Davis v Police - [2022] NZHC 3019

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[2] Mr Davis appeals the decision on the basis it is manifestly excessive in light of the now-repealed three strikes regime.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…

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 Davis v Police

Details

AGLC: Davis v Police [2022] NZHC 3019
Case: [2022] NZHC 3019
Decision Date: 17 November 2022

CaseChat Overview and Summary

Gerald Davis appeals his sentence of 21 months’ imprisonment, imposed in the District Court on 13 January 2022. The sentence was imposed in respect of the following charges: injuring with intent to cause grievous bodily harm; impeding breathing; threatening to kill; assault on a person in a family relationship; and assault with a weapon. The appeal is grounded on the basis that the sentence is manifestly excessive in light of the now-repealed three strikes regime. The sentencing decision was based on the accepted sentencing indication given by Judge Brandts-Giesen on 2 December 2021. The Judge adopted a starting point of 30 months’ imprisonment for the lead charge of strangulation. An uplift of six months was applied for the other convictions, and a further uplift of three months was applied to reflect Mr Davis’ previous convictions. A 25 per cent discount was applied for Mr Davis’ guilty pleas and a 20 per cent discount was applied for his mental and intellectual issues. This led to the end sentence of 21 months’ imprisonment. The Court held that the appeal should be allowed and the sentence quashed. The Court imposed a sentence of six months’ imprisonment on the injuring with intent charge, with Mr Davis not to 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. The Court also imposed 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. The Court also made a protection order against Mr Davis for the benefit of the victim of his offending.

Orders