DAVIS v POLICE [2022] NZHC 3014

DAVIS v POLICE [2022] NZHC 3014 [17 November 2022]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2022-425-000020[2022] NZHC 3014BETWEEN DHARAM RAJ DAVISAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2022Appearances: K L E Coote for the AppellantM B Brownlie for the RespondentJudgment: 17 November 2022JUDGMENT OF NATION JIntroduction[1] Dharam Davis pleaded guilty to one charge of threatening behaviour,1 onecharge of wilful damage,2 one charge of unlawfully taking a motorcycle3 and onecharge of disorderly behaviour.4 The charge of threatening behaviour was originallya charge of threatening to kill.[2] Mr Davis was sentenced by Judge Brandts-Giesen to 15 months and oneweek's imprisonment.5 Judge Brandts-Giesen previously gave Mr Davis a sentenceindication, treating the threatening to kill charge as the lead offence. After the sentence1 Summary Offences Act 1981, s 21(1)(a): maximum penalty three months' imprisonment or a$2,000 fine.2 Section 11(1)(a): maximum penalty three months' imprisonment or a $2,000 fine.3 Crimes Act 1961, s 226(1): maximum penalty seven years' imprisonment.4 Summary Offences Act, s 3: maximum penalty three months' imprisonment or a $2,000 fine.5 Police v Davis [2022] NZDC 18710.indication, the charge was lowered from threatening to kill to threatening behaviour.The Judge's sentencing notes generally reflected the sentence indication.[3] Mr Davis appeals his sentence.Facts[4] On 1 June 2022, Mr Davis and two associates went to the Four Squaresupermarket in Wyndham. They were members of the criminal gang syndicate knownas the Mangu Kaha. Mr Davis and one of his associates approached a patched MongrelMob member and asked him to take off his patch. That person refused and theybecame involved in a verbal exchange. All three of them took up a fighting stance.The Mongrel Mob member tried to run from the store but became trapped in an aisle.Mr Davis and his associate grabbed the Mongrel Mob member. The other associateentered the supermarket and became involved in the scuffle. Mr Davis and his twoassociates then left the store. He was charged with behaving in a disorderly mannerunder the Summary Offences Act 1981.[5] Mr Davis appeared in Court on 15 June 2022. He was remanded at large.[6] On 18 July 2022, Mr Davis was drinking at his parents' house. He was inpossession of a large meat cleaver. He became agitated and a verbal argument eruptedbetween him and his parents. Mr Davis threatened to kill his father while wielding themeat cleaver, stating "I'll kill you" several times. He threw a bottle of beer at thefridge before walking outside the house.[7] Mr Davis hurled the meat cleaver at the kitchen window and struck itapproximately two or three times, smashing the window.[8] Mr Davis walked away from the house to the farm shed, took a quad bikeowned by the farm owner and drove it back to the house. He was then challenged byPolice and fled on the quad bike through the farm and onto the highway. He waslocated a short time later at an associate's house with the bike.[9] As a result of that incident, Mr Davis was initially charged with threatening tokill under the Crimes Act 1961, unlawfully taking a motorcycle and wilful damage.He appeared in Court on those charges on 19 July 2022. He was remanded in custody.The sentence indication[10] The District Court Judge gave Mr Davis a sentence indication on 11 August2022.[11] The Judge adopted a starting point of 15 months' imprisonment for the chargeof threatening to kill. His Honour considered this case to be more serious than thecase cited by the Police, Blair v Police.6 The aggravating factors of this offendingwere the degree of premeditation, the apparent willingness and ability of an offenderto carry out the threat, the use of a weapon, the level of fear and harm caused to thevictim, and that the threat was made directly to the victim.[12] The Judge added a three-month uplift for the balance of the 18 July 2022offending and a one-month uplift for the offending on 1 June 2022. He then added aone-month uplift for previous offending. This totalled 20 months' imprisonment.[13] The Judge said he would allow a 20 per cent discount for a guilty plea if MrDavis accepted the sentence indication. There were no other discounts, leaving an endsentence of 16 months' imprisonment. The Judge also considered an emotional harmpayment and a protection order would be appropriate.[14] After the sentence indication had been given, Mr Davis was remanded incustody on two occasions with the Judge noting Mr Davis was to accept or decline thesentence indication.[15] On 25 August 2022, the charge of threatening to kill was amended to a chargeunder s 21(1)(a) of the Summary Offences Act 1981 that Mr Davis "[k]nowing thathis conduct was likely reasonably to frighten [his father], threatened to injure thatperson". The maximum penalty on that charge is three months' imprisonment or a$2,000 fine, compared to seven years' imprisonment on a threatening to kill charge.7The amended charge was put to Mr Davis. He pleaded guilty. The Judge made a notethat the sentence indication was accepted. Mr Davis was remanded for sentence to 22September 2022. A pre-sentence report was ordered before the sentencing.6 Blair v Police HC Dunedin CRI-2010-412-10, 13 May 2010.7 Crimes Act, s 306.The sentencing[16] At sentencing on 22 September 2022, the Judge began by noting the charges,referring to the threatening behaviour charge and not the threatening to kill charge. Hereferred to the facts of the offending as earlier described. He repeated informationfrom the pre-sentence report as to the factors that put Mr Davis at risk of furtheroffending. He said Mr Davis had apparently reconciled with his parents. He noted aproposed home detention address was not suitable for technical reasons and said hehad no option but to imprison Mr Davis.[17] The Judge declined to give a discount for remorse.[18] Taking into account mitigating factors which had been put before him onsentencing, the Judge said he was reducing the starting point (which was 16 months'imprisonment from the sentence indication) to 15 months' imprisonment, with leaveto apply for home detention.[19] Overall, the Judge imposed a 15-month sentence for the charge of unlawfullytaking a motorcycle, and one-month concurrent sentences for each of the othercharges.[20] The Judge also remitted Mr Davis' outstanding fines and added one weeks'imprisonment to the 15-month sentence.Principles on appeal[21] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.8 As the Court of Appeal identified in Tutakangahau v R, quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".9 It is appropriate for this8 Criminal Procedure Act 2011, ss 250(2) and 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].Court to intervene and substitute its own views only if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.10SubmissionsAppellant's submissions[22] For Mr Davis, Ms Coote submitted the sentence was manifestly excessive. Shepointed out that the sentence proceeded on the basis the sentence indication wasaccepted, but said it was never formally accepted. She essentially said this was wrongbecause one charge had been amended after the sentence indication was given, butthere was no allowance for that in the sentence imposed. She noted there was nodiscount for a guilty plea given in the sentence, but that may have been because theJudge adopted the sentence from the sentence indication which included a guilty pleadiscount. She also submitted there should have been a separate discount for remorse.[23] In submitting that the sentence was manifestly excessive, she said a startingpoint of 15 months' imprisonment for a charge of unlawfully taking a motor vehiclewas excessive. She submitted Mr Davis' offending was not a serious type of thisoffending because the bike taken was used by his parents on their farm, he used thebike to remove himself from the situation and had no intention of taking itpermanently, he was located with the bike a relatively short distance away and it wasreturned two hours after it had been taken. She said the fact this offending was not atthe serious end of that offending was reflected in the fact the Judge initially gave MrDavis a one-and-a-half-month uplift (referring to half of the three-month uplift for theunlawfully taking a motor vehicle charge and the wilful damage charge).[24] Ms Coote said a starting point of 5 to 6 months' imprisonment would beappropriate.[25] No issue was taken with the sentences for the other offending.10 Ripia v R [2011] NZCA 101 at [15].[26] She contended that Mr Davis should get a discount for remorse because heengaged in the restorative justice process with his parents. During that process, heapologised for his actions and expressed a level of remorse for what he had done.[27] Overall, she submitted, with a starting point of five months' imprisonment forthe unlawful taking, uplifts of three months for the balance of the offending and onemonth for previous convictions, and discounts of 25 per cent, the end sentence wouldbe one of seven months' imprisonment.Respondent's submissions[28] For the Police, Mr Brownlie submitted a 12-month starting point for the chargeof unlawfully taking a motor vehicle was available to the District Court Judge. He didnot take issue with the uplift for the remaining charges relating to the 18 July 2022offending. For the disorderly behaviour charge, he contended an uplift of two months'imprisonment would be available because the offending involved gangs in a groupsetting and in a public place.[29] He also submitted that an uplift of three months would be justified for MrDavis' previous convictions. He said an uplift of one month amounts to about five percent. He submitted, given the number of dishonesty offences Mr Davis has committed(Mr Brownlie cited 11), a higher uplift would be appropriate.[30] Mr Brownlie said it was appropriate there not be a discount for remorse giventhe generous discount given for Mr Davis' guilty plea.[31] Overall, he submitted, despite the unorthodox methodology of sentencing, theoverall sentence was appropriate to reflect the overall scale of offending. Hesubmitted, with a starting point of 12 months' imprisonment for the unlawful taking,uplifts of three months for the other offending and three months for previousconvictions, and a discount of 20 per cent for a guilty plea, would lead to an endsentence of 14.4 months. Mr Brownlie submitted that appellate intervention would beinappropriate given the sentence imposed was 15 months.Analysis[32] Mr Brownlie, for the Police, accepted that the sentence indication wasdeclined. However, the record of the proceeding on the charging document notes thesentence indication was accepted, and the Judge treated it as accepted in hissentencing, despite the fact the charge was reduced.[33] Whether the sentence indication was accepted is not determinative of thisappeal. A defendant has the right to appeal their sentence, even after accepting asentence indication.11 The Judge's end sentence was however in line with his sentenceindication without any consideration of whether there needed to be a change given thesignificant reduction in the seriousness of the charge Mr Davis was facing as to thethreats he had made against his father.[34] With there having been that error, it is appropriate for me to consider whethera different end sentence should be imposed with due regard to the amended charge.[35] With that amendment, the lead charge would be the charge of unlawfully takingthe motorcycle. There is no guideline case for sentencing on the unlawful taking of amotor vehicle. In Curle v Police, Wylie J referred to a number of High Courtjudgments.12 Wylie J said case law suggested that, in the case of a single conversion,a starting point of between 12 and 18 months would generally be appropriate.13 InO'Rourke v Police, Mallon J held a starting point of nine months' imprisonment forthe unlawful taking of a single motor vehicle was within the available range buttowards the high end given the vehicle was taken for a short time and was notdamaged.14[36] Here, Mr Davis had been drinking. He had become agitated and was in a statewhere he was a danger to himself and others. The Police had been called to come tothe house where Mr Davis was in conflict with his father. Mr Davis walked away from11 Criminal Procedure Act, s 245.12 Curle v Police [2017] NZHC 1194 at [27] citing Muir v Police [2015] NZHC 1425; Affleck v R[2015] NZHC 1741; Duxfield v R [2015] NZHC 3018; Gideon v Police [2014] NZHC 1065;Kushell v Police [2012] NZHC 2380; and Riini v Police [2016] NZHC 2218.13 Curle v Police, above n 12, at [28].14 O'Rourke v Police [2016] NZHC 273 at [7]−[8].the house to the farm shed, took a quad bike owned by the farm owner and drove itback to his parents' house. There, he was challenged by Police. He fled on the bikethrough the farm, exiting onto State Highway 1. He was located by Police a short timelater at an associate's address with the motorbike. The bike was returned undamagedto the owner.[37] I consider an appropriate starting point for the unlawful taking would havebeen 10 months' imprisonment.[38] There then had to be an uplift for the intimidation charge and the wilful damagecharge. The maximum penalty on the intimidation charge is three months'imprisonment. The intimidation was particularly serious given Mr Davis was armedwith a meat cleaver at the time and made threatening to kill statements. I consider anuplift of two months would have been appropriate for that charge. The maximumpenalty on the wilful damage charge was three months' imprisonment. I consider anuplift of one month would have been appropriate for that charge.[39] That would have led to a starting point of 13 months' imprisonment for theoffences arising out of Mr Davis' confrontation with his father at their home. I do notconsider that needs to be adjusted downwards for totality.[40] There was then the disorderly behaviour charge relating to the earlier incidentin the supermarket. The maximum penalty for that charge was three months'imprisonment. I consider an uplift of two months' imprisonment would have beenappropriate for that charge. The disorderly behaviour related to a gang confrontationwithin a supermarket where the confrontation would have been disturbing to others inthe store, with there being an obvious risk of associated violence. Mr Davis' conductwas more serious in that he had confronted a rival gang member with the support of agang associate. Because it related to conduct on a separate occasion, it does not needto be reduced on account of totality.[41] An appropriate starting point for all the offending would thus have been 15months' imprisonment.[42] It was then necessary to consider mitigating or aggravating factors relating toMr Davis personally.[43] On 7 February 2021, Mr Davis offended by way of assaulting Police, resistingPolice, refusing to accompany an enforcement officer, driving while licence suspendedor revoked and escaping from Police custody. The way he drove off on the stolen quadbike is somewhat similar. The intimidation of his father involved threatened violence.It is of concern that Mr Davis had a conviction from 2014 for manslaughter for whichhe was sentenced to three years and six months' imprisonment, and charges ofpossession of an offensive weapon from 2014.[44] Mr Davis does have previous convictions for offences of dishonesty, includingburglary and unlawfully taking a motor vehicle, but the most recent offending of thisnature dates back to 2012 and 2011 respectively. There was dishonesty in Mr Davistaking the quad bike. He knew the property was not his to take. Nevertheless, I donot consider a further uplift is required because of Mr Davis' previous dishonestyoffences.[45] An uplift on account of Mr Davis' previous offending is however necessary tomark the seriousness of similar offending and the need to make him aware he mustchange so he is not at risk of causing violence to others. I consider an uplift of onemonth is appropriate.[46] There was a detailed report from restorative justice referring to the meeting MrDavis had with his parents. It was apparent the abuse of alcohol within the home wasa factor in the offending. Mr Davis did not appear particularly sorry for what hadoccurred but acknowledged he needed to change and said he wanted to change for thesake of his daughter. There was an indication in that report that Mr Davis values thehelp he is getting from his probation officer and wants to make changes. I wouldrecognise that with a discount of one month. That cancels out the uplift for previousoffending.[47] There would then be a discount for guilty pleas. With the sentence indication,and thus with the eventual sentencing, Mr Davis received a discount of 20 per cent.In seeking an indication before he pleaded guilty, Mr Davis was not acceptingresponsibility for his offending. He had not pleaded guilty to the disorderly behaviourcharge or the charges of unlawfully taking a vehicle and wilful damage as early as hecould have, but he had also not entered pleas of not guilty to those charges. The delayin pleading guilty seems to have been driven by his wish to defend the threatening tokill charge. On that charge, he had entered a plea of not guilty on 21 July 2022. Onthe same date, Mr Davis pleaded guilty to the other charges. The threatening to killcharge was ultimately amended to threatening behaviour. He then entered a guiltyplea to the amended charge. The 20 per cent discount for guilty pleas was thusjustified.[48] Approaching matters that way, the appropriate end sentence would have been12 months' imprisonment. That is a significant reduction on the sentence imposed of15 months' imprisonment. There was an error in the way sentencing had proceeded.Conclusion[49] Accordingly, Mr Davis' appeal is allowed. The original sentence is quashed.His outstanding fines of $4,456.64 are remitted but, in recognition, an additional week'imprisonment is imposed. Mr Davis is sentenced to 12 months and one week'simprisonment. He has leave to apply for home detention.[50] Mr Davis is to be subject to post release conditions for six months, includingthe special conditions set out on page seven of the pre-sentence report.Solicitors:Eagles Eagles & Redpath, InvercargillCrown Solicitor, Invercargill.