Davison v R [2019] NSWCCA 179

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Davison v R [2019] NSWCCA 179 Hearing dates: 24 July 2019 Date of orders: 05 August 2019 Decision date: 05 August 2019 Before: Gleeson JA at [1]; Johnson J at [2]; Price J at [3] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Quash the sentences imposed in the District Court of New South Wales on 22 June 2018. (4) For the offence of stealing a motor vehicle contrary to s 154F of the Crimes Act 1900 and taking into account the offence on the Form 1, the applicant is sentenced to a fixed term of imprisonment of 9 months commencing on 2 February 2018 and expiring on 1 November 2018. (5) For the offence of aggravated break and enter with intent to commit a serious indictable offence contrary to s 113(2) of the Crimes Act, the applicant is sentenced to 2 years 9 months imprisonment consisting of a non-parole period of 18 months commencing on 2 May 2018 and expiring on 1 November 2019 with a balance of term of 15 months commencing on 2 November 2019 and expiring on 1 February 2021. (6) The earliest date the applicant will be eligible to be released on parole is 1 November 2019. Catchwords: CRIME – Appeals – Appeal against sentence – stealing motor vehicle and aggravated break and enter – applicant pleaded guilty whereas co-offender was found guilty after jury trial – parity – whether disparity in sentences explained by differences in subjective cases – whether justifiable sense of grievance – whether reduction in sentence would produce an erroneously lenient sentence – whether co-offender's sentence manifestly inadequate – consideration of head sentence and non-parole period – re-sentence Legislation Cited: Crimes Act 1900 (NSW) ss 113, 154F Crimes (Sentencing Procedure) Act 1999 (NSW) ss 11, 22A Cases Cited: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Hall [2017] NSWCCA 313 R v Kollas and Mitchell [2002] NSWCCA 491 R v llbay [2000] NSWCCA 251 R v Reilly; R v Smith [2012] NSWCCA 166 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Saraya v R [2015] NSWCCA 63 Youkhana v R [2011] NSWCCA 37 Category: Principal judgment Parties: Mervyn John Davison (Applicant) Regina (Respondent) Representation: Counsel: S Fraser (Applicant) D Patch (Respondent)