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.…

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 3014
Case: [2022] NZHC 3014
Decision Date: 17 November 2022

CaseChat Overview and Summary

Dharam Raj Davis appealed his sentence imposed by Judge Brandts-Giesen in the District Court. Mr Davis was sentenced to 15 months and one week's imprisonment for charges of threatening behaviour, unlawful taking of a motorcycle, wilful damage, and disorderly behaviour. The court needed to determine whether the sentence was manifestly excessive and whether there was an error in the sentencing process that warranted a different sentence.

The court found that the sentence indication, which had been accepted by the defendant, was not properly considered when the sentence was ultimately imposed. The court identified that the defendant's charge of threatening to kill was reduced to threatening behaviour after the sentence indication was given. However, the sentence imposed was in line with the sentence indication, without any consideration of whether a change was needed due to the reduced seriousness of the charge. The court found that the starting point for the unlawful taking of a motor vehicle should have been 10 months' imprisonment, with uplifts for other charges and a discount for guilty pleas, leading to an appropriate end sentence of 12 months' imprisonment. The court concluded that the original sentence was manifestly excessive and allowed the appeal.

The court quashed the original sentence and imposed a new sentence of 12 months and one week's imprisonment. The defendant's outstanding fines were remitted, but an additional week of imprisonment was imposed in recognition of those fines. Mr Davis has leave to apply for home detention and will be subject to post-release conditions for six months.

Orders