Davidson v The Queen - [2017] NZHC 1115

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 Respondent

Judgment:

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…

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 The Queen

Details

AGLC: Davidson v The Queen [2017] NZHC 1115
Case: [2017] NZHC 1115
Decision Date: 26 May 2017

CaseChat Overview and Summary

Ms Davidson appealed against her sentence of two years and nine months imprisonment, arguing it was manifestly excessive. The High Court of New Zealand heard the appeal and considered the arguments presented by both parties. The legal issues for the Court to determine were whether the sentence was manifestly excessive, and whether insufficient weight had been given to the mitigating factors of the domestic violence she had suffered and its influence on her offending.

The Court found that while the Judge had taken into account the domestic violence as a mitigating factor, he had not adequately considered the extent to which Ms Davidson's personal circumstances, including her PTSD diagnosis and ongoing mental health issues, warranted a lesser sentence. The Court accepted that the domestic violence had contributed to her offending, but also noted that Ms Davidson had continued to offend even after the abusive relationship had ended. However, the Court concluded that a greater discount should have been given for her personal circumstances, and that the sentence of two years and nine months imprisonment was manifestly too long for this offender. The appeal was allowed, and the sentence was reduced to two years and four months imprisonment.

The final orders of the Court were that the appeal was allowed, the sentence of two years and nine months was quashed, and replaced with a sentence of two years and four months imprisonment. This decision highlights the importance of taking into account all relevant mitigating factors when sentencing an offender, and the need for a balanced approach that considers both the individual culpability of the offender and the purposes of sentencing.

Orders