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 of the complainant was reinforced by his waving the air pistol around above his head.

[9]      The threatening language conviction reflected the downgrading of a charge initially laid as one of attempting to pervert the course of justice.  Mr Davoren was observed in the Gisborne Courthouse making comments to jury panellists as they were called as potential jurors to “just let them off”.  The summary of facts describes Mr Davoren as a patched Mongrel Mob member, and the Police in Gisborne are sensitive to the improper pressure exerted by gang members in and  around the Courthouse when cases are being heard that involve their associates.   Ms Wright made the point that this conviction could only have attracted a fine by way of penalty.

[10]     A further conviction for possession of methamphetamine utensils arose on the occasion  of  the  confrontation  where  Mr Davoren  was  waving  an  air  pistol.   A methamphetamine pipe was found when he was stopped by Police for questioning after the complaint was made in respect of that incident.

Grounds of appeal

[11]     In challenging the sentence for receiving, Ms Wright invited two analogies. Most directly, with the Court of Appeal decision in R v Taiepa, which was an appeal from  a  sentence  for  receiving  involving  relatively  similar  facts.2      In  that  case, Mr Taiepa had been found guilty after a jury trial.  There was evidence that he had been seen driving the stolen vehicle, and also that a second Subaru vehicle of the same model owned by Mr Taiepa had been refitted internally with parts from a stolen car.   The vehicle was eventually found burnt out and the jury had been unable to reach a verdict on a charge of arson in relation to Mr Taiepa’s involvement in that

aspect  of  it.    The  Court  of Appeal  upheld  the  starting  point  of  nine  months’

imprisonment, which the sentencing Judge had increased to 12 months in light of previous convictions.

2      R v Taiepa [2009] NZCA 120.

[12]     Ms Mitchell urged caution in applying Taiepa as a comparator.   Unusually, personal  circumstances  pertaining  to  Mr Taiepa  had  been  taken  into  account  in deciding the starting point, and arguably it was difficult to discern the influence that had on the starting point.

[13]     Ms Mitchell cited R v Aldersley as a relevant comparator.3    In that case, the appellant was convicted on two counts of receiving vehicles, worth $30,000 in total. They were found stripped of their parts. The Court of Appeal found that the sentence of two and a half years, although stern, was not excessive.   That sentence also incorporated aggravating features, including previous convictions for similar offending.

[14]     Ms Wright also invited comparison with the guideline authority in Senior v Police on convictions for burglary.4   Given the differences in maximum penalty, the criteria relevant to culpability in cases of burglary, and differences in the approach to sentencing for burglary, I do not find that reference useful.

[15]     Ms Wright    also    criticised    the    Judge    for    dismissing    rehabilitative considerations in sentencing Mr Davoren.  The Provision of Advice to Courts (PAC) recommended supervision and reported a wish by Mr Davoren to distance himself from gang associates for his own sake, and that it was not a way of life he wants for his children. The sentencing remarks began:5

Mr Davoren appears for sentence for a variety of matters indicative of his various criminal propensities.

[16]     The Judge also observed:6

He is a 24 year old.   We are getting to a stage where denunciation and deterrence will become more important than any pipedream about reforming Mr Davoren.  His reformation will come about when he sees it as being in his own best interests.  In the meantime, he must be held accountable for his offending.

3      R v Aldersley CA158/05, 17 October 2005.

4      Senior v Police (2000) 18 CRNZ 340 (HC).

5      Police v Davoren, above n 1, at [1].

6 At [5].

Analysis

[17]     As to the starting point adopted on the receiving charge, I am satisfied that it was manifestly excessive.  Without any attempt to compare the criminal histories of Messrs  Taiepa  and  Davoren,  the  seriousness  of  their  offending  as  receivers  of vehicles is clearly comparable or, if any distinction is to be drawn, Mr Davoren’s culpability could be marginally less.   He did not make such extensive use of the vehicle, and it was returned to its owner, more or less intact.  By comparison with Taiepa, and making meaningful allowance for personal circumstances applying to reduce the starting point in that case, I consider a starting point of 10 months was the appropriate one in this case.   Applying the 25 per cent discount for Mr Davoren’s early guilty plea results in a stand-alone sentence of seven months’ imprisonment.

[18]     As to the remaining components of the cumulative sentences, they ought to be assessed as containing elements of “unders and overs” in the messy sentencing proposition confronting the Judge.  The Judge convicted and discharged Mr Davoren on the charge of using threatening language, which had sufficiently serious overtones to warrant the imposition of a stand-alone sentence, although no more than a fine could be imposed.  Taken in the round, the additional cumulative sentences of two months each for the firearms and driving convictions, after reasonable allowances for his guilty pleas, were clearly within range.

[19]     The list of Mr Davoren’s previous convictions is reasonably long, but largely for  relatively  minor  offending.    The  record  suggests  he  has  only  one  previous sentence of imprisonment which was for 14 days in October 2014.   No uplift for previous criminal history was considered by the Judge.

[20]     I am not persuaded that the final sentences are rendered excessive because of a refusal to grant a discount for the prospects of rehabilitation.

Result

[21]     I  accordingly  quash  the  sentence  on  the  conviction  for  receiving  and substitute a term of imprisonment of seven months.  The remaining sentences stand, so the total cumulative sentence to be served is 11 months’ imprisonment.  Because

of  some  uncertainty  as  to  the  state  of  the  records  of  the  sentences  with  the Department for Corrections, I direct the Registry to ensure that records are checked, and that they conform to the outcome of the appeal.

Dobson J

Solicitors:

Nicola Wright, Gisborne for appellant

Crown Solicitor, Gisborne for respondent