DAVIS V R [2017] NZCA 226

DAVIS V R [2017] NZCA 226 [31 May 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA515/2016[2017] NZCA 226BETWEEN DWAYNE JOHN DAVISAppellantAND THE QUEENRespondentHearing: 8 May 2017Court: Harrison, Gilbert, Katz JJCounsel: H T Young for AppellantA J Ewing for RespondentJudgment: 31 May 2017 at 2.30 pmJUDGMENT OF THE COURTA The application to adduce fresh evidence is declined.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Following a trial by jury in the Dunedin District Court, Dwayne Davis(also known as McLean) was found guilty of the following charges:(a) Charge 1 — supplying cannabis to J, a person under 18 years of age, atWaihola.(b) Charge 3 — doing an indecent act on J, a young person under the ageof 16, at Waihola.(c) Charge 8 — a representative charge of supplying cannabis to J, a personunder 18 years of age, at Milton.(d) Charge 10 — a representative charge of supplying a class B controlled drug(oxycodone) to J at Milton.(e) Charge 9 — a representative charge of supplying cannabis to W, a personunder 18 years of age, at Milton.(f) Charge 11 — supplying a class B controlled drug (oxycodone) to Wat Milton.[2] Mr Davis was found not guilty of the following charges:(a) Charge 2 — supplying a class B controlled drug (oxycodone) to J atWaihola.(b) Charge 4 — doing an indecent act on J, a young person under the ageof 16, at Milton.(c) Charge 7 — doing an indecent act on J, a young person under the ageof 16, at Milton.[3] Charges 5 and 6 alleging indecent acts on J at Milton were withdrawn duringthe trial.[4] Mr Davis was convicted and sentenced by Judge Crosbie to an effective endsentence of five years' imprisonment made up as follows:1(a) Charges 1 and 3 — two years and six months' imprisonment.(b) Charge 8 — one year and three months' imprisonment (cumulative).(c) Charge 10 — five months' imprisonment (cumulative).(d) Charge 9 — five months' imprisonment (cumulative).(e) Charge 11 — five months' imprisonment (cumulative).[5] Mr Davis appeals against conviction and sentence.[6] In support of his appeal against conviction, Mr Davis argues that the jury'sguilty verdict on Charge 1 is inconsistent with the not guilty verdict on Charge 2because both charges arose out of the same incident and the Crown case on thesecharges was entirely dependent on J's evidence. For the same reason, Mr Daviscontends that the guilty verdict on Charge 3 is inconsistent with the not guilty verdictson Charges 4 and 7.[7] Mr Davis applies to introduce further evidence in support of his appeal. Thisevidence is intended to show that the complainants J and W lied at the trial. Mr Daviscontends that this evidence is fresh, credible and cogent and demonstrates that theconvictions are not safe. For these reasons, Mr Davis asks this Court to set aside theconvictions and direct a retrial.1 R v Davis [2016] NZDC 18752 [Sentencing notes] at [43].Background[8] We begin by summarising the Crown's case to the extent necessary tounderstand the issues raised by the conviction and sentence appeals. Mr Davis electednot to give or call evidence at the trial.[9] In 2009 J was aged 12 and lived with his family in Waihola. Mr Davis, thenaged 31, was a family friend who also lived in Waihola with his son L and daughterFaith. J enjoyed spending time at Mr Davis' house because he gave him alcohol andcannabis and they would drink and smoke together. J often stayed overnight.Charges 1, 2 and 3 — supply of cannabis and oxycodone; indecent act on J at Waihola[10] J gave evidence about a particular occasion when he was 12 or 13 when he saidhe drank seven to nine bottles of premixed bourbon and cola and smoked cannabiswith Mr Davis at his house in Waihola. He said that Mr Davis gave him the alcoholand the cannabis. He recalled smoking the cannabis in an L-shaped pipe. He said thatMr Davis then offered him two pills, which J understood had been prescribed for MrDavis. J described these as capsules that were "a whitey colour and sort of like a pinkycolour". He thought they were "oxinorm tablets". J said that about 20 minutes afterswallowing these tablets he started to feel "unusual", "spaced out" and "scared". Hesaid he was "almost crying" and could not control his emotions. He said that he thenpassed out. When he woke up, he found that he was in Mr Davis' bed. He said thatMr Davis was lying behind him with his hands down his pants masturbating him. Thiscontinued until J ejaculated. J said that Mr Davis told him that it was all right and hecould touch him as well but J replied that he did not want to. J said that he then wentback to sleep. When he woke up again, he went home but did not tell anyone whathad happened. When asked in cross-examination why he did not tell his mother, J saidthat he was "quite embarrassed" and felt that he was "the one in the wrong".Charges 8 and 10 — supply of cannabis and oxycodone to J at Milton[11] When J was 13 or 14, he moved with his mother to Glenavy (near Oamaru) tolive with her new partner. J stayed there for about six months but, because he hadtrouble settling into his new school, he went to stay with Mr Davis for about fourmonths at Mr Davis' new address in Milton.[12] J said that Mr Davis continued to supply him with alcohol and cannabis butthere were other drugs as well. He recalled "Ritalin, oxinorm and another typecalled oxycodone". He said that he smoked cannabis supplied by Mr Davis most daysand estimated that Mr Davis gave him what he knew as "oxinorm" on 10 or moreoccasions.Charges 4 and 7 — indecent acts on J at Milton[13] J described two other occasions when Mr Davis committed indecent acts onhim, both at Milton. The first was when he was asleep on the couch and woke to findMr Davis with his hands down his pants masturbating him. The second happenedwhile J was sleeping in a single bed in Mr Davis' son's bedroom. Mr Davis returnedfrom the hotel heavily intoxicated. J said that he had also been drinking and was in adeep sleep. J said that he woke to find Mr Davis' hands down his pants. However, Jsaid that he pushed him away. He said that he was aged about 14 at the time of theseincidents.[14] Sometime later, Mr Davis moved to Mosgiel and J and his girlfriend lived therewith him for about six months when J was aged about 16. J moved out after he andMr Davis had an argument. J agreed in cross-examination that they parted on badterms. However, J firmly resisted the following propositions put to him by Mr Davis'counsel in cross-examination: Mr Davis never supplied J with alcohol or drugs; J stolecannabis and other drugs from Mr Davis; Mr Davis did not sexually abuse J; and Jmade up the allegations of sexual abuse because he wanted revenge against Mr Davisfor kicking him out of his house and because he wanted to make an ACC claim toreceive compensation.Charges 9 and 11 — supply of cannabis and oxycodone to W at Milton[15] W is two years older than J. He met J when he was living in Waihola but cameto know him well after J moved to Milton. W met Mr Davis at the Milton addressthrough his friendship with J when he was aged 14 or 15. W confirmed that J wasliving with Mr Davis and his two children at that stage. W also stated that on each ofthe four or five occasions he went around to Mr Davis' house, he drank alcohol andsmoked cannabis with J and Mr Davis. He said that Mr Davis supplied the cannabis.On one or two occasions, he said that Mr Davis crushed painkillers at the kitchenbench and the three of them snorted it.[16] At trial, W strongly rejected the following propositions put to him by defencecounsel in cross-examination: Mr Davis never supplied him with cannabis; Mr Davisdid not snort drugs in front of him; and J stole Mr Davis' medication.[17] Lauren Hurley is a pharmacist in Dunedin. Her evidence was uncontested.She said that between February 2009 and November 2011, Mr Davis, who had sufferedburns to his face and neck, regularly came to the pharmacy to obtain prescriptions foroxycodone, paracetamol and codeine phosphate. Ms Hurley explained that"Oxynorm" — a drug referred to in evidence by both J and W — is in fact a brandname of oxycodone, an opioid pain reliever which comes in liquid and capsule form.Oxinorm capsules differ in colour depending on whether they contain 5, 10 or 20 mg.Mr Davis was prescribed 10 mg which is the equivalent of 20 mg of morphine.She said that the 10 mg capsules are white and beige in colour.[18] Mr Davis agreed to an evidential interview with the police. He said that hesmoked cannabis, but never inside the house and he never offered it to J. He deniedgiving J pills in any form and says that he kept these in his room. He also deniedoffering J alcohol or performing any indecent act on him. He suggested that J hadmade up these allegations to ruin his reputation and because he wanted to make anACC claim.[19] As noted, Mr Davis elected not to give or call evidence at the trial.Conviction appealWere the verdicts on Charges 1 and 2 inconsistent?[20] Mr Young submits that the guilty verdict on Charge 1 cannot be reconciledwith the not guilty verdict on Charge 2. He contends that there is no logicalexplanation for the jury being satisfied beyond reasonable doubt that Mr Davissupplied cannabis to J but not satisfied that he also supplied him with oxycodone. Thisis because these charges arose out of the same occasion at Waihola and were whollydependent on J's evidence.[21] Mr Young suggests that the jury may have been satisfied by J's evidence thatcannabis was supplied on other occasions at Waihola and misunderstood that thecharge required proof that Mr Davis supplied J with cannabis on the specific occasionwhen J said that he was also supplied with Oxycodone and then indecently assaulted.Mr Young submits that this confusion may have been contributed to by the wording— "Waihola incidents" in the plural rather than "Waihola incident" — for Charges 1,2 and 3 on the Crown charge notice and this wording being repeated in the questiontrail. Because the date of this incident could not be pinpointed, the charge notice andthe question trail referred to the date range from 29 April 2009 until 20 October 2010,potentially adding to the misunderstanding.[22] Mr Young acknowledges that Crown counsel made it clear in opening thatCharges 1, 2 and 3 all arose out of a sequence of events that allegedly occurred on thesame day at Waihola but he says that the same clarity was lacking in the Crown'sclosing address. He argues that the potential for confusion was compounded by theJudge's summing-up because he did not remind the jury that Charges 1, 2 and 3 allrelated to the same incident. For these reasons, Mr Young contends that there is a realpossibility that the jury answered question 1 in the trail literally — "Are you sure thatbetween 29 April 2009 and 20 October 2010 Mr Davis gave the complainantCannabis?" — without confining their attention to the specific occasion when it wasalleged that oxycodone was also supplied and J was indecently assaulted.[23] Despite Mr Young's careful and thoughtful submissions, we are not persuadedthat the verdicts are necessarily inconsistent and cannot stand together. There are otherpossible explanations for them. An obvious one is that, on J's own evidence, he washighly intoxicated having drunk seven to nine pre-mix bourbon and coke drinks andsmoked cannabis prior to Mr Davis allegedly giving him oxycodone. The jury mighthave concluded that although they found J to be a truthful witness and they weresatisfied that Mr Davis supplied him with cannabis on that occasion, as was common,he may have been mistaken about the oxycodone due to his high level of intoxicationand the long period of time that had passed since this occurred. We consider that thedifferent verdicts returned on Charges 1 and 2 indicate that the jury conscientiouslyfollowed the Judge's direction to assess the evidence in relation to each chargeseparately, applying the required standard of proof.Were the verdicts on Charges 3, 4 and 7 inconsistent?[24] Mr Young submits that the jury's guilty verdict on Charge 3 that Mr Daviscommitted an indecent act on J at Waihola is inconsistent with the not guilty verdictsreturned for similar offending at Milton; namely Charges 4 and 7. He contends thatthis was an "all or nothing" type of case.[25] We do not accept this submission. These were separate incidents years apart.As Ms Ewing observes, J's evidence about the indecent act at Waihola was moredetailed than his evidence about the similar offending at Milton. J also said thatMr Davis discussed it with him afterwards. He said that Mr Davis was apologetic andtried to minimise what had happened by saying that they were "just experimenting".By comparison, J's evidence about the alleged indecencies at Milton was more generaland the jury may have gained the impression J was less certain about it. When firstasked about the topic in his evidence-in-chief, J answered as follows:Q. So how was he acting physically towards you there?A. Um, he'd, he was still always, like, just like sort of like a sly attitude,like, um, he'd come home from the pub and stuff like, there's this onetime I was, um, lying on the couch. I was asleep on the couch 'cos Iused to sleep on the couch quite often, um, yeah, and I was in ablanket and he'd, like, he would come and sit, sit like at your feet orsomething like that he'd like, yeah, just try and, um, I don't know,like without waking you up or something like, he would try and getclose to you sort of thing orQ. How you do know this if you're asleep?A. Oh, like yeah I don't — I don't know for sure but like usually when Iwake up he'd always be like right there or you know like — like he'dsnuck up on you or something like that.Q. Tell us about this occasion on the couch?A. Um, I was lying on the couch and, um, I woke up and once again hishands were down my pants but he, like he must have been eithersitting on the end of the couch or — or on the, like on the ground, butyeah he — he somehow snuck up again.[26] From this exchange, it may have appeared to the jury that J could not recallbasic details relating to Charge 4 with any degree of certainty, such as where Mr Daviswas sitting or exactly what had happened and how. Although Crown counsel pursuedthe matter further, J answered by simply referring back to the earlier offending and didnot give any other details specific to this particular incident:Q. And were his hands down your pants?A. Um, down my underwear as well.Q. And what were they doing?A. Do I have to say it every time?Q. Well yes you're here to tell us what happened.A. Yeah, yeah, oh well wanking my penis again. [27] The jury may also have considered that J's evidence concerning Charge 7 wasless compelling than for Charge 3. For example, J said that on this occasion Mr Daviswas "trying to do the same thing again" but J pushed him away. Although J said thatMr Davis had his hands down J's pants, the jury was evidently not sure that this didhappen on that occasion.[28] We are not persuaded that the jury's verdicts on Charges 4 and 7 areinconsistent with its verdict on Charge 3. Contrary to Mr Young's submission, thiswas not an "all or nothing" situation where the jury was required to accept all of J'sevidence or none of it. If anything, the different verdicts indicate that the jury took anappropriately cautious approach, weighing the evidence relevant to each charge andapplying the high standard of proof required.[29] This is not one of those rare cases where the only available explanation for thedifference in verdicts inevitably taints the convictions.2 This ground of appeal fails.Should the further evidence be admitted?[30] Mr Davis applies to introduce evidence from three further witnesses in supportof his appeal: Jordan Hawker; Mr Davis' daughter Faith; and Dianne Vanderhilst.3 Allthree witnesses together with J and W were cross-examined before us.2 See B (SC12/13) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [25].3 Court of Appeal (Criminal) Rules 2001, r 12B.[31] Mr Hawker is a 20-year-old inmate at Milton Prison. He says that he stayedwith Mr Davis at Mosgiel for about six months with Faith, L and J. He says that atthis time he and J were "best mates".[32] Mr Hawker says that "around 2014" he went to Dunedin to see his grandfather.A friend collected him and took him to a house in St Kilda. J was there with one othermale. He said that they all sat around smoking cannabis and while they were doingthat J "kept going on about [Mr Davis]" saying "fuck that cunt he kicked me out" and"that cunt is going to get what's coming to him". Mr Hawker says that J went "on andon" about this. Mr Hawker says that he and J played a video game — Call of Duty:Black Ops — while the other two went out to pick up pizza. He says that while theywere playing this game, he asked J what had happened between him and Mr Davis.He claims that J turned to him and said "if I tell you something you can't tell anyone".Mr Hawker says that he replied "what" and J then said "I'm telling the cops that [MrDavis] fiddled with me so he goes to jail and so I get a big pay out". Mr Hawker saysthat he asked J "did he actually touch you though" to which J replied "nah but fuckthat cunt he'll get what he deserves". Mr Hawker says that he responded "you can'tdo that bro, you can ruin someone's life like that bro" but J said "I don't care".[33] Mr Hawker says that he later learned from Mr Davis' former partner's sisterthat the police were investigating Mr Davis for child sex offending but "didn't click"at the time that this would be to do with J. He explains this by saying that he thoughtJ was just "blowing off steam" when he told him.[34] Mr Hawker says that he went to jail in January 2015 for six months and forthat reason did not hear about the court case until after Mr Davis had been found guilty.He says that after he was imprisoned for a second time, he met up with Mr Davis whowas then serving his sentence of imprisonment. He says that this meeting occurred on11 November 2016, which was his second day at the prison. He says this is when MrDavis told him that it was J who had made the sexual allegations against him. MrHawker says that he then told Mr Davis about the conversation he had with J at StKilda in "around 2014".[35] Faith is Mr Davis' 18-year-old daughter. She says that she went to a party inDunedin at about 9.30 pm on 14 January 2017 and that J arrived with his youngerbrother and two of his brother's friends at about 10.45 pm. She says that at about12.30 am, J came over and tried to talk to her but she was not interested. She says thatshe "hate[s] him because of what he did to [her father]". She claims that after makingit clear that she was not interested, J said to her "your dad didn't even do it Faith, Ilied about it hahaha, to get back at him, plus I wanted the money". Faith says that shereplied by telling him to "fuck off". She says that she then left the party with one ofher friends and walked into town. She says that J and his brother followed them andJ asked if he could "fuck [her]" but she was not interested.[36] Ms Vanderhilst is aged 49 and has known Mr Davis as a close friend for about10 years. She does not know J but has known W all his life because she used to begood friends with his mother. Ms Vanderhilst says that W telephoned her in aboutSeptember 2016 and she questioned him about his involvement with the trial. Shesays in her affidavit that W told her he was "just sticking up for [J] and that he didit for the money [J] will get from making an accusation of a sexual nature and putting[Mr Davis] inside".[37] The test we must apply in determining an application to adduce fresh evidenceon appeal is well settled.4 The first in the series of tests is whether the evidence iscredible.5 If it is not, it should not be admitted. The present appeal falls within acategory identified by Widgery J in R v Flower:6[T]here is a possibility that [a] court having heard the evidence,positively disbelieves it and is satisfied that the witness is not speaking thetruth. In that event, no new trial is called for because the fresh evidence istreated as worthless, and the court will then proceed to deal with the appeal asthough the fresh evidence had not been tendered.[38] For the following reasons, we reject the evidence of all three witnesses calledfor Mr Davis. First, it strains credibility that W would telephone Ms Vanderhilst, aclose friend of Mr Davis, and confess that the allegations he had made against4 See Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.5 At [120].6 R v Flower [1966] 1 QB 146 at 150 quoted with approval in R v Barr (Alistair) [1973] 2 NZLR95 (CA) at 98.Mr Davis, and which had contributed to him being imprisoned, were not true.Ms Vanderhilst claims that W told her this because he was "trying to get [her] on hisside against [Mr Davis]". That explanation is nonsensical. Further, contrary to whatshe said in her affidavit, Ms Vanderhilst acknowledged in cross-examination that shewas the one who had suggested to W that he had lied about Mr Davis to get moneyfrom ACC:Q. You accused [W] of lying?A. Yes. If you want to put it like that. Yes.Q. Yep. And you say that in that context he freely admitted that he wasin fact lying?A. Yes. He was sticking up for [J]. He drove his mate. He was stickingup for him and I said to him, "are you doing this for money becauseas I know you you'll get an ACC payment out" and he goes "yeah,I'm just sticking up for my mate".Q. So it was you that raised the ACC payment then?A. Yes.[39] It is implausible that J would invent allegations of sexual abuse, tell lies aboutit in Court, and then admit to others that he had done so. If J had committed thisserious crime just to obtain a payment from ACC, one might expect that he would havemade an ACC claim by now given that the complaint was made three years ago.Indeed, while J's alleged motive of compensation was a common theme to the newevidence, no such claim has ever been made to ACC. That fact alone is a major blowto the credibility of the three witnesses. In cross-examination at trial J said he did notknow it was possible to make an ACC claim for sexual abuse.[40] Secondly, Faith is likely to have been one of the last people J would confess tofor having perjured himself at Mr Davis' trial. Faith accepted that J would get into"very serious trouble" if he was caught for having fabricated these allegations.She also accepted that J would have known that she was loyal to her father and wouldimmediately relay such an admission to him. She was oddly equivocal as to whethershe knew her father had filed an appeal in this Court in April 2016 despite theirfrequent contact.[41] Thirdly, Mr Hawker's account is also implausible for similar reasons.Moreover, it is hard to accept that if J had told him repeatedly in 2014 that "he wasgoing to tell the cops that [Mr Davis] fiddled with [him]", Mr Hawker "didn't click"that J was involved when he heard that Mr Davis was being investigated by the policefor child sex abuse. (Mr Davis was interviewed by the police on 24 June 2014). Theexplanation that Mr Hawker thought J was just "blowing off steam" is unconvincing.Mr Hawker's claim that he did not hear about the Court case because he was in prisonis plainly wrong. He was in prison from January to June 2015 but Mr Davis' trial didnot commence until 24 June 2016. Mr Hawker did not go back to prison until 10November 2016.[42] Mr Hawker's explanation of his chance encounter with Mr Davis while bothwere in prison was an elaborate yet entirely implausible narrative. In answer to aquestion from the Court about the event which led to him swearing his affidavit insupport of the Mr Davis' appeal, Mr Hawker gave this detailed response:Well I went to the [prison] gym with Dwayne and I was standing there and Iwas like, I know this guy I've seen him somewhere before, he looks reallyfamiliar and I said to another one of the prisoners "hey, whose that, what's thatguy's name?" and he said "that's Dwayne Davis, he's got a daughter namedFaith and his older daughters are Bailey and Taylor", and I said "oh yeah, Iknow him". So I went up and started talking to him and I said, oh you know,"how long you doing, what are you in for?" and he told me. And I said, "whowas it?" and he goes "it was [J]" and then I was like to him, "well, I had anencounter with him about a few years ago where he told me that he was gonnaget you done in order to get revenge on you" and then he goes "yeah, I'mdoing five years, he's lying about it" rah rah rah and I said "well he actuallytold me he lied about it" and then Dwayne said to me a couple of weeks later"hey, if I spoke to my lawyer about it would you put in words what [J] toldyou?" and I hummed and ha-ed about it for a bit because I wasn't, didn't reallywant to be involved in a case like this, I mean, I don't particularly like, I'vegot children myself and it's a pretty, not very nice thing to think about, so Irealised in the end that it was the right thing to do because I believe an innocentman has been put in prison.[43] The evidence of all three witnesses is neither credible nor cogent. We accept Jand W's denials of their retractions. The application for leave to introduce this furtherevidence in support of the appeal is accordingly declined.Conclusion[44] We are far from satisfied that the jury's verdicts were unreasonable or that amiscarriage of justice has occurred. The conviction appeal must therefore bedismissed.Sentence appeal[45] Mr Davis advances the following grounds in support of his overall contentionthat the sentence is manifestly excessive:(a) The starting point for the lead offending, Charges 1 and 3, should havebeen two years' imprisonment and not two years and six months.(b) The Judge could not impose a cumulative sentence of five months forCharge 10 because he had already imposed sentence on this chargeconcurrent with sentencing on Charge 8.(c) The cumulative sentences of five months each for Charges 9, 10 and 11were manifestly excessive and should have been concurrent.(d) The three-month uplift imposed for offending while serving a sentenceof community work was unnecessary.(e) The Judge failed to have sufficient regard to the totality principle infixing the effective end sentence.Was the starting point too high?[46] Mr Young acknowledges that the starting point of two years and six months'imprisonment was within the range of the Judge's sentencing discretion for Charges 1and 3 but he submits that a more appropriate starting point would have been two years.Mr Young bases this submission on R v Nuntoon, a decision of the High Court from2009.77 R v Nuntoon HC Auckland CRI 2007-090-8562, 15 September 2009.[47] R v Nuntoon is of little assistance because the facts are so different, as discussedby the sentencing Judge.8 In our view, the starting point of two years and six months'imprisonment adopted for the lead offending — supplying cannabis to J and then doingan indecent act on him at Waihola — was well within range and could have beenhigher, as the Judge noted.9Was the Judge entitled to impose a cumulative sentence on Charge 10?[48] It is helpful to start by setting out the structure of the Judge's sentencing.As noted, the Judge took the lead offending as the indecent act on J, when he was aged12 or 13, at Waihola (Charge 3) which was aggravated by the supply of cannabis onthat occasion (Charge 1).10 The sentence imposed for this offending was two and ahalf years' imprisonment. The Judge concluded that a cumulative sentence of15 months should be imposed for Charge 8, a representative charge reflecting theregular supply of cannabis to J over a 20-month period at Milton when he was aged14 to 15.11 Further cumulative sentences of five months each were imposed forsupplying oxycodone to J at Milton (Charge 10), supplying cannabis to W at Milton(Charge 9) and supplying oxycodone to W at Milton (Charge 11).12 This resulted inthe effective end sentence of five years' imprisonment.[49] However, Mr Young submits that the Judge sentenced Mr Davis twice onCharge 10 because he said this when finally passing sentence:[43] The total sentence will therefore be as follows. On charges 1 and3, two years six months. On charges 8 and 10, one year three months,cumulative. On charge 10, five months, cumulative. On charge 9, fivemonths, cumulative. On charge 11, five months, cumulative. That is a totalsentence of five years' imprisonment.[50] It is abundantly clear from reading the sentencing notes in their entirety thatthe Judge intended to, and did, sentence Mr Davis to one year and three months'imprisonment for Charge 8 alone. There is nothing in this submission.8 Sentencing notes, above n 1, at [29]–[30].9 At [35].10 At [23].11 At [24] and [40]–[41].12 At [42].Were the cumulative sentences of five months each for Charges 9, 10 and 11 manifestlyexcessive?[51] The Judge considered that the appropriate uplift for each of these three chargeswas four months but he applied a further overall uplift of three months to reflect thatthis offending occurred while Mr Davis was subject to a sentence for other drugoffending.13[52] We do not consider that this analysis can be faulted. Charge 10 related to thesupply of oxycodone to J approximately 10 times when he was aged 13 or 14. Charge11 related to the supply of oxycodone to W when he was aged 15. The undisputedevidence of Ms Hurley was that each 10 mg capsule prescribed to Mr Davis is theequivalent of 20 mg of morphine. Charge 9 was a representative charge covering thesupply of cannabis to W. The overall uplift of three months was appropriate to reflectthat the drug supply occurred while Mr Davis was serving sentences for drugoffending; he had been sentenced to community work on 8 September 2009 forcultivating cannabis and received a further sentence of community work on 17 January2011 for possessing cannabis. Charges 9, 10 and 11 all span the period from 20October 2010 to 31 December 2012.Conclusion on whether the sentence was manifestly excessive[53] The Judge appropriately gave substantial discounts to ensure that the overallsentence was not disproportionate to the totality of Mr Davis' offending. When oneconsiders the nature and extent of the offending, the vulnerability of the young victims,the serious breach of trust involved and the damage caused, we are not persuaded thatthe overall end sentence of five years' imprisonment can be regarded as manifestlyexcessive. The appeal against sentence must accordingly be dismissed.Result[54] The application to adduce fresh evidence is declined.[55] The appeal against conviction is dismissed.13 At [42].[56] The appeal against sentence is dismissed.Solicitors:Hugo Young Law, Invercargill for AppellantCrown Law Office, Wellington for Respondent