Davidson v The Queen
[2017] NZHC 1115
•26 May 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2017-485-18 [2017] NZHC 1115
BETWEEN JENNA MARIE DAVIDSON
Appellant
AND
THE QUEEN Respondent
Hearing: 23 May 2017 Appearances:
I M Antunovic for the Appellant
J E Mildenhall for the RespondentJudgment:
26 May 2017
JUDGMENT OF MALLON J
Introduction
[1] Ms Davidson pleaded guilty to attempting to pervert the course of justice,1 forgery2 and using a document for pecuniary advantage.3 She was sentenced in the Wellington District Court (Judge Tuohy) to two years and nine months imprisonment.4 She appeals her sentence on the ground that it is manifestly excessive. She says insufficient weight was given to the domestic violence she had suffered and its influence on her offending and a merciful sentence of home detention was warranted in all the circumstances.
Background
[2] Prior to the present offending, in 2014 Ms Davidson was employed by the
Wellington Airport as the Chief Executive’s Executive Assistant. Between February
and August 2014 she fraudulently used her business credit card to obtain personal
1 Crimes Act 1961, s 117(e) (maximum penalty seven years imprisonment).
2 Section 256(1) (maximum penalty 10 years imprisonment).
3 Section 228(1)(b) (maximum penalty seven years imprisonment).
4 R v Davidson [2017] NZDC 7645.
DAVIDSON v THE QUEEN [2017] NZHC 1115 [26 May 2017]
goods and services totalling $40,469.41. This was discovered by an audit of her card. She lost her job and in October 2015 she was charged with theft by a person in a special relationship (the Wellington Airport theft).
[3] In the meantime Ms Davidson obtained employment as an Executive Assistant to an officer at ACC. Initially this was a temping job. It became permanent in December 2014. She applied for a credit card for business purposes and this was issued to her in January 2015. Between 1 February 2015 and 13
January 2016 she used card for personal purchases (181 transactions at 43 retailers) totalling $39,732.50 (the ACC theft). This offending had not been discovered at the time Ms Davidson was sentenced on the Wellington Airport theft.
[4] The sentencing for the Wellington Airport theft was to take place on 16
December 2015. For the purposes of that sentencing, on 2 December 2015, Ms Davidson wrote herself a character reference purporting to be written and signed by her ACC supervisor. In this reference she was described in glowing terms, including that she was “honest” and had a “flawless reputation” (the ACC reference).
[5] She was sentenced on the Wellington Airport theft in the Wellington District Court (Judge Hobbs).5 The Judge considered a starting point of two and a half years imprisonment was appropriate. However, recognising Ms Davidson’s remorse, that it was her first offence, and her guilty pleas, this would be reduced to 21 months imprisonment. The Judge said he would have converted this to 10 to 11 months home detention, but because this might interfere with her current employment he considered it was appropriate instead to impose a sentence of six months community detention, 120 hours community work, and reparation of $36,595.98 ($2,373.43
having been repaid immediately).
[6] The Judge also declined an application for permanent name suppression. That application was made on the basis Ms Davidson may lose her employment if the details were published. The Judge considered the ACC reference and queried whether it was likely she would lose her employment. In the end, he decided that
even if she lost her employment this would not qualify as extreme hardship such that permanent name suppression should be granted.
[7] As a result of publicity about the Wellington theft charge sentencing, ACC discovered the ACC theft and the forged ACC reference. This resulted in Ms Davidson being charged with attempting to pervert the course of justice, forgery and using a document for pecuniary advantage. On 19 December 2016 she received a sentence indication from the District Court (Judge Tuohy) on these charges.6
[8] The Judge took the following approach on the sentencing indication:
(a) a starting point of two and a half years imprisonment for attempting to pervert the course of justice and the forgery (the ACC reference);
(b)a cumulative sentence of two years imprisonment for using a document (the ACC theft) with a three month uplift because of Ms Davidson’s recent conviction for similar offending (the Wellington Airport theft) and she was on bail for that offending when the ACC theft was carried out;
(c) a three month adjustment for totality, which would mean a sentence of four years and six months imprisonment before taking into account mitigating factors; and
(d)a 25 per cent discount for Ms Davidson’s early guilty plea, resulting in an end sentence of three years and four months imprisonment, subject to a pre-sentence report and any other mitigating personal circumstances.
[9] Ms Davidson subsequently accepted the sentencing indication and pleaded guilty to the charges. She was sentenced by Judge Tuohy on 3 April 2017.7 The Judge sentenced Ms Davidson in accordance with the sentencing indication except that he allowed an additional discount of nine months for her personal circumstances
as discussed in information which was then before him (discussed below). Taking the nine months off the four years and six months imprisonment totality adjusted starting point, and then applying the 25 per cent discount for her guilty plea meant an end sentence of two years and nine months.
Personal circumstances
[10] At the sentencing on 3 April 2017 the Judge had before him information about domestic abuse Ms Davidson had suffered during the period of her offending. This was discussed in the pre-sentence report and, more particularly, in a psychologist report requested under s 38 of the Criminal Procedure (Mentally Impaired Person) Act 2003 and in letters from a counsellor and from Women’s Refuge.
[11] This information described the lengthy abuse Ms Davidson suffered from her partner of 10 years culminating in a violent incident on 19 December 2015 (shortly after her sentencing on the Wellington Airport theft) which led to Ms Davidson seeking the assistance of Women’s Refuge. The Women’s Refuge Domestic Violence Assessment put her in their top bracket for ongoing risk to her safety. The material indicated that Ms Davidson had become “emotionally detached” as a result of the abuse and this contributed to her inability to process the consequences of her actions as a person normally would.
[12] The Judge reviewed this material and discussed it in detail in his sentencing remarks. He noted the report did not say Ms Davidson suffered from any recognised psychiatric or psychological condition, nor diminished understanding, but accepted “it has to be taken into account” because of the effect of the abuse on her thinking and behaviour.8 He accepted it had contributed to her offending. On the other hand he did not think it could be said that it was the sole cause of her offending. He noted the offending was protracted and repeated and she attempted to conceal it. He also noted that Ms Davidson had only paid $5,000 in reparation for the Wellington
Airport theft and the prospect of her paying reparation for the ACC theft on top of the earlier reparation was minimal to nil.9
[13] The Judge accepted imprisonment would be hard on the appellant’s son but he did not consider there were any particular circumstances which distinguished this case “from the countless others where a parent of a child is in prison.”10
Nevertheless he would give as much weight as he could to this aspect. He placed no weight on the submission that Ms Davidson’s imprisonment would put the child at the peril of his father as that was not a matter for the sentencing court.
[14] He concluded “all in all” nine months should be deducted from the sentence for personal circumstances. This amounted to a discount from the starting point of
16.67 per cent. The Judge correctly applied this discount first, before allowing the
25 per cent discount for her guilty plea. He rounded up the guilty plea discount, giving an end sentence of two years nine months imprisonment.
Further evidence
[15] Ms Davidson sought leave to adduce further evidence in support of this appeal. This comprised:
(a) An affidavit from Ms Davidson providing further detail of the abuse she suffered, how overwhelmed she felt and how she simply did not think through the consequences of her actions.
(b)A report from a psychiatry registrar in the Capital and Coast District Health Board forensic service. This diagnoses Ms Davidson as having post-traumatic stress disorder (PTSD) as a result of the abusive relationship. It notes reckless or self-destructive behaviour can arise with PTSD and Ms Davidson’s offending “can be understood in this context as a form of help-seeking or distress behaviour” and was “symptomatic of the abusive and psychically intolerable situation she
was in, this overriding her established moral values.” It further notes
9 Ms Davidson’s counsel advised the sum paid was $6,633.
that Ms Davidson “was entrapped and traumatised by a dangerous and abusive partner when the offending occurred” and the “main driving factor within the milieu in which the offending occurred appears to be the domestic violence and the trauma she suffered”.
(c) A letter from Ms Davidson’s parents concerning the adverse environment they believe her son to be in while living with his father and the consequent adverse effects of that on him, and their willingness to have Ms Davidson and her son living with them.
[16] The respondent does not oppose this evidence being adduced. However it says it does not materially add to the information that was before the Court at sentencing.
My assessment
[17] The personal circumstances before the Judge raised the following potential mitigating factors:11
(a) whether the domestic violence suffered by Ms Davidson materially contributed to her offending (the first factor);12
(b)whether Ms Davidson’s particular circumstances would make a sentence of imprisonment disproportionately severe for her (the second factor);13 and
(c) whether the particular circumstances would make a sentence of imprisonment disproportionately severe for her son (the third
factor).14
11 Counsel for Ms Davidson submits the domestic violence was relevant to the culpability of her offending and was therefore relevant to the starting point. However as this relates to her personal circumstances, rather than the nature of the offending, it is appropriately viewed as a personal mitigating factor: R v Whiu [2007] NZCA 591 at [33]. This is the way the Judge approached this. The question is whether he erred in his assessment of this factor in making the allowance he did.
12 At [32] and [37].
13 Sentencing Act 2002, s 8(h), Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Thomson Reuters) at [SA8.13].
14 Section 8(h), Simon France above n 13 at [SA8.14].
[18] The Judge took into account the first factor. He accepted the domestic violence had contributed to Ms Davidson’s offending. He was not prepared to conclude that without the domestic violence the offending would not have occurred. Ms Davidson challenges the correctness of this assessment in the light of the further expert report which concludes the main driving factor of the offending was the domestic violence and trauma she suffered.
[19] The respondent says not too much weight can be placed on this expert report because it is not clear whether the report writer had access to the details of the offending, and in particular that it persisted for over a month after she left the abusive relationship.15 However I do not consider it is right to draw a bright line in this way. The items purchased after the relationship ended are consistent with the dissociative effects of the abuse she suffered. It was a continuation of behaviour that
began during the latter stages of a long term abusive relationship.
[20] I am prepared to accept the psychiatry registrar’s opinion that the main driving factor for Ms Davidson’s offending was the domestic violence and trauma she suffered. However that does not mean it was the only factor. I do not regard this as too different from the view which the District Court Judge took. He accepted it contributed to her offending.
[21] In any event, while the dissociative effects from the abuse help explain why Ms Davidson became an offender, there are limits as to the extent to which this may properly reduce the sentence. While the Court is to take into account the individual culpability of the offender, it must also take into account the purposes of sentencing which include accountability, denunciation and deterrence.16 It is relevant to keep in mind that Ms Davidson did not cease offending when it was discovered by the Wellington Airport, nor when she was charged for the Wellington Airport theft, and nor when she was sentenced by Judge Hobbs for that offending. That experience did
not deter her.
15 There were at least eight purchases on the ACC credit card between 19 December 2015 (when the relationship ended) and 26 January 2016 (when her offending was discovered by ACC).
16 R v Whiu above n 11 at [42].
[22] The Judge also took into account the third factor. He regarded the effect of Ms Davidson’s imprisonment on her son as “the most important” mitigating factor in reaching his view that a nine month discount for her personal circumstances should be given. The further information which has been put before me confirms that the Judge was right to make an allowance for this factor.
[23] The Judge did not, however, take into account the second factor. As disclosed in the psychologist’s report, in late February 2017 Ms Davidson attempted to harm herself. She was found unconscious from an overdose and spent a short time in hospital as a result. The additional information before me is that Ms Davidson continues to suffer from low mood and anxiety which led to prison staff referring her to the forensic mental health clinic. This in turn led to the report from the psychiatric registrar. This report was subsequently provided to Ms Davidson’s counsel. The registrar explains the symptoms Ms Davidson is experiencing which have given rise to the PTSD diagnosis. Those symptoms, which include “recurrent, involuntary, intrusive and distressing thoughts” and “very marked anxiety and hyper arousal”, are causing “significant distress and impairment in functioning”. Adding to this is her concern that her son is in the sole care of her ex-partner who has caused her such distress.
[24] In these circumstances I consider a greater discount should have been given for Ms Davidson’s personal circumstances, particularly in light of the further information that is before me. However, what must be considered is whether the lesser discount allowed by the Judge led to a manifestly excessive sentence. In my view, when considered against the stern starting point of four years and six months, it
did.17 Although it would be desirable from a mother/son perspective, I accept the
respondent’s submission that a discount to a level which would enable Ms Davidson to be sentenced to home detention is out of the question.18 However, all in all, I
regard the end sentence of two years and nine months as manifestly too long for this
17 The starting point of two and a half years for the forged reference was stern when compared with, for example, Abbott v R [2015] NZCA 181 (albeit that case is less serious) and the three month deduction for totality was at the low end given all the offending occurred during a time of great stress for Ms Davidson and that she was being sentenced cumulatively.
18 That would mean a discount of nearly 41 per cent (or 22 months) from the starting point.
offending and this offender. I consider Ms Davidson’s sentence should be reduced by a further five months in light of her particular personal circumstances.
Result
[25] The appeal is allowed. The sentence of two years and nine months is quashed. It is replaced with a sentence of two years and four months imprisonment.
Mallon J
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