Davison v The Queen - [2019] NSWCCA 179

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Davison v R [2019] NSWCCA 179
Hearing dates: 24 July 2019
Date of orders: 05 August 2019
Decision date: 05 August 2019
Before: Gleeson JA at [1];
Johnson J at [2];
Price J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentences imposed in the District Court of New South Wales on 22 June 2018.
(4) For the offence of stealing a motor vehicle contrary to s 154F of the Crimes Act 1900 and taking into account the offence on the Form 1, the applicant is sentenced to a fixed term of imprisonment of 9 months commencing on 2 February 2018 and expiring on 1 November 2018.
(5) For the offence of aggravated break and enter with intent to commit a serious indictable offence contrary to s 113(2) of the Crimes Act, the applicant is sentenced to 2 years 9 months imprisonment consisting of a non-parole period of 18 months commencing on 2 May 2018 and expiring on 1 November 2019 with a balance of term of 15 months commencing on 2 November 2019 and expiring on 1 February 2021.
(6) The earliest date the applicant will be eligible to be released on parole is 1 November 2019.

Catchwords: CRIME – Appeals – Appeal against sentence – stealing motor vehicle and aggravated break and enter – applicant pleaded guilty whereas co-offender was found guilty after jury trial – parity – whether disparity in sentences explained by differences in subjective cases – whether justifiable sense of grievance – whether reduction in sentence would produce an erroneously lenient sentence – whether co-offender’s sentence manifestly inadequate – consideration of head sentence and non-parole period – re-sentence
Legislation Cited: Crimes Act 1900 (NSW) ss 113, 154F
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 11, 22A
Cases Cited: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Hall [2017] NSWCCA 313
R v Kollas and Mitchell [2002] NSWCCA 491
R v llbay [2000] NSWCCA 251
R v Reilly; R v Smith [2012] NSWCCA 166
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Saraya v R [2015] NSWCCA 63
Youkhana v R [2011] NSWCCA 37
Category: Principal judgment
Parties: Mervyn John Davison (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
D Patch (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/263764
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 June 2018

Before:

Arnott SC DCJ

File Number(s):

2015/263764

Judgment

GLEESON JA: I agree with Price J.
JOHNSON J: I agree with Price J.
PRICE J: Mervyn John Davison (“the applicant”) seeks leave to appeal the sentence imposed upon him by Arnott SC DCJ (“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 Davison v The Queen

Details

AGLC: Davison v The Queen [2019] NSWCCA 179
Case: [2019] NSWCCA 179
Decision Date: 05 August 2019

CaseChat Overview and Summary

The applicant, Davison, appealed against his sentence for stealing a motor vehicle and an aggravated break and enter. The co-offender was found guilty following a jury trial, whereas Davison pleaded guilty. The disparity in their sentences was the primary issue, raising questions of parity and whether the differences in their circumstances justified the disparity. The appeal sought to determine if the disparity was adequately explained and whether the applicant’s sentence was erroneously lenient or if the co-offender’s sentence was manifestly inadequate.

The court examined the sentencing principles of parity and proportionality, considering the differences in the roles of the applicants and the subjective circumstances of each case. It evaluated whether the disparity was justified by the individual circumstances of the applicants. The court considered whether the applicant’s sentence was unduly lenient, given the nature and circumstances of the offending. It also assessed whether the co-offender's sentence was manifestly inadequate in light of the crimes committed.

The court concluded that the disparity in sentences was adequately explained by the differences in the applicants' roles and subjective circumstances. It found that the applicant's sentence was not erroneously lenient, and the co-offender's sentence was not manifestly inadequate. However, the court determined that a reduction in the applicant's sentence was warranted. Consequently, the applicant's sentence was reduced, with the non-parole period remaining unchanged.

Orders