Mr Davis is a dangerous man who committed a brutal murder. It has earned him the distinction of being the first person to appear for sentencing for murder as a stage-3 or “third-strike” offence.
The High Court was obliged by s 86E of the Sentencing Act 2002 to sentence Mr Davis to life without parole unless that sentence was manifestly unjust in the circumstances of offence and offender. Davison J found life without parole manifestly unjust, largely because Mr Davis is 26 and might serve more than 50 years.[1]
That conclusion having been reached, s 86E next required the Judge to sentence Mr Davis to life with a minimum period of imprisonment (MPI) of 20 years unless that sentence, too, was manifestly unjust. The Judge held that but for this provision he would have imposed an MPI of 14 years.[2] Nonetheless he found that the statutory presumptive minimum of 20 years was not manifestly unjust.[3]
[2]At [54].
[3]At [75].
Mr Davis appeals, saying that an MPI of 10 or 11 years sufficed in his case and further that the difference between 14 and 20 years is manifestly unjust.
At sentencing the Crown sought life without parole, and it also argued that the murder was sufficiently brutal and callous to qualify in any event for a statutory MPI of not less than 17 years under s 104 of the Sentencing Act. On appeal, it does not say the Judge was wrong to find life without parole manifestly unjust, having regard to Mr Davis’s age, and it accepts that the murder may have fallen just short of qualifying for a 17-year MPI under s 104. It says rather that an MPI of at least 17 years was warranted on the merits having regard to Mr Davis’s circumstances and the policy of the three-strikes regime, and the difference between that period and 20 years — or indeed, between 14 and 20 years — is not so great as to cause manifest injustice in Mr Davis’s case.
The notice of appeal was filed one day out of time. The delay is explained and we grant the necessary extension of time.
The offence
The victim, Aroha Kerehoma, was Mr Davis’s partner of some five months. They lived in a garage at a property in Hamilton. On Saturday 3 February 2018, they spent the afternoon and evening drinking at home.
During the…
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.
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Details
AGLC
Davis v R [2019] NZCA 40
Case
[2019] NZCA 40
Decision Date
CaseChat Overview and Summary
Dylyn Mitchell Davis appeals against his sentence for the murder of Aroha Kerehoma. The Crown accepts that life without parole is manifestly unjust but contends that the High Court was correct to impose a minimum period of imprisonment (MPI) of 20 years. Mr Davis argues that the Crown should have been required to establish the appropriateness of the 20-year MPI, and that a 14-year MPI would have been sufficient. The Court of Appeal rejects the argument that the Crown should have had the burden of proving the appropriateness of the 20-year MPI. It holds that the notional MPI of 14 years was materially too low and that the difference between the 14-year and 20-year MPIs was not so great as to cause manifest injustice. The appeal is dismissed.