R v Davis [2003] NSWCCA 62

New South Wales Court of Criminal Appeal

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: