Regina v Davis

[2004] NSWCCA 281

CITATION:	REGINA v DAVIS [2004] NSWCCA 281
HEARING DATE(S):	12 August 2004
JUDGMENT DATE:	12 August 2004
JUDGMENT OF:	James J at 13; Adams J at 1; Bell J at 14
DECISION:	Leave to appeal granted; in relation to the first offence, there is imposed on the appellant a non-parole period commencing on 3 September 2003 and expiring on 2 August 2006 the balance of the term to commence on 3 August 2006 and conclude on 2 A[pril 2008, the head sentence is confirmed and will commence on 3 September 2003; in relation to the second offence the sentence of six months is confirmed, to commence on 3 August 2006 and expiring on 2 February 2007.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Johnson v The Queen [2004] HCA 15 Pearce v The Queen (1998) 194 CLR 610
PARTIES :	Regina v Gordon Davis (Applicant)
FILE NUMBER(S):	CCA 60173/04; 2004/1907
COUNSEL:	Ms E Wilkins (Crown) Mr M Bozic SC (Applicant)
SOLICITORS:	S O'Connor (Crown) S Kavanagh (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0286
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

2004/1909
60173/04

JAMES J
ADAMS J
BELL J

THURSDAY 12 AUGUST 2004

REGINA v DAVIS

Judgment

1 ADAMS J: The applicant, Gordon Davis, pleaded guilty at the first available opportunity to two charges of maliciously inflicting grievous bodily harm.

2 The first of these offences was committed on 2 May 2003 and resulted in very serious injuries, some likely to be permanent, to the victim. The second offence was committed three weeks later on 23 May 2003 and although grievous bodily harm was inflicted, as the applicant admitted, the injuries were fortunately relatively short-lived.

3 The applicant, who is an Aboriginal, has a bad history which involved not only traffic offences but also offences of violence. He was sentenced in relation to the first, and much more serious offence, to a period of imprisonment of four years and eight months. His Honour fixed a non-parole period calculated by reference to the statutory calculus in s 44(1) of the Crimes (Sentencing Procedure) Act 1999 of three years and six months. His Honour declined to find special circumstances by reference to the nature of the offence and very limited prospects for rehabilitation inferred from his prior record of violence. That sentence is unexceptional and no objection is taken to it except in one respect to which I will come in a moment.

4 In relation to the second count his Honour said that, on its own, he would have sentenced the applicant to about three years and eight months with a non-parole period of two years and nine months. Again a calculation which assumed no relevant special circumstances.

5 Having regard to the principles of totality, his Honour mistakenly considered that he should not have imposed such a sentence and made it cumulative upon the first count, although he could, of course, have adjusted the extent of accumulation to accord with the principles of totality.

6 Having regard to what was said in Pearce v the Queen (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15 it seems to me that his Honour should have passed the sentence which he thought to be appropriate for the second count and then adjusted the extent of accumulation by reference to totality. That would have had the effect of requiring close attention to be given to the effective non-parole period resulting from the accumulation and requiring a comparison between that figure and a figure yielded by applying the usual statutory calculation.

7 His Honour, however, did not take this course, but simply imposed a fixed term of imprisonment of six months for the second count and accumulated it upon the non-parole period that he had specified for the first count. The consequence was that the effective non-parole period was something in the order of 85 per cent of the total sentence to be served rather than the indicative 75 per cent as provided in the Act. His Honour also did not take into account the fact that his orders accumulated upon a sentence of three months which the applicant was then serving.

8 The learned sentencing judge was not, of course, bound to apply the statutory calculation. There are a number of cases where it is appropriate not to do so, even when the effect is to increase the effective non-parole period of the term that would otherwise be imposed. However, when that is done it is necessary to show unmistakably that the result is intentional and based upon proper sentencing principles.

9 In this case I have no doubt, with respect to his Honour, that he simply overlooked the effect of the accumulation of the six month fixed term upon the non-parole period already imposed. Consequently the variation from the statutory calculation was, I am persuaded, inadvertent. To my mind such an error requires to be corrected.

10 This Court is placed in a difficult position because of the way in which his Honour dealt with the matter in relation to the second count, since making the adjustment has the effect of not imposing a distinct additional punishment for the second offence. This is an undesirable consequence but derives from the error, to which I have already referred, namely that the approach required by Pearce and Johnson was not taken by his Honour. Had it been taken, it would have been possible for this Court to make a more appropriate adjustment of the sentences. Indeed, as I have already suggested, it is unlikely that this problem would have arisen.

11 The Court indicated to counsel its view of his Honour’s error and asked counsel to make a calculation which would yield a result consistent with that indication. This has been done and an agreed result proposed. In the circumstances I think it appropriate that the calculation agreed on should be adopted by the Court. It should be obvious from what I have already said that the sentences in this case should not be regarded as indicating a view of this Court that the resulting leniency extended to the appellant should be repeated in the case of any other offender.

12 Accordingly, the orders I propose are: that leave to appeal should be granted; in relation to the first offence, there is imposed on the appellant a non-parole period commencing on 3 September 2003 and expiring on 2 August 2006 the balance of the term to commence on 3 August 2006 and conclude on 2 April 2008, the head sentence is confirmed and will commence on 3 September 2003; in relation to the second offence the sentence of six months is confirmed, to commence on 3 August 2006 and expiring on 2 February 2007.

13 JAMES J: I agree with the judgment of Adams J and with the orders proposed by his Honour. Leave to appeal should be granted and the appeal should be allowed to the extent indicated by his Honour.

14 BELL J: I also agree.

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Last Modified: 08/24/2004