Davis v Police
[2022] NZHC 3019
•17 November 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2022-425-000018
[2022] NZHC 3019
BETWEEN GERALD DAVIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 November 2022 Appearances:
J Ross for the Appellant
M B Brownlie for the Respondent
Judgment:
17 November 2022
JUDGMENT OF NATION J
Introduction
[1] Gerald Davis was sentenced on 13 January 2022 in the District Court to 21 months’ imprisonment in respect of the following charges:1
(a) injuring with intent to cause grievous bodily harm;2
(b) impeding breathing;3
(c) threatening to kill;4
(d) assault on a person in a family relationship;5 and
(e) assault with a weapon.6
1 New Zealand Police v Davis [2022] NZDC 300.
2 Crimes Act 1961, s 189(1); maximum penalty 10 years’ imprisonment.
3 Crimes Act, s 189A(b); maximum penalty 7 years’ imprisonment.
4 Crimes Act, s 306; maximum penalty 7 years’ imprisonment.
5 Crimes Act, s 194A; maximum penalty 2 years’ imprisonment.
6 Crimes Act, s 202C; maximum penalty 5 years’ imprisonment.
DAVIS v POLICE [2022] NZHC 3019 [17 November 2022]
[2] Mr Davis appeals the decision on the basis it is manifestly excessive in light of the now-repealed three strikes regime.
Facts
[3] On 12 May 2021, Mr Davis was staying with his then partner, the victim, at her sister’s address. The victim was talking on the phone to a male friend of hers. After the call, Mr Davis came into the room, became angry at the victim for talking to another man, and started swearing at her and calling her names. The victim kicked Mr Davis and threw a vacuum cleaner towards him so he would leave her alone, before telling him to leave the house.
[4] Mr Davis confronted the victim in the doorway and hit her on the wrists with the vacuum cleaner. The victim retreated to the bedroom and called her sister. Mr Davis approached her and kicked her in the back before punching her multiple times in the head and body, while insulting her and threatening to kill her. He stomped on her head before abating.
[5] Soon after, Mr Davis was following the victim around the house while continuing to threaten and hit her. When the victim sat on the couch, Mr Davis picked up a remote, held her head down and jabbed the remote into her left eye, while laughing and continuing to threaten her. At this stage, Mr Davis pushed his knee into the victim’s neck, causing her to struggle for breath. When the victim moved to the floor, Mr Davis continued to assault her and threaten to kill her. The same occurred when the victim returned to the bedroom.
[6] The victim suffered pain and bruising to her torso, face and arms as well as a bleeding nose and headaches. She remains fearful for her safety in relation to Mr Davis. That harm was detailed in the District Court in the Judge’s sentencing remarks.
[7] The District Court had the benefit of detailed psychiatric reports for Mr Davis dated 29 October 2021 and 11 November 2021, and a psychologist’s report of 29 July 2021. Those reports confirmed that Mr Davis was fit to plead but also that he was seriously mentally impaired. Mr Davis is aged 31. He suffers from paranoid schizophrenia, an anti-social disorder, has an IQ of 54 and suffered severe head injuries
after being hit by a truck in 2020. In his report of 29 July 2021, the psychologist, Mr Shirley, indicated that Mr Davis and others remain at risk of Mr Davis violently reoffending.
Principles on appeal
[8] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.7 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.8 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
District Court decision
[9] The sentencing decision of 13 January 2022 was based on the accepted sentencing indication given by Judge Brandts-Giesen on 2 December 2021.
[10] The Judge took the strangulation as the lead offence because the injuring with intent offending was considered to be at the lower end of the spectrum. Careful not to underestimate the level of violence and the harm caused to the victim, the Judge adopted a starting point of 30 months’ imprisonment for the lead charge.
[11] An uplift of six months was applied for the other convictions. The Judge considered a further uplift of three months to be appropriate to reflect Mr Davis’ previous convictions.
[12] To the figure of 39 months that resulted, the Judge then provided a 25 per cent discount for Mr Davis’ guilty pleas. Accounting for Mr Davis’ mental and intellectual issues, particularly the schizophrenia, in combination with the unsuitability of prison for someone with his special needs, the Judge gave a further 20 per cent discount. This
7 Criminal Procedure Act, ss 250(2) and 250(3).
8 Ripia v R [2011] NZCA 101 at [15].
discount also reflected the Judge’s confidence in real regret on the part of Mr Davis despite the lack of articulated remorse.
[13]This led to the end sentence of 21 months’ imprisonment.
[14] Later in the day after the sentencing, the Judge issued a minute. He acknowledged that, with his sentences, he had provided a first strike warning, not realising Mr Davis had previously received a first strike warning. In the minute, he provided the second strike warning and explained the consequences of further relevant offending. He did not address s 86C(4) of the Sentencing Act.
[15] On all charges, Mr Davis was sentenced to 21 months’ imprisonment, with the sentence on each charge to be served concurrently.
[16] A Police prosecutor had represented the Police on the original sentencing. Another counsel, assigned on Legal Aid, had represented Mr Davis. Neither Mr Ross, who represented Mr Davis on the appeal, nor Mr Brownlie, for the Police, were involved with the sentencing.
[17] In the District Court, neither the prosecution nor the defence had advised the Judge that the injuring with intent charge was, in terms of the three strikes regime, a stage 2 serious violent offence committed after Mr Davis had received a first strike warning. In terms of s 86C(4), the Judge thus had to order that Mr Davis would not be released for his short-term sentence (a sentence of less than two years) before the expiry of that sentence.9
Submissions
[18] On the appeal, both Mr Ross and Mr Brownlie agreed the starting point adopted for the different offences was appropriate, as were the discounts the Judge had applied. However, both counsel recognised that, because of the mistake in not identifying the injuring with intent charge as an offence subject to the three strikes regime as a stage
9 In terms of the Parole Act 2002.
2 offence, the sentence to be served before Mr Davis could be eligible for parole would be longer than the sentencing Judge had anticipated.
[19] For Mr Davis, Mr Ross submitted there had thus been an error in sentencing which had to be corrected. He submitted the effective end sentence with appropriate eligibility for parole could be achieved through deleting the 10 per cent uplift to the starting point the Judge adopted on account of Mr Davis’ previous offending. He suggested such an adjustment could be appropriate given the reduced need for denunciation and deterrence because of Mr Davis’ mental health difficulties. Secondly, he submitted the Court should quash any requirement for the full sentence for the injuring with intent offence to be served on the basis that, in accordance with the Supreme Court’s judgment in Fitzgerald v R,10 this could be considered a rare case where serving an appropriate sentence without parole would be so disproportionately severe that it would breach s 9 of the Bill of Rights Act 1990.
[20] For the Police, Mr Brownlie submitted, to rectify the error, the injuring with intent charge should be treated as the lead offence and there should then be an adjustment to other sentences, potentially an uplift for prior offending, but discounts as otherwise appropriate to achieve a similar effective end sentence.
[21] Mr Ross accepted there was merit in the approach proposed for the Police. He submitted the Court should correct the error to arrive at a sentence for the injuring with intent charge that would have to be served without parole, and a sentence for all other charges, structured in such a way that Mr Davis would be released on parole after serving one-half of the combined sentences of imprisonment. He submitted the end result should be consistent with what the Judge would have anticipated when sentencing Mr Davis as he did.
Analysis
[22] Given the measure of agreement as to how I should approach matters, I proceed generally in accordance with the approach suggested by Mr Brownlie.
10 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
[23] The appeal was filed out of time. There is no prejudice in allowing the appeal to proceed and the Police do not oppose the extension of time. Leave is accordingly granted for the appeal.
[24] With the sentences imposed in the District Court, Mr Davis would have had to be released from his 21 months’ prison sentence after serving half that sentence. It might have been argued that, through failing to make an order that Mr Davis must not be released from prison for the injuring with intent charge until the expiry of that sentence, there was an error with the sentencing and, as a result, the end sentence was inadequate. The Police did not however seek to appeal the sentence imposed. That being the case, I consider it would not be just to recognise the error which occurred by structuring or increasing sentences in a way that would require Mr Davis to be in prison for longer than would have been the case with the sentences as imposed in the District Court.
[25] It seems Corrections have determined that, with due regard to s 86C(4), Mr Davis must remain in prison for the 21 months’ sentence imposed on the injuring with intent charge. That determination may not be correct given the Judge did not make the order, as he was required to do under s 86C(4), that Mr Davis must not be released before the expiry of the sentence imposed on the injuring with intent charge. It is not necessary for me to make a decision as to that issue given the way in which counsel are agreed the error made in the District Court can be recognised and sentences imposed so as to achieve a result which is appropriate in the particular circumstances of this case.
[26] In approaching sentences as here, the Court may consider parole eligibility when assessing what is apposite.11 As such, matters such as uplifts for previous offending may be unnecessary as they are already, effectively, accounted for by the requirement to serve a whole sentence – the principles of accountability, deterrence and community protection having already been met.12
11 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.
12 Wipa v R [2018] NZCA 219.
[27] Before me, Mr Ross submitted the sentencing Judge had arrived at a sentence of 19 months’ imprisonment on which Mr Davis would have had to be released on parole after serving one-half of that time, being nine and a half months. The Judge however said he was imposing a sentence of 21 months’ imprisonment. That had been what he was intending to impose. On such a sentence, Mr Davis would have had to be released after being in prison for 10.5 months.13
[28] Having regard to the harm caused to the victim and the purposes of deterrence and accountability, the offence of strangulation could properly be treated as the leading charge but for the application of the three strikes legislation.
[29] In the circumstances of this case and for this offender, it would have been appropriate for the Judge to first arrive at a sentence for the injuring with intent charge knowing that Mr Davis would not be released from that sentence before its expiry.14
[30] Having regard to the sentences that will be imposed for related offending, an appropriate starting point for that charge would be 11 months.
[31] On that charge, there would be no need for an uplift on the starting point because of Mr Davis’ previous criminal offending, given Mr Davis will be serving the whole of that sentence. He is entitled to a 25 per cent discount for his guilty plea and a 20 per cent discount for personal mitigating matters, namely his considerable mental health difficulties. They are relevant to both his culpability and because of the way those difficulties will make a prison sentence more of an ordeal for him. With total discounts of 45 per cent, the end sentence on the injuring with intent charge would be six months’ imprisonment.
[32] Section 86C(4) of the Sentencing Act applied at the time Mr Davis was sentenced. Although the three strikes regime has now been repealed by the Three Strikes Legislation Repeal Act 2022, that Act is not retrospective and s 86C(4) must still be given effect. Accordingly, as was required by s 86C(4), I make an order that Mr Davis must not be released before the expiry of that sentence.
13 Parole Act, s 86.
14 Sentencing Act 2002, s 86C(4)(b).
[33] I then consider an appropriate starting point for the impeding breathing, threatening to kill, assault on a person in a family relationship, and assault with a weapon charges. The appropriate starting point for that offending, with due regard to totality and the separate sentence imposed on the injuring with intent charge, would be 16.5 months’ imprisonment. Against that starting point, Mr Davis is entitled to credits of 45 percent for his guilty pleas and matters relating to him personally so that the end sentence for each of those offences will be nine months’ imprisonment. Those sentences will be concurrent with each other but cumulative on the sentence of six months for the injuring with intent charge.
[34] Because the sentence for those additional offences is a short-term sentence, as defined in the Parole Act, Mr Davis will be released on parole after serving half of that sentence, being four and a half months.
[35] With Mr Davis being sentenced in this way, he will be released from his prison sentence after being in prison for 10.5 months, consistent with what he would have been required to serve if the injuring with intent charge had not been a stage two serious violent offence in terms of the previous legislation.
Conclusion
[36] The appeal is allowed. The sentences imposed in the District Court are quashed. In substitution, on the injuring with intent charge, Mr Davis is sentenced to six months’ imprisonment. As to that, I make an order that Mr Davis must not be released before the expiry of that sentence. On the remaining charges, Mr Davis is sentenced to nine months’ imprisonment, concurrent with each other but cumulative on the sentence for the injuring with intent charge.
[37] I also impose for six months the post-release conditions recommended in the pre-sentence report. Mr Davis is to undertake treatment as directed by a probation officer for mental health and cognitive issues. He is not to associate with or contact the victim of his offending without the prior written approval of a probation officer. He is also to disclose to a probation officer at the earliest opportunity details of any intimate relationship he begins, resumes or terminates.
[38] I also make a protection order against Mr Davis for the benefit of the victim of his offending.
[39] After the sentencing, Mr Davis was recalled and given a final strike warning as then required under s 86E(6) of the Sentencing Act 2002. That warning would have been required and appropriate with the sentence that has now been imposed on the injuring with intent charge. With this judgment, there is a record that such a warning was given. The relevant provisions of the Sentencing Act have now been repealed. Mr Davis is however again warned that he must not commit another serious violent offence such as he committed with the victim of this offending. If he does commit such an offence, he is likely to receive a more severe sentence than he did this time.
Solicitors:
Montrose Chambers, Invercargill
Crown Solicitor’s Office, Invercargill.
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