Duane Paul David DAVIS v R [2009] NSWCCA 279

New South Wales Court of Criminal Appeal

CITATION: Duane Paul David DAVIS v R [2009] NSWCCA 279

HEARING DATE(S): 11/11/2009

JUDGMENT DATE: 26 November 2009

JUDGMENT OF: Allsop P at 1; Howie J at 2; Hislop J at 27

DECISION: Application for leave is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - appeal against sentence - aggravated break and enter - assaulting residents and inflicting injuries - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - s 112(2)

CATEGORY: Principal judgment

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

FILE NUMBER(S): CCA 2008/7462

COUNSEL: M Grogan - Crown C Loukas - Applicant

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/7462

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 12/09/2008

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: