Davies v Police - [2023] NZHC 3603

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-71

[2023] NZHC 3603

BETWEEN
BRADLEY JOHN DAVID DAVIES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
7 November 2023 and further memoranda received on 10 and 21

November 2023

Appearances:

K Hadaway as agent for RAA Weir for the Appellant J T Lewis for the Respondent

Judgment:

11 December 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 11 December 2023 at 2:30 pm.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr RAA Weir. Barrister, Hamilton
Ms K Hadaway, Hadaway Law, Hamilton
Mr J T Lewis, Hamilton Legal, Office of the Crown Solicitor, Hamilton

DAVIES v POLICE [2023] NZHC 3603 [11 December 2023]

[1] Mr Davies appeals against his sentence of imprisonment for two years and nine months (33 months) imposed by Judge S R Clark in the District Court in Hamilton on 1 May 2023.1

[2]Mr Davies was sentenced on three sets of charges:

(a)offending in October 2021 – contravening a protection order;2

(b)offending in May 2022 – driving with excess breath alcohol (third or subsequent)3 and driving while disqualified (third or subsequent);4 and

(c)offending in November 2022 – driving while disqualified (third or subsequent),5 being in possession of an offensive weapon6 and being in possession of methamphetamine for supply.7

[3] Mr Davies had pleaded guilty to these charges except for the charge of contravening a protection order in relation to which he was found guilty by the same Judge following a Judge-alone trial on 31 October 2022.8

The offending

October 2021 charge

[4] On 18 September 2013, a final protection order was served against Mr Davies in respect of his ex-partner. He and his ex-partner have one daughter together.

[5] On 27 October 2021 between 11:15 am and 1:55 pm, Mr Davies sent his ex- partner three messages. These messages included questions asking his ex-partner how

1      Police v Davies [2023] NZDC 8331.
2      Family Violence Act 2018, ss 90(b) and 112(1)(a). Maximum penalty three years’ imprisonment.
3      Land Transport Act 1998, s 56(1) and 56(4). Maximum penalty two years’ imprisonment or
$6,000 fine and 12-month disqualification from holding or obtaining a driver licence.
4      Section 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment or $6000 fine and 12-month disqualification from holding or obtaining a driver licence.
5      Section 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment or $6000 fine and 12-month disqualification from holding or obtaining a driver licence.
6      Crimes Act 1961, s 202A. Maximum penalty three years’ imprisonment.
7      Misuse of Drugs Act 1961, s 6(1)(f) and (2). Maximum penalty life imprisonment.
8      Police v Davies [2022] NZDC 21382.

she was and a request that she talk to him. At 9:00am the following day, Mr Davies then attempted to call her.

[6] Mr Davies’ defence at trial was that a history of contact with his ex-partner gave him a belief that he could contact her, and therefore a reasonable excuse for having breached the protection order.…

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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Details

Case: [2023] NZHC 3603
Decision Date: 11 December 2023

CaseChat Overview and Summary

Bradley John Davies appeals against his sentence of two years and nine months imprisonment imposed by the District Court for various criminal charges. The charges include contravening a protection order, driving with excess breath alcohol and driving while disqualified, and possession of methamphetamine for supply and an offensive weapon. Davies argues that the sentence imposed was manifestly excessive due to various errors in the District Court's sentencing process.

The central issue in this appeal is whether the District Court's sentence was manifestly excessive or wrong in principle. The Court examines the propriety of the uplifts applied for Davies' various charges, the discount for mitigating factors, and the uplift for his previous convictions. The Court notes that while the individual uplifts were proportionate, the aggregate uplift of 21 months for other offending was high. The Court reduces the uplift to 15 months, resulting in a starting point of 39 months. The Court also finds that a four-month uplift for previous convictions was justified, given Davies' significant criminal history and offending while on bail. Regarding the discount for mitigating factors, the Court finds that the District Court's 15% discount for Davies' background was within the appropriate range, and a 27-month end sentence is appropriate.

The Court allows the appeal, quashing the original sentence and substituting a sentence of 27 months' imprisonment for the charge of possession of methamphetamine for supply. The remaining sentences are left unchanged. This decision highlights the importance of considering the totality of the offending and the offender's personal circumstances when imposing a sentence.

Orders