Davis v R - [2018] NSWCCA 67

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Davis v R [2018] NSWCCA 67
Hearing dates: 9 April 2018
Date of orders: 13 April 2018
Decision date: 13 April 2018
Before: Leeming JA at [1];
Fullerton J at [43];
McCallum J at [44]
Decision:
1. To the extent necessary, extend the time within which to apply for leave to appeal.

2. Grant leave to appeal.
3. Appeal dismissed.
Catchwords: CRIME – appeal against sentence – guilty pleas to one count of reckless wounding and one count of recklessly causing grievous bodily harm in company – whether sentencing judge failed to take into account mental health of offender – whether failure to find remorse disclosed material error – whether intoxication relevant to sentence – whether other errors were disclosed – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 35
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Appeal Act 1912 (NSW), s 5
Cases Cited: R v Birks (1990) 19 NSWLR 677
Smith v R [2017] NSWCCA 175
Category: Principal judgment
Parties: Matthew Darrol Davis (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant in person
E Balodis (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/244721
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

10 June 2016

Before:

Judge Norrish QC

File Number(s):

2014/244721

Judgment

LEEMING JA: The applicant, Mr Matthew Darrol Davis, pleaded guilty to one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW), and one count of recklessly causing grievous bodily harm while in company, contrary to s 35(1) of the Crimes Act. Both charges related to assaults upon two men in Walsh’s Hotel in Queanbeyan in the late evening of 9 August 2014. The applicant pleaded guilty on 7 March 2016 and was sentenced by the primary judge on 10 June 2016.
The maximum penalty for the first count was 7 years’ imprisonment with a standard non-parole period of 3 years’ imprisonment. The maximum penalty for the second count was 14 years’ imprisonment, with a standard non-parole period of 5 years.
The applicant was sentenced to a period of imprisonment of 1 year commencing on 10 June 2016 and a balance of term of 1 year and 6 months in relation to the first count, and a non-parole period of 1 year commencing on 10 June 2017, with a balance of term of 2 years and 2 months in relation to the second count. The effective sentence was a non-parole period of 2 years commencing on 10 June 2016 and ending on 9 June 2018 with a balance of term of 2 years and 2 months to commence on 10 June 2018 and to expire on 9 August 2020.
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal from that sentence. It will be seen that he has already served some 22 of 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 Davis v R

Details

AGLC: Davis v The Queen [2018] NSWCCA 67
Case: [2018] NSWCCA 67
Decision Date: 13 April 2018

CaseChat Overview and Summary

In the matter of Davis versus the Crown, the appellant sought to appeal against the sentences imposed following his convictions for one count of reckless wounding and one count of recklessly causing grievous bodily harm while in the company of others. The sentencing judge imposed a custodial sentence, which the appellant contended was excessive and failed to adequately consider his mental health, the absence of remorse, and the relevance of intoxication. The appeal was heard in the court of appeal, which was tasked with determining whether the sentencing judge erred in various respects.

The appeal hinged on several critical legal issues. Firstly, the appellant argued that the sentencing judge failed to take into account his mental health, which should have mitigated his sentence. Secondly, he contended that the failure to find him remorseful constituted a material error in sentencing. Thirdly, the appellant argued that his level of intoxication should have been considered as a mitigating factor. Finally, he asserted that other errors were made in the sentencing process.

The court of appeal found that the sentencing judge had appropriately considered the appellant's mental health, noting that while mental health issues could be a mitigating factor, they did not necessarily warrant a reduced sentence. The court further determined that there was no requirement for the appellant to demonstrate remorse for the court to impose a sentence. Regarding intoxication, the court held that while it may be a relevant factor, it did not automatically excuse criminal behaviour. The court concluded that no material error was disclosed in the sentencing process, and therefore, the appeal was dismissed.

Orders