Davies v Police - [2019] NZHC 3081

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-390

CRI-2019-404-391 [2019] NZHC 3081

BETWEEN
BRONSON DAVIES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing: 25 November 2019

Appearances:

A R Naseri and C Sigamoney for the appellant S A Rankin for the respondent

Date of judgment:

25 November 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:
Public Defence Service, Waitākere Meredith Connell, Auckland

DAVIES v NEW ZEALAND POLICE [2019] NZHC 3081 [25 November 2019]

[1] Bronson Davies appeals his sentence of 19 months’ imprisonment imposed by Judge B A Gibson in the District Court at Waitākere on 7 August 2019,1 on Mr Davies’ guilty pleas to two charges of theft (over $1000),2 three charges of theft (between $500 and $1,000),3 one charge of breach of community work,4 and one charge of breaching his sentence of intensive supervision.5

Background

—offending

[2] Mr Davies’ lead convictions arose from his thefts in November last year and June this year. He had been sentenced to 100 hours community work on 19 October 2018 for previous dishonesty offending. On four occasions in November 2018, Mr Davies stole power tools from retailers. The tools respectively were valued at $938,
$997, $1038, and $1388. He failed to report to Community Work on multiple occasions. He had not completed the community work to which he was sentenced. On 29 June 2019, Mr Davies stole jackets valued at $932 from another retailer, this time using tools to remove price and security tags. He was on bail at the time, and subject to the sentence of community work and supervision imposed on 19 October 2018.

—District Court decision

[3] The Judge characterised Mr Davies’ offending as “fairly brazen”,6 noting Mr Davies’ previous 25 convictions, and his “guarded” interactions with probation officers. As “electronically monitored options [were] not available … inevitably a sentence of imprisonment ha[d] to be imposed”.7

[4] A global starting point of two years’ imprisonment was adopted, with a two- month uplift for Mr Davies’ previous convictions. A further uplift of two months was applied, given he offended while on bail and under sentence. A four-month discount

1      Police v Davies [2019] NZDC 15455.
2      Crimes Act 1961, ss 219 and 223(b). Maximum penalty is seven years’ imprisonment.
3      Sections 219 and 223(c). Maximum penalty is one years’ imprisonment.
4      Sentencing Act 2002, s 71(1)(a). Maximum penalty is three months’ imprisonment or a fine not exceeding $1000.
5      Section 70(A)(a). Maximum penalty is six months’ imprisonment or a fine not exceeding $1500.
6      Police v Davies, above n 1, at [2].
7 At [3].

applied in light of Mr Davies’ youth (he was aged 20 at the time), bringing the sentence back to two years’ imprisonment. From that, a discount of 20 per cent was given for Mr Davies’ guilty plea, which brought the end sentence to 19 months’ imprisonment.

[5] The Judge then “apportion[ed] the sentences”, noting all would be concurrent.8 Sentences of 19 months’ imprisonment were…

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.

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Details

Case: [2019] NZHC 3081
Decision Date: 25 November 2019

CaseChat Overview and Summary

Bronson Davies appealed against his sentence of 19 months’ imprisonment, imposed by the District Court for theft and breaches of his previous sentences. The court had to determine if the sentence was manifestly excessive, as per the applicable legal principles. The appeal was based on the argument that the starting point for the sentence was too high and that the discount for the guilty plea should have been greater. The Crown conceded that the sentence was manifestly excessive but argued for a sentence of 12 months.

The court found that the starting point for the sentence was indeed too high, and the Judge had not followed the orthodox approach of identifying a lead charge and applying the appropriate uplifts. The court determined that an eight-month starting point was more appropriate. The two-month uplift for previous convictions was deemed appropriate, and the 20 per cent discount for the guilty plea was considered generous.

The appeal was allowed, and the sentence of 19 months’ imprisonment was quashed. It was replaced with a sentence of 11 months’ imprisonment, consisting of eight months for the theft charges over $1000, six months for the remaining theft charges, three months for the breach of intensive supervision, and two months for the breach of community work. The individual sentences were to be served concurrently, except for the breach of intensive supervision, which was to be served cumulatively.

Orders