Davies v Police - [2019] NZHC 2984

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-319

[2019] NZHC 2984

BETWEEN
TARQUIN DAVIES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 November 2019

Appearances:

N Baier for the Appellant

D Becker for the Respondent

Judgment:

15 November 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 15 November 2019 at 1.00 pm

Registrar/Deputy Registrar Date:

Solicitors: Crown Solicitor, Auckland
Public Defence Service, Auckland

DAVIES v POLICE [2019] NZHC 2984 [15 November 2019]

Introduction

[1] The appellant, Tarquin Davies, breached a protection order on two occasions. On the second occasion, he was on bail for the first breach. He pleaded guilty to eight charges arising out of the events on those two occasions.

[2] On 12 July 2019, Mr Davies, was sentenced to two years and two months’ imprisonment by Judge Collins in the Auckland District Court on the following charges:1

(a)contravention of a protection order (x2);2

(b)wilful damage (x3);3

(c)common assault;4 and

(d)failing to answer District Court bail (x2).5

[3] Mr Davies now appeals that sentence on the basis that the sentence was manifestly excessive on the grounds that:

(a)the starting point was disproportionate and inconsistent with similar offending;

(b)there was insufficient adjustment to reflect the principle of totality;

(c)the uplift for relevant previous convictions was excessive; and

(d)insufficient credit was given for mitigating factors.

1      Police v Davies [2019] NZDC 13668.
2      Domestic Violence Act 1995, ss 19(1)(c), 49(1)(a) and 49(3). Maximum penalty: three years’ imprisonment.
3      Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.
4      Section 9. Maximum penalty: six months’ imprisonment or a fine not exceeding $4,000.
5      Bail Act 2000, s 38. Maximum penalty: one year’s imprisonment or a fine not exceeding $2,000.

Background

[4] On 2 February 2017, a final protection order was issued against Mr Davies in favour of the victim, his former partner.

[5]The charges relate to two separate sets of offending.

[6] First, on 8 July 2018, Mr Davies arrived at the victim’s home address with his brother. An argument broke out between Mr Davies and the victim. Mr Davies grabbed the victim’s cell phone and threw it against the concrete driveway five times repeatedly, causing the phone to smash. Mr Davies grabbed the victim by the arm and started to pull her up the road against her will. He released the victim and she returned to her house. Mr Davies followed her, entering into the victim’s property in an attempt to locate her. The victim asked Mr Davies to leave; he refused. The victim then ran into the bathroom of the house and locked herself inside for protection.

[7] This event resulted in three charges: contravention of a protection order, common assault and wilful damage.

[8] Secondly, on 24 November 2018, the victim and her new partner were asleep in the victim’s bedroom. Mr Davies arrived at the victim’s address at about 4.30 am. He approached the…

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: [2019] NZHC 2984
Decision Date: 15 November 2019

CaseChat Overview and Summary

The appellant, Tarquin Davies, appeals his sentence of two years and two months' imprisonment for breaching a protection order and wilfully damaging property. The appeal was on the basis that the sentence was manifestly excessive, citing various grounds including the starting point being disproportionate, insufficient adjustment to reflect the principle of totality, excessive uplift for relevant previous convictions, and insufficient credit for mitigating factors. The High Court reviewed the District Court's approach to sentencing, particularly focusing on the starting point, adjustments for the principle of totality, uplifts for previous convictions, and credits for mitigating factors. The Court found that the global starting point was too high and not sufficiently adjusted for the principle of totality. It also found that the uplift for previous convictions was excessive and that insufficient credit was given for mitigating factors, particularly rehabilitation. The Court quashed the original sentence and imposed a sentence of 16 months' imprisonment, along with concurrent sentences for other charges, and remitted the matter back to the District Court to consider a sentence of home detention.

Orders