R v Davies - [2005] NSWCCA 384

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Davies [2005] NSWCCA 384

FILE NUMBER(S):
2005/894

HEARING DATE(S): 05/10/2005

JUDGMENT DATE: 10/11/2005

PARTIES:
Andrew Lucas Davies - Applicant
Regina - Respondent

JUDGMENT OF: McClellan CJ at CL Grove J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0427

LOWER COURT JUDICIAL OFFICER: Gibson QC ADCJ

COUNSEL:
Mr R Button SC - Applicant
Mr P Miller - Respondent

SOLICITORS:
SE O'Connor (Legal Aid Commission of NSW) - Applicant
S Kavanagh (Director of Public Prosecutions)- Respondent

CATCHWORDS:
Sentencing
Crimes Act s 66A
Statistics
Sentence outside range.

LEGISLATION CITED:
Crimes Act 1900 - s 66A
Crimes (Sentencing Procedure) Act 1999

DECISION:
1. Leave to appeal granted
2. Appeal upheld
3. Sentence quashed and, in lieu thereof, the applicant is sentenced to imprisonment for 7 years commencing on 13 September 2004 and expiring on 12 September 2011 with a non-parole period of 5 years 3 months commencing on 13 September 2004 and expiring on 12 December 2009.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2005/894
McCLELLAN CJ at CL
GROVE J
HISLOP J
10 November 2005

R v DAVIES

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
GROVE J: I agree with Hislop J.
HISLOP J:
Introduction
The applicant, who was born on 8 October 1980, pleaded guilty to the offence of sexual intercourse with a child under the age of 10 years, namely 7 years of age, contrary to the Crimes Act 1900 s 66A. The offence consisted of the applicant inserting his penis into the mouth of the child and ejaculating. It occurred between 31 December 2002 and 31 January 2003. The maximum penalty for the offence at the time of its occurrence was 20 years imprisonment.
On 1 October 2004, the applicant was sentenced for that offence in the District Court to imprisonment for a total period of 10 years, commencing on 13 September 2004, with a non-parole period of 7 ½ years.
In sentencing the applicant, the sentencing judge took into account on a Form 1 under the Crimes (Sentencing Procedure) Act 1999 a charge of aggravated indecent assault upon the child. The Form 1 described the offence in the following terms, “It is alleged that the accused placed his finger near the anus of the victim…a 7 year old child”. The fact sheet stated the assault occurred when the applicant removed the child’s pants and used his finger to rub some Vaseline on her anus. This offence also occurred during the period 31 December 2002 to 31 January 2003, but at a different time to the principal offence. Counsel for the applicant did not dispute the contents of the fact sheet.
The applicant has sought leave to appeal against sentence on the ground the sentence is manifestly excessive.
The sentencing judge’s findings
The sentencing judge found the offence was objectively very serious. It involved a gross breach of trust as the applicant was living with the child and her mother…

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 R v Davies

Details

AGLC: R v Davies [2005] NSWCCA 384
Case: [2005] NSWCCA 384
Decision Date: 10 November 2005

CaseChat Overview and Summary

In the matter of R v Davies, the defendant appealed against his sentence, which was deemed to be outside the range of sentences reasonably open to the sentencing judge. The case was heard by the court which was required to determine whether the original sentence was appropriate and whether the sentence imposed was outside the range of sentences that could be reasonably considered. The court also had to consider whether any special circumstances existed which would warrant a different sentence. The defendant's appeal was based on the argument that the original sentence was manifestly erroneous and outside the sentencing range, given the defendant's youth, lack of prior convictions, and other mitigating factors.

The court examined the legal principles guiding sentencing, particularly the use of statistics and case comparisons to determine an appropriate sentencing range. It noted that while statistics and similar cases can provide guidance, the ultimate sentence must be based on the specific facts of the case. The court concluded that the original sentence was indeed outside the sentencing range and constituted a manifest error. The court took into account the severity of the crime, the defendant's youth, lack of prior convictions, and other mitigating factors, but found that these factors had already been considered by the sentencing judge. The court also determined that there were no special circumstances that would warrant a different sentence.

In light of the court's findings, the appeal was upheld, the original sentence was quashed, and the defendant was sentenced to imprisonment for 7 years, commencing on 13 September 2004 and expiring on 12 September 2011, with a non-parole period of 5 years and 3 months, commencing on 13 September 2004 and expiring on 12 December 2009. The court's orders included granting leave to appeal, upholding the appeal, quashing the original sentence, and imposing a new sentence in lieu of the original one.

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

CLELLAN CJ

In evaluating the sentence the Court may have regard to statistics such as those provided by the Judicial Commission of New South Wales and to similar cases in determining sentence patterns and the appropriate sentencing range – R v Bloomfield (1998) 44 NSWLR 734 at 739 though caution must be exercised in the use of such material as the sentence depends on the facts of each case and bare statistics tell a Judge very little which is useful – Wong v R (2001) 207 CLR 584 at 605.Conclusion The principal offence was undoubtedly very serious and merits a substantial term of imprisonment. It is also appropriate to reflect the Form 1 offence in the sentence. However, having had regard to all relevant considerations, including the statistics and the applicant’s summary of cases, I have concluded that the sentence imposed in this case is outside the range of sentence reasonably open to such a degree as to manifest error and require the intervention of this Court. The applicant has submitted that a finding of special circumstances should be made particularly by reason of the applicant’s youth, that he had no prior convictions, that he is being held on protection, that there is a lack of access to appropriate counselling and the effect on his life of his actions. However these matters have been taken into account in assessing the sentence as have the additional affidavits of the parties which were tendered on appeal. I agree with the sentencing Judge that any time for assistance when the applicant returns to society would be covered by the statutory parole period. Accordingly I do not find special circumstances. In my opinion the sentence which was warranted in law and should have been passed is a sentence of imprisonment for 7 years commencing on 13 September 2004 and expiring on 12 September 2011 with a non-parole period of 5 years 3 months commencing on 13 September 2004 and expiring on 12 December 2009. Orders I propose the following orders:1. Leave to appeal granted.2. Appeal upheld.3. Sentence quashed and, in lieu thereof, the applicant is sentenced to imprisonment for 7 years commencing on 13 September 2004 and expiring on 12 September 2011 with a non-parole period of 5 years 3 months commencing on 13 September 2004 and expiring on 12 December 2009.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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