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Court of Criminal Appeal 17 March 2003

R v Davis

[2003] NSWCCA 62

Theft & propertyFirearms & weapons

Citation: R v Davis [2003] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 17 March 2003
Judge(s): Wood CJ at CL; Studdert J

Background

The applicant was convicted in the District Court of robbery in company following a pre-planned armed robbery at a hotel in Sutherland at approximately 3:00 am on 21 May 2000. The applicant and a co-offender accosted a hotel employee, forced entry, and proceeded to tape up three employees, one of whom was pregnant. The applicant wore a balaclava, used socks to avoid fingerprints, brandished a replica pistol, and transported equipment to the scene in his own car. Approximately $4,640 was taken in total.

Dodd DCJ sentenced the applicant to three years and four months imprisonment, with a non-parole period of two years and six months. The sentence incorporated a discount of approximately 30 per cent for assistance provided to the authorities. The applicant sought leave to appeal against that sentence on three grounds.

At the sentencing hearing, the applicant had raised duress as a mitigating factor, claiming his co-offender Edwards had threatened to kill him and his partner if he did not participate. The sentencing judge accepted that threats had been made but found they were insufficient to cause a person of ordinary firmness to yield, and that the applicant had ample opportunity to report the plan to police.

  • Whether the sentencing judge erred by using information from an induced statement (provided in exchange for a promise it would not be used against the applicant) as a basis for adverse findings at sentencing.
  • Whether the overall sentence was manifestly excessive having regard to both objective and subjective features of the offence.
  • Whether the sentencing judge erred in his consideration of special circumstances when determining the ratio between the non-parole period and the balance of the sentence.

Decision

Ground 1: Use of induced statement material

The applicant argued that material derived from a statement made during cooperation with authorities should not have been used adversely against him at sentencing. The Court distinguished the cases relied upon (Bourchas and Raz), noting that in those cases the induced statement itself had been tendered; here, the material was introduced through a police officer's affidavit without objection from the applicant. The Court was not satisfied that the material used was properly characterised as an induced statement in the relevant sense, and this ground was rejected.

Ground 2: Manifest excess

The Court acknowledged the significant subjective factors in the applicant's favour, including his good prospects of rehabilitation, strong family support, the co-offender's dominant role, a prior history of limited relevance, and the 30 per cent discount for assistance. However, the Court emphasised the serious objective features: the offence was premeditated, occurred in the early hours of the morning, targeted people in a vulnerable working environment, involved taping up employees including a pregnant woman, and used a replica firearm that the victims had no reason to believe was not real. The Court found that no lesser term of imprisonment would have been appropriate, and this ground failed.

Ground 3: Special circumstances

The applicant contended that the sentencing judge had failed to properly consider special circumstances when fixing the non-parole period. The Court noted the sentencing judge had turned his mind to the question and concluded that no variation to the standard ratio was warranted. Citing Simpson (2001) 126 A Crim R 525, the Court confirmed that special circumstances are not limited to rehabilitation prospects, but found no error in the judge's conclusion given the careful weighing of all objective and subjective factors. This ground was also rejected.

The Court also declined the Crown's invitation to refuse leave on the basis that the co-offender Edwards had not yet been sentenced, holding that the outcome of proceedings against a co-offender yet to appear before a court should not influence the grant of leave.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where material from an assistance-related statement is introduced at sentencing through a police affidavit and without objection, it does not necessarily engage the protection against use of induced statements established in cases such as Bourchas and Raz.
  • A 30 per cent discount for assistance to authorities did not render the sentence manifestly excessive where the objective gravity of the offence (a premeditated, armed, early-morning robbery targeting vulnerable employees) remained the dominant sentencing consideration.
  • Special circumstances justifying a variation in the non-parole period ratio are not confined to rehabilitation considerations, following Simpson (2001) 126 A Crim R 525, but the sentencing court is not required to vary that ratio merely because good rehabilitation prospects exist.
  • Sufficient subjective mitigation, including remorse, family support, limited prior history, and positive rehabilitation prospects, may be fully acknowledged at sentencing without requiring a reduction below what the objective gravity of the offence demands.
  • The Court confirmed that the prospective sentencing of a co-offender yet to appear before a court is not a proper basis on which to refuse an applicant leave to appeal against their own sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 97(1) (robbery in company, maximum 20 years imprisonment)

Cases:
- R v Bourchas [2002] NSWCCA 373
- R v Potter (1994) 72 Crim App R 108
- R v Raz (unreported, NSWCCA, 17 December 1992)
- R v Simpson (2001) 126 A Crim R 525