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Davis v R

Davis v R

Case [2015] NSWCCA 90 8 May 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Davis v R [2015] NSWCCA 90
Hearing dates: 14 April 2015
Decision date: 08 May 2015
Before: Basten JA at [1]; Simpson J at [7]; Adamson J at [91]
Decision:
(1)  The time in which to file a notice of application for leave to appeal is extended to 28 June 2013;
(2)  Leave to appeal granted;
(3)  Appeal allowed; sentence imposed on 14 February 2008 set aside;
(4)  In lieu thereof, the applicant is sentenced to imprisonment commencing 8 November 2005, with a non-parole period of 16 years and 6 months which will expire on 7 May 2022, and a balance of term of 5 years and 6 months which will expire on 7 November 2027.
Catchwords:
APPEAL - sentencing - murder - “Muldrock error” - ground upheld - applicant re-sentenced
APPEAL - severity of sentence - victim’s underlying heart condition not a mitigating circumstance - R v Matthews [2013] NSWSC 659 - LAL v R; RPN v R [2007] NSWSC 445 - R v Todd Munter [2009] NSWSC 158 - objective criminality of the act causing death - ground rejected - Criminal Appeal Act 1912, s 6(3) - meaning of “some other sentence is warranted in law” - obligation of Court of Criminal Appeal re-sentencing after error found - relevance sentence imposed at first instance - Kentwell v The Queen [2014] HCA 37 - applicant re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s3A, s 21A, s 54A, s 54B
Crimes Act 1900 (NSW), s 19A
Criminal Appeal Act 1912 (NSW), s 6(3), s 10(1)(a)
Criminal Appeal Rules, r 3B(1)(b)
Cases Cited: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
LAL v R; RPN v R [2007] NSWSC 445
Liles v R (Cth) [2014] NSWCCA 289
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Matthews [2013] NSWSC 659
R v Previtera (1997) 94 A Crim R 76
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Todd Munter [2009] NSWSC 158
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties: Jason Russell Davis (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Burgess (Applicant)
G O’Rourke (Respondent)
Solicitors:
S E O’Connor - Legal Aid NSW (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2007/1315
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

R v Jason Russell DAVIS [2008] NSWSC 55

Date of Decision:

14 February 2008

Before:

Mathews AJ

File Number(s):

2007/1315

Judgment

BASTEN JA: This matter involves another challenge to a sentence imposed for an offence carrying a standard non-parole period at a time when sentencing judges approached the task in accordance with the principles explained by this Court in R v Way [2004] NSWCCA 131;

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 R [2015] NSWCCA 90
Case: [2015] NSWCCA 90
Decision Date: 08 May 2015

CaseChat Overview and Summary

In Davis v R, the applicant appealed against his sentence for murder. The Court of Criminal Appeal was tasked with reviewing the sentence imposed by the primary judge. The applicant argued that the primary judge erred in not considering the victim's underlying heart condition as a mitigating circumstance and in assessing the severity of the sentence. The applicant also contended that the Court of Criminal Appeal should impose a different sentence due to the primary judge's error.

The court examined whether the primary judge's failure to consider the victim's heart condition as a mitigating factor constituted a legal error. The court held that the victim's underlying heart condition did not constitute a mitigating circumstance, consistent with precedents such as R v Matthews, LAL v R, RPN v R, and R v Todd Munter. Furthermore, the court found that the primary judge appropriately assessed the severity of the sentence, considering the objective criminality of the act causing death. Therefore, the ground of appeal concerning the severity of the sentence was rejected.

The court addressed the obligation of the Court of Criminal Appeal when re-sentencing after a legal error is found. It was determined that the meaning of “some other sentence is warranted in law” does not require the court to impose a different sentence than the one imposed at first instance. The court referred to the High Court decision in Kentwell v The Queen to support this interpretation. Consequently, the applicant was re-sentenced by the Court of Criminal Appeal.

Orders