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| NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA30/2011 [2011] NZCA 546 |
| BETWEEN BRYNLEY DAVIES |
| AND THE QUEEN |
| Hearing: 20 July 2011 |
| Court: O'Regan P, Glazebrook and Wild JJ |
| Counsel: R M Gould for the Appellant |
| Judgment: 3 November 2011 at 11.00 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of ten years imprisonment for the lead charge is quashed and replaced by a sentence of eight years imprisonment.
C The minimum period of imprisonment is quashed.
D The sentences on the other charges remain in place.
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
Background [5]
Lead sentence [8]
Minimum period of imprisonment [15]
Should a minimum period of imprisonment have been imposed? [16]
Was there jurisdiction to impose a minimum period? [20]
Mr Davies’ position if sentenced straight after the offending[21]
The legislative background [22]
Poumako and Pora [28]
Developments post Poumako and Pora [32]
Morgan [34]
Mist [40]
Post-Morgan authorities in this Court [45]
Approach of Judge Thomas[50]
Comments on Judge Thomas’ approach[51]
Effect of Morgan and Mist [55]
Is it a “heavier” penalty?[61]
Result [63]
Postscript [67]
Introduction
Mr Davies was convicted following a trial in the Wellington District Court of four representative counts of indecency with a girl under 12 years of age and three representative counts of sexual violation by unlawful sexual connection.
The victim was a young relative of Mr Davies’ then partner. The offending was historic in nature and spanned the ten year period from 1982 to 1992, from when the victim was aged about three to 13 years.
The lead charge was one of the sexual violation charges: forced oral sex. Ten years imprisonment was imposed on that charge by Judge Susan Thomas.[1] Seven years concurrent imprisonment was imposed for the two other charges of sexual violation and four years concurrent on the three charges of indecent assault and one of inducing an indecent act. A minimum period of imprisonment, set at half the total sentence (five years), was also imposed.
[1] R v Davies DC Wellington CRI-2008-091-4958, 23 April 2010.
Mr Davies appeals against the lead sentence and against the imposition of the minimum period of imprisonment.
Background
From a very young age, the victim was regularly allowed to bathe with Mr Davies, where the abuse began. Over the ten year period Mr Davies indecently assaulted the victim by touching her breasts and her genitalia and by inducing her to touch his penis. The earlier offending consisted largely of Mr Davies masturbating himself in the victim’s presence while fondling her indecently. Between 1988 and 1992, Mr Davies sexually violated the victim. There were three representative charges of sexual violation by unlawful sexual connection (one digital and…
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- AGLC
- Davies v R [2011] NZCA 546
- Case
- [2011] NZCA 546
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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