DAVOREN v POLICE [2016] NZHC 3046

DAVOREN v POLICE [2016] NZHC 3046 [14 December 2016]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYCRI-2016-416-40[2016] NZHC 3046BETWEEN ISAAC DEAN DAVORENAppellantAND NEW ZEALAND POLICERespondentHearing: 12 December 2016Counsel: N H Wright for appellantM J M Mitchell for respondentJudgment: 14 December 2016RESERVED JUDGMENT OF DOBSON J[1] The appellant (Mr Davoren) was sentenced by Judge Adeane in the District Court at Gisborne on 17 November 2016 to a cumulative sentence of 15 months'imprisonment for various offences committed between 10 April and 5 August 2016.1He has subsequently appealed that sentence.[2] Although the sentencing notes are not entirely clear on the components, counsel agreed that the appeal should be argued on the basis of cumulative sentences as follows: receiving a motor vehicle valued at $26,000 (5 August 2016) –11 months' imprisonment; driving whilst suspended (April 2016) – two months' imprisonment;1 Police v Davoren [2016] NZDC 23846. possession of a firearm without a licence and presenting an air pistol at a person – two months' imprisonment.[3] On a further driving whilst suspended charge, as well as charges for using threatening language and possession of methamphetamine utensils, Mr Davoren was convicted and discharged.[4] The appeal was brought on the basis that the end sentence is manifestly excessive, and in particular that the sentence for receiving stolen property is manifestly excessive.Circumstances of the offending[5] On the same day as a utility vehicle was stolen from a rural property in an area frequented by Mr Davoren, it was located in Gisborne under his control. Equipment including bull bars and a dog cage had been removed, but otherwise the vehicle was able to be returned to its owner. The Judge treated that as the lead charge and set a starting point of 15 months' imprisonment. There had been aprompt guilty plea entitling Mr Davoren to a 25 per cent discount, reducing it to 11 months' imprisonment.[6] The driving offences involved two charges of driving whilst suspended, one of those being a third or subsequent conviction for that offence. The Judgenominated a starting point of three months' imprisonment for those convictions, andobserved that guilty pleas were not entered for those or the firearms charges "at an early stage". On the driving convictions, a one month reduction was ultimately applied, resulting in a final sentence of two months' imprisonment.[7] The firearms' offending involved two discrete incidents. First, Mr Davoren was in a vehicle searched after a routine Police stop in which a shot deer was located in its back seat. The vehicle also contained a .22 calibre rifle, for which Mr Davoren did not have a licence.[8] The second firearms' conviction involved Mr Davoren's use of an air pistol ina confrontation outside the home of a complainant. Both the complainant andMr Davoren remained in their respective vehicles, but the summary of facts suggests that Mr Davoren's verbal confrontation of the complainant was reinforced by his waving the air pistol around above his head.[9] The threatening language conviction reflected the downgrading of a charge initially laid as one of attempting to pervert the course of justice. Mr Davoren was observed in the Gisborne Courthouse making comments to jury panellists as theywere called as potential jurors to "just let them off". The summary of facts describesMr Davoren as a patched Mongrel Mob member, and the Police in Gisborne are sensitive to the improper pressure exerted by gang members in and around the Courthouse when cases are being heard that involve their associates. Ms Wright made the point that this conviction could only have attracted a fine by way of penalty.[10] A further conviction for possession of methamphetamine utensils arose on the occasion of the confrontation where Mr Davoren was waving an air pistol. A methamphetamine pipe was found when he was stopped by Police for questioning after the complaint was made in respect of that incident.Grounds of appeal[11] In challenging the sentence for receiving, Ms Wright invited two analogies. Most directly, with the Court of Appeal decision in R v Taiepa, which was an appeal from a sentence for receiving involving relatively similar facts.2 In that case, Mr Taiepa had been found guilty after a jury trial. There was evidence that he had been seen driving the stolen vehicle, and also that a second Subaru vehicle of the same model owned by Mr Taiepa had been refitted internally with parts from a stolen car. The vehicle was eventually found burnt out and the jury had been unable to reach a verdict on a charge of arson in relation to Mr Taiepa's involvement in that aspect of it. The Court of Appeal upheld the starting point of nine months'imprisonment, which the sentencing Judge had increased to 12 months in light of previous convictions.2 R v Taiepa [2009] NZCA 120.[12] Ms Mitchell urged caution in applying Taiepa as a comparator. Unusually, personal circumstances pertaining to Mr Taiepa had been taken into account in deciding the starting point, and arguably it was difficult to discern the influence that had on the starting point.[13] Ms Mitchell cited R v Aldersley as a relevant comparator.3 In that case, the appellant was convicted on two counts of receiving vehicles, worth $30,000 in total. They were found stripped of their parts. The Court of Appeal found that the sentence of two and a half years, although stern, was not excessive. That sentence also incorporated aggravating features, including previous convictions for similar offending.[14] Ms Wright also invited comparison with the guideline authority in Senior v Police on convictions for burglary.4 Given the differences in maximum penalty, the criteria relevant to culpability in cases of burglary, and differences in the approach to sentencing for burglary, I do not find that reference useful.[15] Ms Wright also criticised the Judge for dismissing rehabilitative considerations in sentencing Mr Davoren. The Provision of Advice to Courts (PAC) recommended supervision and reported a wish by Mr Davoren to distance himself from gang associates for his own sake, and that it was not a way of life he wants for his children. The sentencing remarks began:5Mr Davoren appears for sentence for a variety of matters indicative of his various criminal propensities.[16] The Judge also observed:6He is a 24 year old. We are getting to a stage where denunciation and deterrence will become more important than any pipedream about reforming Mr Davoren. His reformation will come about when he sees it as being in his own best interests. In the meantime, he must be held accountable for his offending.3 R v Aldersley CA158/05, 17 October 2005.4 Senior v Police (2000) 18 CRNZ 340 (HC).5 Police v Davoren, above n 1, at [1].6 At [5].Analysis[17] As to the starting point adopted on the receiving charge, I am satisfied that it was manifestly excessive. Without any attempt to compare the criminal histories of Messrs Taiepa and Davoren, the seriousness of their offending as receivers of vehicles is clearly comparable or, if any distinction is to be drawn, Mr Davoren'sculpability could be marginally less. He did not make such extensive use of the vehicle, and it was returned to its owner, more or less intact. By comparison withTaiepa, and making meaningful allowance for personal circumstances applying to reduce the starting point in that case, I consider a starting point of 10 months was the appropriate one in this case. Applying the 25 per cent discount for Mr Davoren'searly guilty plea results in a stand-alone sentence of seven months' imprisonment.[18] As to the remaining components of the cumulative sentences, they ought tobe assessed as containing elements of "unders and overs" in the messy sentencingproposition confronting the Judge. The Judge convicted and discharged Mr Davoren on the charge of using threatening language, which had sufficiently serious overtones to warrant the imposition of a stand-alone sentence, although no more than a fine could be imposed. Taken in the round, the additional cumulative sentences of two months each for the firearms and driving convictions, after reasonable allowances for his guilty pleas, were clearly within range.[19] The list of Mr Davoren's previous convictions is reasonably long, but largely for relatively minor offending. The record suggests he has only one previous sentence of imprisonment which was for 14 days in October 2014. No uplift for previous criminal history was considered by the Judge.[20] I am not persuaded that the final sentences are rendered excessive because of a refusal to grant a discount for the prospects of rehabilitation.Result[21] I accordingly quash the sentence on the conviction for receiving and substitute a term of imprisonment of seven months. The remaining sentences stand, so the total cumulative sentence to be served is 11 months' imprisonment. Becauseof some uncertainty as to the state of the records of the sentences with the Department for Corrections, I direct the Registry to ensure that records are checked, and that they conform to the outcome of the appeal.Dobson JSolicitors:Nicola Wright, Gisborne for appellantCrown Solicitor, Gisborne for respondent