LEROY HENARE DAVIS AND THE KING - [2024] NZHC 3130

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…

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

Case: [2024] NZHC 3130
Decision Date: 25 October 2024

CaseChat Overview and Summary

This case concerns an appeal against the sentence of Leroy Henare Davis, who was sentenced to 21 months and two weeks' imprisonment for two charges of assault with a weapon. The primary issue for the High Court to determine was whether the appellant should be granted leave to apply for home detention. The appeal was initially grounded on two issues: the refusal to grant leave to apply for home detention and an alleged error in failing to give an additional discount for rehabilitative efforts and remorse. However, the latter issue was withdrawn during the hearing.

The court examined the circumstances of the offending, which involved Davis attacking two strangers with a crowbar in a car park, causing significant injuries. The appellant had a history of criminal conduct and had previously breached non-custodial orders. Despite his participation in restorative justice and rehabilitation programs, Davis had refused to consent to electronically monitored sentences. The sentencing judge found that the seriousness of the offence, the level of violence, and the impact on the victims justified a sentence of imprisonment.

In reviewing the decision, the court highlighted that while home detention could be appropriate for certain offenders, the purposes of accountability, denunciation, and deterrence in this case strongly favoured imprisonment. The appellant's history of non-compliance with community sentences and the nature of the offence as gratuitous violence against strangers further supported the decision. The court also noted that Davis's role as a caregiver to his children, while significant, did not outweigh the other sentencing considerations. Ultimately, the appeal was dismissed, and the original sentence was upheld.

Orders