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[2003] NSWCCA 62
respondent. Leave to appeal granted; appeal dismissed. The sentence of three years and four months' imprisonment, with a non-parole period of two years and six months, was not disturbed.
No linked legislation citations have been extracted yet.
Davis sought to reduce his sentence for a serious, planned hotel robbery. The Court considered his arguments about assistance evidence, personal circumstances, and the non-parole period. It did not need to resolve the assistance-evidence concern conclusively because it found the sentence appropriate even if potentially adverse information was ignored. It also found no error in the treatment of special circumstances. Leave to appeal was granted, but the appeal was dismissed.
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2,320 words · generated 30/09/2026
In R v Davis [2003] NSWCCA 62, the New South Wales Court of Criminal Appeal considered Ross Parker Davis's application for leave to appeal against his sentence for robbery in company. Studdert J delivered the principal reasons, and Wood CJ at CL agreed with the proposed order ([1], [26]-[27]). The Court granted leave to appeal but dismissed the appeal.
The robbery occurred at Boyles Hotel, Sutherland, at about 3.00 am on 21 May 2000. Davis and Edwards went to the rear of the hotel, where an employee was taking out rubbish. They forced that employee inside, where two other employees were present. Davis wore a balaclava, had socks on his hands to avoid leaving fingerprints, and used a replica pistol. He helped tape up two employees, one of whom was pregnant. The offenders took $4,600 belonging to the hotel proprietor and $40 from the bar manager ([2]). Edwards did most of the talking and took the money, while Davis played a supportive role. The sentencing judge nevertheless regarded the offence as objectively extremely serious ([7]).
Davis raised duress at trial. He said Edwards had threatened to kill Davis and his partner if they did not cooperate, and had produced a gun during the threats. The trial judge accepted that threats had been made and that Davis feared for his and his partner's safety. However, the judge found that the threats would not have caused a person of ordinary firmness of mind and will, of the same sex and maturity as Davis, to yield in the way he did. The judge also found that Davis had ample opportunity to report the threats and robbery plan to authorities ([6]).
On 14 June 2002, Davis received three years and four months' imprisonment, with a non-parole period of two years and six months ([1]). The sentencing judge took two Form 1 matters into account: cannabis possession and possessing goods reasonably suspected of having been stolen. The judge considered that those matters did not require an appreciable increase in the penalty for the robbery ([5]).
The sentencing judge also considered material relating to Davis's assistance to authorities. The judge awarded a discount of about 30 per cent for assistance and considered that Davis could face risk in prison and probably after release because of that assistance ([10]). However, the judge treated the material as showing at least intimate knowledge of other people's criminal activities, which reduced the extent to which the robbery could be seen as an isolated event entirely out of character ([13]-[15]).
Davis challenged the use of that material, the total sentence as manifestly excessive, and the consideration of special circumstances in fixing the non-parole period ([12], [20]-[25]). The Court rejected each ground.
The first issue concerned the assistance evidence. Davis argued that a statement made to assist authorities under an undertaking that it would not be used against him should only be admitted on that restricted basis. The judgment discussed R v Bourchas [2002] NSWCCA 373, R v Raz (unreported, NSWCCA, 17 December 1992), and R v Potter (1994) 72 Crim App R 108. Studdert J noted tension between the decisions, and identified Bourchas as the latest statement of principle among them ([16]-[18]).
The relevant principles from Bourchas, reproduced at [18], included that an offender bears the burden of proving assistance as a mitigating factor, that the Crown should assist with that task, and that the Crown should not tender the assistance evidence over the offender's objection. They also addressed the restricted use of statements given under an undertaking. Where there is no agreed basis of tender or ruling when the statement is admitted, whether its use is restricted depends on the circumstances, but normally the information cannot be used against the offender ([18]).
In Davis's case, the material was an affidavit from a police officer and was tendered without objection. There was no agreed basis of tender or ruling at the time it was admitted. Studdert J considered that the circumstances might fit the principle in paragraph 6 of Bourchas, but did not decide that the evidence had necessarily been used impermissibly. Instead, the Court asked whether any possible error required intervention ([17], [19]-[20]).
The decisive point was that the sentence remained appropriate even if the potentially adverse content of the material was ignored. Studdert J expressly assessed the sentence on that basis and concluded that no lesser term was appropriate ([23]). This meant the Court could reject the ground without resolving every question about the precise restriction that applied to the affidavit.
The second issue was whether the sentence was manifestly excessive. The Court considered the mitigating matters advanced for Davis: the limited effect of the Form 1 offences, his remorse, the threats, Edwards's leading role, Davis's supportive role, and the risks associated with his assistance to authorities ([21]). The Court also acknowledged his employment history, family support, prospects of rehabilitation, and otherwise relatively minor prior convictions ([8]-[11]).
Those matters did not displace the seriousness of the offence. The robbery was premeditated, carried out in the early hours, directed at employees in a vulnerable workplace, and involved taping up two of them ([23]). The replica pistol was not known by the victims to be a replica ([7]). The Court concluded that the sentencing judge had given proper attention to both the offence and Davis's personal circumstances, and that the sentence was not manifestly excessive ([23]).
The final sentencing issue concerned special circumstances and the non-parole period. The sentencing judge's remarks referred to a non-parole period of “two years and four months”, followed by Studdert J's clarification that this “should have been six months” ([24]). The sentence set out at [1], and the Court's conclusion at [25], identify the non-parole period as two years and six months. The Court rejected the argument that the judge had failed to consider special circumstances. It reasoned that special circumstances are not confined to rehabilitation, citing R v Simpson (2001) 126 A Crim R 525 at 537-538, and concluded that the judge had applied his mind to the question before determining the ratio between the non-parole and parole periods ([25]).
The judgment addresses two sentencing topics, but it is important not to read it as establishing more than its reasons say.
For assistance evidence, the Court applied the principles collected in Bourchas. Those principles distinguish between the offender's use of assistance as mitigation and the potential use of assistance information against the offender. In particular, a statement provided under an undertaking against adverse use may be admitted on a restricted basis. The judgment also records that, absent an agreed basis of tender or a ruling at admission, the circumstances determine whether the restriction applies, although the usual position is that the information cannot be used against the offender ([18]).
The case's contribution on this point is its treatment of a practical gap: the evidence was admitted without objection and without a defined basis of tender. Studdert J said it is “highly desirable” that parties define the basis when assistance-related material is tendered ([20]). That observation is guidance arising from the problem in this appeal. The Court did not hold that every unobjected-to tender waives an undertaking, nor did it finally determine the scope of any undertaking applying to Davis's material. Its disposition instead rested on the conclusion that the sentence was appropriate even with the disputed adverse material excluded from consideration ([19]-[23]).
On special circumstances, the judgment cites Simpson for the proposition that those circumstances are not limited to rehabilitation ([25]). The Court's application was narrow: it considered the sentencing judge's reasons and concluded that the judge had addressed special circumstances before fixing the non-parole period. It did not set out an exhaustive account of what may constitute special circumstances.
The judgment itself does not provide a later account of the law or describe how subsequent courts treated Davis. It therefore supports an explanation of what the Court decided in 2003, but not claims about any later change in doctrine or the case's treatment after that date.
At [18], the judgment sets out the relevant Bourchas principles. The practical meaning is that a party should make clear, when assistance evidence is tendered, whether the information is admitted subject to a restriction against adverse use. If the parties disagree, the judgment says the issue can be decided by a ruling in the ordinary way. Where neither an agreed basis nor a ruling exists, the circumstances matter, and the usual position described in Bourchas is that assistance information cannot be used against the offender.
At [20], Studdert J states that it is “highly desirable” for the basis of admission to be defined at the time of tender. This is a procedural lesson drawn from the uncertainty in Davis's sentencing hearing. It does not itself determine the consequences of every failure to clarify the basis.
At [23], the Court says it has assessed the sentence while “ignoring altogether any adverse content” in the assistance material. In plain English, even if the sentencing judge should not have relied on that information against Davis, the Court considered the remaining circumstances sufficient to support the sentence. This was central to rejecting the first ground and the manifest-excess ground.
At [25], the Court concludes that Davis should spend no less than two years and six months in prison. The passage records the Court's view of the appropriate period in this case after weighing the objective and subjective features. It is not a general rule fixing a non-parole period for comparable offences.
At [26], Studdert J proposes granting leave but dismissing the appeal. Wood CJ at CL agrees at [27]. The outcome therefore distinguishes permission to have the appeal considered from success in changing the sentence: leave was granted, but the sentence remained undisturbed.
The assistance-evidence reasoning is relevant where sentencing material about an offender's cooperation or assistance to authorities may also reveal adverse information about that offender. The factual features to compare are whether an undertaking restricted use, who tendered the material, whether the offender objected, and whether the parties or the judge specified a basis for admission. Those were the questions discussed through Bourchas at [16]-[20].
The decision is particularly pertinent to a situation where assistance material is tendered without a clear agreement or ruling. Its practical observation is that the permitted use should be defined at tender ([20]). Davis does not conclusively determine the effect of an undertaking in every such situation, because the Court was able to decide the appeal on the basis that the sentence was appropriate without adverse reliance on the disputed material ([23]).
The manifest-excess discussion concerns an appeal where the offender relies on strong subjective features, but the offence also has substantial objective seriousness. Davis's facts included planning, a late-night setting, vulnerable employees, a replica pistol, and the taping of two victims ([2], [7], [23]). The Court weighed those features against Davis's supportive rather than leading role, remorse, family support, prospects of rehabilitation, and assistance-related risks ([8]-[10], [21]-[23]). The judgment does not establish that any one feature will determine the result in another case.
The special-circumstances discussion may be relevant where an argument treats rehabilitation as the only possible basis for special circumstances. The Court referred to Simpson to reject that limitation ([25]). It then considered whether the sentencing judge had actually applied his mind to the issue. The focus was therefore both on the scope of the concept and on what the sentencing judge's remarks showed about the exercise undertaken.
The supplied judgment contains no decisions after 17 March 2003 and no account of later judicial treatment of Davis. It is not possible, from this source alone, to say whether later courts followed, distinguished, limited, or questioned it.
Within Davis, the authorities are treated as follows. The Court identified Bourchas as the latest pronouncement among the assistance-evidence authorities and reproduced its principles ([18]). It noted tension between Bourchas and Raz, and between those decisions and Potter ([18]). It referred to Simpson for the point that special circumstances are not confined to rehabilitation ([25]). Those are the relationships shown by the judgment itself; they should not be confused with later treatment of Davis by other courts.
A later-treatment assessment would require later judgments or another supplied legal source. Without those materials, a source-grounded account should remain limited to what the Court said in this case and the authorities it cited.
The Court left unresolved whether the assistance material in Davis's case was, in the relevant circumstances, subject to a restriction against adverse use. It observed that the circumstances might fall within the principle in Bourchas concerning the absence of an agreed basis or ruling, but it did not need to decide the point conclusively ([19]-[20]). The Court instead held that the sentence remained appropriate when the adverse content was ignored ([23]).
The reasons do not identify a universal consequence where assistance material is tendered without objection and without an agreed basis. They emphasise that the circumstances matter and recommend clarifying the basis at admission ([18]-[20]). The judgment does not explain whether different facts, such as an express objection or a specific undertaking, would lead to a different result.
The judgment also does not provide a general formula for deciding manifest excess in robbery-in-company cases, or an exhaustive definition of special circumstances. Its conclusions depend on the specific facts and sentencing remarks before the Court ([23]-[25]). Any attempt to apply the reasoning to another sentence would need to account for that case's offence features, personal circumstances, record, assistance evidence, and the sentencing judge's reasoning.
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CITATION : R v Davis [2003] NSWCCA 62 HEARING DATE(S) : 17 March 2003 JUDGMENT DATE : 17 March 2003
JUDGMENT OF : Wood CJ at CL at 27; Studdert J at 1 DECISION : Leave to appeal granted; appeal dismissed
LEGISLATION CITED : Crimes Act, s 97(1) R v Bourchas [2002] NSWCCA 373 CASES CITED : R v Potter (1994) 72 Crim App R 108 R v Raz (unreported, NSWCCA, 17 December 1992) R v Simpson (2001) 126 A Crim R 525 PARTIES : Regina v Ross Parker Davis FILE NUMBER(S) : CCA 60376/02 COUNSEL : D.M. Howard (Crown) R.W. Burgess (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant)
LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0264 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL 60376/02
WOOD CJ at CL STUDDERT J
Monday 17 March 2003 REGINA v ROSS PARKER DAVIS Judgment 1 STUDDERT J: The applicant, Ross Parker Davis, stood trial in the District Court charged with the offence of robbery in company and was found guilty. On 14 June 2002 the applicant was sentenced to imprisonment for a term of three years four months commencing on 26 February 2002 and expiring on 25 June 2005. The sentencing judge set a non parole period of two years six months commencing 26 February 2002 and expiring 25 August 2004. The applicant seeks leave to appeal against this sentence. Section 97(1) of the Crimes Act fixes a maximum penalty of twenty years imprisonment for this category of offence. 2 The crime was committed at Boyles Hotel, Sutherland, on 21 May 2000, and I draw on the remarks on sentence of the sentencing judge for a short outline of the objective facts. The robbery was committed at about 3.00 am. There were three employees on duty at the hotel, the bar manager and two others. One of these employees was a pregnant young lady. The applicant met his fellow offender, a man named Edwards, outside the hotel and after they joined up they went to the back of the hotel where one of the employees was putting the rubbish out. That employee was accosted and forced inside where the two remaining employees were and the robbery occurred. Edwards did most of the talking and took the money but the applicant taped up one employee and assisted in taping up the other, the latter being the pregnant woman. The applicant was wearing a balaclava and had socks on his hands to avoid leaving fingerprints. He used a replica pistol in the robbery and the equipment used was brought to the crime scene in the applicant's car. The amount taken comprised $4600 in cash, the property of the proprietor of the hotel and forty dollars in cash was taken from the wallet of one of the victims, namely the bar manager. 3 The applicant was arrested at home on 23 June 2000 and was interviewed by the police when he admitted his role in the offence. 4 The employee of the hotel who had taken out the rubbish gave evidence of a discussion with the applicant days before the robbery about the possibility of its occurrence and was himself charged in connection with it. The other offender, Edwards, was at the time the applicant was sentenced in prison in Victoria and had not stood trial concerning the robbery at Boyles Hotel. 5 The sentencing judge was asked to take into account, and did take into account, two offences listed in a Form 1 schedule. One of these related to the possession of 135 grams of cannabis leaf on 21 May 2000, and the other to having goods in custody reasonably suspected of having been stolen, namely one security licence, one disabled parking authority and one car stereo with graphic equaliser. As to the scheduled offences the sentencing judge observed he had no details of those offences before him. Whilst he did not regard those offences as being insignificant he took the view they did not require any appreciable increase in the penalty he would otherwise impose for the armed robbery. 6 At trial the applicant raised an issue of duress and gave evidence that Edwards had threatened to kill both the applicant and his partner if they did not co-operate in the robbery, and indeed he produced a gun at some stage of those threats. The judge found that threats had been made in consequence of which the applicant feared both for his safety and for that of his partner, but expressed doubts as to whether those fears and threats were the cause of his participation in the robbery. His Honour went on, however, to find he had absolutely no doubt that in the circumstances the threats were not such as to cause a person of ordinary firmness of mind and will and of the same sex and maturity as the applicant to yield to the threat in the way in which the applicant had done. The judge found explicitly that the applicant had ample opportunity to report the threats and the plan for the robbery to the authorities. 7 Whilst the judge found Edwards was the moving party in every respect and that the applicant played only a supportive role, objectively the crime committed could only be viewed as being extremely serious. The hotel employees who were victims of the crime were working in a vulnerable environment and the public interest required such people should be protected and that any sentence imposed should have adequate regard to the issue of deterrence. The replica pistol brandished by the applicant was not known to the victims to only be a replica. 8 I pass to the subjective features of the case. The applicant was born on 1 April 1963. He was therefore thirty-seven years of age when he committed this crime. He had three siblings and his mother and father, all of whom were supportive of him and indeed his father gave evidence in the sentencing hearing. He also had the support of his partner. He and his partner were the parents of a young child, eighteen months of age. The applicant was educated to high school level and began, but did not complete, university study. Thereafter he had regular employment in a number of positions including work as a surveyor's assistant. His Honour noted that the surveyor was willing to provide the applicant with work at any stage. 9 The sentencing judge recorded that the applicant had expressed his remorse and resolved to avoid future criminal activity, and the judge was prepared to accept that the chances of the applicant adhering to a life free of crime in the future were quite good. The judge also concluded from the report of the Probation and Parole Service that any supervision by that service in the future would need only to be in the nature of a monitoring role. 10 There was evidence of assistance placed before the sentencing judge which he concluded warranted a discount of the order of thirty per cent. The judge took into account that the applicant would be likely to be at risk in the prison system and indeed probably upon his release because of that assistance. 11 The applicant had some prior convictions in respect of minor offences including traffic offences both in New South Wales and Queensland, but the judge observed he considered that history of no particular relevance for the purpose of sentence and that assessment had not been challenged. 12 Against the above background I turn to the grounds of appeal which have been presented on the applicant's behalf:
5 When the offender tenders a statement made by way of assistance to the authorities, or accepts the Crown's assistance in tendering such a statement, it is prudent that the basis of the tender be agreed and stated showing any restriction on the use of the information in the statement; if there is disagreement, a ruling can be made in the normal way.
(1) the Form 1 matters did not require any appreciable increase in the penalty that ought otherwise to have been imposed;
(2) the applicant was entitled to proper consideration for his contrition and remorse;
(3) the applicant feared for his safety and that of his partner because of the threats made by Edwards;
(4) had it not been for Edwards the applicant would not have committed the offence;
(6) the applicant was at added risk in the prison system because of the assistance given. 22 Having regard to those matters and what was submitted to be a strong subjective case, and since this would be the applicant's first period of imprisonment, it was submitted that the starting point of five years was manifestly excessive. 23 With that submission I do not agree. The remarks on sentence indicate that the judge duly heeded all the circumstances of the commission of the offence and all the matters in the nature of subjective circumstances. His Honour had to give appropriate weight to the serious objective features of this case. It was a premeditated crime committed in the early hours of the morning against people in a vulnerable position and it involved the taping of two of the employees. In my opinion no less a term of imprisonment than was here imposed would have been appropriate, and I so conclude, ignoring altogether any adverse content in the material considered by the Court which attracted the discount of thirty per cent.
(That, of course, should have been six months.) 25 It is argued that because his Honour found the applicant's prospects of rehabilitation were good, he must have decided that there were no other circumstances which could have amounted to special circumstances to justify a variation of the non-parole period. Given that special circumstances are not limited to considerations of rehabilitation: see Simpson (2001) 126 A Crim R 525 at 537-538, it is clear that his Honour applied his mind to the question of special circumstances before determining the ratio of non-parole to parole periods. I am not persuaded that the judge was wrong in not setting a lower non-parole period having regard to the crime committed. His Honour was, indeed to my mind, correct in determining that in the circumstances of this case on a careful weighing of both the objective and subjective features the applicant should spend no less a period than two years six months in prison. 26 This Court was asked, in the event that the appeal was not to succeed, to refuse leave to the applicant because of the fact that Edwards is yet to be dealt with. It seems to me that this Court should not be influenced by the fact that Edwards has not yet come before a Court for his part in this crime. I would grant leave to appeal here but in my opinion the appeal should be dismissed. 27 WOOD CJ AT CL: I agree. The order of the Court will be as Justice Studdert has proposed. **********
Last Modified: 03/24/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
R
Davis
Leave to appeal granted; appeal dismissed. The sentence of three years and four months' imprisonment, with a non-parole period of two years and six months, was not disturbed.