Kohe-Davis v The the Queen
[2022] NZHC 995
•11 May 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2022-463-41
[2022] NZHC 995
BETWEEN TYREECE KOHE-DAVIS
Appellant
AND
THE QUEEN
Respondent
Hearing: 11 May 2022 Appearances:
N Dutch for Appellant P F Lee for Respondent
Judgment:
11 May 2022
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 11 May 2022 at 2 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Tauranga
KOHE-DAVIS v R [2022] NZHC 995 [11 May 2022]
[1] Mr Kohe-Davis is 19 years of age. He pleaded guilty in the District Court to charges of aggravated burglary, indecent assault, demanding with intent to steal, aggravated robbery, kidnapping, injuring with intent to injure and being in possession of an offensive weapon. On 25 February 2022 Judge T R Ingram sentenced Mr Kohe- Davis to an effective term of four years three months imprisonment on all charges.1
[2] Mr Kohe-Davis appeals against sentence on the basis that the Judge failed to provide him with adequate discounts to reflect his youth and mitigating factors, identified in a report tendered under s 27 of the Sentencing Act 2002. He contends these errors resulted in an end sentence that was manifestly excessive.
The offending
[3] The charges were laid as a result of three incidents that occurred over a period of approximately five hours on 4 and 5 February 2021.
The first incident
[4] At about 10.30 pm on 4 February 2021, Mr Kohe-Davis forcibly entered a residential address near Te Teko. He kicked open the front door and entered the address carrying a knife. The sole occupant of the address, a pregnant female, was in bed at the time. Mr Kohe-Davis went into her bedroom and demanded to know where her partner was. She advised him he was not there. Mr Kohe-Davis then walked into the bathroom to wash his face. The complainant followed him and told him to leave on several occasions. He then told her she was pretty and grabbed her breasts and buttock.
[5] The complainant retreated to the kitchen, where she saw that two other males had entered her address. One of these persons was wearing Mongrel Mob regalia. She asked all three men to leave. Mr Kohe-Davis responded by walking up to the complainant and kissing her on the cheek. He then left the address in a vehicle with his companions. This incident led to charges of aggravated burglary and indecent assault.
1 R v Kohe-Davis [2022] NZDC 6056.
The second incident
[6] Approximately one hour later, Mr Kohe-Davis approached the owner of a vehicle parked at a service station. He was holding a knife and asked the owner of the vehicle for money. He then demanded that he hand over his vehicle. This complainant refused both requests, telling Mr Kohe-Davis he would need more than a knife if he was to take the vehicle. Mr Kohe-Davis and his associates then drove away from the service station. This incident led to the charge of demanding with menaces.
The third incident
[7] Approximately two hours later, Mr Kohe-Davis and his associates approached a vehicle parked on the side of the road near Kawerau. The occupant of the vehicle had got out of the vehicle in order to urinate behind some trees.
[8] When this complainant returned to his vehicle Mr Kohe-Davis punched him in the face on several occasions, causing his nose to swell and bleed. His two associates also punched and kicked the complainant over an extended period. This continued after the complainant had fallen to the ground. At various stages during this incident Mr Kohe-Davis held a knife to the complainant’s throat.
[9] Mr Kohe-Davis then went to the rear of the vehicle, opened the boot and directed the complainant to get inside. The complainant complied with this request. Mr Kohe-Davis then attempted to start the vehicle but was unable to do so because the battery had gone flat. He told the complainant to get out of the boot and start the vehicle. The complainant was unable to do so, and Mr Kohe-Davis and his associates then departed the scene in their vehicle. The complainant subsequently discovered that his cellphone, wallet and some medication had been stolen from the interior of the vehicle. Stereo equipment had also been stolen from the boot.
[10] The police mounted a search for the vehicle in which Mr Kohe-Davis and his associates were travelling. They found it parked on a residential street in Kawerau a short time later with the occupants inside. When approached, the vehicle accelerated away and the police lost contact with it. It was subsequently located at an address in Kawerau with the stolen property still inside.
The sentence
The sentence indication
[11] Mr Kohe-Davis entered his guilty pleas after receiving a sentence indication on 31 August 2021. The Judge took the lead charges as being those relating to the third incident. This involved the aggravated robbery of the complainant who was placed in the boot of his vehicle and then had property stolen from it. The Judge selected a starting point of six years imprisonment on that charge.
[12] The Judge considered a starting point of at least three years imprisonment was appropriate on the charges relating to the first incident. This involved the aggravated burglary and indecent assault of the complainant whose address Mr Kohe-Davis entered by force. He considered an uplift of one year was required to reflect the second incident, in which Mr Kohe-Davis endeavoured to steal the motor vehicle from the complainant he confronted at the service station.
[13] These starting points led to a sentence of ten years imprisonment. The Judge considered this should be reduced by 18 months to reflect totality principles. This reduced the sentence to one of eight years six months imprisonment.
[14] The Judge did not consider an uplift was required to reflect Mr Kohe-Davis’s criminal history but said this was something that would need to be considered at sentencing.2 The Judge then indicated that credits for youth and guilty pleas were likely to reduce the sentence by “something in the order of 50 per cent”.
[15] The indicated sentence was therefore a global starting point of eight years six months imprisonment with a credit of 25 per cent for guilty pleas and “probably 25 per cent” credit for youth. The Judge also indicated there may be other factors that would reduce the sentence further and that would need to be taken into account at sentencing.
2 The most serious of these consisted of notations in the Youth Court on 31 July 2020 for robbery, doing a dangerous act with intent to cause grievous bodily harm, doing a dangerous act with intent to injure and being in unlawful possession of a firearm.
The final sentence
[16] By the time Mr Kohe-Davis was sentenced he had pleaded guilty to a charge of unlawful assembly. This related to an incident that occurred on 16 January 2022 in Wairoa. Mr Kohe-Davis and two associates were walking along the street when they observed a Black Power gang member inside a shop. This led to a verbal confrontation between Mr Kohe-Davis and his associates and the Black Power member. It involved the yelling of gang slogans and threats to cause harm to each other.
[17] The Judge did not apply any further uplift to reflect this charge. Instead, he maintained the total starting point of eight years six months imprisonment.
[18] The Judge also maintained the discount of 25 per cent to reflect guilty pleas. He then allowed a further discount of 15 per cent to reflect the fact that Mr Kohe- Davis was just 18 years of age at the time of the offending. He also allowed a discount of ten per cent to reflect mitigating factors identified in the s 27 report. The total discount of 50 per cent reduced the sentence to one of four years three months imprisonment.
The appeal
[19] Mr Dutch, on Mr Kohe-Davis’s behalf, does not challenge the global starting point the Judge adopted nor the discount of 25 per cent for guilty pleas. He contends, however, that the Judge ought to have applied a further discount to reflect Mr Kohe- Davis’s youth and a discount of at least 20 per cent to reflect the factors identified in the s 27 report.
The discount for youth
[20] As I have already observed, the Judge had indicated in his sentence indication that a discount of 25 per cent would “probably be available” to reflect Mr Kohe- Davis’s youth. This factor overlaps with his rehabilitative prospects. The words that the Judge used meant he did not commit himself to providing such a discount. He said only that a discount of that order was probable. However, at sentencing he did not
explain why he had decided to reduce the discount for youth from 25 per cent to 15 per cent.
[21] Mr Kohe-Davis accepted the sentence indication on the basis that he was likely to receive a discount of around 25 per cent to reflect his youth. If the Judge subsequently decided to depart from the indication in any material way he needed to explain why. In the absence of any explanation, I consider the interests of justice require this Court to restore the provisional discount referred to in the sentence indication. I therefore accept Mr Dutch’s submission that a discount of 25 per cent was required to reflect Mr Kohe-Davis’s youth.
The s 27 report
[22] The s 27 report confirmed that Mr Kohe-Davis was brought up in a family environment dominated by gang involvement. This had direct consequences for Mr Kohe-Davis in the form of bullying during his school years and in physical violence and intimidation by a rival gang subsequently. Drugs, alcohol and violence were hallmarks of Mr Kohe-Davis’s upbringing. He has never had the benefit of a relationship with his father or his father’s whanau. He and his mother suffered physical violence at the hands of one of his mother’s partners, who was deeply involved in drugs and cast a negative influence over the family for a substantial period of time. I acknowledge that these negative aspects of Mr Kohe-Davis’s upbringing are likely to have had a significant impact on him during his formative years. There is also likely to be a nexus between these factors and the present offending.
[23] However, the level of discount to be given for factors identified in a s 27 report is very much a matter of judicial discretion. The Judge considered they warranted a discount of ten per cent. Another Judge may have applied a discount of 15 or 20 per cent. Equally, however, another Judge may only have applied a discount of 15 per cent to reflect Mr Kohe-Davis’s youth and rehabilitative prospects. In my view these factors cancel each other out.
[24] I also consider an overall reduction of the starting point by 60 per cent, or five years one month, is sufficient to reflect mitigating factors. Mr Dutch realistically accepted that this was the case.
Result
[25] The appeal against sentence is allowed to the extent that I quash the sentence of four years three months imprisonment imposed on the charges of aggravated robbery and kidnapping. In their place I impose concurrent sentences of three years five months imprisonment. The sentences imposed on the other charges remain intact.
Lang J
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