Manslaughter most foul and sentencing explained

Below is a good summary of the beyond tragic events which unfolded a hot summer's day on 1 February 2020 in which seven children were hit by a ute, 3 families incomprehensively and beyond tragically losing half of their 6 dear, beautiful children, Antony, 13, Angelina, 12 and Sienna, 9, together with these children's cousin Veronique Sakr, 11, and affecting a fourth child, Charbel Kassas, 11, who has allegedly been left with brain damage. Oh, the exquisite pain and suffering this family has endured and will go on enduring for the remainder of their lives. If only I could share their deep faith in God and their understanding of the need for forgiveness (critical for their own sakes). And oh, the deep pain and suffering the parents of the offender will be suffering. My sincere condolences. My heart goes out to all those affected including police, neighbours, first responders, paramedics, doctors, nurses, funeral directors, all who were on the scene.

Oh, the arduous task that is before Judge James Bennett SC who is charged with sentencing Samuel William Davidson on 9 April 2021 having heard the victims' heartbreaking impact statements in the presence of the defendant in the District Court Court yesterday.

I thought it would be helpful to summarise the purpose and principles of criminal law sentencing.

Before I do this, I'd like to tell you about my enlightened criminal law lecturer, Dr David Neal, SC, now a barrister in Melbourne at Castan Chambers, Victoria (and recipient of The Law Council of Australia’s 2017 President’s Award for legal assistance and being a rule of law champion and co-author of Criminal Laws (Federation Press, 1990) 1464 pp. with D Brown, D Farrier and D Weisbrot) who took us through this complex area of criminal law. In week 1 of the sentencing component of our criminal law course, the class was given a list of heinous crime facts, and each of us was required to decide the sentence we would order in each case if we were the judge.

In week 2, our lecturer arranged for the whole class to spend a day at Long Bay jail, working our way through the then just closed supermax correctional centre, Katingal, then the maximum, medium and minimum security sections of the jail. It was a gruelling, confronting and deeply distressing experience for us all and although now 36 years ago it is as fresh in my mind as if it were yesterday. A 5-star hotel was very far from reality. The conditions were grim. Rightly so, you may say.

In week 3, following our day at Long Bay, we were asked to revisit our sentences. Without fail, each student reduced the sentences they had declared (as pretend judges) by half ... from 15, 20, 30 years, or life.

So what factors will influence the Judge's decision. There are many:

Sentencing Principles

Sentencing principles form the basis of sentencing decisions.

These principles have developed through legislation and common law (court decisions) over time.

Some of these principles include:

? parsimony – the sentence must be no more severe than is necessary to meet the purposes of sentencing

? proportionality – the overall punishment must be proportionate to the gravity of the offending behaviour (this indeed is the gravest of crimes). As the 3 children's father said more than a year ago, there was a one in a million or more chance of this tragedy occurring.

? parity – similar sentences should be imposed for similar offences committed by offenders in similar circumstances – oh what a challenge for the judge ... and god forbid if there were similar offences. This is pretty well an unprecedented crime.

? totality – where an offender is to serve more than one sentence, the overall sentence must be just and appropriate in light of the overall offending behaviour.

Sentencing Purposes

These purposes are:

? just punishment – to punish the offender to an extent and in a way that is just in all the circumstances

? deterrence – to deter the offender (specific deterrence) or other people (general deterrence) from committing offences of the same (god forbid) or a similar character

? rehabilitation – to establish conditions that the court considers will enable the offender’s rehabilitation

? denunciation – to denounce, condemn or censure the offending conduct

? community protection – to protect the community from the offender.

Sentencing Factors

These factors include:

? the maximum penalty for the offence (which we have been told is 25 years, a very long time to spend in jail)

? the standard sentence, if any, for the offence

? current sentencing practices

? the nature and gravity of the offence

? the offender’s culpability and degree of responsibility for the offence

? whether the crime was motivated by hatred or prejudice

? the impact of the offence on any victim of the offence

? the personal circumstances of any victim of the offence

? any injury, loss or damage resulting directly from the offence

? whether the offender pleaded guilty to the offence

? the offender’s previous character and record

? any aggravating or mitigating factors.

When weighing up the nature and gravity of the offence, a judge might consider:

? the offender’s intention

? the consequences of the offence

? the use of weapons

? any breach of trust

? the offender’s history of offending

? the offender’s response to previous court orders

? alcohol or drug addiction.

Aggravating factors increase the seriousness of the offence or the offender's culpability. Mitigating factors reduce the seriousness of the offence or the offender’s culpability.

The law allows courts to reduce a sentence if a person pleads guilty. If the court gives a discount for a guilty plea, the judge or magistrate must state what the sentence would have been without the guilty plea.

Fortunately for all concerned, Samuel William Davidson entered guilty pleas which will save the community the cost of his not doing so/ a long trial, and the families the trauma of having to give evidence.

https://www.news.com.au/national/nsw-act/courts-law/samuel-davidson-faces-sentence-hearing-over-oatlands-crash-that-killed-four-children/news-story/bfd071f1d1cc426d7c62b051246a29d3