Following trial before Judge McAskill and a jury, Mrs Davidson was convicted of 17 counts of using a document with intent to defraud. She appeals against her sentence of three years and eight months imprisonment. On her behalf, it is submitted that the Judge made insufficient allowance for the contribution to her offending of an abusive relationship with her husband and co-offender, Mr Ross Davidson.
Background
Mr Davidson started a carpet installation business trading as One Call Flooring in 2003. In February 2005 he entered into a debt factoring agreement with Easy Factors International Ltd (Easy Factors). Under the agreement Easy Factors “bought” invoices from One Call Flooring for 80 per cent of the invoice value, less a 5 per cent fee. On settlement of the debt, Easy Factors paid the balance of 20 per cent to One Call Flooring.
In mid-2005 Mr Davidson and the appellant met and soon afterwards she began working for One Call Flooring. They married in December 2005. Mrs Davidson quickly became involved in the offending, which involved using Post Office boxes as the addresses of fictitious debtors. Mrs Davidson opened more Post Office boxes until there were 25 in total held by the Davidsons. By this means, invoices sent to Easy Factors, which were then endorsed and sent to the debtors, were actually received by the Davidsons. By the time the fraudulent scheme was uncovered in early 2007, Easy Factors had received a total of 534 fraudulent invoices with a face value of $8,994,567. Its total losses were $1.6 million. Mrs Davidson’s involvement related to 270 of the 534 fraudulent invoices. On that basis, she and Mr Davidson were jointly responsible for $800,000 of the total loss of $1.6 million.
Sentencing decision
Judge McAskill sentenced Mr and Mrs Davidson together, although Mr Davidson had pleased guilty on arraignment. He described him as “clearly a principal offender” who set up the scheme and oversaw it and drew his partner in. He said Mr Davidson initiated the frauds and was dominant throughout. Mrs Davidson played a supportive role but that, said the Judge, did not mean that she was not liable as a principal offender. He described her as having become fully involved in the fraudulent scheme. Among other things, she submitted invoices to Easy Factors for payment and, by making false and misleading statements in email and telephone communications with Easy Factors staff, caused them to believe that One Call Flooring was a…
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.
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AGLC
Davidson v R [2011] NZCA 356
Case
[2011] NZCA 356
Decision Date
CaseChat Overview and Summary
Wendy Marie Davidson appealed against her conviction and sentence for multiple counts of using a document with intent to defraud, arguing that the sentencing judge failed to sufficiently account for the abusive relationship she had with her co-offender and husband, Ross Davidson. The New Zealand Court of Appeal heard the appeal, with Wild, Rodney Hansen, and MacKenzie JJ presiding. Counsel for the appellant, S-L Litt, argued that the Judge had not adequately considered the impact of the abusive relationship on Mrs Davidson's involvement in the offending, which involved using Post Office boxes as the addresses of fictitious debtors. The Court of Appeal agreed that the Judge did not adequately consider the impact of the abusive relationship on Mrs Davidson's involvement in the offending. The Court found that the abusive relationship, while relevant, did not materially contribute to Mrs Davidson's involvement in the offending. However, the Court of Appeal did find that the discount given for Mrs Davidson's previous good character was inadequate. They considered that a credit of 25 per cent or one year would have been appropriate. The appeal was allowed, the sentence of three years and eight months imprisonment was quashed, and a sentence of three years imprisonment was imposed in its place.