Medium Neutral Citation: Davies v R [2019] NSWCCA 45
Hearing dates: 5 October 2018
Date of orders: 08 March 2019
Decision date: 08 March 2019
Before: Basten JA at [1];
Johnson J at [64];
R A Hulme J at [74]
Decision:
(1)   Extend the time for filing the application for leave to appeal.

(2)   Grant the applicant leave to appeal.
(3)   Dismiss the appeal.
Catchwords:
CRIMINAL LAW – sentence – sexual offences against children – vulnerability as an aggravating factor – whether the judge treated as an aggravating factor an element of the offences charged – whether factors of aggravation taken into account so that offender sentenced for offences not charged – whether abuse of trust and abuse of authority distinguished – The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 discussed

CRIMINAL LAW – sentence – pleas of guilty – whether sentencing judge required to indicate the discount applicable to the aggregate sentence – whether judge erred in applying a uniform discount to indicative sentences – whether discount failed to allow for early offers to plead, but pleas entered later
CRIMINAL LAW – sentence – whether individual indicative sentences manifestly excessive – whether aggregate sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61M, 66A, 66C, 66EB, 91H
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 53A, 54B
Drug Misuse and Trafficking Act 1985 (NSW), s 25A
Criminal Code (WA), s 582
Cases Cited: Bao v R [2016] NSWCCA 16
Elyard v Regina [2006] NSWCCA 43; (2006) 45 MVR 402
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Kassoua v R [2017] NSWCCA 307
McIntosh v R [2015] NSWCCA 184
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
MRW v R [2011] NSWCCA 260
PG v R [2017] NSWCCA 179
Prculovski v R [2010] NSWCCA 274
R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
R v Nykolyn 2012] NSWCCA 219
Suleman v R [2009] NSWCCA 70
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010, p 27867
Category: Principal judgment
Parties: Grant William Davies (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Dalton SC / S Kluss (Applicant)
B Hatfield (Respondent)
Solicitors:
Ross Hill & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/154275
Publication restriction: Non-publication order with respect to the identity of the victims
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 October 2016

Before:

Girdham SC DCJ

File Number(s):

2013/154275

Judgment

BASTEN JA: On 21 September 2015 the applicant, Grant William Davies, entered pleas of guilty to 27 counts of sexual offences involving nine children, eight being girls and one a boy. A further count (count 28) alleged that the…

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 DAVIES v R

Details

AGLC: Davies v The Queen [2019] NSWCCA 45
Case: [2019] NSWCCA 45
Decision Date: 08 March 2019

CaseChat Overview and Summary

Davies was convicted of multiple counts of sexual offences against children and appealed against the severity of the sentence imposed by the court. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge had improperly considered the vulnerability of the victims as an aggravating factor, thereby sentencing the offender for offences not actually charged. Additionally, the court examined whether the sentencing judge erred in applying a uniform discount to the indicative sentences and if the aggregate sentence was manifestly excessive.

The High Court held that the trial judge had indeed considered the vulnerability of the victims as an aggravating factor, which was an element of the offences themselves, and therefore not an additional aggravating circumstance. The court noted that this did not constitute an abuse of the sentencing process. Furthermore, the court found that the sentencing judge did not err in applying a uniform discount to the indicative sentences, as the discount adequately reflected the early offers to plead guilty. The court concluded that the aggregate sentence was not manifestly excessive, taking into account the nature and circumstances of the offences and the offender's culpability.

The High Court dismissed the appeal, affirming the sentence imposed by the trial court. The reasoning was grounded in the understanding that the trial judge's consideration of the victims' vulnerability, while an element of the charged offences, did not amount to an improper aggravating factor. The application of the discount and the overall sentence were deemed appropriate, reflecting the offender's culpability and the gravity of the crimes.

Orders