Citation: R v Davis, Smith and Charnock [2016] NSWDC 427
Court: District Court of New South Wales
Date: 10 June 2016
Judge: Judge S Norrish QC
Background
Three offenders appeared for sentence following a violent incident at a hotel in Queanbeyan on 9 August 2014. The offending arose from a domestic context: one offender (referred to here as Smith) had been in a long-term relationship with one of the victims, and custody of the couple's daughters had remained with him after their separation. Smith had since entered a relationship with a co-offender (Davis), and tensions had developed between the parties in the period leading up to the assault.
Two victims were attacked during the incident. One (McInnes) suffered what was described from the bar table as "catastrophic" injuries. The other (Hancock) was also wounded. CCTV footage of the incident was tendered, and the sentencing judge undertook a view of the hotel location during the proceedings.
Davis pleaded guilty to recklessly wounding Hancock and, in company, 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 with Davis and Smith. Proceedings against Charnock were adjourned and he was not sentenced on the day.
Legal Issues
- The appropriate sentences for Davis and Smith, having regard to the objective seriousness of each offence and the applicable maximum penalties and standard non-parole periods
- Whether the "in company" element of the charges was properly established on the facts, particularly with respect to Smith's role
- The application of parity principles as between Davis, Smith, and Charnock (whose sentence was deferred)
- The relevance of subjective factors, including personal circumstances and psychological material, to the sentences imposed
- How to approach sentencing where the objective harm to a victim is severe but where mitigating factors may nonetheless reduce the sentence below what the consequences alone might suggest
Decision
Judge Norrish sentenced Davis and Smith on 10 June 2016, while adjourning Charnock's matter to 15 July 2016. The adjournment arose because the sentencing of Charnock was interconnected with Davis's matter, and the judge required remarks from a separate District Court judge (Judge English) who had sentenced Charnock on unrelated drug supply charges resulting in sentences exceeding six years.
The judge observed that sentencing is a complex exercise that cannot be reduced to a reflection of the consequences suffered by victims alone. While the catastrophic injuries to McInnes were a significant objective feature of the offending, the law required the court to weigh many other factors, including subjective matters capable of mitigating what would otherwise be an appropriate sentence. The court drew on a substantial body of submissions, including a 22-page written submission from senior counsel for Davis.
On the question of Smith's in-company liability, the judge noted some tension or inconsistency between the respective pleas and found the characterisation of Smith as acting in company with Davis and Charnock to be "somewhat problematic" on the evidence. This finding was to be reflected in the court's fact-finding for sentencing purposes. The judge also flagged that parity considerations between Davis and Charnock would be addressed when Charnock came to be sentenced, and that those remarks would be relevant to both matters given the interconnected nature of the offending.
Orders Made
• The second sentence is to commence on 10 June 2017
• A s 77 order is directed
• Matter set for mention at 9:30am on 15 July 2016
Key Takeaways
- The District Court confirmed that sentencing for violent offences must account for a range of factors beyond the objective gravity of harm to victims, and that mitigating subjective circumstances remain relevant even where consequences are severe.
- Where co-offenders are sentenced at different times, parity principles require careful attention: the court expressly noted that its remarks on Davis's sentence would be relevant when Charnock came to be sentenced later.
- A finding that the "in company" element of a charge is factually problematic can affect the sentencing outcome, even where the offender has pleaded guilty to an offence carrying that element.
- Under s 35(1) of the Crimes Act 1900, recklessly causing grievous bodily harm in company carries a maximum of 14 years imprisonment and a standard non-parole period of five years; under s 33(1)(b), intentionally causing grievous bodily harm carries a maximum of 25 years and a standard non-parole period of seven years.
- Sentencing proceedings that involve multiple co-offenders, extensive factual material, CCTV evidence, and a site view may require adjournment where the interconnected nature of the matters means one offender cannot fairly be sentenced without reference to findings made or information yet to be obtained in related proceedings.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(1), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Mill v R (1988) 166 CLR 59
- Pearce v The Queen (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
- Yardley v Betts (1979) 22 SASR 108