Davoren v Police - [2016] NZHC 3046

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-40 [2016] NZHC 3046

BETWEEN
ISAAC DEAN DAVOREN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 December 2016

Counsel:

N H Wright for appellant
M J M Mitchell for respondent

Judgment:

14 December 2016

RESERVED JUDGMENT OF DOBSON J

[1] The appellant (Mr Davoren) was sentenced by Judge Adeane in the District Court at Gisborne on 17 November 2016 to a cumulative sentence of 15 months’ imprisonment for various offences committed between 10 April and 5 August 2016.1
He has subsequently appealed that sentence.

[2] Although the sentencing notes are not entirely clear on the components, counsel agreed that the appeal should be argued on the basis of cumulative sentences as follows:

· receiving a motor vehicle valued at $26,000 (5 August 2016) –

11 months’ imprisonment;

· driving whilst suspended (April 2016) – two months’ imprisonment;

1 Police v Davoren [2016] NZDC 23846.

DAVOREN v POLICE [2016] NZHC 3046 [14 December 2016]

· possession of a firearm without a licence and presenting an air pistol at a person – two months’ imprisonment.

[3] On a further driving whilst suspended charge, as well as charges for using threatening language and possession of methamphetamine utensils, Mr Davoren was convicted and discharged.

[4] The appeal was brought on the basis that the end sentence is manifestly excessive, and in particular that the sentence for receiving stolen property is manifestly excessive.

Circumstances of the offending

[5] On the same day as a utility vehicle was stolen from a rural property in an area frequented by Mr Davoren, it was located in Gisborne under his control. Equipment including bull bars and a dog cage had been removed, but otherwise the vehicle was able to be returned to its owner. The Judge treated that as the lead charge and set a starting point of 15 months’ imprisonment. There had been a prompt guilty plea entitling Mr Davoren to a 25 per cent discount, reducing it to
11 months’ imprisonment.

[6] The driving offences involved two charges of driving whilst suspended, one of those being a third or subsequent conviction for that offence. The Judge nominated a starting point of three months’ imprisonment for those convictions, and observed that guilty pleas were not entered for those or the firearms charges “at an early stage”. On the driving convictions, a one month reduction was ultimately applied, resulting in a final sentence of two months’ imprisonment.

[7] The firearms’ offending involved two discrete incidents. First, Mr Davoren was in a vehicle searched after a routine Police stop in which a shot deer was located in its back seat. The vehicle also contained a .22 calibre rifle, for which Mr Davoren did not have a licence.

[8] The second firearms’ conviction involved Mr Davoren’s use of an air pistol in

a confrontation outside the home of a complainant. Both the complainant and

Mr Davoren remained in their respective vehicles, but the summary of facts suggests that Mr Davoren’s verbal confrontation…

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 Davoren v Police

Details

AGLC: Davoren v Police [2016] NZHC 3046
Case: [2016] NZHC 3046
Decision Date: 14 December 2016

CaseChat Overview and Summary

Isaac Dean Davoren appeals against the sentence imposed by Judge Adeane in the District Court at Gisborne for various offences, including receiving stolen property, driving while suspended, possession of a firearm without a license, use of threatening language, and possession of methamphetamine utensils. The appeal focuses on the alleged excessiveness of the sentence for receiving stolen property. The appellant was sentenced to 11 months for receiving the stolen vehicle, two months for driving while suspended, and two months for possession of a firearm without a license. The court accepted that the appellant's sentence for receiving stolen property was manifestly excessive, but did not agree that the overall sentence was excessive. The court reduced the sentence for receiving stolen property to seven months, resulting in a total cumulative sentence of 11 months imprisonment. The court also directed the Registry to ensure that the records of the sentences with the Department for Corrections conform to the outcome of the appeal.

Orders