Davies v The Queen - [2019] NZHC 1017

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2019-485-150 [2019] NZHC 1017

BETWEEN
MORGAN ROBERT GEORGE DAVIES

Appellant

AND

THE QUEEN

Respondent

CIV-2019-485-151

BETWEEN

CAMERON ALAN FAIRBANK
Appellant

AND

THE QUEEN

Respondent

Hearing: 1 May 2019

Court:
Counsel:

Churchman J

Judge J R Billington QC Judge D McGregor

O S Winter for AC Davis
P L Murray for AC Fairbank
LTCOL J E Kennedy-Good and LT J K Rowe for Crown

Judgment:

13 May 2019

JUDGMENT OF THE FULL COURT

Davies v R; Fairbank v R [2019] NZHC 1017 [13 May 2019]

Table of Contents

Introduction........................................................................................................... [1]

Conviction appeal................................................................................................. [10]
Elements of the Offences..................................................................................... [57]

Sentence appeals.................................................................................................. [76]
Sentencing in the military jurisdiction................................................................. [80]

Leading case of McCartin v R [88]

Imprisonment versus detention [93]

AC Davies’ sentence appeal................................................................................. [95]

Comparison with R v McCartin [97]

Analysis [103]

Imprisonment as opposed to detention [113] AC Fairbank’s sentence appeal................................................................................. [129]

Result................................................................................................................. [145]

Introduction

[1] On 20 February 2019, the appellants, Aircraftsman Morgan Davies (AC Davies) and Aircraftsman Cameron Fairbank (AC Fairbank) were found guilty in the Court Martial of New Zealand of offences against the Misuse of Drugs Act 1975. These civil offences were brought into the military jurisdiction through s 74(1) of the Armed Forces Discipline Act 1971 (AFDA).

[2]AC Davies pleaded guilty to the following offences:

(a)five charges of offering to supply a Class B controlled drug;1

(b)one charge of supplying a Class B controlled drug;2

(c)two charges of consuming a Class B controlled drug;3 and

(d)two charges of consuming Class C controlled drugs.4

1      Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(b); maximum penalty 14 years’ imprisonment.
2      Sections 6(1)(c) and (2)(b); maximum penalty 14 years’ imprisonment.
3      Sections 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment and a fine of $500.
4      Sections 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment and a fine of $500.

[3]Following a defended hearing, AC Davies was also found guilty of:

(a)one charge of offering to supply a Class A controlled drug;5 and

(b)one charge of consuming a Class A controlled drug.6

[4] After adopting a starting point of 21 months’ imprisonment, reduced to 16 months for mitigating factors, the Court imposed on AC Davies an end sentence of 12 months’ detention and dismissal from Her Majesty’s Service.

[5] AC Davies appeals both his conviction for the charges to which he pleaded not guilty and his sentence. He appeals on the basis that:

(a)the verdict on charge one was not a verdict which a properly directed Court Martial could reasonably have come to on the evidence and is inconsistent with the verdict of not guilty in respect of charge 10 against AC Fairbank;

(b)the verdict on charge 12 was not a verdict which a properly directed Court Martial could reasonably have come to on the evidence; and

(c)the sentence imposed on him was manifestly excessive.

[6] The Crown opposes the appeals of AC Davies. In respect of the conviction, the Crown submits that the guilty verdicts were…

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 The Queen

Details

AGLC: Davies v The Queen [2019] NZHC 1017
Case: [2019] NZHC 1017
Decision Date: 13 May 2019

CaseChat Overview and Summary

The Court Martial Appeal Court was asked to consider the appeals of two individuals, Morgan Davies (AC Davies) and Cameron Fairbank (AC Fairbank), who were found guilty of various drug-related offences. The appeals addressed both conviction and sentencing issues. The conviction appeal was dismissed as the Court found that the Court Martial was entitled to rely on the evidence presented, which was sufficient to conclude that the drugs in question were the Class A drug methamphetamine. The appeals against sentence were also dismissed. The Court found that the sentence of detention imposed on AC Davies, while less severe than imprisonment, was not manifestly excessive and was appropriate given the context and nature of the offending. The Court similarly found that AC Fairbank's sentence of 126 days' detention was within the appropriate range, despite being at the higher end of previous cases, and was not manifestly excessive. The Court concluded that the sentences imposed were consistent with the principles of sentencing in the military jurisdiction and were not manifestly inadequate or excessive.

Orders