Davidse v Police HC Auckland CRI-2011-404-000245

[2011] NZHC 1168

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000245

BETWEEN  THORNE LEE DAVIDSE Appellant

ANDPOLICE Respondent

Hearing:         26 September 2011

Appearances: P J B Winter for Appellant

M S Williams for Respondent

Judgment:      30 September 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

30 September 2011 at 11.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

P J B Winter, PO Box 105 495, Auckland 1143

DAVIDSE V POLICE HC AK CRI-2011-404-000245 30 September 2011

[1]      This is an appeal against a sentence for common assault with the following features:

(a)       The appellant was in an intoxicated state;

(b)      The appellant and his group exchanged words with the victim and the

victim’s group;

(c)       The appellant ran towards the victim and punched him multiple times in the head;

(d)The victim received concussion, with bruising to his body, face and back of his head, and he required hospital treatment;

(e)       The appellant was also knocked to the ground. [2]      His sentence was:

(a)       Six months’ home detention;

(b)      Two hundred hours community work;

(c)       Supervision with the usual conditions and to refrain from alcohol and undergo counselling;

(d)      Reparation payment of $500.

[3]      In  my  view  the  six  month  sentence  of  home  detention  approximately corresponds to a 12 month term of imprisonment, which is the maximum available for common assault.[1]    On its face, the sentence is harsh when compared with the arguably more serious case of Dooley v Police,[2] which involved sentencing on two counts of assault (and other more minor charges) by a white supremacist against two

[1] Crimes Act 1961, s 196.

[2] Dooley v Police HC Christchurch CRI-2008-409-1, 21 February 2008

Asian victims.  Chisholm J adopted a starting point of ten months’ imprisonment on

each of the counts and reduced them to a final sentence of seven and a half months’

imprisonment for each count, to be served cumulatively.

[4]      By itself the apparent severity is not enough, in my view, to reduce sentence. The District Court Judge’s reasons for the most part were cogent, including intolerance to behaviour “from young thugs, young drunken thugs like this bloke”.[3]

[3] Police v Davidse DC Auckland CRI-2010-004-020124, 5 July 2011, at [19].

[5]      But  the  Judge  in  reaching  sentence  also  had  regard  to  an  irrelevant consideration, namely:[4]

It was an attack for racial purposes, this drunken thug and his mates had been causing trouble by racial slurs directed at people and it was racially motivated when he saw this Asian man, Mr Wan Kim coming along, there was the next target, immediately ran up to him without provocation, warning or anything and thumped him in the head.

[4] Ibid at [13].

[6]      He says further at [22] of the judgment:

Because  of  his  age  and  lack  of  a  history  of  violence,  I  believe  home detention is appropriate.  There are remedial measures needed to prevent his re-offending, particularly in view of the alcohol abuse and anger and racial ethnic violence that he is involved in which I am surprised, in a way, with a person coming from South Africa.   We do not want that type of racial fighting and abuse going on in our streets in New Zealand;  otherwise you can go back to South Africa and do it over there.

[7]      With respect to the District Court Judge’s observations, there was nothing in the summary of facts, the pre-sentence report, or Mr Davidse’s history  to support a finding of racially motivated violence.   It may be that the Judge had in mind an earlier version of the summary of facts.   Whatever the basis, it should not have featured in the assessment of sentence.

[8]      The Crown sought to persuade me that given the experience of the District Court Judge, the sentence should remain the same.  With respect to that submission, the sentence plainly treated the alleged racial motivation for the violence as an aggravating factor.   Logically, if that factor is not present, the sentence should be reduced.

[9]      In my view the Judge’s wider reasoning plainly supported some period of home detention.   Group attacks by drunken  youth must be discouraged.   But  I consider that the nearly three months already spent in home detention is sufficient when combined  with 200 hours community service and the other conditions of sentence imposed.

[10]     I also note that the appellant has completed four two hour sessions with

Community Alcohol and Drugs Services. This is a positive development.

[11]     Two final observations should also be made to properly contextualise this judgment.  First, I accept that the appellant did change his plea at the first available opportunity (contrary to the finding of the District Court Judge).  He did so after the summary  facts  were  settled.    This  is,  and  should  have  been,  relevant  to  final sentence.

[12]     Second, the appellant entered a guilty plea, it appears, in reliance on a non- custodial sentencing indication.   His counsel believed that the implication of the sentence indication was that community service or detention was the likely outcome, not home detention.  I am unable to test this and would hesitate to do so.  Naturally, an earlier sentencing indication cannot estop the District Court performing its duty to impose  the  most  appropriate  sentence  at  the  time  of  sentencing.    Accordingly, counsel should approach such indications with caution.   In any event, it is not necessary for me to inquire further on that aspect as I have resolved the position in the appellant’s favour for the reasons outlined above.

[13]     In light of the error on the face of the record, I quash the sentencing imposing six months’ home detention on the appellant and replace it with a period of home detention to the date of this judgment.  All other sentencing measures are  to remain

in place.

Whata J