R v Davis

[2003] NSWCCA 79

CITATION:	R v Davis [2003] NSWCCA 79
HEARING DATE(S):	27 March 2003
JUDGMENT DATE:	1 April 2003
JUDGMENT OF:	Studdert J at 1; Smart AJ at 29
DECISION:	Leave to appeal granted; appeal allowed in respect only of the sentence imposed for the aggravated break and enter and commission of a serious indictable offence; quash that earlier sentence and in lieu thereof impose a sentence of five years imprisonment to commence on 29 May 2002 and to expire on 28 May 2007 with a non parole period of three years to commence on 29 May 2002 and to expire on 28 May 2005.
CATCHWORDS:	Criminal law - application for leave to appeal against sentence - co-offender dealt with in Children's Court - two years younger than applicant - relevance of sentence imposed under Children's Court regime.
LEGISLATION CITED:	Crimes Act, ss 59(1), 112(2)
CASES CITED:	R v Boney [2001] NSWCCA 432 R v Colgan [1999] NSWCCA 292 R v Ellis [2002] NSWCCA 211 R v Rushby [1999] NSWCCA 104 R v Thompson (2000) 49 NSWLR 383
PARTIES :	Regina v Justin Andrew Davis
FILE NUMBER(S):	CCA 60401/02
COUNSEL:	M.C. Grogan (Crown) A.P. Cook (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/71/0054
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

60401/02

STUDDERT J
SMART AJ

Tuesday 1 April 2003

REGINA v JUSTIN ANDREW DAVIS

Judgment

1 STUDDERT J: The applicant, Justin Andrew Davis, pleaded guilty in the Local Court in relation to two offences for which he was committed for sentence to the District Court. There the applicant was indicted and again pleaded guilty to the following offences:

(i) aggravated break and enter and commission of a serious indictable offence;

(ii) assault occasioning actual bodily harm.

2 On 29 May 2002 Judge Freeman sentenced the applicant on the first count to a term of imprisonment for six years to commence on 29 May 2002 and to expire on 28 May 2008. His Honour fixed a non parole period of three years six months to commence on 29 May 2002 and to expire on 28 November 2005. In relation to the second count, his Honour imposed a fixed term sentence of imprisonment for twelve months to commence on 29 May 2002 and to expire on 28 May 2003. Hence the term of imprisonment set under the second count was to be served concurrently with the term set under the first count.

3 The applicant seeks leave to appeal against these sentences.

4 The offence charged in the first count was in a category attracting a maximum penalty of imprisonment for twenty years (s 112(2) of the Crimes Act). The offence charged in the second count was in a category attracting a maximum penalty of imprisonment for five years (s 59(1) of the Crimes Act).

5 These offences were committed shortly before 4.00 am on 15 January 2002 at Young. The applicant and his companion broke into the home of the victim and his wife by forcing a window. Once inside the applicant commenced to search for the keys to a vehicle parked in the carport. The victim, hearing noises, left his bed to investigate and when he entered the hallway he was confronted by the applicant and his co-offender. The victim was sixty-one years old and unarmed. Both intruders were armed with baseball bats and both were wearing balaclavas. The baseball bats were brandished and indeed the victim received a number of blows to the arms and the hands which resulted in bruising and lacerations. One of the intruders picked up a chair and attempted to strike the victim with it. Eventually both intruders left the home, having taken the car keys from inside the house. They made good their escape in the victim’s car.

6 During the confrontation inside the house, damage was done to one of the walls in the dining area. Two large holes were made there by one or other of the baseball bats. There was evidence before the sentencing judge that since these crimes were committed the victim and his wife experience difficulty sleeping at night. The victim said he did not feel safe in his home anymore and his work required him to travel throughout the State. He was concerned to leave his wife on her own. He also needed counselling to address his response to these crimes. His wife provided a statement indicating that she was suffering from emotional problems and was having trouble sleeping. The victim’s wife wrote that she was too scared of a night to go into the kitchen area of the house by herself.

7 The gravity of this type of offence was recognised by the legislature by the provision of a maximum penalty of twenty years imprisonment. His Honour commented in addressing the objective gravity of what had occurred (AB 39):

“Not for nothing has the legislature proposed a maximum sentence of twenty years for offences of this nature, since they are offences which would excite the utmost condemnation by the community. To be assaulted in one’s own home in the early hours of the morning is the stuff of nightmares.”

8 The assault of course was accompanied by the theft of the motor vehicle after the keys to it had been taken from inside the house.

9 There can be no question then but that the offences were very serious.

10 The applicant was born on 2 March 1983, so that he was nearly nineteen years of age when these offences were committed. Having stolen the victim’s motor vehicle, the applicant and his co-offender used it to travel to Queensland. There they were arrested on 28 January 2002 after police located the stolen vehicle. During the search of that vehicle, police found two baseball bats and two black balaclavas in the boot of it. Following his arrest the applicant was extradited to New South Wales and on 31 January 2002 an ERISP was conducted in the course of which the applicant made frank admissions as to his involvement in the two offences for which he was subsequently sentenced.

11 The applicant has a poor record for a person of his age. The earliest entry was for an offence for which he came before the Children’s Court in July 1999. Various offences thereafter committed reflect a disregard for the property of others, and the use of violence. As well there are offences of dishonesty. On 6 July 2001, having been convicted of two counts of common assault, the applicant was sentenced to twelve months imprisonment, but that sentence was suspended upon his entering into a bond to be of good behaviour for twelve months. These offences were committed during the term of that bond. Further, the applicant was the subject of some outstanding warrants when these offences were committed. By the time he came to be sentenced by his Honour, the applicant had been dealt with in the Local Court at Wagga Wagga on 1 February 2002 and in relation to offences of common assault, contravention of an apprehended domestic violence order (four counts) and assault, he had been sentenced to imprisonment for twelve months to commence on 1 February 2002 with a non parole period of nine months expiring 31 October 2002.

12 His Honour had regard to the pre sentence report which outlined the applicant’s underprivileged background. He lacked a father figure and was not controlled in his childhood or his youth. His education was disrupted by an attention deficit disorder. According to the applicant he used alcohol at an early age and subsequently abused Rohypnol and, indeed, when these offences were committed the applicant said he had had about three drinks and had had some Rohypnol.

13 The applicant is a father of two children aged at the time of sentence two and one month respectively. His partner gave evidence in the sentencing proceedings describing the effect upon the two year old of seeing his father in prison.

14 At the time of being sentenced the applicant was in an environment away from the main stream prison population and the judge recorded that he had regard to the period spent in custody before sentence as being harsher than it would be in the main stream.

15 The judge expressed doubt concerning the applicant’s expression of contrition but ultimately accepted that there was some element of contrition and that the applicant was entitled to a discount for the utilitarian value of the plea. His Honour allowed twenty-five percent discount in respect of those matters. He also appointed the date of sentencing as the starting date for the sentences, recognising that this gave the applicant the benefit of concurrency for approximately fifty percent of the non parole period of the then current sentence that had been imposed in the Local Court at Wagga Wagga on 1 February 2002.

16 In his written submissions Mr Cook focused on two features of this case which in his submission resulted in a sentence which was excessive:

(i) the issue of parity;

(ii) the plea of guilty.

17 By the time the applicant was sentence his co-offender had also been dealt with. His co-offender was a juvenile. Having been dealt with in the Children’s Court the co-offender appealed to the District Court and Judge Freeman dealt with the appeal two days prior to the date upon which he sentenced the applicant. The appeal was successful to a limited extent, and the co-offender, following that appeal, was subject to a control order in respect of the aggravated break and enter offence for a further period of twenty months, allowing for four months already served. A non parole period of twelve months was fixed, allowing for supervised parole from 26 May 2003. For the assault occasioning actual bodily harm the co-offender was sentenced to twelve months from 27 May 2003, with a non parole period of nine months.

18 It was submitted that the sentence imposed upon the applicant was disproportionate to that imposed upon the co-offender.

19 Mr Cook, of course, recognised the significance of the circumstance that the co-offender was being dealt with under a juvenile regime whilst the applicant was being dealt with under an adult regime, but nevertheless submitted this Court should find that the judge erred in his approach by not imposing a sentence on the applicant which reflected some proportionality between such sentence and the punishment imposed upon the juvenile offender. Reference was made in support of this submission to Ellis [2002] NSWCCA 211. In Ellis Smart AJ cited Colgan [1999] NSWCCA 292 and Boney [2001] NSWCCA 432, acknowledging these authorities afforded guidance for the approach to be taken by a sentencing judge where a co-offender has been dealt with in the Children’s Court.

20 In Colgan Spigelman CJ said (at para 15):

“In R v Govinden (1999) NSWCCA 118, Dunford J, who delivered the judgment of the Court, referred to the authority in the Court to the effect that parity considerations do not arise, as such, when comparing a person dealt with in the Children's Court and adults. Nevertheless as his Honour indicated at para 376 of that judgment, that does not mean that the sentence imposed on a person in the Children's Court, which would otherwise give rise to issues of parity, is irrelevant. This is so for the reason that an individual sentenced as an adult may very well have a justifiable sense of grievance with respect to that very difference of the regimes."

21 In Boney Wood CJ at CL said (at para 14):

“There is no longer an inflexible rule that there is no utility in comparing sentences upon co-offenders who are separately dealt with: one in the Children's Court and the other as an adult. See R v Govinden (1999) 106 A Crim R 314 R v Colgan (1999) NSWCCA 292.
While it is true that there are different sentencing objectives and considerations applicable in the Children's Court, which do limit the worth of any such comparison, it would have been appropriate for his Honour to have paid some regard to that sentence."

22 When the co-offender’s appeal was heard the judge remarked that he had just turned seventeen and that he was sixteen years of age when the offences were committed. Hence he was two years younger than the applicant. This was not a marginal difference in age but a significant one: see as to this Rushby [1999] NSWCCA 104. Moreover, there were significant subjective aspects in the co-offender’s case, including an offer of assistance, which were not present in the applicant’s case. Further, it has to be recognised that the applicant had a very bad criminal history and that he committed these offences at a time when he was enjoying conditional liberty. By way of contrast, the co-offender had no prior record.

23 Nevertheless, consistently with the authorities abovementioned, it was necessary for his Honour to pay some regard to the sentence that had been imposed upon the younger co-offender so as to bring about a result which was not unduly disproportionate.

24 His Honour was, of course, fully alert to the sentence imposed upon the co-offender because he had imposed it himself only two days earlier than the date upon which he sentenced the applicant. However, for the more serious of the two offences for which he was to be sentenced, the applicant had imposed upon him a head sentence of six years compared with the co-offender’s head sentence of two years and a non parole period of three years six months compared with the non parole period for the co-offender of sixteen months. With respect to the learned sentencing judge, it seems to me, even allowing for those differences to which I adverted in para 22 above, the principal sentence imposed upon the applicant was unduly disproportionate to the principal sentence imposed upon the co-offender.

25 It was submitted that the discount of twenty-five percent previously mentioned was insufficient because the utilitarian feature alone should have attracted such a discount. Thompson (2000) 49 NSWLR 383 recognises a discretion in determining the discount for the utilitarian value of the plea and the decision in that case does not impose a rigid requirement that there be a twenty-five percent discount whenever a plea of guilty is entered. His Honour’s remarks indicated moreover that he had reservations about the expression of contrition. In my opinion the decision to allow a total twenty-five percent discount was properly within his Honour’s discretion.

26 However, because the applicant’s sentences do not reflect due regard having been given to the co-offender’s sentences, error has been demonstrated and this Court should now intervene in respect of the sentence imposed for the offence against s 112 of the Crimes Act. I would not disturb the sentence imposed for the offence against s 59 of that Act.

27 In lieu of the head sentence of six years with a non parole period of three years six months for the major offence, I would propose a head sentence of five years with a non parole period of three years. To my mind such a sentence would appropriately recognise the age differences between these offenders and the differing subjective features of their cases whilst at the same time addressing those matters referred to in Ellis (supra), Colgan (supra) and Boney (supra).

28 Accordingly I propose the following formal orders:

1. That leave to appeal be granted;

2. That the appeal be allowed in respect only of the sentence imposed for the aggravated break and enter and commission of a serious indictable offence;

3. I would quash that earlier sentence and in lieu thereof impose a sentence of five years imprisonment to commence on 29 May 2002 and to expire on 28 May 2007. I would propose a non parole period of three years to commence on 29 May 2002 and to expire on 28 May 2005.

29 SMART AJ: I agree with Studdert J.

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Last Modified: 04/03/2003