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Davidson v R

Davidson v R

Case [2020] NZCA 230 12 June 2020

Aggravated & Exemplary Damages

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA634/2019
[2020] NZCA 230

BETWEEN	JOHNATHON BARRY DAVIDSON Appellant
AND	THE QUEEN Respondent

Hearing:	18 May 2020
Court:	Brown, Venning and Simon France JJ
Counsel:	D J Matthews and S A Teki-Clark for Appellant M G McClenaghan and B Hawes for Respondent
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…

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 Davidson v R

Details

AGLC: Davidson v R [2020] NZCA 230
Case: [2020] NZCA 230
Decision Date: 12 June 2020 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Johnathson Barry Davidson against his conviction and sentence for multiple charges of domestic violence. The appellant had been sentenced to six years and four months in prison with a minimum period of imprisonment of three years and two months. He appealed against the sentence on the basis that it was manifestly excessive. The appeal was heard by Brown, Venning, and Simon France JJ, with D J Matthews and S A Teki-Clark representing the appellant and M G McClenaghan and B Hawes representing the respondent.

The legal issues the court had to decide were whether the starting point of five years for the lead charge was too high, if the uplift of 12 months for additional charges was appropriate, if the uplift of 12 months for the appellant’s criminal history was too high, and if further credit should have been given for mitigating features. The court found that the starting point of five years was appropriate, the uplift for additional charges was generous, the uplift for criminal history should have been six months, and the discount for mitigating features was not excessive.

The court concluded that the sentence of six years and four months' imprisonment with a minimum period of imprisonment of three years and two months was manifestly excessive. The sentence was quashed, and a new sentence of five years and ten months' imprisonment with a minimum period of imprisonment of two years and 11 months was substituted. The court granted an extension of time for the filing of the appeal and allowed the appeal against the sentence.

Orders