Davidson v R
[2011] NZCA 356
•29 July 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA626/2010 [2011] NZCA 356 |
| BETWEEN WENDY MARIE DAVIDSON |
| AND THE QUEEN |
| Hearing: 27 June 2011 |
| Court: Wild, Rodney Hansen and MacKenzie JJ |
| Counsel: S-L Litt for the Appellant |
| Judgment: 29 July 2011 at 10.15 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of three years eight months imprisonment is quashed. In its place, a sentence of three years imprisonment is imposed.
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REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
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 busy, successful business and that the invoices were genuine. He said Mrs Davidson’s claims at trial that she was not knowingly implicated in the scheme were “simply not credible”.
Judge McAskill adopted a starting point of five years ten months for Mr Davidson. After a credit of fourteen months for his guilty pleas, he sentenced him to four years eight months imprisonment. He had previous convictions for dishonesty which denied him any allowance for previous good character.
The Judge took a starting point of four years imprisonment for Mrs Davidson. After deducting four months for her previous good character, he sentenced her to a term of three years and eight months.
Submissions on appeal
Mrs Litt did not contend that the starting point was too high or that the discount given for Mrs Davidson’s previous good character was inadequate. The sole ground of appeal is that the Judge gave insufficient credit for the violence and emotional abuse to which Mrs Davidson had been subjected by her co-offender. In support of her appeal, Mrs Davidson swore two affidavits and tendered an affidavit from a psychiatrist who had interviewed her. She reported growing up in a dysfunctional family where she was a victim of physical and sexual abuse. Before meeting Mr Davidson, she had been involved in abusive relationships. During her relationship with Mr Davidson, which lasted from July 2005 until April 2007, she spoke of an escalating pattern of abuse and violence. She said she was often physically beaten by Mr Davidson. He threatened to kill her if she left the relationship. He was obsessively controlling. She said she “slowly turned into a shell” of her former self and even contemplated taking her own life. After a particularly violent incident in which Mr Davidson almost killed her, she was able to finish the relationship by taking refuge with her daughter in Australia.
Dr Monesterio, the psychiatrist, said the history of psychological and behavioural abuse was typical of a battering relationship whose characteristics include difficulty leaving the abusive relationship, reluctance to make complaints, a feeling of dependency on the aggressor and a fear of abandonment.
Discussion
It is accepted that prolonged abuse at the hands of a partner or family member[1] can be taken into account as a mitigating factor.[2] However, before the effects of an abusive relationship can be taken into account, there must be evidence of the way in which it impacts on the offending. In Whiu this Court said:[3]
If an offender wishes to argue that she has suffered prolonged abuse at the hands of a partner or family member and that this has contributed materially to her offending and so is relevant to sentence, she will have to point to an evidential basis for this submission. The evidence will need to address the underlying facts of abuse, its impact on the offender, and the way in which it is said to have made a material contribution to the offending.
[1]Often referred to as Battered Women’s Syndrome or, to use the term preferred by Thomas J in Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA), “a battering relationship”.
[2] R v Whiu [2007] NZCA 591 at [33], R v Paton [2009] NZCA 155 at [38] – [39].
[3] At [37].
Although the District Court Judge did not have the benefit of the affidavit evidence filed for the purpose of the appeal, the possible impact of abuse suffered by Mrs Davidson at the hands of her husband, and previously, was squarely before him. The pre-sentence report described an abusive upbringing and of Mrs Davidson having suffered violent sexual abuse at the hands of a former husband. The report quotes Mrs Davidson as describing her husband as “very violent, secretive and manipulative”. In a letter written to the Judge, Mr Davidson himself acknowledged “verbal and physical abuse” brought on by alcohol. References tendered by Mrs Davidson also attested to the physical and emotional abuse she had endured. Judge McAskill addressed the issue in the course of his sentencing remarks. He said:
[28] I turn to Wendy Davidson’s report. I take all of it into account but I highlight a few matters. It is clear from the report that you place emphasis on the ongoing physical and emotional abuse that you were subjected to by Mr Davidson. However, given your denial of responsibility, which has continued upon your sentencing, the Court simply cannot attribute any such behaviour by your husband as an explanation for your offending as you certainly do not say that. You have indicated to the report writer that you strenuously deny the offending and that you intend to appeal your convictions. You expressed no remorse for your offending.
...
[42] While much has been made, Mrs Davidson, of your husband’s violence towards you, there is nothing to show that you entered upon your offending as the result of any intimidation by him. As I have already mentioned, you do not say that. You still deny the offending.
While the affidavit evidence filed for the purpose of the appeal provides a great deal of the detail of the abuse Mrs Davidson suffered at the hands of her husband, ultimately, the additional evidence sheds no further light on the critical question of how the abuse contributed to the offending. On the contrary, it tends to confirm that the abuse relied on had little material impact on Mrs Davidson’s conduct.
It is clear that Mr Davidson’s abusive conduct could not have made any significant contribution to the onset of his wife’s offending. She became actively involved in the fraudulent scheme three months after meeting Mr Davidson when she took responsibility for direct dealings with Easy Factors. A marked increase in the number of false invoices being generated followed. In December 2005 – the month Mr and Mrs Davidson married – she opened many of the Post Office boxes which were a critical component of the scheme.
There is nothing in the new evidence which attempts to explain why Mrs Davidson allowed herself to be drawn into the offending at this early stage or, indeed, how the abusive relationship which undoubtedly developed subsequently contributed to her continuing to participate in the fraud. Instead, Mrs Davidson maintains the stance she adopted throughout her trial and at sentence, that her involvement in the scheme was innocent. That necessarily precludes her asserting that she was pressured into participating in the scheme through her abusive relationship with the principal offender. Yet, in what the Judge described[4] as a “telling slip”, Mrs Davidson told one of the staff members of One Call Flooring that the “whole ledger was fraudulent”. The Judge described this remark as “a rare example of [Mrs Davidson’s] truthfulness”.
[4] At [22] of his sentencing notes.
We have considerable sympathy for Mrs Davidson. She has endured many difficulties in her life that are not of her own making. Despite adversity, she has worked hard, raised a family alone and lived a law abiding life until she fell in with Mr Davidson. She was undoubtedly vulnerable and susceptible to his influences. He was the instigator and principal offender, a man with previous convictions, including one for dishonesty. Having regard to Mrs Davidson’s history of abusive relationships, it appears likely that she was drawn into the offending, her sense of right and wrong dulled by a conditioned subservience to dominant male figures, even before overt abuse by Mr Davidson occurred.
This takes us to a consideration of whether the discount she received for her previous good character was adequate. Although this aspect of the Judge’s sentencing formed no part of the appeal, it is an issue which calls for re-examination. Mrs Davidson’s life experience and character has not been shown to lessen her culpability, but they are highly relevant in mitigation of sentence.
In R v Howe,[5] this Court said:[6]
Persons who have shown themselves generally law-abiding citizens of good character are usually entitled to invoke their creditable record in mitigation when they come before the courts, even for quite serious offences.
The requirement to take previous good character into account as a mitigating factor is now to be found in s 9(2)(g) of the Sentencing Act 2002. In R v Findlay,[7] this Court identified two things as underpinning this feature of mitigation: recognising a fall from grace as punishment in itself, and recognising the greater potential for rehabilitation where community involvement and good character bears witness to a reduced probability of re-offending.[8]
[5] R v Howe [1982] 1 NZLR 618 (CA).
[6] At 629.
[7] R v Findlay CA393/07, 3 December 2007.
[8] At [91].
In Findlay, a discount of 50 per cent for previous good character and service to the community was held to be excessive. This Court assessed the appropriate discount as 25 per cent.
Mrs Davidson cannot pray in aid the record of service to the wider community that Mr Findlay was able to rely on, but she can point to devoted service of no less importance to her extended family. In a reference given to the sentencing Judge, her daughter attested to her love and support, particularly in times of great need in her life. Her sister also attested to her devotion to her children and grandchildren while confirming what she described as “a tumultuous upbringing” in which Mrs Davidson bore the brunt of their father’s aggressive drunken behaviour and molestation. In other references, friends paid generous tributes to Mrs Davidson’s kindness, honesty and industry.
In our view, the discount for mitigating factors of four months (or eight per cent) given by the Judge was manifestly inadequate. In all the circumstances, we consider a credit of 25 per cent or one year would have been appropriate.
Result
The appeal is allowed. The sentence of three years eight months imprisonment is quashed. In its place, a sentence of three years imprisonment is imposed.
Solicitors:
Crown Law Office, Wellington, for Respondent.
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