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Davies v R

Davies v R

Case [2011] NZCA 546 3 November 2011

Sentencing

Appeal

Minimum Period of Imprisonment

Jurisdiction

Criminal Law

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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
Appellant

AND THE QUEEN
Respondent

Hearing: 20 July 2011

Court: O'Regan P, Glazebrook and Wild JJ

Counsel: R M Gould for the Appellant
A Markham for the Respondent
N Levy as counsel assisting the Court

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…

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 Davies v R

Details

AGLC: Davies v R [2011] NZCA 546
Case: [2011] NZCA 546
Decision Date: 3 November 2011

CaseChat Overview and Summary

Brynley Davies appeals against his conviction and sentence imposed by the Wellington District Court. Mr Davies was convicted of four counts of indecency with a child under 12 and three counts of sexual violation by unlawful sexual connection. The victim, a young relative of Mr Davies’ then partner, was abused over a period of ten years from 1982 to 1992. The lead charge was of sexual violation by forced oral sex and ten years imprisonment was imposed. 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. Mr Davies appeals against the lead sentence and against the imposition of the minimum period of imprisonment. The Court of Appeal held that the appropriate starting point for the offending was one of eight years, not ten years as determined by Judge Thomas. The Court also held that there was no jurisdiction to impose a minimum period of imprisonment. The sentence of ten years imprisonment for the lead charge is quashed and replaced by a sentence of eight years imprisonment. The minimum period of imprisonment is quashed. The sentences on the other charges remain in place.

Orders