R v Davis - [2003] NSWCCA 62

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Davis [2003] NSWCCA 62

FILE NUMBER(S):
60376/02

HEARING DATE(S): 17 March 2003

JUDGMENT DATE: 17/03/2003

PARTIES:
Regina v Ross Parker Davis

JUDGMENT OF: Wood CJ at CL Studdert J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0264

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
D.M. Howard (Crown)
R.W. Burgess (Applicant)

SOLICITORS:
S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act, s 97(1)

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60376/02
WOOD CJ at CL
STUDDERT J
Monday 17 March 2003

REGINA v ROSS PARKER DAVIS

Judgment

STUDDERT J: The applicant, Ross Parker Davis, stood trial in the District Court charged with the offence of robbery in company and was found guilty. On 14 June 2002 the applicant was sentenced to imprisonment for a term of three years four months commencing on 26 February 2002 and expiring on 25 June 2005. The sentencing judge set a non parole period of two years six months commencing 26 February 2002 and expiring 25 August 2004. The applicant seeks leave to appeal against this sentence. Section 97(1) of the Crimes Act fixes a maximum penalty of twenty years imprisonment for this category of offence.
The crime was committed at Boyles Hotel, Sutherland, on 21 May 2000, and I draw on the remarks on sentence of the sentencing judge for a short outline of the objective facts. The robbery was committed at about 3.00 am. There were three employees on duty at the hotel, the bar manager and two others. One of these employees was a pregnant young lady. The applicant met his fellow offender, a man named Edwards, outside the hotel and after they joined up they went to the back of the hotel where one of the employees was putting the rubbish out. That employee was accosted and forced inside where the two remaining employees were and the robbery occurred. Edwards did most of the talking and took the money but the applicant taped up one employee and assisted in taping up the other, the latter being the pregnant woman. The applicant was wearing a balaclava and had socks on his hands to avoid leaving fingerprints. He used a replica pistol in the robbery and the equipment used was brought to the crime scene in the applicant’s car. The amount taken comprised $4600 in cash, the property of the proprietor of the hotel and forty dollars in cash was taken from the wallet of one of the victims, namely the bar manager.
The applicant was arrested at home on 23 June 2000 and was interviewed by the police when he admitted his role in the offence.
The employee of the hotel who had taken out the rubbish gave evidence of a discussion with the applicant days before the robbery about the possibility of its occurrence and was himself charged in connection with it. The other offender, Edwards, was at the time…

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 62
Case: [2003] NSWCCA 62
Decision Date: 17 March 2003

CaseChat Overview and Summary

In the case of R v Davis, the defendant was convicted and sentenced for a crime involving premeditated actions against vulnerable individuals, which included the taping of two employees. The defendant appealed the sentence, arguing that the trial judge had erred in calculating the non-parole period. The appeal was heard by the court which examined the circumstances of the offence and the considerations made by the trial judge in determining the sentence.

The legal issues before the court were whether the trial judge had correctly considered all the circumstances of the offence and whether the non-parole period was appropriate. The court needed to assess if the trial judge had adequately weighed both the objective and subjective circumstances and whether the resulting sentence was commensurate with the gravity of the crime.

The court found that the trial judge had properly considered all relevant factors, including the serious objective features of the crime, and had appropriately weighed these against any mitigating factors. The trial judge's determination of a non-parole period of two years and four months was deemed appropriate given the premeditated nature of the crime and the vulnerability of the victims. The court rejected the argument that the trial judge had failed to consider special circumstances, noting that the judge had indeed considered these factors before setting the sentence. Ultimately, the appeal was dismissed, and the sentence upheld.

The final orders of the court were to dismiss the appeal and uphold the sentence imposed by the trial judge, with the non-parole period set at two years and four months.

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

WOOD CJ WOOD CJ

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Ratio Decidendi

Legal Principle Established

Established by: WOOD CJ, WOOD CJ

With that submission I do not agree. The remarks on sentence indicate that the judge duly heeded all the circumstances of the commission of the offence and all the matters in the nature of subjective circumstances. His Honour had to give appropriate weight to the serious objective features of this case. It was a premeditated crime committed in the early hours of the morning against people in a vulnerable position and it involved the taping of two of the employees. In my opinion no less a term of imprisonment than was here imposed would have been appropriate, and I so conclude, ignoring altogether any adverse content in the material considered by the Court which attracted the discount of thirty per cent. 3.That his Honour erred in his consideration of special circumstances. His Honour considered whether or not he should find special circumstances and went on to say - and I quote from the judgment:“In my view whether or not I find special circumstances there is no justification in your case for varying the usual ratio of the non-parole period and accordingly I intend to set a non-parole period of two years and four months.”(That, of course, should have been six months.) It is argued that because his Honour found the applicant’s prospects of rehabilitation were good, he must have decided that there were no other circumstances which could have amounted to special circumstances to justify a variation of the non-parole period. Given that special circumstances are not limited to considerations of rehabilitation: see Simpson (2001) 126 A Crim R 525 at 537-538, it is clear that his Honour applied his mind to the question of special circumstances before determining the ratio of non-parole to parole periods. I am not persuaded that the judge was wrong in not setting a lower non-parole period having regard to the crime committed. His Honour was, indeed to my mind, correct in determining that in the circumstances of this case on a careful weighing of both the objective and subjective features the applicant should spend no less a period than two years six months in prison. This Court was asked, in the event that the appeal was not to succeed, to refuse leave to the applicant because of the fact that Edwards is yet to be dealt with. It seems to me that this Court should not be influenced by the fact that Edwards has not yet come before a Court for his part in this crime. I would grant leave to appeal here but in my opinion the appeal should be dismissed. AT CL: I agree. The order of the Court will be as Justice Studdert has proposed.