Davidson v R
[2020] NZCA 230
•12 June 2020 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA634/2019 [2020] NZCA 230 |
| BETWEEN | JOHNATHON BARRY DAVIDSON |
| AND | THE QUEEN |
| Hearing: | 18 May 2020 |
Court: | Brown, Venning and Simon France JJ |
Counsel: | D J Matthews and S A Teki-Clark for Appellant |
Judgment: | 12 June 2020 at 11.00 am |
JUDGMENT OF THE COURT
A The application for an extension of time is granted.
B The appeal is allowed.
CThe sentence of six years and four months’ imprisonment with an MPI of one half of the sentence is quashed. There is substituted a sentence of five years and ten months’ imprisonment with an MPI of two years and 11 months’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
Mr Davidson was convicted by a jury on the following charges:
(a)injuring with intent to cause grievous bodily harm;
(b)assault with intent to injure;
(c)threatening to kill; and
(d)three charges of breaching a protection order.
Prior to trial he pleaded guilty to three charges of breaching release conditions.
On 23 October 2019 he was sentenced in the Christchurch District Court to a sentence of six years and four months’ imprisonment with a minimum period of imprisonment (MPI) of three years and two months.[1] Mr Davidson appeals against that sentence contending that it is manifestly excessive.
The offending
[1]R v Davidson [2019] NZDC 21423.
Mr Davidson and the victim had been in an on-and-off relationship for some two years and have a child. At the time of the relevant offending the victim was pregnant with their second child.
On 24 September 2015 a protection order was issued in the District Court naming the victim as the applicant and Mr Davidson as the respondent. Mr Davidson was imprisoned for offences including male assaults female and breach of a protection order in relation to the victim. He was released in February 2017. On 13 April 2017 he was issued with a direction not to associate with the victim. However on 12 June he went to the victim’s address.
On the evening of 20 June 2017 Mr Davidson was invited by the victim to a motel unit where she was then resident. After entering the unit an argument developed. Mr Davidson pushed the victim onto the bed and held her down while asking her about who she had been seeing and what she had been doing. He put both hands around her throat and strangled her for about 20 seconds before she was able to break free.
As the victim ran for the door Mr Davidson grabbed her and forced her back onto the bed. He then put his hands around her neck and squeezed for sufficiently long to cause her to wet herself and lose consciousness. The victim believed that she was going to die. Eventually Mr Davidson released her, she regained consciousness and was able to escape from the unit.
On the evening of 22 June 2017 Mr Davidson telephoned the victim on her cellphone from a blocked number during which he apologised for the incident two days previous. However at about 11.30 pm that same night Mr Davidson telephoned a friend of the victim and told the friend that the next time he saw the victim he would slit her throat and kill her.
As a result of the assaults the victim received bruising to her neck, mouth, chin, jaw, arms and legs and sustained tenderness to her neck. Mr Davidson denied assaulting the victim. Although he admitted contacting the victim’s associate, he denied threatening to kill the victim.
The sentencing notes
The Judge treated the incident at the motel on 20 June 2017 as the lead offending, identifying five aggravating factors:
(a)the use of extreme violence in strangling the victim twice, the second being life-threatening;
(b)an attack to the head of the victim;
(c)a protection order was in place at the time of the offending;
(d)the victim was vulnerable, staying at emergency accommodation and being pregnant at the time of the assault; and
(e)the victim suffered significant physical injuries.
The Judge considered that the offending fell within band 2 of R v Taueki,[2] viewing the level of violence as similar to Lufe v R[3] where the appellant was sentenced to six years’ imprisonment on a number of charges relating to violence in a domestic context. The Judge concluded that a starting point of five years’ imprisonment was appropriate for the lead offending. With reference to the two charges of breaching a protection order and the charge of threatening to kill the Judge agreed with the Crown’s submission that a starting point of 18 months would have been appropriate were those offences considered separately but, bearing in mind the totality principle, he adopted an uplift of 12 months for those three offences. Finally the Judge applied an uplift of six months’ imprisonment in relation to the three charges of breaching release conditions.
[2]R v Taueki [2005] 3 NZLR 372 (CA).
[3]Lufe v R [2018] NZCA 327.
Noting Mr Davidson’s history of domestic violence against the same victim and two prior convictions for breaching the same protection order, the Judge applied an uplift of 12 months to reflect that history and the fact that Mr Davidson was still on release conditions at the time of the offending.
From that total starting point of seven and a half years’ imprisonment the Judge allowed a discount of 12 months for personal and cultural factors referred to in two s 27 reports. A further reduction of two months was allowed for the guilty pleas entered to the charges of breach of release conditions.
Having regard to the factors in s 86 of the Sentencing Act 2002 the Judge concluded that serving a third of that sentence would be manifestly insufficient to hold Mr Davidson accountable for the harm done to the victim. Consequently he imposed an MPI of three years and two months.
Grounds of appeal
The contention that the sentence was manifestly excessive is advanced on four grounds:
(a)the starting point of five years adopted on the lead set of offending was too high;
(b)the uplift of 12 months imposed for the additional charges of threatening to kill and breaching a protection order was too high;
(c)the uplift imposed to reflect Mr Davidson’s criminal history was too high; and
(d)further credit should have been given for mitigating features.
The appeal was filed nine days out of time, having been filed erroneously in the High Court within time. There being no prejudice to the Crown, we grant an extension of time for filing the appeal.
Ground 1: Starting point
Mr Matthews submitted that the offending fits more properly within the mid‑upper range of band 1 of Taueki such that the starting point should have been four years’ imprisonment. He contended that the District Court Judge’s placement of the offending in band 2 misinterpreted this Court’s comment in Taueki that band 1 was not appropriate for offences of extreme violence or violence that was life-threatening.[4] Reliance was placed on this Court’s observation in Orchard v R:[5]
The unbuckling of her seatbelt was serious, increasing both her vulnerability and the likelihood of her being injured — including injury to her head. We do not however think that it is right to describe this as the use of “extreme violence”, in the sense intended in Taueki, which focuses on the extent and duration of the GBH offending. In this case the impulsive and singularly self-destructive nature of the offending weighs against adding “extreme violence” to the sentencing scales. It is behaviour at a significant remove from most other serious domestic violence involving the meting out of a beating, with weapons and/or boots, by way of some sort of punishment. And it must be considered that although physical injury resulted, it was not enduring in nature.
[4]R v Taueki, above n 2, at [36].
[5]Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [34].
Mr Matthews submitted that it was not intended that any inherently life‑threatening act requires a starting point in band 2. He made the point that potentially life-threatening behaviour is not necessarily borne out of extreme violence, nor does such behaviour necessarily result in life-threatening injuries. If that were the case, then any offending where grievous bodily harm was intended would always have at least two of the Taueki factors present and as a consequence band 1 would be redundant.
Mr McClenaghan responded that reliance on Orchard was misplaced. Noting the guidance in Taueki on what constitutes extreme violence[6] he submitted that the present case differed from Orchard because of the two separate occasions of strangling, the latter to the point where the victim lost consciousness. The degree of impulsivity similar to Orchard was negated by the second strangulation and, unlike Orchard, the attack was premised to cause harm solely to the victim. The appellant fled from the property after the assault.
[6]R v Taueki, above n 2, at [31(a)].
Mr McClenaghan emphasised that in order to qualify for band 2 there was no need for both extreme violence and a life-threatening injury to be present. He submitted that the comparison with Lufe, which had a similar factual matrix, was correct. Reliance was also placed on Moata’ane v Crown Law Office[7] and Ackland v Police.[8]
[7]Moata’ane v Crown Law Office [2019] NZHC 1872.
[8]Ackland v Police [2019] NZHC 312.
This Court in Orchard drew attention to the emphasis in Taueki that a sentencing Judge needed not only to identify aggravating (and mitigating) factors but also to evaluate the seriousness of each factor.[9] The evaluative task is an important aspect of sentencing. The approach advocated in Orchard in the context of domestic violence is to look at the specific examples given in Taueki for band 1 and band 2 offending and to ask to which band the offending in question is more proximate.[10] With reference to domestic violence those bands stated:[11]
[9]Orchard v R, above n 5, at [32].
[10]At [35].
[11]R v Taueki, above n 2, at [37] and [39].
Band one
…
(b) Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.
Band two
…
(c) Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.
Had the offending comprised only the first strangulation incident, the subject of the charge of assault with intent to injure, we would have felt constrained to agree with Mr Matthews that it was closer in type and outcome to that described in Taueki band 1 as requiring a starting point of four years. It was spontaneous rather than premeditated. It did not cause any significant injury.
However the same cannot be said for the second, and substantially more serious, incident giving rise to the charge of injuring with intent to cause grievous bodily harm. The spontaneity was spent. The victim’s throat was squeezed for sufficiently long that she was rendered unconscious. She suffered significant although not lasting injuries.
Although there was no weapon involved, we consider that the combination of circumstances amply justify the higher starting point of five years referred to in the Taueki discussion of domestic assault in band 1. Consequently we conclude that there was no error in the starting point selected in this case.
Ground 2: Uplift for additional charges
In assessing the culpability of Mr Davidson’s additional offending Mr Matthews submitted the following factors were relevant:
(a)The meeting at the motel was consensual. It was not a situation where Mr Davidson had sought out the victim against her wishes or for the purposes of inflicting harm.
(b)One of the breaches related to the telephone call where he apologised for his behaviour.
(c)The threat, to which the second call was connected, was singular and made indirectly to the victim’s associate.
For such conduct it was submitted that an uplift of nine months’ imprisonment was the upper end of the available range. The breaches of a protection order and the threat were said to fall at the less serious end of the continuum warranting an uplift of only six months’ imprisonment.
However we agree with Mr McClenaghan that the uplift of 12 months was appropriate. The culpability and seriousness of these offences needs to be considered within the context of the earlier offending. A threat to kill only two days after the incident at the motel is particularly chilling. Indeed we consider that the uplift of 12 months’ imprisonment was in the circumstances generous.
Ground 3: Uplift for criminal history
In support of the 12 months’ imprisonment uplift Mr McClenaghan pointed to a clear pattern of domestic violence against the victim which had appeared to escalate in nature. There was no indication that previous custodial sentences in relation to violence against the victim — of three months’ imprisonment, seven months and 15 days’ imprisonment and two years’ imprisonment — had deterred the appellant. Further the uplift was not out of proportion to the starting point or to the uplift adopted in relation to the other offending, being a 15 per cent increase.
Nevertheless there is merit in Mr Matthews’ contention that the uplift involved an element of double-counting. The Judge stated:[12]
[43] … At the time of this current offending you were on release conditions. I apply an uplift of 12 months to reflect that history and the fact that you were still on sentence of release conditions at the time of this offending.
[12]R v Davidson, above n 1.
However the Judge had already applied an uplift of six months’ imprisonment in respect of the three charges of breaching release conditions which was not challenged on appeal. In those circumstances we consider that the appropriate uplift for criminal history was six months’ imprisonment rather than 12 months’ imprisonment.
Ground 4: Discount for mitigating features
In allowing a discount of 12 months on account of the matters identified in the two cultural reports the Judge stated:
… systemic deprivation in the lives of Māori offenders and their whānau has been recognised as a factor to be considered when considering a sentencing response … in your case Mr Davidson, based on the s 27 reports, you were exposed to alcohol, drugs and violent abuse from a young age. You lacked any positive whānau support or prosocial influences in your life and you still do. Clearly, in my view, that background has contributed to your present offending.
The Judge questioned for how long and to what extent the Court can continue to give weight to this factor as a significant mitigating factor.[13] The Judge also recorded that he did not detect any meaningful motivation for rehabilitative intervention, observing that the violence against the same victim spanned a period of five years with the same drivers clearly at play.[14]
[13]At [49].
[14]At [50].
Mr Matthews submitted that those observations evidenced an error as amounting to a finding that there was a time limit for making allowances for the systematic deprivation of Māori. Having been satisfied that such factors continued to contribute to the appellant’s offending, it was submitted that the Judge should not have given a lesser discount than would have been appropriate but for the passage of time. Mr Matthews contended that the linkage in this case between the deprivation suffered by the appellant, in particular exposure to the cycle of domestic violence, was strong, justifying a discount in the order of 20 to 25 per cent.
This Court in Arona v R made it clear that the s 27 report must demonstrate a clear linkage, either through evidence or through it being self-evident, between cultural deprivation and the offending.[15] Further, as Mr Matthews properly acknowledged, in cases of serious violence cultural factors will have a lesser effect on sentencing because the considerations of denunciation and community protection will prevail.[16]
[15]Arona v R [2018] NZCA 427 at [59].
[16]Keil v R [2017] NZCA 563 at [58].
We agree with Mr McClenaghan that a discount of the order proposed for Mr Davidson would be excessive. We note that the deduction of 12 months would result, in relation to the substituted sentence, in a discount of more than 14 per cent which is in the realm of discounts attributed to s 27 factors in other recent cases not dissimilar to the present.[17]
Conclusion
[17]Hajnal-Huata v R [2020] NZHC 468 — 13 per cent; R v Tauroa [2020] NZHC 376 — 15 per cent; R v Winitana [2019] NZHC 3229 — 10 per cent; and Lee v R [2019] NZCA 539 — 5 per cent discount.
For the reasons explained above we consider that the appropriate sentence, applying the same periods of discount as in the District Court, would be five years and ten months’ imprisonment.
Result
The application for an extension of time is granted.
The appeal is allowed. The sentence of six years and four months’ imprisonment with an MPI of one half of the sentence is quashed. There is substituted a sentence of five years and ten months’ imprisonment with an MPI of two years and 11 months’ imprisonment.
Solicitors:
Public Defence Service, Christchurch for Appellant
Crown Solicitor, Christchurch for Respondent
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