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Court of Criminal Appeal 1 April 2003

R v Davis

[2003] NSWCCA 79

Assault & violenceTheft & property
CRIMINAL LAW OFFENDER DEALT WITH IN CHILDREN'S COURT TWO YEARS YOUNGER THAN APPLICANT

Citation: Davis v R [2003] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 1 April 2003
Judge(s): Studdert J; Smart AJ

Background

The applicant, a young adult offender aged nearly nineteen at the time of the offences, pleaded guilty to aggravated break and enter with commission of a serious indictable offence and assault occasioning actual bodily harm. In the early hours of 15 January 2002, he and a co-offender broke into a rural home in Young, armed with baseball bats and wearing balaclavas. They confronted a sixty-one-year-old victim in his hallway, struck him repeatedly, and stole his car keys and vehicle.

The applicant was sentenced in the District Court on 29 May 2002. Judge Freeman imposed six years imprisonment with a non-parole period of three years and six months for the break and enter offence, and a concurrent fixed term of twelve months for the assault. The applicant sought leave to appeal on the grounds that the sentences were excessive, primarily by reference to the sentence received by his co-offender.

The co-offender, who was approximately two years younger than the applicant, had been dealt with separately in the Children's Court regime and received a considerably shorter head sentence along with a shorter non-parole period.

  • Whether the disparity between the applicant's sentence and that imposed on the co-offender in the Children's Court gave rise to a justified grievance warranting appellate intervention.
  • Whether the sentencing judge allowed a sufficient discount for the utilitarian value of the guilty plea.

Decision

The Court accepted that a co-offender being sentenced in the Children's Court does not automatically produce a direct parity comparison, because the Children's Court operates under a different sentencing regime with different objectives. The applicable principles, as discussed in prior Court of Criminal Appeal decisions, require a court to account for the age difference between offenders and the subjective differences in their individual circumstances when assessing whether any disparity is unjustified.

Despite those distinctions, the Court found that the gap between the applicant's head sentence of six years and the co-offender's head sentence of two years was unduly disproportionate, even after factoring in the legitimate differences between the two offenders. The disparity was sufficiently stark to constitute appellate error in the sentence for the aggravated break and enter offence.

On the guilty plea discount, the Court declined to interfere. The sentencing judge had expressly reserved some doubt about the genuineness of the applicant's contrition, and the Court of Criminal Appeal held that a total twenty-five percent discount in those circumstances was comfortably within the sentencing judge's discretion. The decision in R v Thompson confirms that the discount for utilitarian value is not a fixed entitlement and does not mandate a precise percentage.

The Court allowed the appeal only in respect of the primary offence and substituted a head sentence of five years with a non-parole period of three years, leaving the concurrent twelve-month sentence for the assault undisturbed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in respect of the sentence for aggravated break and enter and commission of a serious indictable offence only.
  • The original sentence for that offence was quashed and replaced with five years imprisonment commencing 29 May 2002 and expiring 28 May 2007, with a non-parole period of three years commencing 29 May 2002 and expiring 28 May 2005.
  • The sentence for assault occasioning actual bodily harm was not disturbed.

Key Takeaways

  • A co-offender sentenced under the Children's Court regime does not produce a straightforward parity benchmark, because that regime reflects different sentencing objectives from those applied in adult courts.
  • Where a co-offender was dealt with in the Children's Court, the relevant inquiry is whether the disparity in outcomes is unjustifiably disproportionate after accounting for the age difference between the offenders and their respective subjective circumstances.
  • Even after applying those qualifications, the Court of Criminal Appeal found that a gap of four years between the adult applicant's head sentence and the juvenile co-offender's head sentence was excessive in the circumstances of this case.
  • Under R v Thompson, the discount for the utilitarian value of a guilty plea is a matter of judicial discretion and does not operate as a fixed entitlement to any particular percentage reduction.
  • Residual doubts about an offender's contrition are a legitimate factor that can reduce the overall discount applied, provided the utilitarian value of the plea is still recognised.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 59(1) (assault occasioning actual bodily harm, maximum five years)
- Crimes Act (NSW), s 112(2) (aggravated break and enter, maximum twenty years)

Cases:
- R v Boney [2001] NSWCCA 432
- R v Colgan [1999] NSWCCA 292
- R v Ellis [2002] NSWCCA 211
- R v Rushby [1999] NSWCCA 104
- R v Thompson (2000) 49 NSWLR 383