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…

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 Regina v Davis

Details

AGLC: Regina v Davis [2004] NSWCCA 281
Case: [2004] NSWCCA 281
Decision Date: 12 August 2004

CaseChat Overview and Summary

In the case of Regina v Gordon Davis, the applicant pleaded guilty to two counts of maliciously inflicting grievous bodily harm. The first offence resulted in very serious injuries to the victim, some of which are likely to be permanent, while the second offence, committed three weeks later, resulted in grievous bodily harm with relatively short-lived injuries. The District Court sentenced the applicant to a term of imprisonment of four years and eight months for the first offence, with a non-parole period of three years and six months. For the second offence, the sentencing judge imposed a fixed term of imprisonment of six months, which was cumulative upon the first count. The applicant appealed the sentence, arguing that the District Court had not properly applied the principles of totality when imposing the cumulative sentence.

The legal issues before the Court of Criminal Appeal were whether the District Court had erred in applying the principles of totality when imposing the cumulative sentence for the second offence and whether the error was inadvertent or intentional. The Court had to determine whether the error required correction and, if so, what the appropriate remedy would be. The Court also had to consider whether the sentences imposed were appropriate and whether the resulting leniency should be repeated in other cases.

The Court of Criminal Appeal found that the District Court had indeed erred in applying the principles of totality when imposing the cumulative sentence for the second offence. The Court held that the sentencing judge had overlooked the effect of the accumulation of the six-month fixed term upon the non-parole period already imposed. This error was inadvertent, and the Court found that it required correction. The Court also noted that the Court of Criminal Appeal was placed in a difficult position because of the way in which the District Court had dealt with the matter in relation to the second count. The Court indicated to counsel its view of the error and asked counsel to make a calculation which would yield a result consistent with that indication. This was done, and an agreed result was proposed. The Court held that in the circumstances, it was appropriate that the calculation agreed on should be adopted by the Court.

The Court of Criminal Appeal granted leave to appeal and confirmed the sentence for the first offence. The non-parole period for the first offence was set to commence on 3 September 2003 and expire on 2 August 2006, with the balance of the term to commence on 3 August 2006 and conclude on 2 April 2008. The head sentence for the first offence was confirmed and would commence on 3 September 2003. For the second offence, the sentence of six months was confirmed, to commence on 3 August 2006 and expire on 2 February 2007. The Court held that the sentences in this case should not be regarded as indicating a view of the Court that the resulting leniency extended to the appellant should be repeated in the case of any other offender.

Orders