Davis v Police - [2016] NZHC 1216

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-126 [2016] NZHC 1216

BETWEEN
JOSHUA DAVIS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 June 2016

Appearances:

P Masani for Appellant
A Devathasan for Respondent

Judgment:

7 June 2016

ORALJUDGMENT OF TOOGOOD J [Appeal against conviction]

Davis v NZ Police [2016] NZHC 1216 [7 June 2016]

[1] On 11 March 2016, Joshua Davis was convicted and discharged on a single charge of unlawfully entering a building, under s 29(1) of the Summary Offences Act
1981. The maximum penalty for that offence is three months’ imprisonment.

[2] He now appeals the decision of Judge AC Roberts not to discharge him without conviction, arguing that the Judge did not give adequate weight to his youth and that the Judge was wrong not to accept that there was a real and appreciable risk of disproportionately adverse consequences of conviction.

Factual background

[3] Mr Davis, now 19 years old, was 18 at the time of offending.

[4] Somewhere between 6 and 10 January 2015, he and some friends entered a vacant holiday home which was for sale. A real estate agent who was caring for the property was absent for a period of four days and when she returned she found that a number of beds on the property were messy as if they had been slept in, there were cigarette butts and burnt matches discarded on the living room floor and packets of cat food were located under the window, which appeared to have been the point of entry. All of the cupboards and windows at the address had been opened.

[5] Mr Davis apparently used it as temporary accommodation, although it is not clear from the summary of facts just how long he remained there. He was identified as having been at the house through fingerprints left at the scene. Mr Davis said that he and some friends were drinking on the beach and decided to go into the house on the spur of the moment. He lives nearby with his parents.

District Court

[6] Mr Davis was initially charged with burglary, a much more serious offence than the charge to which he pleaded guilty after it was substituted. At the sentencing hearing Mr Masani, who was counsel for Mr Davis, applied for a discharge without

conviction under s 106(1) of the Sentencing Act 2002. The Police were said to be neutral in respect of the application.

[7] The Judge noted that restorative justice had been attempted, but Mr Davis could not be contacted about that despite messages being left on his cell phone and visits being made to his address. The Judge considered also an offer of $20 reparation a week for emotional harm (I am told that the sum offered was $500 in total to be paid off at that rate); the guilty plea; Mr Davis’ youth, and the possible effect of the conviction on his employment opportunities in the future.

[8] Judge Roberts did not consider the appellant to…

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 [2016] NZHC 1216
Case: [2016] NZHC 1216
Decision Date: 7 June 2016

CaseChat Overview and Summary

Joshua Davis appeals against his conviction for unlawfully entering a building. The appeal focuses on whether the District Court judge erred in not discharging Davis without conviction under section 106 of the Sentencing Act 2002. Davis argues that the judge did not adequately weigh his youth and the risk of disproportionate consequences from a conviction. The appeal hinges on whether the potential negative effects of a conviction on Davis’s future career as an electrician are sufficiently significant to warrant a discharge without conviction.

The court considered the factors relevant to the decision, including Davis’s youth, the nature of the offending, and the potential impact of a conviction. The offending was deemed impulsive and at the lower end of the scale, with no actual damage or theft. However, the court found the intrusion into the property to be significant, causing emotional harm to the owners. Davis’s engagement with restorative justice and his lack of remorse were noted, as was his offer to pay reparation. The court also considered Davis’s future career prospects, but found that the potential consequences of a conviction were speculative and did not reach the threshold of being out of proportion to the seriousness of the offence.

The court upheld the decision of the District Court, finding that the judge was entitled to conclude that the consequences of conviction were not disproportionately severe. The potential impact on Davis’s employment prospects, while acknowledged, did not meet the requirement of a real and appreciable risk as outlined in section 107 of the Sentencing Act 2002. The court dismissed the appeal, affirming the conviction.

The final orders of the court dismiss the appeal and uphold the conviction of Joshua Davis for unlawfully entering a building.

Orders