DAVIES v POLICE [2021] NZHC 3077

DAVIES v POLICE [2021] NZHC 3077 [15 November 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-439[2021] NZHC 3077BETWEEN ROCKY DAVIESAppellantAND NEW ZEALAND POLICERespondentHearing: 26 October 2021Counsel: M J Taylor-Cyphers for Appellant C R Purdon for RespondentJudgment: 15 November 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 15 November 2021 at 3 pmRegistrar/Deputy RegistrarSolicitors/Counsel:M J Taylor-Cyphers (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] Mr Davies was sentenced by Judge JM Jelaš on 23 September 2021 to 26 months' imprisonment.1 The sentence was in respect of nine charges and was constructed as follows:(a) Driving while disqualified (on 4 March 2020): 2 three months' imprisonment;(b) Driving while disqualified (on 10 March 2020): 3 three months' imprisonment;(c) Driving while disqualified (on 16 April 2020): 4 three months' imprisonment;(d) Dangerous driving (on 16 April 2020): 5 one month's imprisonment;(e) Assault with intent to injure (on 17 April 2020): 6 12 months' imprisonment;(f) Threatening to injure (on 17 April 2020): 7 two months' imprisonment;(g) Threatening to kill (on 18 November 2020): 8 eight months' imprisonment;(h) Assault on a person in a family relationship (on 13 January 2021): 9eight months' imprisonment; and1 R v Davies [2021] NZDC 19053.2 Land Transport Act 1998, ss 32(1)(a) and 32(3); maximum penalty three months' imprisonment and six months' disqualification.3 Land Transport Act 1998, ss 32(1)(a) and 32(3); maximum penalty three months' imprisonment and six months' disqualification.4 Land Transport Act 1998, ss 32(1)(a) and 32(3); maximum penalty three months' imprisonment and six months' disqualification.5 Land Transport Act 1998, s 35(1)(b); maximum penalty three months' imprisonment and six months' disqualification.6 Crimes Act 1961, s 193; maximum penalty three years' imprisonment.7 Summary Offences Act 1981, s 21(1)(a); maximum penalty three months' imprisonment.8 Crimes Act 1961, s 306; maximum penalty seven years' imprisonment.9 Crimes Act 1961, s 194A; maximum penalty two years' imprisonment.(i) Assault with a weapon (on 13 January 2021): 10 16 months' imprisonment.[2] Judge Jelaš reached the 26 months sentence by making the sentences for assault with a weapon (16 months), driving while disqualified (nine months in total) and dangerous driving (one month) cumulative sentences. All the other sentences were made concurrent with each other and with the cumulative sentences.[3] Mr Davies appeals the sentence of 26 months' imprisonment on the basis that it is manifestly excessive.[4] My task is to assess whether Judge Jelaš made an error in sentencing Mr Davies such that a different sentence should be imposed. If I find the sentence of 26 months' imprisonment to be manifestly excessive then that would be an error requiring correction.Background[5] The sentencing process for Mr Davies began on 3 May 2021 when he received a sentence indication on the charges from Judge KJ Glubb. 11 The Judge gave the following indication:[9] The starting point I adopted was 18 months, for the most recent I uplift for the balance of the violence by 15 months taking it to 33 months. I uplift for the driving matters by 12 months which got me to 45 months. I then stepped back and gave a 10 per cent discount for totality which came down by 4.5 to 40.5 months. I then looked to your previous convictions, offending on bail and offending whilst subject to a sentence and I uplift by four months and that got me to 44.5. I then looked to the discount for plea. Some will be a plea after sentence indication but for the majority you have pleaded guilty early, so I give you the full discount for that, 25 per cent.[10] I then look to the discount that is appropriate for personal factors, it is either 10 or 15 per cent. If it was 10 per cent that would give an overall discount of 35 per cent. 35 Per cent on 40.5 is 15.5which brings me down to 28.92. If I gave 15 per cent then that would be 40 per cent all up, and on 44.5 that is 17.8 which would bring me down to 26. 7 which I would likely round down in your favour to 26 months as opposed to 24 which is what I indicated previously, which was a mistake due to error in calculations. So, that is 26 months all up Mr Davies.10 Crimes Act 1961, s 202C; maximum penalty five years' imprisonment.11 Police v Davies DC Waitakere, CRI-2021-090-1023, 3 May 2021.[6] Mr Davies accepted the sentence indication on 10 May 2021 and pleaded guilty to the charges. For reasons which are immaterial, sentencing was adjourned more than once and was ultimately carried out by Judge Jelaš because Judge Glubb was unavailable.[7] Judge Jelaš had information which was not before Judge Glubb. This included:(a) A certificate of completion of a 20-week Man Alive Violence Programme dated 4 March 2021 (the Judge noted that the violent offending on 13 January 2021 was within the period of the programme);(b) The updated PAC reports recommending imprisonment;(c) A report provided on behalf of Mr Davies by Ms Sarah Bramhall, a consultant forensic psychologist dated 18 September 2020. The Judge commented:[18] It is clear from the report writer's assessment of Mr Davies that these experiences have contributed to him being unable to deal with intimate partner conflict. He has been assessed as moderate to high risk of future intimate partner violence. I note that this report was prepared in September 2020, given the subsequent offending upon the complainant, I infer that risk of re-offending would be at the higher end.(d) A restorative justice conference report. The Judge commented:[20] Also, on the file is a restorative justice conference report relating to the conference held on 6 November 2020. The report is positive and records outcomes such as Mr Davies continuing with individual counselling, alcoholand drug programme with the help of Whānau Ora. I do notintend to give discreet credit for Mr Davies participation at that conference given he went on to offending against the victim on 18 November 2020 and 13 January 2021.[8] Ms Taylor-Cyphers submitted to Judge Jelaš that the report by Ms Bramhall set out factors which should qualify Mr Davies for a greater discount for personal factors than was allowed by Judge Glubb. Judge Jelaš did not agree:[23] I accept the 18 September 2020 report as a comprehensive account of what were clearly negative social experiences and traumatic events during Mr Davies upbringing. While it is a comprehensive account, the general content of that report is also reflected in the 11 December 2020 report and thereport that is on the court file from Te Whānau o Waipareira. There is alsosome relevant and similar personal information in the Provision of Advice reports of August 2020 and April 2021.[24] I am not satisfied that there is new information before the Court that I now need to consider and factor into the sentencing process. In any event, I am satisfied that the level of credit that Judge Glubb gave, which was a total of 40 per cent, is sufficient to identify all relevant personal factors available to you.12 I acknowledge that this means I am not in a position to further reduce the end sentence of 26 months' imprisonment that Judge Glubb indicated to you. I acknowledge that you will not be able to take up the placement offered to you at the Grace Foundation. That, of course, does not mean that as part of your release conditions that option could not be extended to you.[9] The result was that Judge Jelaš sentenced Mr Davies to the 26 months' imprisonment indicated by Judge Glubb.The appeal[10] Ms Taylor-Cyphers gives the grounds of appeal as follows:(a) The starting point was too high on account of the driving charges; and(b) Further discounts ought to have been available for restorative justice, psychiatric health, and past trauma including deprivation. These matters each had a fresh evidential basis at sentencing, which was not available at sentence indication.[11] Ms Taylor-Cyphers points out that the sentence of three months' imprisonment for each of the driving while disqualified charges was the maximum penalty available. In Ms Taylor-Cyphers's submission, there was nothing aggravating the disqualified driving that would warrant imposition of the maximum penalty. Ms Taylor-Cyphers submits that an overall starting point should have been in the range of 40 months' imprisonment.[12] Ms Taylor-Cyphers also criticises the allowance of 15 per cent for personal factors. Her submission is that additional discounts of 31 per cent are appropriate:12 I note in Judge Glubb's sentence indication notes at [7] that he expresses the then view that he would be unlikely to determine the least restrictive outcome would be imprisonment.[Note: This footnote incorrectly states Judge Glubb's position at [7] of his indication note. In fact, the Judge said that he "would be unlikely to convert [the sentence of imprisonment]".]• Hardship and deprivation: 7%• Mental health: 10%• Addiction: 7%• Restorative justice: 7%Discussion[13] As I remarked to counsel during the hearing, an appeal against sentence is focused on the end sentence. If the end sentence is within the range available to the Judge then it will not be disturbed even if the sentencing methodology might be open to criticism. In this case, for example, Ms Taylor-Cyphers submits that Judge Glubb did not follow the two-step methodology set out by the Court of Appeal in Moses v R. 13 In her submission, had he done so, there would have been a small adjustment in her client's favour. Mr Purdon for the respondent retorts that applying the Mosesmethodology strictly would have resulted in an end sentence of just over 28 months' imprisonment, two months more than Mr Davies's actual sentence.[14] I also remarked to counsel during the hearing that because the focus of a sentencing appeal is on the appropriateness of the end sentence, all of the factors going to the end sentence must be examined. Counsel cannot "bank" favourable aspects of the sentence and require the Court to focus only on the unfavourable aspects of the sentence. In this case, whether the starting point was too high does not necessarily depend on the sentences allocated to the driving charges. It is the overall culpability of the offending which must be examined. Similarly, Ms Taylor-Cyphers does not factor into her submissions the maximum discount of 25 per cent which Mr Davies was awarded for his pleas of guilty. That was a very generous discount.[15] I will begin my analysis of whether the end sentence is within the range available to Judge Jelaš by setting out the relevant facts of the offending.13 Moses v R [2020] NZCA 296.Driving while disqualified (4 March 2020)[16] On 15 May 2019, Mr Davies was convicted on a charge of driving with excess breath alcohol (third and subsequent) and was disqualified from holding or obtaining a driver's licence for a period of 12 months and one day from that date.[17] On 4 March 2020, Mr Davies was found driving a motor vehicle on State Highway 1.Driving while disqualified (10 March 2020)[18] On 10 March 2020, Mr Davies was found to be the driver of a motor vehicle on State Highway 16.Driving while disqualified and dangerous driving (16 April 2020)[19] On 16 April 2020, Mr Davies had a heated argument with an associate at the Mt Roskill Motor Inn. Mr Davies got into a motor vehicle and drove it at excessive speed within the motor inn complex, travelling through an area often used by children to play. He accelerated heavily and rammed into the front of another person's motor vehicle which was parked inside the motor inn complex.[20] Mr Davies then reversed back and accelerated heavily, again ramming the other person's motor vehicle, causing significant damage to it.[21] Mr Davies drove away from the motor inn before parking the vehicle and walking off.Assault with intent to injure and threatening to injure (17 April 2020)[22] On 17 April 2020, Mr Davies and his partner argued while travelling in a vehicle. Mr Davies punched his partner once in the mouth causing her lip to split.[23] Upon arriving at their destination, Mr Davies got out of the vehicle and threatened to end his own life. He then threatened his partner, yelling "I'm going to smash her". The partner's mother stepped in between Mr Davies and the partner toblock the door as Mr Davies advanced on her. Mr Davies was face-to-face with his partner's mother and continued to scream at his partner while puffing out his chest and clenching his fists.[24] As a result of the punch, Mr Davies's partner received a gaping wound to the left side of her upper lip. She had to be admitted to hospital for stitches.Threatening to kill (18 November 2020)[25] On 18 November 2020, Mr Davies sent his partner several messages via Facebook messenger. One message stated "I'll kill you and the kids". Shortly afterwards, Mr Davies sent his partner a message stating "get up, I'm coming over to waste you". About nine minutes later, Mr Davies sent a further message to his partner stating "I'll fucking smash you and everyone you know".Assault on a person in a family relationship and assault with a weapon (13 January 2021)[26] On 13 January 2021, Mr Davies and his partner were together at their home address. Mr Davies used both hands to pick his partner up by her t-shirt. He then threw her to the ground causing her to hit the concrete face on.[27] Mr Davies began yelling at his partner to "get the fuck up, get the fuck up bitch".[28] Mr Davies stood over his partner and assaulted her by punching her with a closed fist under the chin. His assaults caused bruising and swelling to his partner's left eye and grazes to both her knees.[29] On the same day, Mr Davies entered the garage area of their home, approached his partner and stood over her, causing her to sit down. Mr Davies began yelling at his partner, grabbed a wooden garden broom and hit her with it on her forearm causing bruising.[30] It is necessary to consider Mr Davies's criminal record.[31] Mr Davies is 34 years old. He has an extensive criminal history beginning with notations entered in the Youth Court. Relevant notations for violence are:(a) 28 May 2003 – assault with a blunt instrument(b) 28 May 2003 – threatening to kill[32] Relevant convictions for violence in the District Court are:(a) 23 December 2004 – speaks threateningly(b) 24 January 2005 – behaves threateningly(c) 5 September 2006 – common assault(d) 5 September 2006 – common assault(e) 30 November 2007 – behaves threateningly(f) 30 November 2007 – injures with intent to injure(g) 18 July 2008 – assault with intent to rob(h) 18 January 2010 – male assaults female (family violence)(i) 18 January 2010 – demands to steal(j) 21 September 2010 – assaulting police(k) 14 January 2014 – male assaults female (family violence)(l) 14 January 2014 – common assault(m) 14 January 2014 – male assaults female (family violence)(n) 12 November 2014 – common assault (family violence)(o) 9 December 2015 – assaults with intent to injure (family violence) – two charges(p) 9 December 2015 – assaulting a person with a blunt instrument (family violence)(q) 9 December 2015 – male assaults female (family violence)(r) 9 December 2015 – assaulting a person with a blunt instrument (family violence)(s) 9 December 2015 – injuring with intent to injure (family violence)[33] Mr Davies was first sentenced to a term of imprisonment for his violent offending on 30 November 2007. Further sentences of imprisonment for violent offending followed on 18 July 2008, 18 January 2010, 21 September 2010, 14 January 2014 and 9 December 2015.[34] Mr Davies also has convictions relating to driving but not of a type or frequency which would warrant an uplift in respect of his current driving offences.[35] In my view, Judge Glubb's overall starting point of 40.5 months was light. While I accept that allowing 12 months for the four driving charges would have been excessive on a standalone basis, the 33 months assessed for the violent offending was lenient. There were three separate incidents of violence by Mr Davies against his domestic partner over an eight months period. The first incident caused injury to the victim which required stitches. Mr Davies threatened to injure her further and the victim's mother had to intervene. A starting point of 18 months was available.[36] The incident where Mr Davies threatened to kill the victim was also serious. It was not a threat made in her presence in circumstances where Mr Davies had the apparent ability to carry it out, but it was escalated by the second message, "get up, I'm coming over to waste you", and by the third threat, "I'll fucking smash you and everyone you know". A starting point of at least 12 months was available.[37] The Judge's allocation of a starting point of 18 months for the third incident was clearly within range.[38] In my assessment, an overall starting point of 48 months for the violent offending was available, before considering totality.[39] The driving offences, on a standalone basis, would warrant a total starting point in the range of eight to nine months given that the charge of dangerous driving warranted a sentence close to the maximum of three months.[40] It follows that the Judge's adjusted overall starting point of 40.5 months was lenient.[41] The uplift of four months for Mr Davies's record of criminal offending, the fact that he offended while on bail and while subject to sentence could have been greater. That is apparent from the record I have summarised above.[42] As to the discounts, I have already commented that awarding the full discount of 25 per cent for pleading guilty to the charges was generous. A discount, overall, of 15 per cent could not have been criticised.[43] I consider also the discount of 15 per cent for factors personal to Mr Davies is well within range. Judge Jelaš was entitled to take the view she did of the further material provided. It did not shed new light on the causes of Mr Davies's offending. Further, Mr Davies continued to offend.[44] In my view, the end sentence of 26 months' imprisonment is at the low end of the range available. It cannot be characterised as manifestly excessive.Decision[45] The appeal is dismissed.________________________________Brewer J