LEROY HENARE DAVIS AND THE KING
[2024] NZHC 3130
•25 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-500
[2024] NZHC 3130
BETWEEN LEROY HENARE DAVIS
Appellant
AND
THE KING
Respondent
Hearing: 15 October 2024 Appearances:
E J Butler and H Gherra for Appellant N C Vaughan for Respondent
Judgment:
25 October 2024
JUDGMENT OF O’GORMAN J
[Appeal against sentence]
This judgment was delivered by me on 25 October 2024 at 2.30 pm
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Public Defence Service, Manukau Kayes Fletcher Walker, Auckland
DAVIS v R [2024] NZHC 3130 [25 October 2024]
[1] This is an appeal against the sentence of Judge D J Orchard on 11 September 2024.1 The Judge sentenced Mr Davis to 21 months and two weeks’ imprisonment on two charges of assault with a weapon. Her Honour refused to grant leave to apply for home detention and imposed six months of special and standard release conditions.
[2]On appeal, two grounds were initially advanced:
(a)that the Judge erred in declining leave to apply for home detention; and
(b)there was an error in failing to give an additional discount for rehabilitative efforts, remorse, and engagement in the restorative justice process.
[3] At the hearing of this appeal, it was acknowledged that a five per cent discount was applied to reflect the appellant’s restorative justice participation and remorse. The appellant no longer pursues that aspect of the appeal.
[4] Accordingly, the sole issue for determination is whether the appellant should be granted leave to apply for home detention.
The offending
[5] The appellant is 39 years old. The two charges of assault with a weapon relate to events that took place in the afternoon of 4 August 2023. The victims, Mr H and Mr Y, were in a car park outside City Fitness, Manurewa. Mr Davis did not know either of those people.
[6] Mr Davis claimed that he had initially pulled into the car park next to where Mr H and Mr Y were standing and thought they were talking about him. This made Mr Davis angry, so he went home, got a crowbar, changed cars, and drove back to that location (at both times accompanied by an associate). When they arrived in the car park, Mr Davis said, “What is your guys’ problem, do youse want a fight?”. Mr Davis then got out of the car on the driver’s side and approached Mr H holding the crowbar
1 R v Davis [2024] NZDC 21905.
and yelling. Mr H backed away, but Mr Davis followed and swung the crowbar at Mr H’s head. Mr H blocked the crowbar with his hand.
[7] Mr Y ran at Mr Davis and attempted to kick the crowbar out of Mr Davis’s hand. Mr Davis swung the crowbar at Mr Y’s head, missing the first time but hitting on a second attempt, knocking out Mr Y who fell and hit his head on the concrete path.
[8]During this physical altercation, Mr Davis’s associate also punched Mr H.
[9] As a result of the offending, Mr H sustained a broken hand and Mr Y suffered a forehead bruise and swelling, as well as superficial abrasions on his elbow, knee, lower back and on his neck.
District Court procedure and decision
[10] The appellant’s first Court appearance in respect of the offending was on 18 September 2023. The appellant was initially charged with two charges of injuring with intent to injure. Mr Davis was released on bail simpliciter, with a residential, 7 pm to 7 am curfew, and non-association conditions (among others).
[11]On 4 October 2023, Mr Davis pleaded not guilty and elected trial by jury.
[12] In the trial callover held during March 2024, Mr Davis entered a guilty plea to two amended charges of assault with a weapon. The Judge ordered a pre-sentence report and made a referral for restorative justice.
[13] A pre-sentence report was prepared on 19 June 2024 without the appellant’s input (the appellant had not responded to attempts to contact him, nor did he attend two scheduled interviews).
[14] On 25 June 2024, the appellant appeared in the Manukau District Court following a breach of bail of failing to come to the door when the police knocked. Judge Patel readmitted Mr Davis to bail simpliciter on the same conditions.
[15] On 19 July 2024, a restorative justice conference took place with one of the victims, Mr H. In that meeting, Mr Davis acknowledged his actions and apologised to Mr H for them. Mr H told Mr Davis about the consequences that he and Mr Y suffered.
[16] A second pre-sentence report was prepared on 4 September 2024, by which time the report writer had interviewed the appellant. On the subject of electronic monitoring, the report writer stated:
Electronically monitored sentences were discussed with Mr Davis who declined to consent to such sentence stating that he has been subject to curfew conditions for “a whole year of seven to seven already”, and that his family are also being punished with such restrictions and he does not want to punish them further.
[17] Accordingly, the report writer recommended a sentence of intensive supervision with community work, if the appellant were to be sentenced without the possibility of electronic monitoring.
[18] Other materials provided at sentencing were a progress report from a social worker, a letter from Turuki Health Care stating the appellant had attended Wairuatanga, Matarua and Te Whare Āio wānanga and had completed a Stop Violence programme and reporting on other positive feedback about and engagement by Mr Paora, and a character reference from the manager of his gym.
[19] Judge Orchard began her decision by outlining the offending, the restorative justice report, the victims’ injuries and the impact caused to their lives. Aggravating features of the offending were the use of a weapon, multiple attackers, targeting of the head and the degree of harm. The sentencing notes record observations that the assault was “very close to violence for the sake of violence”,2 and that there was a high level of premeditation on the appellant’s account of events.
2 At [11].
[20] The Judge therefore found the most important sentencing purposes and principles in this case were to hold the appellant accountable, encourage a sense of responsibility in him for his behaviour, and to denounce and deter (both generally and specifically).
[21] Finding the offending would fall at least at the top of band 2 (if not in band 3) of Nuku v R,3 the Judge adopted a starting point of two years and six months’ imprisonment.
[22] The Judge then applied total discounts of 8.5 months, comprised of the following:
(a)a 20 per cent discount for the appellant’s guilty plea, as it was entered at callover and the appellant already had the benefit of a reduction in charge;
(b)a five per cent discount to reflect the appellant’s engagement in restorative justice and remorse;
(c)a two per cent discount (or 0.6 months) to reflect the appellant’s time on bail with a nighttime curfew; and
(d)an additional 0.4 months discount to “round … up” the above discount.
[23]This resulted in an end sentence of 21 months, two weeks’ imprisonment.
[24] The Judge declined an application by the appellant for an adjournment of sentencing to canvass a suitable address for home detention. This was because sentencing had already previously been adjourned due to the appellant’s limited cooperation with Corrections, and also because the appellant declined to consent to an electronically monitored home detention sentence in his pre-sentence interview.
3 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
[25] The Judge also expressly declined leave to apply for substitution of sentence,4 giving the following explanation:5
You have ruled out electronic monitoring and I would assume that you knew perfectly well what the risks were when you did it. Even if I am wrong about that, it shows a high-handed attitude which does not do you any credit. But most important of all, I am of the view that in this case because of the seriousness of the behaviour, the level of violence and the impact on your victims, the least restrictive sentence is one of imprisonment and that will be the sentence of the Court.
Legal principles
[26] Section 80I(1) of the Sentencing Act 2002 requires the Court to make an order granting leave to apply for substitution of a sentence of home detention if:
(a)the offender is sentenced to a short-term sentence of imprisonment; and
(b)at the time of sentencing, the Court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
[27] A sentence of imprisonment is only available where the purposes and principles of sentencing the offender could not be achieved by a sentence other than imprisonment.6
[28] In Palmer v R, the Court of Appeal commented on the decision between imprisonment and home detention:7
… [T]here is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either general or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D(CA253/2008), it can be very difficult in a marginal case to articulate reasons
4 At [20].
5 At [19] (emphasis added).
6 Sentencing Act 2002, s 16(2). See also s 8(g) containing the obligation to impose the least restrictive outcome that is appropriate in the circumstances.
7 Palmer v R [2016] NZCA 541 at [19] (footnotes omitted).
for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
[29] An appeal against the decision to impose a sentence of imprisonment, rather than home detention, is not an appeal against discretion.8 Therefore the Austin Nicholls approach to conviction appeals applies.9 The Court must allow an appeal against sentence if satisfied that:10
(a)for any reason, there is an error in the sentence imposed; and
(b)a different sentence should be imposed.
[30] In Fairbrother v R, the Court of Appeal noted that sentences of imprisonment have been quashed and substituted where the purpose of deterrence was given complete priority at sentencing, without regard to countervailing purposes.11
[31] It is only appropriate for the Court to intervene and substitute its own views where the sentence appealed is “manifestly excessive”.12 In any other case, the Court must dismiss the appeal.13
Appellant’s submissions
[32] The appellant relies on two cases as supporting granting leave to apply for home detention:
(a)In Korewha v R,14 Mr Korewha struck the victim with a beer bottle, smashing it over his head. The victim suffered serious injuries as a result of the altercation, including a left front subdural haematoma and two broken front teeth. He suffered a traumatic brain injury for which he spent three weeks in the Acquired Brain Injury Rehabilitation
8 At [18]; and Papa v Police [2019] NZHC 1309 at [5].
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, applied in
Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]–[40].
10 Criminal Procedure Act 2011, s 250(2).
11 Fairbrother v R [2013] NZCA 340 at [29], citing Manikpersadh v R [2011] NZCA 452 at [17].
12 Thomas v R [2020] NZCA 257 at [22]–[23]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[36]; and Vainu v R [2014] NZCA 375 at [26].
13 Criminal Procedure Act, s 250(3).
14 Korewha v R [2018] NZHC 1896.
Centre. After the attack, he suffered from seizures, and problems with his hearing, vision and balance issues. The sentencing Judge decided not to sentence Mr Korewha to home detention because such a sentence would not come close to meeting the seriousness of the offending. On appeal, Hinton J allowed the appeal and granted Mr Korewha leave to apply for home detention, reasoning that:15
…the purpose of deterrence does not resonate so strongly in the present circumstances, that a sentence of imprisonment would be necessary to send a message to Mr Korewha that repeat offending will not be tolerated and must result in incarceration. Also, I accept that there is much that is positive to be said about his work and course efforts. Mr Korewha will have a better chance to rehabilitate and reintegrate himself into his community if he is granted home detention, being therefore possibly permitted to engage in employment, seek advancement through his Polytech course, and attend a programme to help him deal with his issues with alcohol.
(b)In Walker v Police,16 Mr Walker believed his ex-partner’s flatmate had stolen from his ex-partner. Mr Walker went to the victim’s address with several associates (who wore balaclavas and other face coverings). Mr Walker and his associates assaulted the victim, punching and kicking him, including when he was lying on the ground. The victim claimed to have suffered cracked ribs. Photographs verified a black eye, lacerations to his eyebrow and numerous bruises and scratches. The appellant’s offending fell within band 3 of Nuku and an end sentence of two years’ imprisonment was imposed, which was subsequently commuted on appeal to home detention. In allowing the appeal, the rehabilitative prospects of Mr Walker were noted as significant, including the potential to secure employment.
[33] The appellant submits that the sentencing Judge made an error by commenting (and implicitly treating as relevant) that another more serious charge would have been open on the facts.17 In Korewha, an approach of that nature was recognised as wrong:18
15 At [24].
16 Walker v Police [2016] NZHC 597.
17 R v Davis, above n 1, at [13].
18 Korewha v R, above n 14, at [14].
[14] I accept, as does Crown counsel, the appellant’s submission that the Judge was clearly in error when she stated that she considered she was entitled to take into account that more serious charges could have been laid when conducting the sentencing exercise. In sentencing, a Court may not take into account the fact that a more serious charge could have been laid. It cannot be discounted that this error had an operative effect on the Judge when she declined to grant leave to Mr Korewha to seek home detention. This is particularly the case when the primary basis for her refusing to grant leave seems to relate to her view of the seriousness of the offence.
[34] Inferentially affected by that error, the appellant submits that the sentencing Judge also erred in giving overarching priority to the purpose of deterrence and denunciation when determining whether to grant leave to apply for home detention, without considering the ability of Mr Davis to undertake rehabilitation and reintegration efforts within the community.
[35] To address his offending, Mr Davis successfully completed Wairuatanga, Matarua and Te Whare Āio Wananga and Stop Violence programme. The letters reporting on his attendance and progress are very positive.
[36] The appellant relies on the following factors to support the grant of leave to seek home detention:
(a)Despite his extensive history with the criminal justice system, this is his first appearance for serious violence-related matters. The last breach for non-compliance with a non-custodial order was in 2013 (for two breaches of home detention), which is more than 10 years ago.
(b)The pre-sentence report did not recommend imprisonment. This likely reflects his risk being characterised as medium and the positive steps of rehabilitation that he has taken to address his offending.
(c)Mr Davis and his partner have four children together, aged 10 months, one year, three years and five years (his eldest has autism). Mr Davis plays a fundamental role as a caregiver to his children, so being in custody will unduly affect his whānau.
(d)While Mr Davis is on the sickness benefit for anxiety and depression, he has expressed a willingness to get back into meaningful employment.
(e)Mr Davis has previously disclosed heavy use of cannabis and a sentence of home detention would better meet Mr Davis’s rehabilitation needs.
[37] In contrast, the respondent submits it was open to the Judge to decline leave to apply for home detention, for the following reasons:
(a)The appellant’s refusal to consent to electronically monitored sentencing options gave a strong indication that the appellant might not be a suitable candidate for a community-based sentence (he resented bail conditions).
(b)The offending was very serious, at the upper end of band 2 of Nuku.
(c)The appellant has a lengthy criminal history, including eight convictions for non-compliance with community-based sentences. While these convictions arose between 2008 and 2013, they are still relevant to the appellant’s compliance on community sentences. His compliance is untested since 2011.
(d)The cases of Korewha and Walker are not analogous. The present facts have a much greater degree of premeditation and violence than Korewha, where the defendant was in his twenties. In Walker, there was no weapon used and the injuries were less severe and long-lasting. In both those cases, the impact on intended employment was a significant fact, whereas in this case the appellant is currently on the sickness benefit. He has not demonstrated any specific plan for obtaining employment or otherwise moving on to long-term prosocial activities.
[38] In terms of Judge Orchard stating that a more serious charge could have been laid, the respondent submits that it was simply a way of expressing the seriousness of the offending. The Judge was clearly cognisant of the charge and its maximum penalty because she applied Nuku as the applicable guideline case.19
Analysis
[39] In terms of referring to the availability of a more serious charge, in Korewha the High Court on appeal reacted to a statement by the sentencing Judge that she thought she was entitled to take into account, in sentencing Mr Korewha, that a more serious charge could have been laid against him.20
[40] The High Court’s caution, quoted at [33] above, seems to be against any suggestion that the framework or guidelines for assessment could reflect a higher potential maximum penalty. Comments of a different nature, made in assessing the seriousness of the offending for an appropriate starting point within the correct guideline, are relatively common. The Court of Appeal made a comment of the latter type in Uncles v R:21
[17] The actions of Ms Uncles and Mr Weaver and the injuries suffered by the complainant would have justified a more serious charge than wounding with intent to injure. Nevertheless, the charge at the sentence indication hearing was laid under s 188(2) of the Crimes Act 1961 and the maximum sentence was seven years’ imprisonment. Thus any decision as to the starting point, while it could take into account the factors listed in R v Taueki, had to be adjusted to that seven year starting point. Both Ms Uncles and Mr Weaver were most fortunate in this respect.
[41] In this case, Judge Orchard made a comment of the latter type, specifically in the context of selecting an appropriate starting point within the bands set in Nuku as the applicable guideline case. That does not constitute any error.
19 R v Davis, above n 1, at [1] and [13], consistent with the Court of Appeal in Hurinui v R [2014] NZCA 290 at [26] applying the Nuku methodology to a charge of assault with a weapon, noting that it carries the same five-year maximum penalty as injuring with intent under s 189(2). As noted in Korewha v R, above n 14, at [18], the Nuku bands are appropriate for sentencing of assault offences that do not involve intent to cause grievous bodily harm.
20 Korewha v R, above n 14, at [9], referencing Police v Korewha [2018] NZDC 4352 at [18].
21 Uncles v R [2012] NZCA 144. Other recent High Court examples are McQuarrie v R [2024] NZHC 2608 at [14]; and Wedding v New Zealand Police [2024] NZHC 2695 [26].
[42] In terms of Judge Orchard’s decision to decline leave, her reasons were relatively brief, presumably affected by the context of Mr Davis ruling out electronically monitored home detention. The sentencing Judge is sufficiently clear that she would not have sentenced the offender to such a sentence if a suitable residence had been available, because of the seriousness of the behaviour, the level of violence and the impact on victims. In the sentencing Judge’s view, these factors meant that the least restrictive sentence appropriate in the circumstances22 was one of imprisonment.
[43] However, because the sentencing Judge did not expressly assess the countervailing purposes and principles that might favour home detention,23 it is appropriate that I do so now, to assess the merits of the appeal.
[44] In addition to Korewha and Walker relied on by the appellants, I have also taken into account the following two cases.
(a)In Hurinui v R,24 a sentence of 18 months’ imprisonment was imposed but home detention was not considered appropriate. The Judge was satisfied that there was calculated violence with the potential to cause very serious injury. He was concerned at the use of a weapon by Ms Hurinui, bearing in mind this was not the first time she had used a weapon to commit serious violence. The Judge was aware of Ms Hurinui’s responsibilities in relation to four children but did not consider her obligations to them warranted a more merciful approach or a sentence other than imprisonment.
(b)In Le Marquand v Police,25 a 37-year-old man, Mr Le Marquand, was sentenced to 12 months’ imprisonment. After leaving a party at which an altercation had occurred, another fight occurred at a nearby house, during which Mr Le Marquand (who was extremely intoxicated) struck the victim twice across the back of the head with a metal window
22 Sentencing Act, s 8(g).
23 See [30] and [44](b).
24 Hurinui v R, above n 19, at [8].
25 Le Marquand v Police HC New Plymouth CRI-2009-443-32, 11 February 2010.
weight. Both men were hospitalised, and the victim required stitches to his head, but that was the only injury. On appeal, the sole question was whether the Judge was right to hold that other considerations did not warrant a sentence of home detention. Hansen J noted that an appellate Court will not lightly interfere with a decision to refuse home detention, particularly when the decision is finely balanced. However, Hansen J considered there was no indication that the sentencing Judge had attempted to weigh the countervailing considerations that favoured home detention.26 It was not an act of gratuitous violence, but rather occurred in the context of a history of bad blood between the two protagonists, with the victim initiating the violence that night, and behaving threateningly immediately before the offending. The offending was an aberration for Mr Le Marquand after 10 years of a law-abiding lifestyle. Mr Le Marquand was both remorseful and motivated to address the underlying causes of his offending (alcohol-related).
[45] I consider the following purposes and principles of sentencing are particularly relevant for this assessment:
(a)Gravity and culpability: As noted by the sentencing Judge, this offending fell at the top of band 2 of Nuku and was serious in nature. In contrast with Le Marquand, this was an act of gratuitous violence against strangers, with premeditation (driving away to get a weapon and returning) and injuries that could have been more serious (or fatal) given the nature of the weapon and Mr Davis aiming to strike at the head of both victims. Youth considerations do not arise, and there is no evidence that alcohol or drugs caused the offending.27 Given the gravity and the relatively high culpability of Mr Davis, these factors strongly favour imprisonment as necessary for accountability, denunciation and deterrence.
26 At [20].
27 The appellant now discloses heavy use of cannabis and an intention to undertake rehabilitation to address that problem if given the opportunity, but there is no specific assertion that the offending conduct was drug-driven.
(b)Denunciation: The purpose of denouncing the offending conduct favours imprisonment. As the most restrictive sentence in the hierarchy, it provides greater denunciation for more serious offending in appropriate circumstances, such as in Hurinui. While home detention is in itself a serious sentence,28 and therefore achieves some denunciation, I share the sentencing Judge’s view that it would not sufficiently meet the seriousness of the conduct in this case.
(c)Specific and general deterrence: General deterrence is one of the primary purposes of sentencing. Comparing a sentence of imprisonment with one of home detention, I regard the marginal difference as important in this case, in the community’s interests, to deter gratuitous and dangerous violence of this type. Although the appellant has signalled remorse and has already begun rehabilitation, I also consider that imprisonment will have a stronger specific deterrent effect against a background (albeit quite historic) of some non-compliance with community-based sentences, combined with his position for sentencing showing a frustration with (if not contempt for) those types of restrictions.
(d)Accountability and responsibility: In my view, the more restrictive sentence should better promote in Mr Davis a sense of responsibility for, and an acknowledgment of, the harm caused. I am concerned that Mr Davis might still be underestimating the seriousness of his violence, placing it in the same category as his previous offending.
(e)Protection of the community: Given the rehabilitative steps taken and intended by Mr Davis and the fact that this is his first serious violence-related offence, I do not regard the marginal impact in terms of immediate risks to the community as particularly material.
28 R v Haeata [2017] NZHC 959 at [37].
(f)Victim and restorative justice: Mr Davis has undertaken a restorative justice process with one of the victims. I am not aware of any victim views one way or the other on this sentencing issue.
(g)Rehabilitation and reintegration: The purposes of rehabilitation and reintegration favour home detention. Whilst those steps are laudable and important, there is no evidence that drugs or alcohol were causative of his behaviour (as opposed to grief and anger issues), and Mr Davis is unemployed with no specific plan for obtaining employment. On those facts, I do not consider these objectives outweigh the importance of accountability, denunciation and deterrence. A short-term period of imprisonment does not preclude Mr Davis continuing rehabilitation and reintegrating successfully upon his release.
(h)Circumstances of offender and whānau impact: Mr Davis is a father to four children, including one with special needs. This consideration strongly supports home detention.29 However, like in Hurinui, I do not consider it is sufficient in this case to outweigh the other factors. The children remain in the care of their mother, Mr Davis was unemployed, and at sentencing he seemed to regard home detention as punishing his family rather than assisting.
(i)Consistency: I accept the respondent’s submissions that Korewha and Walker are not analogous, for the reasons set out above. Le Marquand was a much less serious assault in which the victim was also a protagonist, and there were much stronger countervailing factors justifying home detention. Of the four cases, this is much closer to
29 Sweeney v R [2023] NZCA 417 at [39]. In C (CA 153/2023) v New Zealand Police [2024] NZCA 136 at [60(b)], the Court of Appeal stated: “Attention to the impact of a custodial sentence on the family life of an innocent child is required in all cases”. In Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [52], the Supreme Court observed that a sentencing approach that recognises the importance to a child of the familial relationship is also supported by the United Nations Convention on the Rights of the Child (Children’s Convention).
Hurinui, where home detention was not considered appropriate in the circumstances.
[46] For the above reasons, I am not satisfied that the sentencing Judge made any error, nor do I consider that the sentence was manifestly excessive in denying leave to apply for home detention.
Result
[47]The appeal is dismissed.
O’Gorman J
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