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 the applicant was sentenced in prison in Victoria and had not stood trial concerning the robbery at Boyles Hotel.
The sentencing judge was asked to take into account, and did take into account, two offences listed in a Form 1 schedule. One of these related to the possession of 135 grams of cannabis leaf on 21 May 2000, and the other to having goods in custody reasonably suspected of having been stolen, namely one security licence, one disabled parking authority and one car stereo with graphic equaliser. As to the scheduled offences the sentencing judge observed he had no details of those offences before him. Whilst he did not regard those offences as being insignificant he took the view they did not require any appreciable increase in the penalty he would otherwise impose for the armed robbery.
At trial the applicant raised an issue of duress and gave evidence that Edwards had threatened to kill both the applicant and his partner if they did not co-operate in the robbery, and indeed he produced a gun at some stage of those threats. The judge found that threats had been made in consequence of which the applicant feared both for his safety and for that of his partner, but expressed doubts as to whether those fears and threats were the cause of his participation in the robbery. His Honour went on, however, to find he had absolutely no doubt that in the circumstances the threats were not such as to cause a person of ordinary firmness of mind and will and of the same sex and maturity as the applicant to yield to the threat in the way in which the applicant had done. The judge found explicitly that the applicant had ample opportunity to report the threats and the plan for the robbery to the authorities.
Whilst the judge found Edwards was the moving party in every respect and that the applicant played only a supportive role, objectively the crime committed could only be viewed as being extremely serious. The hotel employees who were victims of the crime were working in a vulnerable environment and the public interest required such people should be protected and that any sentence imposed should have adequate regard to the issue of deterrence. The replica pistol brandished by the applicant was not known to the victims to only be a replica.
I pass to the subjective features of the case. The applicant was born on 1 April 1963. He was therefore thirty-seven years of age when he committed this crime. He had three siblings and his mother and father, all of whom were supportive of him and indeed his father gave evidence in the sentencing hearing. He also had the support of his partner. He and his partner were the parents of a young child, eighteen months of age. The applicant was educated to high school level and began, but did not complete, university study. Thereafter he had regular employment in a number of positions including work as a surveyor’s assistant. His Honour noted that the surveyor was willing to provide the applicant with work at any stage.
The sentencing judge recorded that the applicant had expressed his remorse and resolved to avoid future criminal activity, and the judge was prepared to accept that the chances of the applicant adhering to a life free of crime in the future were quite good. The judge also concluded from the report of the Probation and Parole Service that any supervision by that service in the future would need only to be in the nature of a monitoring role.
There was evidence of assistance placed before the sentencing judge which he concluded warranted a discount of the order of thirty per cent. The judge took into account that the applicant would be likely to be at risk in the prison system and indeed probably upon his release because of that assistance.
The applicant had some prior convictions in respect of minor offences including traffic offences both in New South Wales and Queensland, but the judge observed he considered that history of no particular relevance for the purpose of sentence and that assessment had not been challenged.
Against the above background I turn to the grounds of appeal which have been presented on the applicant’s behalf:
1. That the judge erred in taking into account material adverse to the applicant such as was contained in an induced statement.
I referred above to the discount given for assistance. His Honour had certain material placed before him on which to make the assessment. His Honour observed that the material considered revealed
“at the very least intimate knowledge on the applicant’s part of the criminal activities of others.”
His Honour went on to reject the submission that he should ignore the significance of that intimate knowledge which he said:
“lessened to a certain extent the tendency I would otherwise have to regard the commission of this offence as a single isolated instance of criminality completely out of character.”
His Honour added, however, that the material he had seen did not indicate that the applicant had participated in those criminal activities in any particular way.
The submission advanced on behalf of the applicant is that a statement made by way of assistance to the authorities induced by an undertaking that the information in it would not be used against an offender ought to be admitted only on the basis that the information would not be used against the offender. Reference was made to Bourchas [2002] NSWCCA 373 at para 99 and also Raz (unreported, NSWCCA, 17 December 1992).
The material introduced for the judge’s consideration in relation to prior assistance was in the form of an affidavit by a police officer. That evidence was introduced without objection. Both in Bourchas and in Raz the induced statement or interview itself was tendered before the sentencing judge. The Crown here sought to draw a distinction that the manner in which the material the judge was asked to take into account was tendered supported the proposition that the undertaking was waived for the purposes of the proceedings. The judge considered the material and asked the applicant’s father questions about it before submissions were made on behalf of the applicant that nothing in that material should be used against him.
There is tension between the decisions in Raz and Bourchas and the decision Potter (1994) 72 Crim App R 108. The latest pronouncement of principle, of course, is to be found in the judgment of Giles J in Bourchas with which judgment the other members of the Court in that case agreed. His Honour said in Bourchas (at para 99):
“To draw together the preceding discussion, in my opinion the following may be said of situations such as that arising in the sentencing of the applicant.
1. The offender carries the burden of proving assistance to the authorities, as a matter going to mitigation.
2. The Crown should assist the offender in the discharge of that burden.
3. The assistance may extend to the Crown tendering the evidence of assistance to the authorities, but the Crown should not do so over the objection of the offender.
4. A statement made by way of assistance to the authorities on an undertaking that the information in it will not be used against the offender may properly be admitted on the basis that the information in it will not be used against the offender, and with its use restricted accordingly.
5 When the offender tenders a statement made by way of assistance to the authorities, or accepts the Crown's assistance in tendering such a statement, it is prudent that the basis of the tender be agreed and stated showing any restriction on the use of the information in the statement; if there is disagreement, a ruling can be made in the normal way.
6. In the absence of an agreed basis of tender or a ruling at the time of admission, whether use of a statement made by way of assistance to the authorities is restricted will depend on the circumstances, but normally the information in the statement cannot be used against the offender.”
Clearly the principle expressed in para 4 in the above extract from Bourchas is not here applicable because the evidence was not introduced contrary to an undertaking. Nor was objection taken to the tender such as would enliven the principle expressed in para 5. So it is that the matter is to be considered in the absence of an agreed basis of tender or any ruling at the time of admission.
As the argument on this appeal has made plain, it is highly desirable that a judge at first instance ensure that the parties define at the time of tender of material related to a question of assistance the basis upon which that material is to go into evidence. In the present case the applicant was asking the sentencing judge to take his good character into account in his favour. It may be that this is a case which fits within the statement of principle contained in para 6 of those principles recorded by Giles J in Bourchas. However, assuming the contrary, it does not automatically follow that this Court should intervene in the sentence that is here imposed and certainly not if the sentence which was imposed is considered to be appropriate. This brings me to the next ground argued, namely that the sentence is manifestly excessive.
2. That the sentence is manifestly excessive
It was submitted by Miss Burgess that the sentence was excessive following favourable findings that:
(1) the Form 1 matters did not require any appreciable increase in the penalty that ought otherwise to have been imposed;
(2) the applicant was entitled to proper consideration for his contrition and remorse;
(3) the applicant feared for his safety and that of his partner because of the threats made by Edwards;
(4) had it not been for Edwards the applicant would not have committed the offence;
(5) the applicant played merely a supportive role;
(6) the applicant was at added risk in the prison system because of the assistance given.
Having regard to those matters and what was submitted to be a strong subjective case, and since this would be the applicant’s first period of imprisonment, it was submitted that the starting point of five years was manifestly excessive.
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.
WOOD CJ AT CL: I agree. The order of the Court will be as Justice Studdert has proposed.

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LAST UPDATED: 21/03/2003