Citation: Davis v R [2018] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 13 April 2018
Judge(s): Leeming JA (with Fullerton J and McCallum J agreeing)
Background
The appellant pleaded guilty to one count of reckless wounding and one count of recklessly causing grievous bodily harm in company, arising from a violent assault on two men at a Queanbeyan hotel in August 2014. The appellant struck the first victim a single punch that rendered him unconscious; that victim later made a full recovery. The second victim suffered two jaw fractures, a subsequent stroke, and permanent partial blindness, among other lasting injuries. The primary judge rejected the appellant's claim that the confrontation was provoked, finding instead that the appellant rushed at the victims within a minute of their arrival at the hotel.
The appellant was sentenced to an effective non-parole period of two years, with a balance of term of two years and two months. He had no prior criminal record and had entered his guilty plea approximately 19 months after the offending, attracting a 15 per cent discount. He was self-represented in the Court of Criminal Appeal, filing handwritten submissions without legal assistance.
A co-offender had already been sentenced by the same primary judge on the same day, and the Court of Criminal Appeal had already determined that co-offender's sentence appeal before this matter was heard.
Legal Issues
- Whether the sentencing judge failed to take into account the appellant's mental health history and post-offence psychological treatment
- Whether the sentencing judge's failure to find remorse constituted a material error
- Whether the appellant's intoxication at the time of the offending was a relevant mitigating factor
- Whether the sentence was manifestly excessive
- Whether a parity issue arose from the sentence imposed on the co-offender Mr Charnock
Decision
On the mental health ground, Leeming JA found that the primary judge had expressly considered the appellant's difficult background, including the deaths of his brother and an infant child, his long-term mental health concerns, and his counselling history. The suggestion that former solicitors were negligent in not obtaining a formal mental health report was noted, but was not characterised as "flagrant incompetence" sufficient to ground appellate intervention under the standard established in R v Birks. No material error was established.
On the question of remorse, the primary judge had found that the appellant's expressions of remorse were not genuine, relying on the contents of a pre-sentence report alongside his rejection of the claim that the victims provoked the attack. The Court found this reasoning open to the primary judge: a sentencing court is not obliged to find remorse simply because a defendant expresses it, and the finding was consistent with the primary judge's broader factual conclusions.
Regarding intoxication, the Court noted that the primary judge had considered it but was entitled to treat it as an aggravating rather than mitigating factor in the circumstances, given that the appellant had voluntarily consumed alcohol and the attack was not impulsive in a way that could be attributed to intoxication alone. The Court also rejected the manifest excess argument, describing the effective sentence as one that could fairly be characterised as generous given the seriousness of the offending, the applicable maximum penalties and standard non-parole periods, and the relatively modest guilty plea discount.
The parity ground, added during the hearing by leave, was dismissed concisely. The co-offender Mr Charnock was serving a lengthy pre-existing sentence for an unrelated drug supply matter, to which the assault sentence was accumulated. The appellant, by contrast, was the only person who struck the first victim and was the first to strike the second. The Court found that the objective and subjective circumstances between the two men were sufficiently different that no material parity issue arose.
Orders Made
- Extension of time to appeal granted to the extent necessary
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge's refusal to find genuine remorse is not a material error where that finding is grounded in a pre-sentence report and a broader rejection of the offender's version of events.
- Where a primary judge expressly addresses an offender's mental health history and personal disadvantage in sentencing remarks, an appellate court will not readily find that those matters were overlooked, even if no formal psychological report was tendered.
- Voluntary intoxication does not operate as an automatic mitigating factor in sentencing; a sentencing court may treat it as aggravating depending on the circumstances of the offending.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that meaningful differences in the objective seriousness of individual roles and in co-offenders' subjective circumstances can defeat a parity argument, even where offenders are sentenced by the same judge on the same day.
- No error was established simply because a co-offender received a shorter additional term, where that co-offender was already serving a substantial sentence for separate offending and the two offenders did not play equivalent roles in the assault.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 35 (reckless wounding and recklessly causing grievous bodily harm in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)
- Criminal Appeal Act 1912 (NSW), s 5 (right to appeal against sentence)
Cases
- R v Birks (1990) 19 NSWLR 677 (flagrant incompetence standard for legal representative failure)
- Smith v R [2017] NSWCCA 175 (sentence appeal by co-offender, determined prior to this matter)