R v Matthew Jon DAVIES - [2015] NSWCCA 224

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Matthew Jon DAVIES [2015] NSWCCA 224
Hearing dates: 14 August 2015
Date of orders: 20 August 2015
Decision date: 20 August 2015
Before: Ward JA   at [1]
Adams J   at [2]
Beech-Jones J   at [3]
Decision:
(1)   Leave to appeal be granted; and
(2)   The appeal be dismissed.
Catchwords: SENTENCE APPEAL – assault with intent to rob while armed with a dangerous weapon – applicant drove co-offender to scene of attempted robbery – complaint that sentencing judge erred in imposing same sentences on applicant and co-offender – circumstances of applicant and co-offender said to be different – parity – co-offender’s equally culpable – circumstances not markedly different – no error – leave to appeal granted but appeal dismissed.
Legislation Cited: - Crimes Act 1900 – s 97
Cases Cited: - Beale v R [2015] NSWCCA 120
- England v R, Phanith v R [2009] NSWCCA 274
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
- Lam v R [2014] NSWCCA 50
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Taylor v R [2015] NSWCCA 12
Category: Principal judgment
Parties: Matthew Jon Davies – Applicant
Crown – Director of Public Prosecutions
Representation:
Counsel:
W.P. Lowe – Applicant
Ms T. Smith – Crown
Solicitors:
Saba El-Hanania – Applicant
Solicitor for Public Prosecutions – Crown

File Number(s): 2011/092590
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

30 May 2014

Before:

Williams ADCJ

Judgment

WARD JA: I agree with Beech-Jones J.
ADAMS J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by the District Court in respect of one charge of assault with intent to rob while armed with a dangerous weapon (Crimes Act 1900; s 97(1); s 97(2)). On 30 May 2014 the Applicant, Matthew Davies, was sentenced to a term of imprisonment of three years and six months commencing 20 May 2014 with a non-parole period of two years. He will be eligible for release on parole from 20 May 2016.
The basis for the application is an alleged lack of parity between the sentence imposed on Mr Davies and a co-offender, Abdul Farache. Mr Farache was sentenced at the same time as Mr Davies and by the same judge. In respect of this offence Mr Farache was sentenced to the same head sentence although he received a non-parole period of two years and six months.
Although the head sentences imposed were the same and Mr Davies received a lesser non-parole period than Mr Farache, Mr Davies contends that as a matter of substance they involve disparate treatment warranting appellate intervention. He submits that his circumstances were such that they warranted the imposition of a significantly lesser sentence on him than that imposed on Mr Farache. For…

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 Matthew Jon DAVIES

Details

AGLC: R v Matthew Jon Davies [2015] NSWCCA 224
Case: [2015] NSWCCA 224
Decision Date: 20 August 2015

CaseChat Overview and Summary

In the case of R v Matthew Jon Davies, the applicant, who was convicted of assault with intent to rob while armed with a dangerous weapon, sought to appeal the sentence imposed by the sentencing judge. The applicant argued that the sentencing judge erred in imposing the same sentences on both him and his co-offender, asserting that the circumstances of their respective involvements in the crime were different. The appeal was heard in the court of appeal, which had previously granted leave to appeal.

The primary legal issue before the court was whether the sentencing judge erred in imposing the same sentences on the applicant and his co-offender. The applicant contended that his role in the crime was less culpable than that of his co-offender, who was the one who actually carried out the assault with the weapon. The applicant's argument was based on the notion that he merely drove the co-offender to the scene of the attempted robbery and did not participate in the assault itself. The court needed to determine whether the sentencing judge's decision to impose equal sentences was justified, taking into account the differing roles played by the applicant and his co-offender.

The court of appeal found that the sentencing judge did not err in imposing the same sentences on both the applicant and his co-offender. The court held that the circumstances of their involvements in the crime were not markedly different, and that the applicant's role in driving the co-offender to the scene of the attempted robbery was an integral part of the crime. The court further determined that the applicant's argument for unequal sentencing based on the notion of parity was not supported by the evidence. The appeal was ultimately dismissed, and the original sentences imposed by the sentencing judge were upheld.

No further orders were made by the court of appeal.

Orders