Davies v Police
[2023] NZHC 3603
•11 December 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-419-71
[2023] NZHC 3603
BETWEEN BRADLEY JOHN DAVID DAVIES
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 November 2023 and further memoranda received on 10 and 21
November 2023
Appearances:
K Hadaway as agent for RAA Weir for the Appellant J T Lewis for the Respondent
Judgment:
11 December 2023
JUDGMENT OF GAULT J
This judgment was delivered by me on 11 December 2023 at 2:30 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr RAA Weir. Barrister, Hamilton
Ms K Hadaway, Hadaway Law, Hamilton
Mr J T Lewis, Hamilton Legal, Office of the Crown Solicitor, Hamilton
DAVIES v POLICE [2023] NZHC 3603 [11 December 2023]
[1] Mr Davies appeals against his sentence of imprisonment for two years and nine months (33 months) imposed by Judge S R Clark in the District Court in Hamilton on 1 May 2023.1
[2]Mr Davies was sentenced on three sets of charges:
(a)offending in October 2021 – contravening a protection order;2
(b)offending in May 2022 – driving with excess breath alcohol (third or subsequent)3 and driving while disqualified (third or subsequent);4 and
(c)offending in November 2022 – driving while disqualified (third or subsequent),5 being in possession of an offensive weapon6 and being in possession of methamphetamine for supply.7
[3] Mr Davies had pleaded guilty to these charges except for the charge of contravening a protection order in relation to which he was found guilty by the same Judge following a Judge-alone trial on 31 October 2022.8
The offending
October 2021 charge
[4] On 18 September 2013, a final protection order was served against Mr Davies in respect of his ex-partner. He and his ex-partner have one daughter together.
[5] On 27 October 2021 between 11:15 am and 1:55 pm, Mr Davies sent his ex- partner three messages. These messages included questions asking his ex-partner how
1 Police v Davies [2023] NZDC 8331.
2 Family Violence Act 2018, ss 90(b) and 112(1)(a). Maximum penalty three years’ imprisonment.
3 Land Transport Act 1998, s 56(1) and 56(4). Maximum penalty two years’ imprisonment or
$6,000 fine and 12-month disqualification from holding or obtaining a driver licence.
4 Section 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment or $6000 fine and 12-month disqualification from holding or obtaining a driver licence.
5 Section 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment or $6000 fine and 12-month disqualification from holding or obtaining a driver licence.
6 Crimes Act 1961, s 202A. Maximum penalty three years’ imprisonment.
7 Misuse of Drugs Act 1961, s 6(1)(f) and (2). Maximum penalty life imprisonment.
8 Police v Davies [2022] NZDC 21382.
she was and a request that she talk to him. At 9:00am the following day, Mr Davies then attempted to call her.
[6] Mr Davies’ defence at trial was that a history of contact with his ex-partner gave him a belief that he could contact her, and therefore a reasonable excuse for having breached the protection order. The evidence at trial included a screenshot showing that Mr Davies’ ex-partner had sent him a message on 13 September 2021, but no evidence about what the message contained.
[7] In his 31 October 2022 oral decision, the Judge did not accept that a message sent some six weeks before the breach of the protection order gave Mr Davies a reasonable excuse. The Judge found the charge proven.9
May 2022 charges
[8] On 6 May 2022, at approximately 11:04pm, Police stopped Mr Davies in a vehicle following a call to a family harm incident in Thames. Mr Davies admitted to consuming alcohol prior to driving and his breath was found to contain 600 micrograms of alcohol per litre of breath. At the time, Mr Davies was disqualified from driving.
November 2022 charges
[9] On 17 November 2022, at approximately 2:30pm, following receipt of information about a suspicious vehicle suspected to have a “meth lab” in the boot, Police located Mr Davies driving on Totara Street in Mount Maunganui. At this time, he was also disqualified from driving. A marked Police patrol car signalled for him to stop by activating red and blue flashing lights. Mr Davies continued to drive slowly and the Police officer pulled up next to him in an effort to tell Mr Davies to stop. Mr Davies responded by turning his vehicle sharply towards the side of the patrol car in an attempt to ram the vehicle, making contact with the patrol car, and subsequently came to a stop.
9 Police v Davies [2022] NZDC 21382 at [20]-[21].
[10]A warrantless search was undertaken, finding the following:
(a)a tomahawk axe;
(b)a green Nike bag containing 5.25 grams of methamphetamine, divided into seven 0.5 gram and seven 0.25 gram ziplock bags and containers, and seven tabs of LSD;
(c)drug utensils, digital scales, butane lighters, ziplock bags, and $1,026 cash.
District Court sentencing decision
[11] The Judge set out Mr Davies’ offending and referred to the material provided: pre-sentence and s 27 reports, and a letter from Mr Davies. The Judge said the relevant purposes of sentencing were the need to hold Mr Davies to account and to denounce and deter his conduct, and in relation to the sentencing principles he took into account the comparative seriousness, the need for consistency and Mr Davies’ personal background.
[12] The Judge referred to Mr Davies’ criminal history, which he said was “long and unenviable”, and noted that Mr Davies had a number of convictions for similar offending including seven blood or breath alcohol convictions, eight convictions for contravening protection orders, 16 for driving whilst disqualified, 10 drug convictions
– some of which related to possession of methamphetamine and utensils – and convictions for possession of weapons. He also noted that Mr Davies was on bail at the time of the May and November 2022 offending.
[13] Taking the possession of methamphetamine for supply as the lead charge, the Judge considered that the amount of methamphetamine involved, and the equipment and axe found, indicated that Mr Davies was involved in street level dealing in methamphetamine. Considering the extent to which Mr Davies’ offending properly
fell in band two of Zhang v R,10 and in terms of his role as provided for in Berkland v R,11 the Judge adopted a starting point of 24 months’ imprisonment.
[14]The Judge then applied uplifts of:
(a)five months for Mr Davies’ breach of protection order, noting that while it was relatively innocuous it was the ninth instance of breaching a protection order and given the cumulative psychological effect could have attracted a standalone starting point of 10 months’ imprisonment;
(b)nine months for driving while disqualified given Mr Davies’ 21 convictions, referring to a (standalone) starting point of 18 months’ imprisonment;
(c)six months for the excess breath alcohol charge given the eight previous convictions – saying that on a standalone basis 12 months’ imprisonment might be appropriate; and
(d)one month for the weapons charge.
[15] No uplift was imposed for Mr Davies’ possession of LSD. The Judge said the uplifts took the starting point to 45 months’ imprisonment.
[16] The Judge noted that Mr Davies had pleaded not guilty to the protection order charge but that he had entered guilty pleas for a number of other charges and applied a global discount of 20 per cent.
[17] The Judge then referred to the matters raised in Mr Davies’ s 27 report, acknowledging that they indicated an early exposure to alcohol, [REDACTED], an unsettled upbringing and drug use and addiction. The Judge said a 15 per cent discount was available.
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
11 Berkland v R [2022] NZCA 143, [2022] 1 NZLR 509.
[18] The total discount of 35 per cent, or 16 months, reduced the sentence to 29 months’ imprisonment.
[19] The Judge then applied an uplift of four months to reflect Mr Davies’ previous convictions, and in particular the previous drug and possession of weapons offending and the fact that the two latter sets of offending were on bail.
[20] This resulted in an end sentence of 33 months’ imprisonment. The Judge also ordered destruction of Mr Davies’ utensils, forfeiture of the cash and 18 months’ disqualification from driving, and remitted his fines.
Approach on appeal
[21] To succeed on an appeal against sentence, the appellant must satisfy this Court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 The error can be intrinsic in the decision or shown as a result of additional material submitted on appeal.13 The Court will only intervene and substitute its own view if the final sentence is manifestly excessive or wrong in principle.14 The Court will not, ordinarily, intervene when the sentence is within the range that is properly justified by accepted sentencing principles. The focus is on the final sentence imposed, not its component parts or how that sentence was reached.15
Discussion
[22] Ms Hadaway, for Mr Davies, submitted that the Judge’s uplifts to the starting point of 24 months’ imprisonment on the lead offence of possession of methamphetamine for supply, totalling 21 months’ imprisonment, were too high; the Judge’s reduction for matters raised in two s 27 reports was too low; and the Judge’s final uplift for previous convictions was too high, making the end sentence manifestly excessive.
12 Criminal Procedure Act 2011, s 250(2).
13 R v Shipton [2007] 2 NZLR 218 (CA) at [139].
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
15 Ripia v R [2011] NZCA 101 at [15].
[23] Ms Hadaway had not received the updated s 27 report referred to by the Judge. I therefore reserved leave for her to file a supplementary memorandum and for the Crown to respond (if necessary). The supplementary memoranda have been referred to me.
Uplifts
[24] Ms Hadaway submitted that Mr Davies’ breach of protection order offending was innocuous, that he was not shown to be driving in a dangerous manner when driving while disqualified and that the uplift for his conviction for driving with excess breath alcohol failed to take account of totality. She submitted that, having regard to totality, the uplifts for the other offending should have been limited to:
(a)two months for Mr Davies’ breach of protection order (rather than the five months applied by the Judge);
(b)three months for driving while disqualified (rather than nine months);
(c)two months for the excess breath alcohol charge (rather than six months); and
(d)one month for the weapons charge.
[25] Such uplifts, totalling eight months’ imprisonment, would have increased the starting point from 24 months’ imprisonment to 32 months’ imprisonment rather than 45 months’ imprisonment.
[26] Ms Hadaway also submitted that the Judge’s further uplift for Mr Davies’ previous convictions was excessive given that his previous offending was also considered by the Judge in imposing those former uplifts. She submitted that the uplift should have been only one month (rather than four months).
[27] The two-stage approach set out by the Court of Appeal in Moses v R requires aggravating and mitigating factors personal to the offender to be offset as a percentage
of the starting point.16 Following that approach, accepting Ms Hadaway’s submissions in relation to the various uplifts would mean that the uplift of one month for previous convictions, that is three per cent, would have been offset against the discounts for the guilty pleas and s 27 reports. Taking the Judge’s aggregate 35 per cent discount, the net discount would therefore have been 32 per cent, which would reduce a starting point of 32 months’ imprisonment to an end sentence of 21 and a half months’ imprisonment.
[28] The overall sentence imposed must reflect the totality of the offending bearing in mind that there is no one particular way in which a total sentence must be arrived at provided it represents the overall criminality of the offending and the offender.17 As Mr Lewis, for the Police, submitted, the Judge did take totality into account in setting each uplift for the other offending. Mr Lewis accepted, however, that the Judge did not stand back and consider whether the aggregate 21 month uplift for Mr Davies’ other offending was too high having regard to totality. Mr Lewis also acknowledged that in relation to the protection order, some of the previous breaches, at least before 2013, may have involved a different victim in which case the Judge’s comment about a cumulative psychological effect would have less application.
[29] There was no issue with the Judge’s starting point of 24 months’ imprisonment for the drugs charge. The individual uplifts for the other offending are proportionate compared with standalone starting points and within range, except possibly in relation to the breach of protection order given the uncertainty as to whether some earlier offending involved a different victim. However, the aggregate uplift of 21 months’ imprisonment for the other offending, equating to 87.5 per cent of the starting point for the drug offending, was high. Having regard to the overall totality of Mr Davies’ offending, I consider a total uplift of 15 months’ imprisonment for the other offending was justified, resulting in a starting point of 39 months’ imprisonment for the overall offending.
[30] In relation to the uplift for Mr Davies’ previous convictions, I accept that previous convictions already built into the Judge’s uplifts for his other offending
16 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
17 R v Xie [2007] 2 NZLR 240 (CA) at [17], citing R v Barker CA57/01, 30 July 2001 at [10].
(in particular, multiple protection order breaches and the third or subsequent driving charges) should not be double counted. However, Mr Davies’ previous convictions also included drug and weapons charges. Also, the May and November 2022 offending occurred while Mr Davies was on bail. A higher uplift than the one month sought by Ms Hadaway was justified. I note that, adopting the two-stage approach set out by the Court of Appeal in Moses v R, the higher the Judge’s starting point the lower the uplift for previous convictions would be in percentage terms. In any event, I consider the Judge’s uplift of four months (just over 10 per cent of a 39 month starting point) was within range and proportional to the starting point given Mr Davies’ significant criminal history and offending while on bail.
Section 27 report
[31] Ms Hadaway submitted that the Judge erred in only giving a 15 per cent discount for the factors raised in Mr Davies’ cultural report, given the clear causal link between his identified childhood adversities and his later methamphetamine addiction and offending behaviours. She submitted that a 20 per cent discount would have been appropriate, referring to the Court of Appeal’s comments in Zhang that addiction may logically give rise to a discount of up to 30 per cent depending on the extent to which it mitigates the moral culpability of a defendant’s offending.18
[32] Having considered the updated s 27 report, which was essentially a more comprehensive version of the earlier report, Ms Hadaway maintained that Mr Davies could be afforded a 20 per cent discount. She emphasised that the more comprehensive report includes the following additional information:
(a)Mr Davies’ mother opines that his lack of a father figure, and not knowing who his birth father was, has emotionally affected him.
(b)Mr Davies is a man who has deep insecurities and poor self-confidence, which manifests negatively in his personal relationships.
(c)He was diagnosed with depression in 2010.
18 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].
(d)He has had early onset substance use, being introduced to alcohol at age 11, cannabis at age 13, and methamphetamine in 2010 (aged 33). He used methamphetamine to control his weight.
(e)In the past, when released from prison, he has been unable to abstain from methamphetamine. He will feel lonely and become frustrated, feeling “fat and useless”, with his negative thinking about his appearance beginning the cycle of use once again. His social isolation also contributes to his methamphetamine use.
(f)He meets the clinical criteria for a severe methamphetamine use disorder and a moderate alcohol use disorder.
[33] Ms Hadaway noted the report also indicates that Mr Davies has made efforts towards rehabilitation, including undergoing therapy through ACC counselling, and secured entry into a residential rehabilitation facility to address his drug issues (pending sentencing).
[34] The report further explains that Mr Davies’ childhood was affected by learning when he was nine years old that his mother’s partner was not his father, by his mother’s drinking and physical abuse towards him – including forcing him out of the home – and by the obligations on him to care for his younger siblings. The report also says that Mr Davies was [REDACTED]. The report explains that Mr Davies first began to use methamphetamine to make himself feel good, to manage stress and to control his weight, and that his addiction eventually led to everyday use in 2016. The report states that Mr Davies has a good level of insight into his methamphetamine use, acknowledging that he uses it to function and to suppress distressing feelings regarding his sense of failure as a parent. Since he was 18, he has had six children to five different mothers. The report also says he suffered a brain injury (among other injuries) from a car-versus-bicycle accident in his early teenage years, and that he was a member of a gang from age 16 to 34.
[35] Mr Davies’ pre-sentence report echoes much of these themes. In particular, it also records that Mr Davies said he “grew up” in Waikeria prison, that he began
using methamphetamine to normalise his weight after binge eating and that he utilises substances and alcohol to make himself feel better.
[36] Mr Lewis accepted that there is a causal connection between Mr Davies’ background and his present offending but submitted that the Judge’s discount was appropriate. He referred to the Court’s acknowledgment in Zhang that there was “a degree of arbitrariness” in its guidance that an up to 30 per cent discount could be available to recognise addiction,19 and referred to Clark v R where the Court of Appeal considered a 15 per cent discount for s 27 report matters to be sufficient given the appellant in that case was dealing drugs both to feed his addiction and gain financially.20
[37] In his supplementary submission, Mr Lewis maintained that there was no error in relation to the Judge’s acknowledgement of cultural factors by way of a 15 per cent discount. He submitted that the circumstances indicate that Mr Davies was gaining financially from the sale of methamphetamine at the time his vehicle was searched. Mr Lewis also submitted that a higher discount would undermine any value in deterrence and fail to provide adequate recognition of the harm that methamphetamine is causing in New Zealand communities, which drug dealers such as Mr Davies play a significant part in perpetuating.
[38] As counsel agree, I accept that a causal nexus can be drawn between Mr Davies’ early life experiences and his offending. His offending is informed by a lack of self-confidence and low self-esteem, leaving him to revert to methamphetamine use, and to engage in offending against his former partner. His background helps explain in a rational way how he has come to offend.21 Also,
19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].
20 Clark v R [2020] NZCA 641. The appellant pleaded guilty to charges of possession of methamphetamine for supply, conspiring to supply methamphetamine, and possession of an offensive weapon and was sentenced to six years and two months’ imprisonment on each of the offences. The sentencing Judge gave a discount of 15 per cent for the appellant’s addiction, accepting that it may have been the catalyst for his drug-related offending. The Court said that impairment on account of addiction was always a matter of degree and noted that an offender’s choice to engage in drug dealing may be overwhelmingly influenced by their addiction, partially influenced by it or that it may play no role whatsoever. The Court considered that the appellant’s offending fit into the middle category; to feed his addiction and hopefully achieve a financial gain, and saw no error in the sentencing Judge’s 15 per cent reduction for the appellant’s addiction.
21 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16(c)] and [109].
the extent to which Mr Davies was dealing drugs to gain financially as well as to feed his addiction is less clear than in Clark v R given the smaller quantity involved. Given this and the fact that the starting point also substantially reflected the other offending, I consider that a discount in the range of 15 to 20 per cent was available. Therefore, the Judge’s 15 per cent discount was within range albeit not at the upper end.
End sentence
[39] Adopting a starting point of 39 months’ imprisonment, and allowing a 15 per cent discount for Mr Davies’ background together with a 20 per cent discount for the guilty pleas and a 10 per cent uplift for his previous convictions, the net discount for personal factors would be 25 per cent. This would reduce the end sentence to 29 months’ imprisonment. Applying a 20 per cent discount for Mr Davies’ background, the net discount for personal factors would be 30 per cent, which would reduce the end sentence to 27 months’ imprisonment.
[40] Stepping back, given the need for an end sentence for the offending that reflects totality and given the discount range available, I consider an end sentence of 27 months’ imprisonment is appropriate.
Result
[41] The appeal is allowed. The sentence in relation to the charge of possession of methamphetamine for supply is quashed and a sentence of 27 months’ imprisonment is substituted. The remaining sentences stand.
Gault J
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