R v Davies

[2020] NZHC 903

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-020-420

[2020] NZHC 903

THE QUEEN

v

VAUGHAN ROBERT DAVIES

Hearing:	16-20 March 2020
Appearances:	J E Rielly for the Crown E J Forster for Mr Davies
Date:	30 April 2020

SENTENCING REMARKS OF GRICE J

Overview

[1]                 Mr Davies you appear for sentencing having been found guilty following a trial by jury on a charge of manslaughter.1 The jury returned its verdict on 20 March 2020. Following that a first strike warning was given.

[2]The maximum sentence for manslaughter is life imprisonment.2

[3]                 I am going to now explain my reasoning for the sentence I propose imposing on you.

1      This decision was delivered orally on 30 April 2020. The written form has been edited and footnoted before distribution.

2      Crimes Act 1961, s 177(1).

R v DAVIES [2020] NZHC 903 [30 April 2020]

Facts

[4]                 The facts have been outlined by both Mr Forster on your behalf and Ms Rielly on behalf of the Crown. I accept the summary of facts that has been put forward by the Crown. I heard the evidence at the trial and consider that the summary by the Crown is an accurate reflection of what happened that night.3

[5]                 You socialised with the deceased, his son and others for a period of hours on the night prior to the incident that gave rise to the deceased’s death. He died in the early hours of the morning. Alcohol and methamphetamine had been consumed by all.

[6]                 In my view on the evidence there was no conflict between you and the deceased or anyone else which had occurred that night. It also appears Mr Davies that during the interview the probation officer you told her that there had never been any issues between you and the deceased in the past. Although you commented in your trial that there had been.

[7]                 After consuming a significant amount of alcohol and methamphetamine you went for a walk and visited a friend. You consumed more alcohol of a different type there but appeared to her to be in good spirits. You then returned home and met your son in the driveway. He reported that his tobacco was missing.

[8]                 You then followed your son over to the deceased’s house across the road. Your son remonstrated with the deceased and his friend over the missing tobacco. You approached the group of the three young men and requested in an angry voice that your son’s smokes should be returned. You then stabbed the deceased in the upper left torso causing a 13 cm deep wound that pierced the deceased’s heart. This wound caused the deceased’s death. You left the deceased’s address without checking how he was. You knew he had been stabbed. Shortly after that you fled from your home to avoid the police.

3      The incident occurred on 8 February 2019.

[9]                 On all witness accounts of what occurred at the time of the stabbing you were near the deceased for only a brief period of time – likely to be seconds. No one saw you stab him. No one saw the deceased threatening or offering violence to you. You were the only witness that said that the deceased was pushing you before you stabbed him.

[10]             Given the way the defence ran its case and the jury’s guilty verdict on the charge of manslaughter it is clear that the jury rejected your evidence on this point.

[11]             At the relevant time it is common ground that you were significantly under the influence of alcohol and methamphetamine. You were angry that your son’s tobacco had been taken and it was in those circumstances that you stabbed the unarmed deceased who, in my view, posed no threat to you.

Victim Impact

[12]             The bare recital of the facts does nothing to paint the loss to the whānau of the deceased.

[13]             We heard from Ms Heather Hawkins on behalf of the deceased’s whānau. She pointed out the level of loss felt by the whānau for their loved son, nephew, brother, father, cousin, uncle, koro and partner. Ms Hawkins, who is the aunt of the deceased, said:

I doubt it, but if you can only imagine how devastating our Wairua (spirit) has been emotionally, not to mention mentally. The trauma we have been put through is disturbing to say the least. But at least you get to walk this earth and breath in all the air to keep you alive.

[14]             She goes on to say how truly missed the deceased is by his family and that “whatever penalty you get” it won’t bring him back to them.

[15]             Ngahiraka Hawkins, the deceased’s older sister, also gave a victim impact report. She said:

You are the one who has to live with what you did. You have stolen, taken my brother Bruce from his beautiful mum. Bruce was her baby boy...

You’ve ripped off Bruce’s six beautiful children, one handsome son and five beautiful girls all under the age of 14, the youngest two years old. And to his partner/lover babe-Leanne, you have ruined their lives.

[16]             Polly Hawkins who is the second oldest sister of the deceased’s father noted that the deceased had 20 siblings of which he was the second youngest. She said the impact will never change. She has to watch her mother, siblings, [the deceased’s] children and the whānau continue grieving.

[17]That is the effect of what you did to the deceased.

Purpose and Principles of Sentencing

[18]             In sentencing I am required to take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002. The relevant purposes include accountability, denunciation, responsibility and deterrence.4 You must be held accountable for the harm caused by their offending to the victim and the community.

[19]             Any sentence imposed should be consistent with sentences imposed in similar cases.5 I must also impose the least restrictive outcome that is appropriate in the circumstances and in accordance with the hierarchy of sentences set out in the Sentencing Act.6

Starting point

[20]             There is no standard guide or tariff decision for sentences on manslaughter. As Mr Forster pointed out this is because there are so many different circumstances which result in such variable degrees of culpability.7

[21]            In sentencing the court may take one of two approaches. First, assessing the culpability with reference to, among other things, comparable manslaughter sentencings to ensure a level of consistency with other cases in similar factual circumstances. And the second is to begin with an analysis based on the case of R v

4      Sentencing Act 2002, ss 7(1)(a), (b), (e) and (f).

5      Sentencing Act 2002, s 8(e).

6      Sentencing Act 2002, s 8(g).

7      R v Edwardson HC Rotorua CRI-2006-069-1101, 27 April 2017 at [27].

Taueki8 which is the guideline judgment for sentencing offences involving grievous bodily harm and adjusting appropriately for a lack of life.9 I intend considering both approaches as a check one on another.10

[22]             The Crown points to the following factors when considering the seriousness of this offending:

(a)The homicide was spontaneous – it occurred almost out of the blue;

(b)The conduct was largely driven by your voluntary consumption of alcohol and drugs which you knew from previous experience would cause you to act in a violent manner, that seems to be supported by the psychiatric and psychological reports which I have seen;

(c)The fatal stab wound was deliberately inflicted on a vulnerable part of the human body. The jury implicitly, in my view, rejected that you had acted in self-defence;

(d)You had a flick knife on you that you were prepared to use; and

(e)You stabbed the deceased when you knew he was unarmed.

[23]The Crown pointed to a number of cases as comparisons. They included:

(a)R v Turipa-Wano;¹¹

(b)R v Edwardson;12

(c)R v Hepi;13 and

8      R v Taueki [2005] NZCA 174.

9      R v Tai [2010] NZCA 598 at [12].

10     R v Felise [2019] NZHC 341 at [40].

11     R v Turipa-Wano [2017] NZHC 1803.

12     R v Edwardson High Court Rotorua, 27 April 2007, CRI-2006-069-1101, Stevens J.

13     R v Hepi [2015] NZHC 1449.

(d)R v Day.14

[24]             In Turipa-Wano the defendant in an alcohol and drug-induced rage stabbed his best friend who was trying to disarm him. Nine years imprisonment was taken as a starting point.

[25]The Crown here suggests a starting point of seven years’ imprisonment.

[26]Mr Forster, for you, pointed out to the cases of R v Harris15 and R v Emery.16

[27]             In R v Harris, there was mutual alcohol and cannabis intoxication. The night had begun cordially between the victim and the defendant. Then there was fighting which had resulted in two stab wounds inflicted on the victim with a knife. One went through his bicep while the other went into his heart and killed him. The knife was from the victim’s kitchen. The victim had earlier taken out the knife to demonstrate his knife-sharpening skills. After the stabbing the defendant was immediately remorseful. The Judge adopted a starting point of five years’ imprisonment.

[28]             In R v Emery, the victim and his friend spray-painted the defendant’s garage which angered the defendant. The defendant chased after them, taking a knife. After a verbal altercation the victim and his friend attempted to spray-paint the defendant, the defendant stabbed the victim on the right side of the chest, causing death. The Judge there adopted a starting point of five and a half to six years’ imprisonment.

[29]             Mr Forster reasons that both cases are more serious than the offending in the present case if the Court takes the view the present case was a matter of “excessive self-defence” – which I do not. Mr Forster suggests a starting point of four to five years.

14     R v Day [2014] NZHC 3412.

15     R v Harris, CRI-2009-018-000901, HC Greymouth, 8 April 2011, Wild J.

16     R v Emery, CRI-2008-092-1285, HC Auckland, 12 February 2009, Hugh Williams J.

Personal factors

Ill-health

[30]             The Crown agrees that a discount may be available for ill-health. There is no doubt that the evidence supports that you have a very serious cardiac condition for which there is no remedy. You are facing tough personal circumstances and your cardiac condition is compounded by a number of other factors including mental health, drug and alcohol problems. These are not assisted by your voluntary use of drugs and alcohol which was at the centre of this offending.

[31]             The Crown accepts that such discount may be available. It points to Hastie v R for the proposition that the principle is whether imprisonment will have a disproportionately severe effect on you.17

[32]             Mr Forster said that given the present emergency conditions no further medical reports were available. However, in my view the medical evidence already available that I have referred to earlier supports a finding that imprisonment will have a disproportionately severe effect on you and no doubt affect your life expectancy. I therefore accept that and will take that into account.

Prior convictions

[33]             Mr Forster also submits there should no uplift as your prior convictions for assault were not serious and too old to justify an uplift. I note there is more recent offending which occurred about the same time as the incident giving rise to these charges. The charge was under the Summary Offences Act 1981 and was relatively minor. I do not consider that the previous offending is sufficient to justify any uplift in this case.

Remorse

[34]             Mr Forster has submitted that regret was shown by a number of indications. He said while you expressed it clumsily you were expressing regret and remorse. The

17     Hastie v R [2011] NZCA 498 at [40] and Sentencing Act 2002, s 8(h).

Crown, however, submits that you have never expressed remorse in any meaningful way for the offending and you have attempted on a number of occasions to justify your conduct. That was particularly so during the interviews with the police after this offending. The Crown also notes the acknowledgements that you made to the probation officer did not specifically express remorse concerning the deceased.

[35]             Mr Forster suggests a 10 per cent discount for genuine remorse. He suggests that the remorse need not be exceptional and should be garnered from the expressions made in particular in the probation report and he on your behalf gave an apology to the whānau.

[36]             The Court of Appeal in R v Hessell18 held that only “exceptional remorse, demonstrated in a practical and material way, can attract its own reward”. Otherwise, all other remorse is incorporated into the guilty plea discount. The Court also reasoned that the following non-exceptional remorse would lead to every defendant pleading guilty and claiming to be remorseful. At [24] of the decision it say:

[24]      In R v Accused (CA430/96) (1997) 14 CRNZ 645, this court described at 647 the entry of an early guilty plea as “the most compelling evidence of acceptance of responsibility, remorse and contrition”. However in R v Wilson [2008] NZCA 496, this court observed at [14]:

It is obvious that the emotion of remorse is generally inherent within a plea of guilty. It does not normally justify a discrete allowance as a stand-alone factor.

[25]And to similar effect in Walker at [15]:

A discount for remorse is, to some extent, automatically built in as part of the discount for a guilty plea. A guilty plea is, after all, viewed by the courts as an acknowledgement of wrongdoing by the offender, possibly a first step on the road to rehabilitation. Only exceptional steps displaying remorse justify a further discount.

…

[27]      First, if we accept non-exceptional remorse as justifying a discrete discount, we will find every defendant pleading guilty claiming to be remorseful. It will be difficult for sentencing judges to gainsay claims of remorse in these circumstances. A rigid demarcation between guilty pleas and remorse as mitigating factors could lead to discount creep: instead of the discounts being 10-20-33, they might start to become, as a general rule, 15- 25-38.

18     R v Hessell [2009] NZCA 450.

[28]      Secondly, having a general rule that the discount for a guilty plea incorporates remorse (if any) will ensure greater predictability as to the extent of the discount, which is a fundamental motivation behind this guideline and its English counterpart. At the same time, we acknowledge that exceptional remorse, demonstrated in a practical and material way, can attract its own reward.

[37]             I propose proceeding on that basis. I will deal with the position concerning your attempt to seek an early resolution of this matter by pleading guilty to manslaughter separately. There was never any doubt that your action in stabbing the deceased led to his death which you accepted by proposing that you plead guilty to manslaughter. It was always the surrounding circumstances that were in issue at trial.

[38]             However, I could see no exceptional remorse shown by you. There was no real remorse that has been demonstrated in a practical or material way. As I said I will consider the position in relation to the early acceptance of responsibility in the context of a discount for an early guilty plea as a discrete consideration.19 No separate discount in my view is appropriate for remorse.

Guilty plea

[39]             You offered to plead guilty to a manslaughter charge in a letter to the Crown dated 11 June 2019.

[40]             The Crown acknowledges that the defendant was willing to plead guilty at the early stages if the Crown did not pursue a murder charge. Nevertheless, the Crown notes any discount must be balanced against the fact the defendant did not plead guilty to manslaughter at trial and never acknowledged that he deliberately stabbed the deceased. The effect was that the Crown was put to proof on the issue.

[41]             In R v Turipa-Wano, the defendant offered to plead guilty but proceeded to trial on a murder charge. The Judge in that case held that the defendant had “never denied responsibility” and the offer to plead guilty to manslaughter at the outset was “significant”. Such an action represents an “early acceptance of responsibility at least to that extent.20 For this, the Judge gave a discount of six months.

19     R v Hessell, above n 18, at [47].

20     R v Turipa-Wano, above n 11, at [30].

[42]             Mr Forster suggests a full discount of 25 per cent and points to the Court of Appeal decision in Hessell in support of this:21

[41] As a matter of general principle, an offender who is convicted of an offence for which he or she had earlier communicated a willingness to plead guilty should receive the maximum reduction available at the stage of proceedings at which that willingness was communicated. For example, if an offender charged with murder communicated at the first reasonable opportunity that he or she was willing to plead guilty to manslaughter, but the prosecution chose to proceed to trial on the murder charge, the offender should receive the maximum reduction for the plea if subsequently convicted of manslaughter.

[43]             The Court reasoned that in such circumstances, the defendant “did all he or she could to acknowledge responsibility at the earliest time; therefore it is only fair that he or she should get the maximum discount”.22 However the Court stressed that this stance does not imply the Crown’s pursuit of a murder charge was wrong.

[44]             The Court also strongly recommended that any willingness to plead guilty to a lesser charge be best done in writing to the prosecutor and that is what occurred here.23

[45]             The Court also noted that there were circumstances where a guilty plea reduction might be smaller than the full discount. However, I consider that in the circumstances of this case they do not apply. There was no indication of tactical pleading or prolonging the proceedings or similar factors as envisaged by the Court of Appeal in that regard.24

[46]             In this case, you sent, through your lawyer, an offer in writing to plead guilty at what the Crown accept was the first reasonable opportunity.25 Although the trial in this case proceeded with the burden still falling on the Crown to prove manslaughter, the decision in R v Hessell shows that the focus is whether there was an initial willingness to plead guilty at the first reasonable opportunity. Should the Crown decide to pursue a higher charge the defendant is able to exercise their right to put the

21     R v Hessell [2009] NZCA 450 at [41].

22     R v Hessell, above n 18, at [42].

23 At [43].

24     At [45]-[48].

25     At [29]-[34] for the Court’s discussion on “first reasonable opportunity”.

prosecution to proof. None of the circumstances that warrant a reduction of a guilty plea discount apply here.

[47]             I emphasise that the Crown was not wrong in laying the charge of murder and while I reject the suggestion that a less than 25 per cent discount is justified, nevertheless, I emphasise that the charges were properly aired. I conclude there was an early indication of acceptance of responsibility for the death and in the circumstances a full 25 per cent discount as urged by Mr Forster is appropriate for the early indication.

Starting point

[48]             No minimum term of imprisonment needs to be considered in this case so I turn now to consider the starting point.

[49]             I have noted factors relevant to the offence as indicated by the Crown and I have accepted those. I also note that Mr Forster has referred me to cases of spontaneous stabbings resulting in death and suggested a start point of four to five years imprisonment. The Crown suggest a starting point of seven years.

[50]             When I stand back and look at the bands of levels of offending in R v Taueki26 which was developed for violent offending, the aggravating factors which were mentioned in that case that apply here include of course the serious injury (the fact of resulting death requires an adjustment), the use of weapons and the vulnerability of the victim. Mr Davies you pursued the deceased down his own driveway in an altercation over some tobacco. You had the opportunity to walk away, which the others did, but you did not take it. The victim was vulnerable, intoxicated and affected by drink and drugs. That was apparent. I consider the facts in this case are more serious than in the two cases referred to by Mr Forster.

[51]             Mr Davies you were also affected by drugs and alcohol but the effect on you was to trigger the aggression that led to the stabbing. The victim unable to defend himself from a weapon was vulnerable. Death ensued. In my view the factors here

26     R v Taueki, above n 8.

make this case analogous to a band 2 level of offending (if it were violent offending as described in R v Taueki). That indicates for violent offending without death a range of five to 10 years imprisonment. Putting this offending in that context and in view of the cases referred to me I consider that the offending falls between the points suggested by the Crown and the defence counsel. I take a starting point of six and a half years’ imprisonment.

[52]             I now turn to the other factors. My starting point takes into account the violence, the weapon and the general circumstances as well as the death ensuing as the aggravating factors. I do not consider there are any mitigating factors relating to the offending which have not been recognised in the start point. In particular the fact that you were affected by drink or drugs at the time is not a mitigating factor for you as is emphasised in s 9 (3) of the Sentencing Act 2002.

[53]I have indicated a discrete discount for remorse is not appropriate.

[54]             In relation to character while I have indicated that no uplift is appropriate nevertheless you can claim no benefit for good character.

[55]             I accept however that a discount for your ill-health and the severe effects of imprisonment on you is appropriate and for that I take it at the higher end of 15 per cent.

[56]             Finally, as I have indicated a full discount of 25 per cent is appropriate for the early indication of a guilty plea to manslaughter.

[57]             The calculation of sentence is not a precise arithmetical exercise. It is a weighing up of the  factors  which  I  have  carried  out.  As  was  emphasised  by  Ms Heather Hawkins and the whanau of the deceased, no sentence is any comfort to them for the loss of their beloved son, father, cousin, uncle and koro.

[58]     I conclude that from my starting point of six and a half years imprisonment the final sentence taking into account the discounts I have referred to should be a term of four years and two months’ imprisonment.

[59]Mr Davies you may stand.

[60]             Mr Davies I sentence you to a period of four years two months’ imprisonment on the charge of manslaughter.

[61]Mr Davies you may stand down.

Grice J

Solicitors:

Crown Law Office, Wellington