AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 26 November 2009

Duane Paul David DAVIS v R

[2009] NSWCCA 279

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGRAVATED BREAK AND ENTER WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Duane Paul David Davis v R [2009] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 26 November 2009
Judge(s): Allsop P, Howie J, Hislop J

Background

The appellant was convicted in the District Court at Lismore of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, an offence carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The aggravating factor charged was that he recklessly inflicted actual bodily harm on two occupants of the premises he entered. Two further assault charges were taken into account on a Form 1.

The offence occurred on the night of 7 March 2008 at a residential property in Bogangar, in the Northern Rivers region of NSW. The appellant was discovered inside the premises by one of the occupants, a man in his early 50s. He responded by striking the occupant with a suitcase, wrestling with him, and placing him in a headlock until police arrived. The other occupant, the man's wife, suffered minor cuts while trying to intervene. Police found over $10,000 worth of jewellery packed in a pillowcase, along with other stolen property.

District Court Judge Black sentenced the appellant on 12 September 2008 to a total term of six years, comprising a non-parole period of three and a half years and a balance of term of two and a half years, dating from 7 March 2008. The appellant sought leave to appeal on the ground that this sentence was manifestly excessive.

  • Whether the total sentence of six years, with a non-parole period of three and a half years, was manifestly excessive for an offence of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900.
  • Whether sentencing statistics from the Judicial Commission supported a finding that the sentence fell outside the range appropriate to the exercise of the sentencing judge's discretion.
  • Whether the approach taken by the sentencing judge in applying the standard non-parole period constituted an error warranting appellate intervention.

Decision

Howie J (with whom Allsop P and Hislop J agreed) characterised the offence as falling in the upper mid-range of objective seriousness. Although the charged aggravating factor was reckless rather than intentional infliction of harm, the court noted that little mitigation could be drawn from that distinction, given that both victims' injuries resulted from a deliberate physical attack. Additional aggravating features included the planned nature of the offence, its degree of professionalism, the substantial value of property stolen, and the fact that the appellant was on a bond at the time.

Howie J acknowledged that the sentencing remarks were brief and that Judge Black's approach to the standard non-parole period did not conform to the methodology required by earlier decisions of the Court of Criminal Appeal. However, the court held that this did not, by itself, warrant reducing the sentence, because the sentence arrived at was in any event an appropriate one.

The court considered Judicial Commission statistics showing the sentence was towards the upper end of the range for this type of offence. Rather than treating this as an indicator of excess, Howie J commented that it may simply reflect that the statistical range itself is too low. Reference to comparable cases, including Maxwell v R, did not assist the appellant, as the facts in those cases were considerably less serious.

The court found the non-parole period was, if anything, lenient given the appellant's criminal record, his repeated failures to comply with supervision conditions, and his persistent misuse of drugs and alcohol while subject to non-custodial orders. A finding of special circumstances, which extended the balance of term and thereby reduced the non-parole period below the statutory ratio, was described as favourable to the appellant.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a departure from the preferred methodology for applying a standard non-parole period will not automatically result in a sentence being disturbed, provided the sentence actually imposed is appropriate.
  • Sentencing statistics from the Judicial Commission are a relevant reference point but are not determinative. A sentence towards the upper end of the statistical range may reflect that the range itself is too low, rather than that the sentence is excessive.
  • Where an aggravating factor is reckless rather than intentional infliction of harm, courts may still treat that distinction as offering limited mitigation when the injuries were caused by deliberate physical conduct during the commission of the offence.
  • A finding of special circumstances that reduces a non-parole period below the standard statutory proportion operates in an offender's favour and will be noted as such when assessing whether a sentence is manifestly excessive.
  • Positive developments in custody, such as participation in programs or rehabilitation efforts, do not necessarily displace an otherwise appropriate sentence, particularly where an offender has a history of non-compliance with supervision and persistent substance misuse.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal)

Cases:
- Mulato v R [2006] NSWCCA 282
- Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498