Duane Paul David DAVIS v R

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

PARTIES: Duane Paul David Davis Regina

COUNSEL: M Grogan - Crown C Loukas - Applicant

SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2008/7462

ALLSOP P HOWIE J HISLOP J

THURSDAY 26 NOVEMBER 2009 Duane Paul David DAVIS v REGINA Judgment 1 ALLSOP P: I agree with Howie J. 2 HOWIE J: The applicant was sentenced in the District Court at Lismore for an offence of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900. This is an offence that carries a maximum penalty of imprisonment for 20 years and for which a standard non-parole period of 5 years has been prescribed. The matter of aggravation charged was that the applicant recklessly inflicted actual bodily harm on two persons, being the two occupants of the premises that he entered. The applicant asked the sentencing judge, Judge Black, to take into account two matters on a Form 1, being two charges of assault occasioning actual bodily harm upon the same two occupants. 3 On 12 September 2008 the applicant was sentenced to a term of imprisonment consisting of a non-parole period of 3½ years with a balance of term of 2½ years to date from 7 March 2008. The applicant is eligible to be considered for release to parole on 6 September 2011. 4 The facts can be briefly stated. On 7 March 2008 the two victims, aged in their early 50s, were staying with friends in premises at Bogangar in the Northern Rivers area. At about 10.30pm the owner of the premises left to attend work. Later the male victim, Mr Crockett, heard a noise coming from the hall and saw a shadow in one of the bedrooms. He went to the room and saw the applicant. He asked him what he was doing. The applicant replied, "Nothing". He then picked up a suitcase and charged at Mr Crockett striking him on the head. They ended up in a scuffle on the floor. 5 Mr Crockett got the better of the applicant and, while he pinned him to the floor, the female resident telephoned the police. The applicant complained he could not breathe and Mr Crockett relaxed his grip whereupon the applicant broke free of his hold. They started to wrestle and the applicant placed Mr Crockett in a headlock causing him to choke. Ms Crockett attempted to free her husband but was fended off by the applicant. 6 Police arrived and were shown to the bedroom where the applicant was still holding Mr Crockett. Police freed him and then arrested the applicant. Police ascertained that a fly screen had been removed from a window. They found a pillowcase in which were jewellery boxes belonging to the female resident and containing jewellery worth more than $10,000. There was also other property that had not come from those premises. 7 Mr Crockett suffered bruising and swelling to his neck and Ms Crockett had small cuts to the back of both hands. 8 The applicant was born in 1978. He has a record dating back to 1994. In 1997 he was placed on a bond for break, enter and steal. He was sentenced to imprisonment for 12 months with a non-parole period of 6 months in 2001. In 2002 he was sentenced to imprisonment for 18 months with a non-parole period of 7 months for break, enter and steal. In 2006 he was sentenced for a break, enter and steal offence to imprisonment for 6 months and 1 day with a non-parole period of 3 months. He was placed on bonds for driving offences. In 2008 he received a short term of custody for driving offences. 9 There was a pre-sentence report in evidence. It indicated that the applicant had a long history of association with the Probation and Parole Service including a number of occasions when he breached non-custodial orders by failing to keep contact with the Service. The report notes that the applicant continued to abuse illegal drugs and alcohol while under supervision. There is little in his background of relevance except that he was placed upon a Disability Support Pension as a result of drug and mental health issues. 10 The report states that the applicant was diagnosed with schizophrenia and depression seven years earlier. He has a history of failing to take his medication, falling ill and then "self-medicating" with alcohol and illegal drugs. During his current period of custody he has been placed on a methadone programme and treated with antidepressants. He commenced using illegal drugs at the age of 14. He had been using drugs throughout the period he was on bonds that were current at the time of these offences. The report contained the following:

[The applicant] has an unenviable history of non-compliance with supervision, breaching many of the orders he has been placed on. He has seemingly displayed little or no interest in ceasing his drug and alcohol misuse whilst under supervision. He superficially acknowledges the need for him to remain long term on his antipsychotic medication. However, he seems to display little insight into his psychiatric condition. Hence, when he becomes "well" he tends to cease taking the prescribed medication and "self medicates" by using alcohol and illegal drugs. It would appear that if he is ever to lead a drug free and law-abiding lifestyle, it will be imperative that the offender continues to take his psychiatric medication and to refrain from drug and alcohol misuse. 11 The applicant wrote a letter to the Judge. In it he said that he had committed this "stupid crime" to pay for his drug addiction. He said that he was "truly sorry" for committing the offence and would like to say sorry to the victims. He stated that he had been taking a number of courses and undertaking high school studies while in custody. He said that he had never had the opportunity to do community service for rehabilitation and asked the Judge to consider such an option. He stated that, recently having become a father, he would be able to refrain from drug and alcohol misuse and would take his prescribed medication. There was also placed before the Judge letters from the applicant's partner and his sister both asking that the applicant be given the opportunity to undertake rehabilitation. 12 The applicant gave evidence. He acknowledged that he had lied to his probation officer about his misuse of drugs and alcohol because he was concerned about being in breach of his bonds. He indicated that he had commenced a methadone program while in custody and was taking his prescribed medication. He had completed a number of courses. He stated:

I'm really hoping that this will be the last incident in my, could I say, criminal life I've had. I've learnt that drugs and alcohol are no good for me, even in small doses, in any doses at all, so the main outcome would be not to touch drugs and alcohol ever again.

He gave evidence that the effect of the birth of his son had been "really life changing" and that it is very emotional for him when his partner visits the gaol with his child. 13 The applicant's partner also gave evidence about the attitude of the applicant following the birth of his son and expressed the view that he needed rehabilitation from his drug and alcohol abuse. 14 The sentencing remarks are very brief. His Honour stressed that he was not increasing the sentence by reason of the matters on the Form 1. After stating the facts, the Judge noted that the offence was aggravated by reason of the applicant being on a bond. He indicated that the applicant's record, while suggesting the need for general and personal deterrence, was not an aggravating factor. His Honour noted the standard non-parole period as a "significant guideline" and found the offence being "on the more serious side of its type". He indicated that had it not been for the plea of guilty he would have imposed a sentence of 8 years that he reduced to 6 years. 15 His Honour found special circumstances "bearing in mind what is called the Fernando principle" and having regard to his background "in his childhood of drugs". He also took into account the "motivating factor" of his partner and child. 16 There is only one ground of appeal filed that contends that the sentence is manifestly excessive. Support for this contention was placed upon statistics maintained by the Judicial Commission. They reveal that, as against a maximum penalty of 20 years, the highest sentence imposed for a single offence is eight years. Despite a standard non-parole period of 5 years applying, the range of non-parole periods for all offenders is between six months and six years. It is also noted that the applicant's sentence is in the top 12 per cent for offenders with characteristics similar to the applicant and where there has been a plea of guilty. The non-parole period is in the top 8 per cent for offenders with similar characteristics. As is almost inevitably the case, resort to statistics indicates that sentences imposed do not reflect the maximum penalty prescribed. 17 It was submitted on behalf of the applicant that his Honour was erroneous in assessing the offence as being "on the more serious side". It must be stated that his Honour has failed to approach the matter in accordance with the decisions of this Court concerned with sentencing for offences where there is a standard non-parole period. He has failed to undertake the stepped approach of determining the objective seriousness of the offence, then taking into account s 21A matters and lastly considering whether there are special circumstances. There are no reasons given for his determination of the objective seriousness of the offence. Presumably his Honour's finding meant that the offence was above midrange, but to what degree and for what reasons are matters left unstated. 18 With respect the sentencing remarks are completely inadequate. In the absence of reasons for, and clarity as to, the assessment of the objective seriousness of the offence it is difficult to give the finding the support that it would normally deserve; cf Mulato v R [2006] NSWCCA 282. 19 The applicant contends that his Honour was in error in his assessment of the seriousness of the offence having regard to the matter of aggravation alleged being the reckless infliction of actual bodily harm. He refers to the nature of the injuries and the mental element of recklessness. It should be noted, however, that the injuries need only amount to actual bodily harm and the injuries suffered by the male victim, at least, were in the upper range of that category. In any event it is not so much the nature of the injuries that were inflicted, although that was the charged matter of aggravation, it was the manner in which they were inflicted that increased the seriousness of the offence. This is yet another case of a person who, having broken into a home and being confronted by an occupant, chooses to resort to violence. Significant sentences should be imposed for such conduct both to denounce it and in an attempt to deter such behaviour. 20 However, this was not the only matter of aggravation. There were two victims, the applicant is taken to have known that there were persons in the premises, and he used corporal violence. It was the applicant who first acted with physical violence. Further, having gained a position of superiority to Mr Crockett, he chose to place him in a headlock rather than seeking to escape. There was a substantial amount of property being stolen. The offence was planned because the applicant had objects over his hands to avoid leaving fingerprints. 21 The Court was taken to a number of cases by way of a schedule and particular decisions to support the argument that the sentence was outside the range. One of the decisions particularly relied upon was Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498. In that case I said:

30 One of the problems with statistics in cases where the standard non-parole period applies is that they tend to suggest that the standard non-parole period is being largely disregarded. If an offence is within midrange of seriousness and there is no reason to reduce the standard non-parole period, then the appropriate sentence is the standard non-parole period whatever the sentencing statistics might reveal. In respect of an offence where the maximum penalty is 20 years and the standard non-parole period is 5 years, it is surprising that so few persons have received a head sentence exceeding the standard non-parole period. The statistics tend to suggest that the sentences imposed for this offence do not fully take into account either the maximum penalty or the standard non-parole period. These are offences that generally involve the breach of the security of a person's home in circumstances where there is a real likelihood of injury occurring, or where injury in fact does occur, to the householder. They are offences that generally require condign punishment. This is not borne out by the statistics.

That comment still remains applicable to the statistical information provided to the Court at the hearing of this matter. 22 In Maxwell this Court reduced the sentence because the judge had erred in the manner in which he had used the standard non-parole period to determine the appropriate sentence. The sentence imposed was a non-parole period of 2 years 6 months and a balance of term of 1 year 6 months. But the offence there being considered by the Court was far less serious than the present offence. It was an incident in an ongoing domestic dispute. The applicant was drunk and entered the premises to dissuade the residents from further conduct. He incidentally stole $100 lying on a table as he left the premises. The injuries inflicted upon one of the residents in a scuffle were minor. The Court held that the offence was "significantly below midrange". 23 In the present case the offence was in the upper midrange of objective seriousness. Although the charged aggravating factor was the reckless infliction of harm, there was little mitigation in the harm being not intentionally inflicted having regard to the fact that the harm to both victims was the result of a physical attack upon the male occupant. As I have earlier indicated there were other aggravating factors that applied. There was a degree of professionalism about the offence, which was clearly planned and property of substantial value was being stolen. 24 There is nothing in the schedule of cases supplied or the decisions to which this Court was referred that indicates to my mind that the sentence was so excessive as to fall outside his Honour's discretion. Although the sentence may be towards the top of the range if the bare statistics are considered, that merely indicates that the range may be too low. The sentencing remarks can be criticised for the failure of the Judge to approach the task of sentencing for an offence where a standard non-parole period is involved in the manner that this Court has laid down in numerous cases. But the sentence is an appropriate one and certainly no lesser sentence is warranted even having regard to the material filed in this Court as to the applicant's progress in custody. 25 The applicant was fortunate to have a finding of special circumstances made and the resultant non-parole period was lenient having regard to the applicant's criminal record and his persistent failure to abide by conditions previously imposed upon his liberty and designed to assist in his rehabilitation. 26 I propose that the application for leave be granted but the appeal dismissed. 27 HISLOP J: I agree with Howie J. **********

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