Davis v Police

[2022] NZHC 3014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2022-425-000020

[2022] NZHC 3014

BETWEEN

DHARAM RAJ DAVIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

14 November 2022

Appearances:

K L E Coote for the Appellant

M B Brownlie for the Respondent

Judgment:

17 November 2022

JUDGMENT OF NATION J

Introduction

[1]    Dharam Davis pleaded guilty to one charge of threatening behaviour,1 one charge of wilful damage,2 one charge of unlawfully taking a motorcycle3 and one charge of disorderly behaviour.4 The charge of threatening behaviour was originally a charge of threatening to kill.

[2]    Mr Davis was sentenced by Judge Brandts-Giesen to 15 months and one week’s imprisonment.5 Judge Brandts-Giesen previously gave Mr Davis a sentence indication, treating the threatening to kill charge as the lead offence. After the sentence

1      Summary Offences Act 1981, s 21(1)(a): maximum penalty three months’ imprisonment or a

$2,000 fine.

2      Section 11(1)(a): maximum penalty three months’ imprisonment or a $2,000 fine.

3      Crimes Act 1961, s 226(1): maximum penalty seven years’ imprisonment.

4      Summary Offences Act, s 3: maximum penalty three months’ imprisonment or a $2,000 fine.

5      Police v Davis [2022] NZDC 18710.

DAVIS v POLICE [2022] NZHC 3014 [17 November 2022]

indication, the charge was lowered from threatening to kill to threatening behaviour. The Judge’s sentencing notes generally reflected the sentence indication.

[3]Mr Davis appeals his sentence.

Facts

[4]    On 1 June 2022, Mr Davis and two associates went to the Four Square supermarket in Wyndham. They were members of the criminal gang syndicate known as the Mangu Kaha. Mr Davis and one of his associates approached a patched Mongrel Mob member and asked him to take off his patch. That person refused and they became involved in a verbal exchange. All three of them took up a fighting stance. The Mongrel Mob member tried to run from the store but became trapped in an aisle. Mr Davis and his associate grabbed the Mongrel Mob member. The other associate entered the supermarket and became involved in the scuffle. Mr Davis and his two associates then left the store. He was charged with behaving in a disorderly manner under the Summary Offences Act 1981.

[5]Mr Davis appeared in Court on 15 June 2022. He was remanded at large.

[6]    On 18 July 2022, Mr Davis was drinking at his parents’ house. He was in possession of a large meat cleaver. He became agitated and a verbal argument erupted between him and his parents. Mr Davis threatened to kill his father while wielding the meat cleaver, stating “I’ll kill you” several times. He threw a bottle of beer at the fridge before walking outside the house.

[7]    Mr Davis hurled the meat cleaver at the kitchen window and struck it approximately two or three times, smashing the window.

[8]    Mr Davis walked away from the house to the farm shed, took a quad bike owned by the farm owner and drove it back to the house. He was then challenged by Police and fled on the quad bike through the farm and onto the highway. He was located a short time later at an associate’s house with the bike.

[9]    As a result of that incident, Mr Davis was initially charged with threatening to kill under the Crimes Act 1961, unlawfully taking a motorcycle and wilful damage. He appeared in Court on those charges on 19 July 2022. He was remanded in custody.

The sentence indication

[10]   The District Court Judge gave Mr Davis a sentence indication on 11 August 2022.

[11]   The Judge adopted a starting point of 15 months’ imprisonment for the charge of threatening to kill. His Honour considered this case to be more serious than the case cited by the Police, Blair v Police.6 The aggravating factors of this offending were the degree of premeditation, the apparent willingness and ability of an offender to carry out the threat, the use of a weapon, the level of fear and harm caused to the victim, and that the threat was made directly to the victim.

[12]   The Judge added a three-month uplift for the balance of the 18 July 2022 offending and a one-month uplift for the offending on 1 June 2022. He then added a one-month uplift for previous offending. This totalled 20 months’ imprisonment.

[13]   The Judge said he would allow a 20 per cent discount for a guilty plea if Mr Davis accepted the sentence indication. There were no other discounts, leaving an end sentence of 16 months’ imprisonment. The Judge also considered an emotional harm payment and a protection order would be appropriate.

[14]   After the sentence indication had been given, Mr Davis was remanded in custody on two occasions with the Judge noting Mr Davis was to accept or decline the sentence indication.

[15]   On 25 August 2022, the charge of threatening to kill was amended to a charge under s 21(1)(a) of the Summary Offences Act 1981 that Mr Davis “[k]nowing that his conduct was likely reasonably to frighten [his father], threatened to injure that person”.  The maximum penalty on that charge is three months’ imprisonment or a

$2,000 fine, compared to seven years’ imprisonment on a threatening to kill charge.7

The amended charge was put to Mr Davis. He pleaded guilty. The Judge made a note that the sentence indication was accepted. Mr Davis was remanded for sentence to 22 September 2022. A pre-sentence report was ordered before the sentencing.

6      Blair v Police HC Dunedin CRI-2010-412-10, 13 May 2010.

7      Crimes Act, s 306.

The sentencing

[16]   At sentencing on 22 September 2022, the Judge began by noting the charges, referring to the threatening behaviour charge and not the threatening to kill charge. He referred to the facts of the offending as earlier described. He repeated information from the pre-sentence report as to the factors that put Mr Davis at risk of further offending. He said Mr Davis had apparently reconciled with his parents. He noted a proposed home detention address was not suitable for technical reasons and said he had no option but to imprison Mr Davis.

[17]The Judge declined to give a discount for remorse.

[18]   Taking into account mitigating factors which had been put before him on sentencing, the Judge said he was reducing the starting point (which was 16 months’ imprisonment from the sentence indication) to 15 months’ imprisonment, with leave to apply for home detention.

[19]   Overall, the Judge imposed a 15-month sentence for the charge of unlawfully taking a motorcycle, and one-month concurrent sentences for each of the other charges.

[20]   The Judge also remitted Mr Davis’ outstanding fines and added one weeks’ imprisonment to the 15-month sentence.

Principles on appeal

[21]   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 that a different sentence should be imposed.8 As the Court of Appeal identified in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is appropriate for this

8      Criminal Procedure Act 2011, ss 250(2) and 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10

Submissions

Appellant’s submissions

[22]   For Mr Davis, Ms Coote submitted the sentence was manifestly excessive. She pointed out that the sentence proceeded on the basis the sentence indication was accepted, but said it was never formally accepted. She essentially said this was wrong because one charge had been amended after the sentence indication was given, but there was no allowance for that in the sentence imposed. She noted there was no discount for a guilty plea given in the sentence, but that may have been because the Judge adopted the sentence from the sentence indication which included a guilty plea discount. She also submitted there should have been a separate discount for remorse.

[23]   In submitting that the sentence was manifestly excessive, she said a starting point of 15 months’ imprisonment for a charge of unlawfully taking a motor vehicle was excessive. She submitted Mr Davis’ offending was not a serious type of this offending because the bike taken was used by his parents on their farm, he used the bike to remove himself from the situation and had no intention of taking it permanently, he was located with the bike a relatively short distance away and it was returned two hours after it had been taken. She said the fact this offending was not at the serious end of that offending was reflected in the fact the Judge initially gave Mr Davis a one-and-a-half-month uplift (referring to half of the three-month uplift for the unlawfully taking a motor vehicle charge and the wilful damage charge).

[24]   Ms Coote said a starting point of 5 to 6 months’ imprisonment would be appropriate.

[25]No issue was taken with the sentences for the other offending.

10     Ripia v R [2011] NZCA 101 at [15].

[26]   She contended that Mr Davis should get a discount for remorse because he engaged in the restorative justice process with his parents. During that process, he apologised for his actions and expressed a level of remorse for what he had done.

[27]   Overall, she submitted, with a starting point of five months’ imprisonment for the unlawful taking, uplifts of three months for the balance of the offending and one month for previous convictions, and discounts of 25 per cent, the end sentence would be one of seven months’ imprisonment.

Respondent’s submissions

[28]   For the Police, Mr Brownlie submitted a 12-month starting point for the charge of unlawfully taking a motor vehicle was available to the District Court Judge. He did not take issue with the uplift for the remaining charges relating to the 18 July 2022 offending. For the disorderly behaviour charge, he contended an uplift of two months’ imprisonment would be available because the offending involved gangs in a group setting and in a public place.

[29]   He also submitted that an uplift of three months would be justified for Mr Davis’ previous convictions. He said an uplift of one month amounts to about five per cent. He submitted, given the number of dishonesty offences Mr Davis has committed (Mr Brownlie cited 11), a higher uplift would be appropriate.

[30]   Mr Brownlie said it was appropriate there not be a discount for remorse given the generous discount given for Mr Davis’ guilty plea.

[31]   Overall, he submitted, despite the unorthodox methodology of sentencing, the overall sentence was appropriate to reflect the overall scale of offending. He submitted, with a starting point of 12 months’ imprisonment for the unlawful taking, uplifts of three months for the other offending and three months for previous convictions, and a discount of 20 per cent for a guilty plea, would lead to an end sentence of 14.4 months. Mr Brownlie submitted that appellate intervention would be inappropriate given the sentence imposed was 15 months.

Analysis

[32]   Mr Brownlie, for the Police, accepted that the sentence indication was declined. However, the record of the proceeding on the charging document notes the sentence indication was accepted, and the Judge treated it as accepted in his sentencing, despite the fact the charge was reduced.

[33]   Whether the sentence indication was accepted is not determinative of this appeal. A defendant has the right to appeal their sentence, even after accepting a sentence indication.11 The Judge’s end sentence was however in line with his sentence indication without any consideration of whether there needed to be a change given the significant reduction in the seriousness of the charge Mr Davis was facing as to the threats he had made against his father.

[34]   With there having been that error, it is appropriate for me to consider whether a different end sentence should be imposed with due regard to the amended charge.

[35]   With that amendment, the lead charge would be the charge of unlawfully taking the motorcycle. There is no guideline case for sentencing on the unlawful taking of a motor vehicle. In Curle v Police, Wylie J referred to a number of High Court judgments.12 Wylie J said case law suggested that, in the case of a single conversion, a starting point of between 12 and 18 months would generally be appropriate.13 In O’Rourke v Police, Mallon J held a starting point of nine months’ imprisonment for the unlawful taking of a single motor vehicle was within the available range but towards the high end given the vehicle was taken for a short time and was not damaged.14

[36]   Here, Mr Davis had been drinking. He had become agitated and was in a state where he was a danger to himself and others. The Police had been called to come to the house where Mr Davis was in conflict with his father. Mr Davis walked away from

11 Criminal Procedure Act, s 245.

12 Curle v Police [2017] NZHC 1194 at [27] citing Muir v Police [2015] NZHC 1425; Affleck v R [2015] NZHC 1741; Duxfield v R [2015] NZHC 3018; Gideon v Police [2014] NZHC 1065; Kushell v Police [2012] NZHC 2380; and Riini v Police [2016] NZHC 2218.

13 Curle v Police, above n 12, at [28].

14 O’Rourke v Police [2016] NZHC 273 at [7]-[8].

the house to the farm shed, took a quad bike owned by the farm owner and drove it back to his parents’ house. There, he was challenged by Police. He fled on the bike through the farm, exiting onto State Highway 1. He was located by Police a short time later at an associate’s address with the motorbike. The bike was returned undamaged to the owner.

[37]   I consider an appropriate starting point for the unlawful taking would have been 10 months’ imprisonment.

[38]   There then had to be an uplift for the intimidation charge and the wilful damage charge. The maximum penalty on the intimidation charge is three months’ imprisonment. The intimidation was particularly serious given Mr Davis was armed with a meat cleaver at the time and made threatening to kill statements. I consider an uplift of two months would have been appropriate for that charge. The maximum penalty on the wilful damage charge was three months’ imprisonment. I consider an uplift of one month would have been appropriate for that charge.

[39]   That would have led to a starting point of 13 months’ imprisonment for the offences arising out of Mr Davis’ confrontation with his father at their home. I do not consider that needs to be adjusted downwards for totality.

[40]   There was then the disorderly behaviour charge relating to the earlier incident in the supermarket. The maximum penalty for that charge was three months’ imprisonment. I consider an uplift of two months’ imprisonment would have been appropriate for that charge. The disorderly behaviour related to a gang confrontation within a supermarket where the confrontation would have been disturbing to others in the store, with there being an obvious risk of associated violence. Mr Davis’ conduct was more serious in that he had confronted a rival gang member with the support of a gang associate. Because it related to conduct on a separate occasion, it does not need to be reduced on account of totality.

[41]   An appropriate starting point for all the offending would thus have been 15 months’ imprisonment.

[42]   It was then necessary to consider mitigating or aggravating factors relating to Mr Davis personally.

[43]   On 7 February 2021, Mr Davis offended by way of assaulting Police, resisting Police, refusing to accompany an enforcement officer, driving while licence suspended or revoked and escaping from Police custody. The way he drove off on the stolen quad bike is somewhat similar. The intimidation of his father involved threatened violence. It is of concern that Mr Davis had a conviction from 2014 for manslaughter for which he was sentenced to three years and six months’ imprisonment, and charges of possession of an offensive weapon from 2014.

[44]   Mr Davis does have previous convictions for offences of dishonesty, including burglary and unlawfully taking a motor vehicle, but the most recent offending of this nature dates back to 2012 and 2011 respectively. There was dishonesty in Mr Davis taking the quad bike. He knew the property was not his to take. Nevertheless, I do not consider a further uplift is required because of Mr Davis’ previous dishonesty offences.

[45]   An uplift on account of Mr Davis’ previous offending is however necessary to mark the seriousness of similar offending and the need to make him aware he must change so he is not at risk of causing violence to others. I consider an uplift of one month is appropriate.

[46]   There was a detailed report from restorative justice referring to the meeting Mr Davis had with his parents. It was apparent the abuse of alcohol within the home was a factor in the offending. Mr Davis did not appear particularly sorry for what had occurred but acknowledged he needed to change and said he wanted to change for the sake of his daughter. There was an indication in that report that Mr Davis values the help he is getting from his probation officer and wants to make changes. I would recognise that with a discount of one month. That cancels out the uplift for previous offending.

[47]   There would then be a discount for guilty pleas. With the sentence indication, and thus with the eventual sentencing, Mr Davis received a discount of 20 per cent.

In seeking an indication before he pleaded guilty, Mr Davis was not accepting responsibility for his offending. He had not pleaded guilty to the disorderly behaviour charge or the charges of unlawfully taking a vehicle and wilful damage as early as he could have, but he had also not entered pleas of not guilty to those charges. The delay in pleading guilty seems to have been driven by his wish to defend the threatening to kill charge. On that charge, he had entered a plea of not guilty on 21 July 2022. On the same date, Mr Davis pleaded guilty to the other charges. The threatening to kill charge was ultimately amended to threatening behaviour. He then entered a guilty plea to the amended charge. The 20 per cent discount for guilty pleas was thus justified.

[48]   Approaching matters that way, the appropriate end sentence would have been 12 months’ imprisonment. That is a significant reduction on the sentence imposed of 15 months’ imprisonment. There was an error in the way sentencing had proceeded.

Conclusion

[49]   Accordingly, Mr Davis’ appeal is allowed. The original sentence is quashed. His outstanding fines of $4,456.64 are remitted but, in recognition, an additional week’ imprisonment is imposed. Mr Davis is sentenced to 12 months and one week’s imprisonment. He has leave to apply for home detention.

[50]   Mr Davis is to be subject to post release conditions for six months, including the special conditions set out on page seven of the pre-sentence report.

Solicitors:

Eagles Eagles & Redpath, Invercargill Crown Solicitor, Invercargill.