Citation: R v Davis, Smith and Charnock [2016] NSWDC 130
Court: District Court of New South Wales
Date: 10 June 2016
Judge: Judge S Norrish QC
Background
The three offenders were sentenced in connection with a violent assault at a hotel in Queanbeyan on 9 August 2014. The incident arose out of a domestic dispute: the first offender (Davis) was in a relationship with the second offender (Smith), who had previously been in a domestic relationship with one of the victims (McInnes). McInnes had custody of two children from his relationship with Smith at the time of the assault. The third offender (Charnock) was a friend of Davis.
Two victims were assaulted. McInnes suffered what was described as catastrophic injuries. The second victim (Hancock), a friend of McInnes, was also wounded in the course of the incident. CCTV footage captured the events, and the sentencing judge undertook a view of the location to assist with the fact-finding exercise.
Davis pleaded guilty to recklessly wounding Hancock and, in company with Charnock and Smith, recklessly causing grievous bodily harm to McInnes. Smith pleaded guilty to causing grievous bodily harm to McInnes with intent. Charnock faced one charge of recklessly causing grievous bodily harm to McInnes in company, but his sentencing was adjourned because remarks from a related sentencing by another judge had not yet been obtained.
Legal Issues
- What sentences were appropriate for Davis and Smith, having regard to the objective seriousness of the offences and all relevant subjective factors?
- How should the court approach parity between co-offenders, particularly as between Davis and Charnock, given Charnock was already serving a substantial sentence for unrelated drug offences?
- What weight should be given to psychological reports, prior good character, and other mitigating factors in fixing individual sentences?
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and head sentence under the Crimes (Sentencing Procedure) Act 1999.
- How should Form 1 matters be treated in the overall sentencing exercise?
- What was the correct characterisation of Smith's participation in the joint criminal enterprise, given the tension between her plea and the factual findings available from the CCTV footage and evidence?
Decision
Judge Norrish sentenced Davis and Smith on 10 June 2016, but adjourned Charnock's sentencing to 15 July 2016. The adjournment was necessary because Charnock's sentence needed to be considered in light of remarks made by Judge English in related proceedings, and those remarks had not yet been obtained. The court noted that many of its findings regarding the facts and context of the assault would be directly relevant when Charnock's matter was heard.
The court acknowledged the complexity of the sentencing exercise across multiple co-offenders with different roles, different criminal histories, and different subjective circumstances. Judge Norrish observed that the severity of the victim's injuries, while an objective feature of the offence, did not alone determine the appropriate sentence. Mitigating factors, including prior good character and psychological circumstances, were required by law to be weighed against the objective gravity of the conduct.
The court found some tension in Smith's position as a co-offender charged under the joint criminal enterprise, observing that her precise role as found on the CCTV footage and the evidence was "somewhat problematic." This finding was reflected in the court's approach to her individual sentence. Davis and Smith both had minimal time in custody (effectively one day each from the date of arrest to sentencing), which was taken into account in fixing the sentences.
On parity, the court noted the principle squarely applied as between Davis and Charnock, given they faced the identical charge in respect of McInnes. Because Charnock was already serving a sentence of over six years for drug supply matters, with a non-parole period expiring in 2018, the court flagged that this would require careful attention when Charnock was sentenced to avoid unwarranted disparity with the orders made for Davis.
Orders Made
• Sentence imposed with one year accumulation on the assault sentence upon Mr Hancock
• Non-parole period fixed at two years, accumulative on the non-parole period for the Hancock assault
• Total sentence just in excess of four years
• Section 77 order directed
• Matter listed for mention at 9:30am on 15 July 2016
• Matter to be heard at a time when the judge is available on that day
Key Takeaways
- The District Court confirmed that the severity of a victim's injuries is one objective factor in sentencing, but the law requires the court to weigh many other matters, including subjective circumstances that may mitigate an otherwise appropriate sentence.
- Parity between co-offenders is a live issue even where one offender is already serving a substantial sentence for unrelated matters. The court treated the identical charge faced by Davis and Charnock as requiring careful calibration to avoid unwarranted disparity, necessitating adjournment until all relevant sentencing remarks were available.
- Where a co-offender's precise role in a joint criminal enterprise is difficult to characterise from the evidence, that factual uncertainty is appropriately reflected in the individual sentence rather than resolved against the offender.
- Prior good character, psychological reports, and other subjective factors are not merely formal considerations. Judge Norrish emphasised that failing to address them would disrespect both the sentencing legislation and the Court of Criminal Appeal authorities that require their proper treatment.
- Form 1 matters and special circumstances under the Crimes (Sentencing Procedure) Act 1999 were live considerations in this case, illustrating that even in group-assault sentencing proceedings, the court must conduct a separate and careful analysis for each individual offender.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(1), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Attorney-General's Application No 1 of 2002 (2002) 56 NSWLR 147
- DPP v De La Rosa [2010] NSWCCA 194
- Mill v R (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39
- Pearce v R (1998) 194 CLR 610
- R v Blackman and Walters [2001] NSWCCA 121
- R v Thomas [2007] NSWCCA 269
- R v Tuala [2015] NSWCCA 8
- R v Wilson [2005] NSWCCA 219
- R v Zamagias [2002] NSWCCA 17
- R v Zang [2004] NSWCCA 358
- Yardley v Betts (1979) 22 SASR 108