Davidson v The Queen

[2018] NZHC 2973

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2018-454-15

[2018] NZHC 2973

BETWEEN

RODGER ROPATA DAVIDSON

Appellant

AND

THE QUEEN

Respondent

Hearing:	15 November 2018
Counsel:	P L Murray for Appellant J J Harvey for Respondent
Judgment:	16 November 2018

JUDGMENT OF SIMON FRANCE J

[1]                   Mr Davidson appeals a sentence of two years and eight months’ imprisonment imposed following a Judge alone trial.1 The sentence represented:

(a)attempting to pervert the course of justice – 20 months’ starting point and final point;

(b)assault (Crimes Act) – six months’ cumulative;

(c)threatening to kill – six months’ cumulative; and

(d)possessing ammunition – two months’ concurrent.

1      R v Davidson [2018] NZDC 19047.

DAVIDSON v R [2018] NZHC 2973 [16 November 2018]

[2]                   Mr Davidson had been residing as a boarder with a couple. The relationship deteriorated. Mr Davidson was asked to leave and the various incidents that were the subject of charges occurred over a two day period. It was alleged:

(a)that on four occasions Mr Davidson made threats to kill. He was convicted of one. This consisted of threatening to kill the male occupant with a shotgun. Mr Davidson had an earlier occasion shown the female occupant a shotgun he possessed;

(b)on one occasion assaulting the male occupant by punching him as he lay in bed. The Judge found there to be at least two hard punches, maybe more. The victim suffered a cut. The charge was originally assault with a weapon. The victim resiled from this at trial and the plea was amended to one of assault. At that point Mr Anderson pleaded guilty. He had always acknowledged the assault;

(c)from prison Mr Davidson wrote to the defendants. The Judge accepted he was motivated by a belief they were going to give untrue evidence, and wished to discourage that. He observed in the letter:

(i)if I get a lag I will train every day and you will not be forgotten; and

(ii)I will prepare for next time and do what you once said you knew I was capable of.

Understandably the Court found the charge proven.

[3]                   Mr Murray challenges a starting point of 20 months’, suggesting a range of 12 to 15 months. Reliance is placed on R v Churchward.2

2      R v Churchward CA439/05, 2 March 2006.

[4]                   Mr Churchward had sought to convince a witness to sign an affidavit saying that Mr Churchward was innocent or he would hold a grudge forever. The Court of Appeal imposed a lower sentence it being a Solicitor-General appeal, but noted there was force in the Crown submission that a sentence of 12 months’ would be in order.

[5]                   That sentence seems lower than others since imposed. A recent decision is Maney v R.3 The threat there was to get his story straight or he (the defendant) would be getting out of prison with revenge. The Court summarised a number of decisions and concluded the starting point could be no higher than two years’. The Court referred to Harting v R where an aggressive manner in demanding charges (said to be untrue) be withdrawn had attracted a two year starting point that was upheld.4 There is nothing in Maney and the cases cited therein to suggest the 20 months’ here is excessive.

[6]                   A point emphasised by Mr Murray was that the appellant always acknowledged an offence. He was not seeking by the threats to avoid criminal responsibility but rather to ensure the witnesses, as he saw it, gave true evidence. As it turned out, as Mr Davidson saw it was indeed what happened. It is this feature that is submitted to place the offending at the lower end of the range.

[7]                   It can be accepted it is relevant that the underlying motivation is the offender’s concern that the witness will give false evidence, but not too much emphasis should be given to it. The essence of the offence lies in the attempt unlawfully to influence evidence. Here, the method of influence was significant threats made by a man who has already threated to kill the targets.

[8]                   The motive of the offender is but one aspect of culpability. Another is the seriousness of the threats which here are genuinely sinister, and designed to remain with the victims for as long as the offender is in jail. Further, care is needed about limiting liability because of “good intentions”. As it happens the item of evidence at which the threats were directed is the item of evidence that was changed at trial.    Mr Davidson may indeed have always been correct in his version, or was in fact the

3      Maney v R [2018] NZCA 193.

4      Harting v R [2016] NZCA 296.

witness intimidated? It cannot be known. That is the reason for the offence and the seriousness with which it is viewed. I consider the starting point of 20 months to be within the available range.

[9]                   The Court identified a cumulated 16 months for the other offending being seven months for assault, seven for threatening to kill and two for possessing ammunition. The 16 months’ were already the product of a totality assessment. There was then a deduction of four months for the guilty plea, leaving a final sentence of 32 months’ imprisonment.

[10]               In my view, the only issue is totality. The case is certainly there for cumulative sentences but I accept the offending other than the course of justice charge was a continuous incident of grievance spanning two to three days. The issue can be analysed by considering the correctness of a final sentence of one year for the assault, the threatening to kill and the ammunition. The threatening to kill was contested through trial but the others should be viewed as attracting a full plea discount.5 The Judge considered it a serious assault of its type, and it is clear it was a nasty threat to kill which had a significant impact. It was made directly to the victim and involved the threatened use of a firearm known to be available to the defendant. Bearing these factors in mind 12 months’ is not excessive. As noted it was correct to then make the perverting course of justice charge cumulative. Nor do I accept an overall totality adjustment is necessary or appropriate. The final outcome here is a stern overall response but that very much reflects the seriousness with which perverting the course of justice is viewed. It is offending that inevitably ratchets up the overall outcome because it is a serious offence and almost always results in a cumulative sentence. The final sentence reflects this.

[11]Accordingly, the appeal is dismissed.

Simon France J

5      This is because both the defendant acknowledged the assault and the complainant resiled on the disputed aggravating aspect.