercial advertisements, extras and small acting roles including in TV shows "Fat Pizza" and "Housos". He was working towards gaining roles in action and martial arts movies. 5. In 2015, Mr Davis established his own actor's agency securing work for individuals on television and in the theatre. His most recent employment, prior to 10 August 2018, was with the Actors Centre Australia in 2015 where he first worked as an agent and then as an event manager. Mental health history 1. Mr Davis has a complex history of suffering from mental health issues and bullying. 2. When he was aged 9 or 10 years, he went on a holiday with family friends. The adult male in the other family got drunk and physically assaulted his wife in front of Mr Davis. The assailant was evicted but then tried to break back into the premises through the bedroom where Mr Davis was sleeping. Mr Davis was severely traumatised by this event. 3. A few years later, when he was 13 years old, Mr Davis was bullied at a school camp for being overweight. He suffered his first panic attack and the onset of severe anxiety. There are contemporaneous psychologists' records to confirm this. He told Dr Allnutt that he believes the trauma from the earlier domestic violence incident was re-triggered by the camp bullying. 4. As stated above, he was home schooled due to the bullying. By the time Mr Davis returned to school in Year 10 he had lost weight and re-gained his confidence. 5. After leaving school he had a number of jobs as I have already outlined. One of his jobs was at the NSW Institute of Sport for Volleyball NSW. He was bullied by his supervisor and placed on workers compensation for 12 months for workplace bullying. When he subsequently gained work at the Actors Studio, he was again bullied by a manager and placed on workers compensation for workplace bullying. 6. Seven recent psychiatric and medical reports were tendered on sentence outlining his current mental health issues. 7. Dr Stephen Allnutt provided two reports. He conducted clinical evaluations of Mr Davis on 8 November 2020 (for the trial) and 15 February 2021 (for the sentence). His initial diagnosis was chronic PTSD with depression, although he noted that symptoms of PTSD and depression can overlap. He noted a history of anxiety disorder characterised by panic attacks. Dr Allnutt's opinion was that Mr Davis also had chronic PTSD and a major depressive disorder, with associated panic attacks at that time of the fatal blow. His evidence was that the death of Mr McKee has contributed to these symptoms as had his time in custody on remand. 8. Dr Allnutt also observed that: "… it would be reasonable to state that having previously been traumatised in the prison environment, he is at risk of exacerbation of his post-traumatic stress and depressive conditions if he is incarcerated again, because his mental condition has increased his sensitivity to similar cues. On this basis, incarceration would be more onerous for him, than for a person of normal mind." 1. Ms De Santa Brigida is a psychologist. She prepared two reports for Mr Davis. She first assessed him for two hours on 11 November 2018 at Long Bay Hospital for the purposes of his bail application. She opined that Mr Davis met the clinical criteria for PTSD and generalised anxiety disorder. She attributed the PTSD to assaults that occurred in custody and in relation to that experience she stated: "… given Mr Davis' trauma background, Post-traumatic stress disorder, depression and anxiety; he is in a very vulnerable position whilst on remand and the impact of incarceration will be much greater and more deleterious for him than it will for other in-mates [sic] on remand." 1. Ms De Santa Brigida assessed Mr Davis again on 28 January 2021 for a period of six hours. She confirmed he was being prescribed CBD (cannabis) oil. She confirmed the diagnosis of PTSD and generalised anxiety disorder attributable to what happened to him in custody. 2. Dr Jeremy O'Dea is another forensic psychiatrist. He assessed Mr Davis on 1 December 2020 for the Crown. He was not called by the Crown at trial as, for the most part, he agreed with Dr Allnutt. Dr O'Dea noted the diagnoses of PTSD and generalised anxiety from May 2018, following the workplace bullying and noted that Mr Davis' reported symptoms were: "… consistent with a psychiatric diagnosis of a Generalised Anxiety Disorder, with panic attacks, other post traumatic style symptoms and depression; with a differential diagnosis of a Major Depressive Disorder with anxiety and post traumatic style symptoms." 1. Dr O'Dea did, however, consider that Mr Davis met the psychiatric diagnostic criteria for PTSD. 2. Ms Stephanie Aldis is a psychologist to whom Mr Davis was referred in August 2019 in relation to the workplace bullying. Her interactions with Mr Davis were limited to the issues arising from that. Ms Aldis opined that Mr Davis met the DSM 5 criteria for major depressive disorder and PTSD and considered that the symptoms of both conditions were severe. Mr Davis engaged in cognitive behaviour therapy at that time. 3. Dr Sonia Kumar is a psychiatrist who Mr Davis saw at the time of the most recent workers compensation claim. She provided two letters for the Court. Mr Davis attended seven consultations with her between April 2018 and July 2018. Dr Kumar noted an initial diagnosis of depression, insomnia and PTSD at that time. This was subsequently revised to generalised anxiety disorder rather than PTSD as she did consider that he fulfilled all the criteria for PTSD at that time. 4. I have considered all of this evidence. It confirms a long history of generalised anxiety, depression and PTSD. I am satisfied that the events of 10 August 2018 and the experiences of Mr Davis in custody aggravated these conditions. 5. It was submitted on behalf of Mr Davis that I would consider his diagnosed mental conditions in mitigation of his sentence in a number of ways: [8] 1. To reduce his moral culpability and any call for denunciation because his mental illness contributed to the commission of the offence in a material way. 2. To reduce the weight given to general deterrence because he is not an appropriate vehicle for the principle. 3. To recognise that he will spend his time in custody in a way that will weigh heavily on him, especially given the PTSD from the trauma he has already suffered in custody. 1. I am satisfied that Mr Davis' pre-existing anxiety and PTSD, along with the effects of the concussion and the trauma from the home invasion all led him to believe that he had to save Ms Quinn that day. The jury no doubt accepted that evidence. That is why he was convicted of manslaughter rather than murder. But the jury was not satisfied that Mr Davis acted reasonably in the circumstances as he perceived them. In that respect his mental health has already contributed to reducing his culpability down from murder. 2. Despite this, based on the uncontradicted medical evidence, I am satisfied that the facts in this matter mean that less weight needs to be given to general deterrence in the sentence to be imposed. I am also satisfied that Mr Davis' time in custody will weigh on him more heavily given these mental health issues. Plea of Guilty 1. Mr Davis participated in the Early Appropriate Guilty Plea ("EAGP") scheme. He offered to plead guilty to manslaughter in the Local Court in 2019 but the offer was not accepted by the Crown. The Sentencing Act provides that a court is to reduce the sentence that would otherwise be imposed by 25% had the plea been accepted in the Local Court. [9] The Crown Prosecutor accepted that Mr Davis was entitled to a 25% discount in these circumstances. 2. Although Mr Davis was willing to plead guilty to manslaughter in the Local Court, he does not accept the verdict of the jury. But a person may plead guilty upon grounds extending beyond "that person's belief in his guilt," [10] in the exercise of a free choice, because he perceives it as being in his best interests to do so. [11] 3. Accordingly, I propose to afford Mr Davis a discount of 25% for the utilitarian value of the plea. Remorse 1. A significant portion of the proceedings on sentence were spent on the question of whether Mr Davis is remorseful. I am satisfied that Mr Davis is very remorseful about taking a life and continues to suffer mentally as a result. Whilst on bail he made two suicide attempts as a result of his difficulty living with the fact that he has taken another man's life. He wrote apology letters to Mr McKee's family when his bail conditions permitted him. Overall, I have had regard to the expert evidence and am left with no doubt that Mr Davis' mental health has been profoundly impacted by his actions in killing Mr McKee. 2. The difficulty in assessing his remorse is that he maintains to this day that his actions were warranted in the circumstances given his need to defend Ms Quinn. 3. The Sentencing Act provides that remorse "for the offence" shown by Mr Davis may be taken into account in determining the appropriate sentence for an offence, but only if he has provided evidence that he has accepted responsibility for his actions, and acknowledged any injury, loss or damage caused by his or her actions or made reparation for them or both [12] . The statutory language is clear that the remorse has to be about the offence, including both the actus reus and mens rea. Mr Davis does not express remorse for the offence of manslaughter; his remorse is confined to having killed Mr McKee. To put this another way, he regrets killing Mr McKee but denies that he killed him unlawfully. 4. It was submitted on behalf of Mr Davis that he is entitled to a full finding of genuine remorse based on his evidence because otherwise every offender convicted of manslaughter by excessive self-defence will be denied the benefit of a finding of genuine remorse. I do not accept this. It is open to every offender convicted of manslaughter on the basis of excessive self-defence to acknowledge that although he or she believes their conduct was reasonable, they accept that 12 jurors unanimously found otherwise. 5. My conclusion is that I accept Mr Davis is highly remorseful about killing Mr McKee and traumatised by the situation in which he now finds himself but that is not the same as expressing remorse for the offence of manslaughter. I propose to ameliorate the sentence to some extent on this basis but not as much as I would have had Mr Davis actually expressed remorse for the offence as required under the Sentencing Act. Good character 1. Sixty-eight character references were tendered in support of Mr Davis at his proceedings on sentence. I do not propose to summarise them all. A consistent thread ran through them. The picture of Mr Davis which emerged from these letters is that Mr Davis was a good and kind person with no history of aggressive or violent conduct towards friends or family. Many of the letters opined that Mr Davis' conduct on 10 August 2018 was wholly out of character for an otherwise non-violent person. 2. Mr Davis was described in the character references as a valued member of his community, hard-working and passionate in his chosen pursuits. Many of the character references discussed Mr Davis' deep remorse for taking Mr McKee's life and the impact of the period of incarceration on his mental health. Many of the letters stated that they did not believe Mr Davis would engage in violent conduct in the future. Some letters referred to Mr Davis' history of cannabis use or stated that they had been made aware of the fact that Mr Davis had lent money to Ms Quinn for her to purchase cannabis for supply. Where the letters did refer to this, they said that this did not change their opinion of Mr Davis. 3. Putting to one side the question of drug dealing, I accept the picture painted of Mr Davis in these character references. There is no evidence at all that he was ever a violent person prior to this date. He has no criminal history and there was no evidence that he was known to police at all. He is someone who has keenly involved himself in his chosen pursuits and has acquired many friends along the way. 4. The question of whether Mr Davis is a person of good character is a slightly different question. 5. The reason that Mr McKee targeted Mr Davis' home was because he and Ms Quinn were suspected to be making a significant amount of money from selling cannabis and it was assumed there would be cash on the premises. 6. As it happened, there was a significant amount of cash on the premises: the $21,380 Mr Davis took with him when he fled and the $3,270 found on the premises by police. Although only a small amount of cannabis was found at the premises by police, it was found in multiple small bottles. 7. At the trial and on sentence it was submitted that there was an innocent explanation for the large amount of cash, $24,650 in total. The explanation given by Ms Quinn in her ERISP and later by Mr Davis in court was that the two of them had started a holiday fund so that they could buy a van, convert it and travel around Australia. They had saved $20,000 kept in a drawer in his bed and both of them contributed to it. When they first met, Ms Quinn had some money and Mr Davis "pulled out" $8,000 to match what she had. He also had his salary and his mother gifted him $5,000 when she retired. He stated that there was a possibility that if there was more than $20,000 in their holiday fund that that money came from the sale of cannabis. Mr Davis gave evidence that it was only the $3,000 found by police kept in a drawer near the front door that came from the selling of cannabis. Mr Davis' mother gave evidence at trial that she had given Mr Davis $5,000 cash at some time prior. 8. There were significant difficulties with the explanation given by Mr Davis and Ms Quinn for having such a large amount of cash in their home which make it difficult to accept. Mr Davis' workers compensation was being paid into his bank account as was some of Ms Quinn's pay as a waitress. It was never adequately explained why such a large amount of cash would be withdrawn to be kept on the premises at a time when there is clear evidence that a small-time cannabis dealing business was being conducted on the premises. 9. Ms Quinn provided a letter in support of Mr Davis in which she admitted to buying cannabis in bulk to supply more cheaply to friends and said that Mr Davis' only involvement was to lend her money to do so. Both Ms Quinn and Mr Davis admit to daily cannabis use at this time, although there is no suggestion on the evidence that they had consumed any prior to the home invasion that day. 10. Prior to the commencement of the trial, I excluded a significant amount of evidence the Crown proposed to rely upon about the extent of Mr Davis' and Ms Quinn's drug dealing as I considered it would be a distraction from the real issues at the trial. I also excluded indicia of cannabis supply at Ms Quinn's premises because it was not relevant to why Mr Davis' premises were targeted that day. I permitted evidence to be led of what police found at the premises and in the Uber Eats bag as well as the evidence of Mr O'Connor and Mr Hill as to the motive for the home invasion. Both of these witnesses gave evidence of knowing of Mr Davis and Ms Quinn as drug dealers. There was nothing about what they said or the manner in which they said it that led me to doubt their evidence in any way. Mr O'Connor's evidence that they started small and "got big" quickly was particularly persuasive. 11. I am satisfied that even if Ms Davis had given her son $5,000 when she retired the only rational explanation for having nearly $25,000 cash on the premises was that it was being held in connection with the sale of cannabis. I am prepared to accept that Mr Davis was not involved in the enterprise for very long and his role was to provide the funds and permit his premises to be used for the purpose. I am also prepared to accept that Mr Davis only became involved at the instigation of Ms Quinn. The fact remains that they were both targeted as drug dealers with cash on their premises and that is in fact what they were. 12. Overall, I am willing to find that Mr Davis has no history of violence and was of good character until his recent, possibly brief, foray into the sale of cannabis. Rehabilitation/Re-offending 1. I am satisfied that Mr Davis' prospects of rehabilitation are excellent, and he is unlikely ever to re-offend. The Crown did not submit otherwise. Vulnerability in custody 1. A significant amount of court time was spent at the proceedings on sentence outlining the difficult time Mr Davis experienced whilst on remand from 14 August 2018 until his release on bail on 3 December 2018. 2. Mr Davis gave evidence of a number of assaults in custody. It is not necessary for me to provide the details of them for the purposes of these reasons. He was cross-examined in detail about them and I accept on the balance of probabilities that they occurred. 3. In addition to the assaults he suffered in custody, evidence was also given that Mr Davis had been stood over in custody and forced to pay protection money. I was provided with transcripts of the prison calls in which Mr Davis asked his mother, brother and friend to deposit money into account. Although I was provided with a USB stick to listen to them all, I did not consider it necessary to do so and have relied upon the transcript summaries instead. 4. Ms Davis gave lengthy evidence on sentence about her contact with Mr Davis during his period on remand. She gave evidence that her son called her to arrange for the protection money and that she deposited different amounts into different accounts as requested. Ms Davis presented as a mother who loved her son unconditionally and would not concede anything unfavourable to him. That is understandable. The Crown Prosecutor suggested that the calls were a ruse and part of an attempt to assist his then pending bail application. I do not accept this. 5. On the balance of probabilities, I accept that Mr Davis was victimised in custody and may well be a target when he is returned to custody. To the extent that it is necessary also to make a finding that he had to pay protection money, there was sufficient evidence to accept that to the same standard as well. 6. There was no suggestion that Mr Davis wished to be placed in protective custody. Hardship suffered in custody due to being placed on protection is a relevant factor but it must be evidence based. [13] This was not a case where evidence was produced to suggest that nothing could be done to protect Mr Davis in custody. [14] 7. I am satisfied that Mr Davis will be vulnerable in custody given his mental health issues and PTSD from his previous incarceration and have taken this into account in determining his sentence. I am unable to ameliorate the sentence further on this basis given the lack of evidence about his anticipated conditions in custody, a matter which is always for Corrective Services NSW. Victim impact statements 1. Victim impact statements were read at the proceedings on sentence by or on behalf of Joe and Lynn McKee, Averil Bowers (the deceased's partner), and Peter and Michelle Bowers (the parents of Averil Bowers). [15] 2. Jett's father Joe spoke eloquently of the indescribable and traumatic grief a parent experiences when your child dies suddenly and violently: it is life shattering and changes you forever. He described how heart breaking it was to learn of Jett's gambling problem when he was alive and how he and his wife thought he had conquered it but "as happens with all powerful addictions, he did not cope with the other stresses he was carrying and relapsed." Jett's father does not condone what Jett did, but mourns that his son has been denied his right to a trial. He spoke of the mixture of joy and sadness brought about by the birth of Jett's son only months after Jett's death, and explained how each family event will always be diminished by the loss of Jett and thus the cycle of grief carries on. 3. Jett's mother Lynn explained that there is nothing more devastating than the death of a child: "it tears up the rule book of life". She described how no one who has not been "inflamed by the fever of mother love" could understand the impact of speaking of your only son in the past tense. She spoke of the ripple effect of grief and how it is a "heart broken sorrow" that does not go away. She likened it to being permanently winded, devoid of hope, in all consuming pain with no respite. Jett's death has left a wide, gaping gut-wrenching hole that cannot be filled for the rest of her life. 4. Averil Bowers spoke eloquently of how Jett's death robbed his son of a father, her of a partner and everyone else of the joy of witnessing what an amazing father he would have been. She spoke of Jett as being a "one of a kind", "beacon of light" to anyone who knew him and being selfless and genuine with an irresistible smile and charismatic charm. She spoke of how Jett was a talented MC and music producer and had opened for international acts and performed at enumerable community events. He had also run a well-respected record label since 2007. She spoke of his efforts to get help for his gambling addiction but that he was let down. She decried the lack of government help for gamblers. She stated that Jett will live on in her son who carries the same light as Jett and has his father's hair, confidence, charm and wit. 5. Peter Bowers also spoke of the great loss of Jett. He acknowledged Jett made the worst decision of his life that day and nobody left behind will ever be the same again. His grandson will never know his father who will never be able to play with him, read him stories, walk him to and from school, take him to the movies or teach him to fish or play football. His grandson will never spend a Christmas, birthday or Father's Day with his father. 6. All family members spoke of Jett as gregarious, compassionate, considerate and a generous soul loved by all. 7. The families' anguish over Jett's gambling addiction is understandable. Such an addiction is just as insidious as a drug or alcohol addiction. The fact that he consumed a technically lethal dose of ice before the robbery must only compound the tragedy for the family. It is impossible for judges and magistrates who preside over criminal proceedings to be unaware of what a dangerous drug ice is. The ingestion of ice by a chronic gambling addict desperate for money no doubt explains how Jett made such a terrible decision on that fateful day. 8. The Crown made an application that the statements by Jett's family be taken into account in connection with the determination of sentence because the harmful impact of Jett's death on them is an aspect of harm done to the community. I am only permitted to do so if I consider it to be appropriate. The Sentencing Act does not explain how the court is to determine when it is "appropriate" to consider the impact of the offence on the deceased's family. [16] As has been noted, the provision cannot be taken to suggest that some lives are more valuable than others. [17] Clearly, all human lives are sacred and of equal value. Every unlawful killing causes harm to the community and to the family of the deceased. [18] I take the victim impact statements into account on this basis. 9. On behalf of the Court, I express my sincere condolences to the family and friends of Jett McKee. Other mitigating factors relied upon by Mr Davis 1. In addition to his mental health, plea of guilty, remorse, vulnerability in custody, and prior good character, it was further submitted that I could have regard to the financial loss to Mr Davis because the Crown did not accept the plea and this has resulted in a lengthy privately funded trial. I do not accept this submission. Mr Davis agreed in his evidence that he was eligible for Legal Aid and chose private representation. He will receive a 25% discount for the plea in any event. 2. It was submitted that I have regard to the fact that a lengthy sentence means that Mr Davis would have to complete the Violent Offender Treatment Program ("VOTP") in custody. That is not a relevant consideration either and I have not had regard to it. 3. It was also submitted that I would have regard to the need for Mr Davis to look after his mother. Medical reports were tendered confirming that Ms Davis has been diagnosed with Chronic Obstructive Pulmonary Disease ("COPD"), a condition which causes shortness of breath and difficulties with activities of daily life. This condition is expected to gradually deteriorate, and the medical reports indicate that Ms Davis will need the assistance of a carer. Ms Davis, in her affidavit, reported that Mr Davis has been assisting her with daily activities including shopping, cooking, and housework. Whilst sympathetic to Ms Davis, I may only take hardship to families into account if it is "truly" exceptional and I am not satisfied that this is such a case. [19] 4. I do accept that it is appropriate to take into account the lasting effect of Mr McKee's assault on Mr Davis, apart from the impact on Mr Davis' mental health. Mr Davis reports ongoing problems with his eyesight from being punched in the left eye, including flashes of light and poor vision in his left eye. A report from an optometrist, Jennifer So, was tendered in support of this. Mr Davis' mother also referred to issues with memory and cognitive ability since the assault. Relevant cases 1. I turn now to consider the relevant principles when sentencing for manslaughter. 2. The starting point is that all crimes of homicide are serious because they involve an attack on the sanctity of human life. [20] But the myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences for a particular form of manslaughter. [21] It is almost unique in its variety and may vary from a joke gone wrong to facts just short of murder. [22] A search for "comparable" cases will only highlight the variety of circumstances in which manslaughter is committed. [23] 3. A decision relied upon by the Crown in its written submissions is pertinent not only for the relevant principles derived from it, but also to highlight the variety of facts giving rise to the offence of excessive defence manslaughter. [24] In that case, the offender, in company with another person, lured her ex-husband to his home with the intention of assaulting him and then brutally attacked him in the presence of their nine-year-old son. The assault included blows to the deceased's face, the use of an electrical prod or Taser, the application of chemicals to the deceased's eyes and the application of a ligature to the deceased's neck. The offender disposed of the body by the side of a road. The verdict was manslaughter in lieu of murder on the basis of excessive self-defence and substantial impairment. It was in that context that the sentencing judge observed that it was a most serious offence, that sentences for manslaughter range from non-custodial alternatives to sentences exceeding 20 years and that that case did not fall "anywhere near" either of those extreme positions. The sentencing judge would have imposed a sentence of 12 years but it was reduced to 9 years to reflect the 25% reduction for the offer to plead guilty. A non-parole period of 5 years and 6 months was imposed. I am satisfied that not only was that a very different case to the present it is also a far more serious case of manslaughter than the present case given the planning and time over which it was committed and that it was committed in the presence of a young child. 4. Mr Davis relied upon a number of decisions which were not said to be comparable, but were raised as being cases more serious than the present. It was suggested that Mr Davis should receive a sentence lower than any of them. [25] I have considered those decisions. They are all very different to the present case. Moreover, the offender who received the lowest of those sentences had a neurological disorder from traumatic brain injuries, an intellectual disability and a mental illness. 5. Reliance was placed on the fact that the Judicial Commission statistics reveal that since 24 September 2018 one person of the 38 people sentenced for manslaughter received a Community Corrections Order. [26] The JIRS statistics indicate that that case involved the accidental discharge of a legal firearm while on a hunting trip. [27] That is far removed from the present case. It is to be noted that the Sentencing Act provides that an intensive correction order must not be made in respect of a sentence of imprisonment for murder or manslaughter. [28] The purposes of sentencing 1. The purposes of sentencing as set out in s 3A of the Sentencing Act are: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. In each sentencing exercise some of these purposes will be more significant than others. In the present case I am satisfied that there is no significant need for general or specific deterrence or to protect the community from Mr Davis. 2. In written submissions for Mr Davis this case was described as "highly unusual", "unique" and "utterly exceptional". It was submitted that it falls at the lowest possible end of the scale of objective seriousness warranting a penalty at the lowest end of the range of applicable sentences for an offence of this type. It was submitted that I would impose a non-custodial sentence on Mr Davis. 3. I accept that Mr Davis would not have found himself in this position but for the violent conduct of Mr McKee, that he has a strong mitigating case and that his fear of returning to custody is palpable. I am nonetheless satisfied that nothing other than a term of full-time imprisonment will suffice in this case to meet the objectives of sentencing. 4. The next question is what the length of that sentence should be. I have found this to be a moderately serious case of excessive defence manslaughter. I have also found that the sentence should be ameliorated for reasons I have already identified. Those who unlawfully kill must be punished but the harshest punishment is reserved for offenders who exhibit the highest level of moral culpability. This is not that case. 5. Mr Davis has spent 3 months and 21 days in custody already and I propose to backdate the sentence having regard to that. It was submitted that I would backdate even further to have regard to the onerous nature of his custody on remand. I propose to slightly increase the back date to 4 months on this basis. I do not propose to ameliorate the sentence for his bail conditions. They still permitted him to work and reside with his family. 6. I am satisfied that there is a basis for finding special circumstances being the fact that it is his first sentence and he has significant mental health issues. [29] In fact, I propose to vary the statutory ratio to a considerable degree on the basis of the latter. 7. As the offender is convicted of a "serious violence offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. [30] I ask the offender's solicitor to undertake that task on the Court's behalf. Conviction and Sentence 1. But for the discount of 25% for the plea of guilty I would have imposed a sentence of 7 years imprisonment. The discount reduces that sentence to 5 years and 3 months. I have significantly varied the statutory ratio for the special circumstances I have found and backdated that sentence by 4 months to reflect the time already served. 2. For the offence of manslaughter, the offender is convicted and sentenced to: 1. Imprisonment for a term of 5 years and 3 months to commence on 16 November 2020 and expire on 15 February 2026. 2. The non-parole period is 2 years and 9 months to commence on 16 November 2020 and expire on 15 August 2023. **************** Endnotes 1. R v Isaacs (1997) 41 NSWLR 374 at 377-378. 2. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ). 3. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] (per French CJ, Bell, Keane and Nettle JJ). 4. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J; confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]. 5. Crimes Act 1900 (NSW), s 24. 6. R v Lavender (2005) 222 CLR 67; [2005] HCA 37 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [22]. 7. Firearms Act 1996 (NSW), s 4(1). 8. Regina v Hemsley [2004] NSWCCA 228 at [35]. 9. Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(2)(a). 10. R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 per Johnson J (Young JA and Latham J agreeing). 11. Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 at [33], [36]-[37]. 12. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (3)(i). 13. R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299. 14. See for example, York v The Queen (2005) 225 CLR 466; [2005] HCA 60 at [31] per McHugh J. 15. Crimes (Sentencing Procedure) Act 1999 (NSW), s 30D. 16. Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3). 17. R v Halloun [2014] NSWSC 1705 at [46] per McCallum J (as her Honour then was). 18. R v Jenkin (No 19) (Sentence) [2019] NSWSC 609 at [15] per Hamill J. 19. R v Edwards (1996) 90 A Crim R 510 at 516 per Gleeson CJ. 20. R v Raquel Hutchison [2019] NSWSC 25 at [25] per Hamill J. 21. R v Loveridge [2014] NSWCCA 120, Bathurst CJ (with whom R A Hulme and Johnson JJ agreed) at [226] and [227]. 22. R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133] per Spigelman CJ. 23. Abbas v R [2014] NSWCCA 188, per Adamson J (with whom Hoeben CJ at CL and Fullerton J agreed) at [39]. 24. R v Raquel Hutchison [2019] NSWSC 25. 25. R v Jarrod Mitchell [2016] NSWSC 1855; R v Charters [2020] NSWSC 842; R v Hansell [2007] NSWSC 1136. 26. The commencement date for the sentencing reforms brought in under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)). 27. R v Youssef (District Court (NSW), 8 November 2019, unrep). 28. Crimes (Sentencing Procedure) Act 1999 (NSW), s 67(1)(a). 29. Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2). 30. Crimes (High Risk Offeners) Act 2006 (NSW), s 25C. Amendments 16 March 2021 - Coversheet correction 18 March 2021 - Coversheet correction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2021