R v Davies

Case [2004] NSWCCA 319


CITATION: R v G J Davies [2004] NSWCCA 319
HEARING DATE(S): 16/09/04
JUDGMENT DATE:
21 September 2004
JUDGMENT OF: Wood CJ at CL at 1; Kirby J at 8; Buddin J at 40
DECISION: (1) Leave to file an appeal out of time granted; (2) Leave to appeal granted; (3) Appeal dismissed.
CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - appeal against sentence - error in Court taking account strength Crown case in fixing discount for plea - standard non parole period - whether Court should intervene - whether more lenient sentence warranted.
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
CASES CITED: R v Mouloudi [2004] NSWCCA 96
R v Way [2004] NSWCCA 131
R v Carter [2001] NSWCCA 245
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Sutton [2004] NSWCCA 225
R v Boulghourgian (2001) 125 A Crim R 540
R v Simpson (2001) 53 NSWLR 704

PARTIES :

Regina
Glenn John Davies
FILE NUMBER(S): CCA 60246/04 (2004/1868 CCAP)
COUNSEL: B Knox SC (Crown/Resp)
P Strickland (Appl)
SOLICITORS: S Kavanagh (Crown/Resp)
S E O'Connor (Appl)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/31/0197
LOWER COURT
JUDICIAL OFFICER :
Christie DCJ

                          2004/1868 CCAP (60246/04)

                          WOOD CJ at CL
                          KIRBY J
                          BUDDIN J

                          Tuesday 21 September 2004
REGINA v Glenn John DAVIES
Judgment

1 WOOD CJ at CL: I have read in draft the reasons of Justice Kirby. I agree with those reasons and with the orders proposed.

2 In so far as it was argued that s54B of the Crimes (Sentencing Procedure) Act has no application to a case in which there was a plea and that the decision in Regina v Mouloudi [2004] NSWCCA 96 provides support for that proposition, then I wish to express my disagreement with it.

3 It may be noted that the manner in which s54B was to be applied was the subject of consideration in Regina v Way [2004] NSWCCA 131. Specifically in relation to sentences imposed after plea, the Court observed:


          “68 Although there is nothing in Division 1A of Part 4 that expressly says so, the standard non-parole periods in the Table must also be taken as having been intended for a middle-range case where the offender was convicted after trial . This follows from the fact that factor (k), being one of the mitigating factors specified in s 21A(3) which is to be taken into account as a matter which might justify a departure from the standard non-parole period, is "a plea of guilty by the offender (as provided by s 22A)". A plea of not guilty can never be an aggravating factor.

          69 If the standard non-parole period had been intended to apply to cases where there had been a plea, then it may be safely inferred that such circumstance, which s 22 says "must be taken into account" would have already been factored into the assessment of the appropriate period . It would, in any event, be contrary to long-standing sentencing practice, save…

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R v Davies [2004] NSWCCA 319
Case
[2004] NSWCCA 319
Decision Date

CaseChat Overview and Summary

The appeal against sentence involved a respondent, Davies, who had been found guilty of certain criminal charges. The primary issue before the court was whether the trial judge had erred in considering the strength of the prosecution's case when determining the discount for a plea of guilty. Additionally, the court was tasked with assessing whether the sentence imposed was appropriate, specifically in light of the standard non-parole period.

The court examined whether the trial judge had incorrectly taken into account the strength of the Crown's case when calculating the discount for a plea of guilty. The court considered whether this constituted an error of law that warranted intervention. Furthermore, the court was required to determine whether the sentence imposed was excessively lenient and whether it should be altered in light of the legal principles governing sentencing and the standard non-parole periods applicable to the offences committed.

In ruling, the court found that the trial judge had indeed erred by considering the strength of the prosecution's case in calculating the discount for the plea of guilty. This constituted an error of law, and the court held that it should intervene to correct this mistake. The court concluded that, after accounting for the appropriate discount, the sentence imposed was still within the correct parameters and did not warrant any alteration. The court ultimately affirmed the sentence handed down by the trial judge, finding no basis for a more lenient sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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