R v Davis - [2004] NSWCCA 310

CITATION: Regina v Davis [2004] NSWCCA 310 revised - 10/09/2004

HEARING DATE(S): Friday 3 September 2004

JUDGMENT DATE:
3 September 2004

JUDGMENT OF: Grove J at 1; Simpson J at 28; Shaw J at 29

DECISION: APPEAL AGAINST SENTENCE ALLOWED.; APPELLANT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - DETENTION OF FAMILY MEMBER PERCEIVED TO BE FAILING PARENTAL DUTY TO SMALL CHILD - MISGUIDED MOTIVES - CULTURAL MORES ENFORCEABLE ONLY WITHIN LEGAL BOUNDARIES - SENTENCE SHOULD REFLECT GENERAL DETERRENCE - NEED FOR PERSONAL DETERRENCE NOT GREAT IN UNUSUAL CIRCUMSTANCES - NO PRACTICAL ATTEMPT TO DETAIN ONCE COMPLAINANT RETURNED TO TOWN OF HER CHILD'S PRESENCE - LOW LEVEL OF ACTUAL HARM - OFFENDER PARTICIPATES IN SUMMONING POLICE

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing and Procedure) Act 1999

PARTIES :
Regina v Keitha Waimarie Davis

FILE NUMBER(S): CCA 2004/1894 (60189/04)

COUNSEL: P. Ingram (Crown)
R. Hulme SC (Applicant)

SOLICITORS: S. Kavanagh (Crown)
S. O'Connor (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0126

LOWER COURT
JUDICIAL OFFICER : Knight DCJ

2004/1894 CCAP (60189/04)
GROVE J
SIMPSON J
SHAW J

Friday 3 September 2004

REGINA v KEITHA WAIMARIE DAVIS

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Knight DCJ on 16 October 2003.

2 The applicant and two co-offenders adhered to pleas of guilty earlier made in the Local Court to a charge of taking and detaining a woman in company with intent to obtain advantage and occasioning her actual bodily harm. Such an offence has a prescribed maximum penalty of twenty five years imprisonment. The facts of this offence are, however, unusual and far distant from the serious conduct which can be comprehended in a charge under s 86(3) of the Crimes Act 1900.

3 The applicant is a young woman aged twenty four years. She is the de facto partner of Mike Rynn Toa (whom I will refer to as Toa). They are the parents of a small child. Toa is a cousin of Ngatokotoru Roi who is the mother of a three year old son named Jake. They are members of what was described as close knit community, the members of which had come from the Cook Islands. They were located in Armidale. Ms Roi commenced a relationship with one Jason Rummery and left Armidale to go and live with him in Inverell. She left the child Jake behind in Armidale with another cousin.

4 The applicant gave evidence in the sentencing proceedings. She testified that she became concerned about Ms Roi who had changed from being a very lovely mother to one she described as very horrible. She had had previously a close relationship with Ms Roi, describing themselves as like sisters. She had a poor opinion of Mr Rummery whom she thought was an unemployed drug user. Her concern was heightened by a perception that the child Jake was ill which she attributed to fretting for his absent mother.

5 On 8 May 2003…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Davis

Details

AGLC: R v Davis [2004] NSWCCA 310
Case: [2004] NSWCCA 310
Decision Date: 3 September 2004

CaseChat Overview and Summary

In the case of R v Davis, the respondent was convicted of kidnapping and was sentenced to imprisonment. The respondent, influenced by cultural beliefs, perceived that the child's mother was neglecting her parental duties and believed it was necessary to detain her for the child's welfare. The Court of Appeal reviewed the sentence and considered the respondent's misguided motives, the cultural context, and the legality of his actions. The Court focused on whether the sentence was appropriate for general deterrence, taking into account the respondent's unusual circumstances, the lack of significant harm, and his failure to follow through with the detention after the complainant returned home.

The legal issues addressed by the Court included the assessment of the respondent's motives, the applicability of cultural beliefs as a defence, and the proportionality of the sentence in relation to the crime. The Court had to determine whether the respondent's actions, though misguided, warranted a custodial sentence and whether the sentence should reflect general deterrence without excessively focusing on personal deterrence. Additionally, the Court examined the extent to which the respondent's actions aligned with cultural norms and how these should be weighed against the legal standards of the criminal justice system.

In its reasoning, the Court acknowledged the respondent's cultural motivations but emphasised that such beliefs do not excuse illegal actions. The Court noted that while cultural practices may inform an understanding of the respondent's behaviour, they do not exempt him from the legal consequences of his actions. The Court concluded that the sentence should serve the purpose of general deterrence, given the respondent's lack of significant harm and the absence of a practical attempt to detain the complainant. The Court also highlighted that the need for personal deterrence was minimal due to the unique circumstances of the case. Consequently, the Court deemed the original sentence excessive and reduced it to reflect a more appropriate balance between deterrence and the circumstances of the offence.

The Court ordered a reduction in the respondent's sentence, reflecting a more proportionate response to the crime committed. The revised sentence aimed to maintain the principle of general deterrence while considering the respondent's cultural context and the specific circumstances of the offence. This decision underscored the importance of aligning sentences with the legal boundaries set by the criminal justice system, ensuring that cultural beliefs do not override the rule of law.

Orders