DAVIS v POLICE [2022] NZHC 3019

DAVIS v POLICE [2022] NZHC 3019 [17 November 2022]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2022-425-000018[2022] NZHC 3019BETWEEN GERALD DAVISAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2022Appearances: J Ross for the AppellantM B Brownlie for the RespondentJudgment: 17 November 2022JUDGMENT OF NATION JIntroduction[1] Gerald Davis was sentenced on 13 January 2022 in the District Court to 21months' imprisonment in respect of the following charges:1(a) injuring with intent to cause grievous bodily harm;2(b) impeding breathing;3(c) threatening to kill;4(d) assault on a person in a family relationship;5 and(e) assault with a weapon.61 New Zealand Police v Davis [2022] NZDC 300.2 Crimes Act 1961, s 189(1); maximum penalty 10 years' imprisonment.3 Crimes Act, s 189A(b); maximum penalty 7 years' imprisonment.4 Crimes Act, s 306; maximum penalty 7 years' imprisonment.5 Crimes Act, s 194A; maximum penalty 2 years' imprisonment.6 Crimes Act, s 202C; maximum penalty 5 years' imprisonment.[2] Mr Davis appeals the decision on the basis it is manifestly excessive in light ofthe now-repealed three strikes regime.Facts[3] On 12 May 2021, Mr Davis was staying with his then partner, the victim, ather sister's address. The victim was talking on the phone to a male friend of hers.After the call, Mr Davis came into the room, became angry at the victim for talking toanother man, and started swearing at her and calling her names. The victim kicked MrDavis and threw a vacuum cleaner towards him so he would leave her alone, beforetelling him to leave the house.[4] Mr Davis confronted the victim in the doorway and hit her on the wrists withthe vacuum cleaner. The victim retreated to the bedroom and called her sister. MrDavis approached her and kicked her in the back before punching her multiple timesin the head and body, while insulting her and threatening to kill her. He stomped onher head before abating.[5] Soon after, Mr Davis was following the victim around the house whilecontinuing to threaten and hit her. When the victim sat on the couch, Mr Davis pickedup a remote, held her head down and jabbed the remote into her left eye, whilelaughing and continuing to threaten her. At this stage, Mr Davis pushed his knee intothe victim's neck, causing her to struggle for breath. When the victim moved to thefloor, Mr Davis continued to assault her and threaten to kill her. The same occurredwhen the victim returned to the bedroom.[6] The victim suffered pain and bruising to her torso, face and arms as well as ableeding nose and headaches. She remains fearful for her safety in relation to MrDavis. That harm was detailed in the District Court in the Judge's sentencing remarks.[7] The District Court had the benefit of detailed psychiatric reports for Mr Davisdated 29 October 2021 and 11 November 2021, and a psychologist's report of 29 July2021. Those reports confirmed that Mr Davis was fit to plead but also that he wasseriously mentally impaired. Mr Davis is aged 31. He suffers from paranoidschizophrenia, an anti-social disorder, has an IQ of 54 and suffered severe head injuriesafter being hit by a truck in 2020. In his report of 29 July 2021, the psychologist, MrShirley, indicated that Mr Davis and others remain at risk of Mr Davis violentlyreoffending.Principles on appeal[8] 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 a different sentence should beimposed.7 The focus is not on the process by which the sentence was reached, but onthe correctness of the end result.8 In making this assessment, appellate courts do notinterfere with the legitimate exercise of judicial discretion or indulge in mere tinkeringwith the sentence.District Court decision[9] The sentencing decision of 13 January 2022 was based on the acceptedsentencing indication given by Judge Brandts-Giesen on 2 December 2021.[10] The Judge took the strangulation as the lead offence because the injuring withintent offending was considered to be at the lower end of the spectrum. Careful not tounderestimate the level of violence and the harm caused to the victim, the Judgeadopted a starting point of 30 months' imprisonment for the lead charge.[11] An uplift of six months was applied for the other convictions. The Judgeconsidered a further uplift of three months to be appropriate to reflect Mr Davis'previous convictions.[12] To the figure of 39 months that resulted, the Judge then provided a 25 per centdiscount for Mr Davis' guilty pleas. Accounting for Mr Davis' mental and intellectualissues, particularly the schizophrenia, in combination with the unsuitability of prisonfor someone with his special needs, the Judge gave a further 20 per cent discount. This7 Criminal Procedure Act, ss 250(2) and 250(3).8 Ripia v R [2011] NZCA 101 at [15].discount also reflected the Judge's confidence in real regret on the part of Mr Davisdespite the lack of articulated remorse.[13] This led to the end sentence of 21 months' imprisonment.[14] Later in the day after the sentencing, the Judge issued a minute. Heacknowledged that, with his sentences, he had provided a first strike warning, notrealising Mr Davis had previously received a first strike warning. In the minute, heprovided the second strike warning and explained the consequences of further relevantoffending. He did not address s 86C(4) of the Sentencing Act.[15] On all charges, Mr Davis was sentenced to 21 months' imprisonment, with thesentence on each charge to be served concurrently.[16] A Police prosecutor had represented the Police on the original sentencing.Another counsel, assigned on Legal Aid, had represented Mr Davis. Neither Mr Ross,who represented Mr Davis on the appeal, nor Mr Brownlie, for the Police, wereinvolved with the sentencing.[17] In the District Court, neither the prosecution nor the defence had advised theJudge that the injuring with intent charge was, in terms of the three strikes regime, astage 2 serious violent offence committed after Mr Davis had received a first strikewarning. In terms of s 86C(4), the Judge thus had to order that Mr Davis would notbe released for his short-term sentence (a sentence of less than two years) before theexpiry of that sentence.9Submissions[18] On the appeal, both Mr Ross and Mr Brownlie agreed the starting point adoptedfor the different offences was appropriate, as were the discounts the Judge had applied.However, both counsel recognised that, because of the mistake in not identifying theinjuring with intent charge as an offence subject to the three strikes regime as a stage9 In terms of the Parole Act 2002.2 offence, the sentence to be served before Mr Davis could be eligible for parole wouldbe longer than the sentencing Judge had anticipated.[19] For Mr Davis, Mr Ross submitted there had thus been an error in sentencingwhich had to be corrected. He submitted the effective end sentence with appropriateeligibility for parole could be achieved through deleting the 10 per cent uplift to thestarting point the Judge adopted on account of Mr Davis' previous offending. Hesuggested such an adjustment could be appropriate given the reduced need fordenunciation and deterrence because of Mr Davis' mental health difficulties.Secondly, he submitted the Court should quash any requirement for the full sentencefor the injuring with intent offence to be served on the basis that, in accordance withthe Supreme Court's judgment in Fitzgerald v R,10 this could be considered a rare casewhere serving an appropriate sentence without parole would be so disproportionatelysevere that it would breach s 9 of the Bill of Rights Act 1990.[20] For the Police, Mr Brownlie submitted, to rectify the error, the injuring withintent charge should be treated as the lead offence and there should then be anadjustment to other sentences, potentially an uplift for prior offending, but discountsas otherwise appropriate to achieve a similar effective end sentence.[21] Mr Ross accepted there was merit in the approach proposed for the Police. Hesubmitted the Court should correct the error to arrive at a sentence for the injuring withintent charge that would have to be served without parole, and a sentence for all othercharges, structured in such a way that Mr Davis would be released on parole afterserving one-half of the combined sentences of imprisonment. He submitted the endresult should be consistent with what the Judge would have anticipated whensentencing Mr Davis as he did.Analysis[22] Given the measure of agreement as to how I should approach matters, I proceedgenerally in accordance with the approach suggested by Mr Brownlie.10 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.[23] The appeal was filed out of time. There is no prejudice in allowing the appealto proceed and the Police do not oppose the extension of time. Leave is accordinglygranted for the appeal.[24] With the sentences imposed in the District Court, Mr Davis would have had tobe released from his 21 months' prison sentence after serving half that sentence. Itmight have been argued that, through failing to make an order that Mr Davis must notbe released from prison for the injuring with intent charge until the expiry of thatsentence, there was an error with the sentencing and, as a result, the end sentence wasinadequate. The Police did not however seek to appeal the sentence imposed. Thatbeing the case, I consider it would not be just to recognise the error which occurred bystructuring or increasing sentences in a way that would require Mr Davis to be inprison for longer than would have been the case with the sentences as imposed in theDistrict Court.[25] It seems Corrections have determined that, with due regard to s 86C(4), MrDavis must remain in prison for the 21 months' sentence imposed on the injuring withintent charge. That determination may not be correct given the Judge did not makethe order, as he was required to do under s 86C(4), that Mr Davis must not be releasedbefore the expiry of the sentence imposed on the injuring with intent charge. It is notnecessary for me to make a decision as to that issue given the way in which counselare agreed the error made in the District Court can be recognised and sentencesimposed so as to achieve a result which is appropriate in the particular circumstancesof this case.[26] In approaching sentences as here, the Court may consider parole eligibilitywhen assessing what is apposite.11 As such, matters such as uplifts for previousoffending may be unnecessary as they are already, effectively, accounted for by therequirement to serve a whole sentence – the principles of accountability, deterrenceand community protection having already been met.1211 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.12 Wipa v R [2018] NZCA 219.[27] Before me, Mr Ross submitted the sentencing Judge had arrived at a sentenceof 19 months' imprisonment on which Mr Davis would have had to be released onparole after serving one-half of that time, being nine and a half months. The Judgehowever said he was imposing a sentence of 21 months' imprisonment. That had beenwhat he was intending to impose. On such a sentence, Mr Davis would have had tobe released after being in prison for 10.5 months.13[28] Having regard to the harm caused to the victim and the purposes of deterrenceand accountability, the offence of strangulation could properly be treated as the leadingcharge but for the application of the three strikes legislation.[29] In the circumstances of this case and for this offender, it would have beenappropriate for the Judge to first arrive at a sentence for the injuring with intent chargeknowing that Mr Davis would not be released from that sentence before its expiry.14[30] Having regard to the sentences that will be imposed for related offending, anappropriate starting point for that charge would be 11 months.[31] On that charge, there would be no need for an uplift on the starting pointbecause of Mr Davis' previous criminal offending, given Mr Davis will be serving thewhole of that sentence. He is entitled to a 25 per cent discount for his guilty plea anda 20 per cent discount for personal mitigating matters, namely his considerable mentalhealth difficulties. They are relevant to both his culpability and because of the waythose difficulties will make a prison sentence more of an ordeal for him. With totaldiscounts of 45 per cent, the end sentence on the injuring with intent charge would besix months' imprisonment.[32] Section 86C(4) of the Sentencing Act applied at the time Mr Davis wassentenced. Although the three strikes regime has now been repealed by the ThreeStrikes Legislation Repeal Act 2022, that Act is not retrospective and s 86C(4) muststill be given effect. Accordingly, as was required by s 86C(4), I make an order thatMr Davis must not be released before the expiry of that sentence.13 Parole Act, s 86.14 Sentencing Act 2002, s 86C(4)(b).[33] I then consider an appropriate starting point for the impeding breathing,threatening to kill, assault on a person in a family relationship, and assault with aweapon charges. The appropriate starting point for that offending, with due regard tototality and the separate sentence imposed on the injuring with intent charge, wouldbe 16.5 months' imprisonment. Against that starting point, Mr Davis is entitled tocredits of 45 percent for his guilty pleas and matters relating to him personally so thatthe end sentence for each of those offences will be nine months' imprisonment. Thosesentences will be concurrent with each other but cumulative on the sentence of sixmonths for the injuring with intent charge.[34] Because the sentence for those additional offences is a short-term sentence, asdefined in the Parole Act, Mr Davis will be released on parole after serving half of thatsentence, being four and a half months.[35] With Mr Davis being sentenced in this way, he will be released from his prisonsentence after being in prison for 10.5 months, consistent with what he would havebeen required to serve if the injuring with intent charge had not been a stage twoserious violent offence in terms of the previous legislation.Conclusion[36] The appeal is allowed. The sentences imposed in the District Court arequashed. In substitution, on the injuring with intent charge, Mr Davis is sentenced tosix months' imprisonment. As to that, I make an order that Mr Davis must not bereleased before the expiry of that sentence. On the remaining charges, Mr Davis issentenced to nine months' imprisonment, concurrent with each other but cumulativeon the sentence for the injuring with intent charge.[37] I also impose for six months the post-release conditions recommended in thepre-sentence report. Mr Davis is to undertake treatment as directed by a probationofficer for mental health and cognitive issues. He is not to associate with or contactthe victim of his offending without the prior written approval of a probation officer.He is also to disclose to a probation officer at the earliest opportunity details of anyintimate relationship he begins, resumes or terminates.[38] I also make a protection order against Mr Davis for the benefit of the victim ofhis offending.[39] After the sentencing, Mr Davis was recalled and given a final strike warningas then required under s 86E(6) of the Sentencing Act 2002. That warning would havebeen required and appropriate with the sentence that has now been imposed on theinjuring with intent charge. With this judgment, there is a record that such a warningwas given. The relevant provisions of the Sentencing Act have now been repealed.Mr Davis is however again warned that he must not commit another serious violentoffence such as he committed with the victim of this offending. If he does commitsuch an offence, he is likely to receive a more severe sentence than he did this time.Solicitors:Montrose Chambers, InvercargillCrown Solicitor's Office, Invercargill.