Dave v The King - [2025] NZHC 1467

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-152

[2025] NZHC 1467

BETWEEN
NGATOKOA TINA DAVE

Appellant

AND

THE KING

Respondent

Hearing: 20 May 2025

Appearances:

A Jenkin and C Megala for the appellant C A Jordan for the respondent

Judgment:

5 June 2025

JUDGMENT OF BLANCHARD J

[Appeal against sentence]

This judgment was delivered by me on 5 June 2025 at 3.00 pm Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland

DAVE v R [2025] NZHC 1467 [5 June 2025]

[1] Mr Dave appeals against a decision of Judge N R Dawson in the District Court at Auckland dated 21 February 2025,1 sentencing him to three years and two months’ imprisonment on a charge of robbery,2 to which he had pleaded guilty.

The offending

[2] The victim is an 82-year-old female who lives alone. Mr Dave was known to her through a mutual associate.

[3] At about 7.15 am on 15 September 2024, the victim opened the back door of her home in Mr Albert and found Mr Dave standing at the door holding a long object in his hands. Mr Dave said to the victim, “I’ve come to get money”. He then pushed the victim on her chest with both hands, causing her to fall backwards onto the ground.

[4] Mr Dave then pushed her into the lounge, where she sat down in a chair. He repeated that he wanted money and acted threateningly towards her. He then took the victim’s handbag and housekeys from her living room.

[5] The victim alerted her friend as she arrived outside her house. Mr Dave left the house, taking the handbag and the victim’s keys with him.

[6] Mr Dave was apprehended by Police later in the day. The victim’s handbag and keys were found inside his car.

[7] As a result of being pushed by Mr Dave, the victim sustained a graze to her right arm, bruising to her right wrist and bleeding from her mouth.

The District Court decision

[8] The Judge considered that there are the following aggravating factors in this case:3

(a)The victim was an 82-year-old woman.

1      New Zealand Police v Dave [2025] NZDC 3838.
2      Crimes Act 1961, s 234. Maximum penalty 10 years’ imprisonment.
3      New Zealand Police v Dave above n 1, at [4], [6], [7] and [9].

(b)There was actual violence involved.

(c)Mr Dave was in possession of a weapon.

(d)This was a home invasion. The victim was in a place where she should feel safe.

(e)Mr Dave abused a mutual friendship.

(f)The extent of the harm to the victim. This was not just the physical injuries that she suffered. Her victim impact statement showed that she felt extremely upset emotionally and lived in fear due to Mr Dave’s actions.

(g)There was premeditation, although at a lower level.

(h)Mr Dave’s previous convictions. The Judge noted that Mr Dave is 65 years’ old. He had a total of 81 criminal convictions.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dave v The King

Details

AGLC: Dave v The King [2025] NZHC 1467
Case: [2025] NZHC 1467
Decision Date: 5 June 2025

CaseChat Overview and Summary

The appeal in DAVE v R concerns a sentencing decision made by Judge N R Dawson in the Auckland District Court, where the appellant, Mr Dave, was sentenced to three years and two months’ imprisonment for robbery. Mr Dave had pleaded guilty to robbing an 82-year-old woman at her home. The legal issues before the High Court were whether the starting point for the sentence was correctly determined and whether sufficient discounts were applied for Mr Dave’s personal circumstances, including his mental health.

The court considered several cases to determine the appropriate starting point. Ms Jenkin, for the appellant, argued that cases like Norman v R and Rickard v Police suggested a starting point of three-and-a-half years was appropriate, given the similarities in the nature of the offending. Ms Jordan, for the Police, contended that cases such as Ha’apai v R and Heteraka v R indicated a higher starting point was justified due to the serious nature of the offending. The court concluded that while Mr Dave’s offending was serious, it was less severe than in Ha’apai and Heteraka v R, but more serious than in Norman and Rickard v Police. Therefore, a starting point of four years’ imprisonment was appropriate.

Regarding the discounts, Ms Jenkin submitted that a further reduction should have been applied for Mr Dave’s mental health. Ms Jordan argued that the Judge had already considered Mr Dave’s mental health, albeit incorrectly identifying it as self-reported. The court found that while Mr Dave’s bipolar disorder was a relevant mitigating factor, the Judge was correct to give it less weight since Mr Dave was not taking his medication at the time of the offending. The court, however, agreed that an additional 15 per cent discount for Mr Dave’s background and mental health was warranted.

In conclusion, the High Court found the original sentence manifestly excessive and substituted a sentence of two years and four months’ imprisonment, reflecting the appropriate starting point and applying the necessary discounts.

Orders