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Court of Criminal Appeal 20 August 2015

R v Matthew Jon DAVIES

[2015] NSWCCA 224

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE APPEAL APPLICANT DROVE CO OFFENDER TO SCENE OF ATTEMPTED ROBBERY OFFENDER CIRCUMSTANCES OF APPLICANT AND CO OFFENDER SAID TO BE DIFFERENT

Citation: R v Matthew Jon Davies [2015] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 20 August 2015
Judges: Ward JA, Adams J, Beech-Jones J (all agreeing)

Background

In the early hours of the morning, two offenders approached a man asleep in a converted garage at his St Clair home. One held a pistol and pointed it at the victim while counting down from five; the other demanded money. The offenders eventually left, apparently having gone to the wrong address. Shortly after, police stopped a vehicle on the M7 motorway with a blown tyre and arrested its three occupants, finding two balaclavas and a pistol nearby.

The applicant, Matthew Davies, was the driver of that vehicle. He pleaded guilty to assault with intent to rob while armed with a dangerous weapon under s 97 of the Crimes Act 1900. His co-offender, Abdul Farache, pleaded guilty to the same charge and was sentenced by the same District Court judge at the same time. Both received a head sentence of three years and six months imprisonment, though Davies received a shorter non-parole period of two years compared to Farache's two years and six months.

Davies applied for leave to appeal, arguing that his circumstances were sufficiently different from Farache's to warrant a substantially lesser sentence. The central issue was one of sentencing parity.

  • Whether the sentencing judge erred by imposing the same head sentence on Davies as on Farache, despite alleged differences in their circumstances
  • Whether the differences between the two offenders were sufficient to give rise to an appearance of injustice warranting appellate intervention on parity grounds

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Beech-Jones J (with whom Ward JA and Adams J agreed) found that no error had been demonstrated in the sentencing judge's approach.

The sentencing judge had found that Davies and Farache were equally culpable. Neither could be positively identified as the person who held the pistol, and the agreed factual basis placed Davies in the role of driver. The sentencing judge was not satisfied beyond reasonable doubt that Farache had held the pistol. In the absence of material justifying differentiation, treating them as equally culpable was consistent with established authority in the Court of Criminal Appeal.

The Court acknowledged real but minor differences between the two offenders. Farache had a prior criminal record; Davies did not. Davies was subject to onerous bail conditions, while Farache was bail-refused on a separate charge. The sentencing judge also noted slightly different assessments of their rehabilitation prospects. However, these differences were described as relatively minor and did not compel different head sentences.

The Court also addressed the significance of Farache's subsequent convictions for demanding money with menaces and possession of a mobile phone in custody. While subsequent offending can indicate that the primary offence was not an uncharacteristic aberration, this is not necessarily so in every case. The sentencing judge had already factored those convictions into his assessment of Farache's rehabilitation prospects, and was not obliged to give them greater weight in the comparative analysis.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where sentencing material does not satisfactorily distinguish the relative roles of co-offenders, a sentencing judge is entitled to treat them as equally culpable, rather than speculating about degrees of involvement.
  • A parity challenge requires more than minor differences in circumstances between co-offenders. The differences must be marked or manifest enough to give rise to an appearance of injustice before appellate intervention is warranted.
  • Subsequent convictions of a co-offender may be relevant to whether the original offence was an uncharacteristic aberration, but they do not automatically require greater differentiation in comparative sentencing.
  • In dismissing the appeal, the Court confirmed that a lesser non-parole period can legitimately reflect individual differences between co-offenders, even where the same head sentence is imposed on each.
  • Different non-parole periods do not necessarily cure a parity argument if, as a matter of substance, the time actually served for the specific offence ends up being the same for both offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2)

Cases
- Beale v R [2015] NSWCCA 120
- England v R, Phanith v R [2009] NSWCCA 274
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
- Lam v R [2014] NSWCCA 50
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Taylor v R [2015] NSWCCA 12