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;

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…

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 Davis

Details

AGLC: R v Davis [2003] NSWCCA 79
Case: [2003] NSWCCA 79
Decision Date: 1 April 2003

CaseChat Overview and Summary

The case of R v Davis involved the applicant, Davis, seeking leave to appeal against a sentence imposed by the Supreme Court. Davis was convicted of a serious criminal offence and was sentenced to a term of imprisonment. A co-offender, who was two years younger than Davis, was dealt with in the Children's Court and received a lesser sentence under the Children's Court regime. The primary issue before the court was whether the sentence imposed on Davis was appropriate in light of the lesser sentence received by the co-offender, who was younger but involved in the same offence.

The court considered the principles of sentencing in criminal cases, particularly the need for consistency and fairness in sentencing co-offenders. It examined the sentencing options available under the Children's Court regime and how these might influence the sentence imposed on an adult offender. The court also reviewed the sentencing principles set out in the Sentencing Act and relevant case law, which emphasise the importance of proportionality and deterrence in sentencing. The key question was whether the difference in age between the co-offender and Davis justified a significantly different sentence.

The court found that while the difference in age was a relevant factor, it was not the sole determinant of sentencing. The court acknowledged that the Children's Court regime aimed to rehabilitate juvenile offenders and considered their age and circumstances more favourably. However, the court held that an adult offender must be held to a higher standard of accountability and that the severity of the crime warranted a harsher sentence. The court concluded that the sentence imposed on Davis was appropriate given the nature of the offence and the need to maintain public confidence in the criminal justice system. The application for leave to appeal against the sentence was dismissed.

Orders