R v Davis
[2018] NZHC 1162
•22 May 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2018-019-001080
[2018] NZHC 1162
THE QUEEN v
DYLYN MITCHELL DAVIS
Hearing: 22 May 2018 Counsel:
R G Douch for Crown
T Sutcliffe & PJA Buckle for Defendant
Sentence:
22 May 2018
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Hamilton
R v DAVIS [2018] NZHC 1162 [22 May 2018]
[1] Dylyn Davis you appear for sentence today having pleaded guilty to a single charge of murder.1 The offence was committed in the early hours of 4 February 2018 and the victim was your partner, Aroha Kerehoma. I will refer to her as Aroha.
[2] Mr Davis this is your third serious violent offence in terms of the three-strikes regime contained in the Sentencing Act 2002,2 which provides for increasingly serious sentencing consequences relating to the application of maximum sentences and parole provisions in the cases of repeat violent offenders. Mr Davis you were given a first warning and then a final warning when you were convicted of your first and your second-strike offences. Because this third-strike offence is murder, the Court must sentence you to life imprisonment without parole unless satisfied that given your circumstances and the circumstances of the offence it would be manifestly unjust to do so.3
[3] Mr Davis, in the course of sentencing you today I shall begin by setting out the facts of your offending and summarise the victim impact statements, before turning to address your personal circumstances. Next I will set out the purposes and principles of sentencing and the approach I am required to take when sentencing in relation to murder as a third-strike offence. I shall then briefly summarise the submissions of the Crown and the defence, before undertaking the process of determining whether imposing a sentence of life imprisonment without parole upon you would be manifestly unjust.
[4] However, before I proceed any further I commence by acknowledging the presence of members of Aroha’s whānau and close friends who are here in the courtroom today. I have read in the victim impact statements, and have heard from you personally this morning, your heartfelt expressions of grief over the death of your beloved daughter, sister, grand-daughter, niece and cousin, and I have listened carefully to each of you who have bravely read your statements explaining how you feel and how you have reacted to the situation of Aroha’s death. You have lost a dearly loved and clearly vivacious member of your family, who, as you say, had her whole
1 Crimes Act 1961, ss 167(a) and 172.
2 Sections 86A–86I.
3 Sentencing Act 2002, s 86E(2).
life ahead of her, and living your own lives without her amongst you will never be the same. To all of you, but particularly to Aroha’s immediate family members, I extend this Court’s sincere sympathy.
[5] To all of Aroha’s whānau and close family here in Court today, it is important to recognise that no sentence that this Court imposes on Mr Davis for the murder of Aroha can or will, in any real sense, alleviate the pain, sadness, and sense of loss that you are all experiencing.
[6] In the course of this sentencing, I shall be reviewing and referring to the circumstances in which Aroha was murdered. I know of course that listening to these distressing details will be intensely difficult for you. However, I am sure that you all understand that the relevant factual circumstances surrounding the offence and Aroha’s death are necessarily to be described in open court, as part of the Court’s function in sentencing Mr Davis for the offence of murder.
Facts of the offending
[7] I shall now summarise the facts of the offending. In doing so I rely on the Crown’s summary of facts, which you Mr Davis have accepted.
[8] Mr Davis, you and Aroha were in a relationship for approximately five months before her death. On the afternoon and evening of Saturday 3 February 2018, you and Aroha were drinking alcohol and playing music in the garage where you were living in Hamilton. Between 7.30pm and midnight, Aroha became involved in a text message conversation with her former partner, in the course of which she said that she did not feel safe around you. The last message from her phone was sent at 11.58pm. Some time shortly after this, you took her phone and read her messages. Upon reading the text messages she had been exchanging with her former partner you became enraged and brutally assaulted her with a series of ferocious blows to her head and upper body rendering her unconscious. It is not clear just how long the assault lasted, however it must have been sustained and continuous over a period of time having regard to the number and type of injuries she suffered. The pathologist’s post-mortem examination found that Aroha suffered extensive facial injuries, and acute facial and skull fractures. The cause of death was found to be multiple blunt force head injuries.
[9] After this assault, and with Aroha lying either unconscious and dying, or dead, you changed your clothes and left the address. You went to an associate’s house, where you told someone that you had killed Aroha and that she, to use your words, “had it coming”. You left that address when picked up by another associate, telling that person that you had killed Aroha, and saying (again using your words) that you had “choked the bitch” and that “she had it coming”. When asked how you knew that she was dead, you said: “I made sure I finished the job. I was choking her out while she was gargling on her blood”. You spent the remainder of that night at another associate’s address, before returning back to the garage where you were residing the following day.
[10] At 1.30pm on Sunday 4 February, you finally called an ambulance, explaining that you had arrived home to find Aroha badly beaten. Emergency services arrived at the address and found that she had been dead for some hours.
[11] As I have noted, the post-mortem examination revealed that Aroha died as a result of multiple blunt force head injuries, which were consistent with the use of fists rather than a weapon. The pathologist was unable to rule out the possibility that the outcome for Aroha may have been different had an ambulance been called immediately.
[12] Aroha suffered numerous injuries to her head and torso. These included multiple facial fractures including a fractured nasal bone; fractures of the base of her skull; fractures to the orbital wall structures around her eyes. She suffered haemorrhaging in both eyes, and extensive bruising to her face, torso and arms.
[13] The summary of facts says that there were at least four, but probably more, blows to her head and torso. Significantly, there was no evidence of any defensive injuries.
Victim impact statements
[14] I have, as you have, heard and listened to the victim impact statements being read to the Court this morning. Each of them in their own way expresses their grief and anguish at her death and in particular the way in which she died. They are all
devastated and their hearts are broken. As I have said, it is clear that Aroha was a much-loved member of the family.
Mr Davis’ personal circumstances
[15] Mr Davis you are now 26 years old. You have accumulated over 40 previous convictions, 12 of which were for violent offending, including two assaults on females. Your other offending is largely dishonesty-related or involving breaches of court- imposed conditions. Your most serious offending prior to the present offending were your first and second strike offences: the aggravated robbery in 2015 and the wounding with intent to injure in 2014. I shall address those offences in more detail shortly.
[16] You are assessed in the pre-sentence report as presenting a very high risk of re-offending and of causing harm to others. The report writer states that you were “brutally honest” during the interview: you expressed the view that incarceration for the rest of your life would be necessary to keep society safe, and you said that if you were to be paroled in future, the only measure that would prevent you from re- offending would be “the death penalty”.
[17] At the Court’s direction, a report has been prepared by a clinical psychologist pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Having interviewed you and reviewed your treatment records, the psychologist concluded that you displayed no signs of depression or psychotic symptomatology. You denied current suicidal ideation or intent, although you also said you could not exclude the possibility that you might want to commit suicide at some time in the future if things became too difficult for you in prison. At the time of the interview, however, you made no complaints about your circumstances in prison.
Childhood and youth background
[18] Mr Davis, your parents separated when you were very young, and you were raised by your mother. Your relationship with her appears to have been somewhat mixed: while she took an active interest in your life and schooling, you say that you were in fact scared of her. You experienced problems at school from a young age, and were diagnosed with attention deficit hyperactivity disorder (ADHD) as well as
oppositional defiant disorder. Despite taking medication, you were frequently disruptive and disobedient which resulted in you being repeatedly stood down from school and in the end expelled from the schools you attended. You were eventually admitted to a residential treatment programme, but did not return to school when discharged from the programme at the age of 16. You were briefly employed as an assistant courier driver, but that ended when you stole a cellphone at work. Thereafter you continued to offend, accumulating convictions first in the Youth Court and later in the District Court.
[19] Because of your behaviour you have been seen by and assessed by psychologists and psychiatrists on multiple occasions throughout your life from when you were quite young. Sometimes improvements in your behaviour were noted when you took your medication for ADHD, while on other occasions your behavioural problems returned and were noted. In 2008, you overdosed on paracetamol tablets, although you denied this was a suicide attempt. In 2014, while on remand in prison, you attempted suicide by cutting your left brachial artery with a razor and subsequently ripping out all the stitches. Shortly after that you swallowed batteries, saying that you wanted to die.
[20] When asked about your drug and alcohol use, you explained that you had commenced using alcohol at age 12, and that you have subsequently become a heavy drinker. You said all your offending had occurred after you had been drinking. You denied using methamphetamine, but admitted to using cannabis.
Attitude to the index offending
[21] During these interviews for the pre-sentence report and by the psychologist, you appeared accepting of the consequences of your current offending. You stated that the murder is the first and last thing you think about every day, and that you appreciate that what you did to Aroha has, to use your words, “messed up her whole family’s life”. You acknowledge that you deserve to go to prison, and in your words, “because her life is over and I am still here, so I should not be allowed to just walk”. While the psychologist notes that your awareness of the effect of your offending on Aroha’s family appears genuine, the psychologist does not consider that you show
genuine remorse in the sense related to having any empathy for Aroha or the family. The psychologist observes that you do not display any genuine empathy for either Aroha or her family, and she notes that you were able to recount the facts of your offending in chilling detail, without any apparent emotional reaction.
The strike offences
[22] In 2014 you were convicted of your first strike offence, namely wounding with intent to injure. On that occasion you arrived at a residential address where a small group of friends and family had gathered. You had not personally been invited to the address, and were asked to leave after damaging a table while playing a knife game. As you left you shouted abuse at the occupant, which resulted in the occupant’s partner (the victim) approaching and confronting you out on the road. You then swung a knife at this person, causing a laceration to his lower back that was seven centimetres deep and 12 centimetres long. The injury required surgery. In relation to that offence you were given a first-strike warning, and sentenced to 18 months’ imprisonment.4
[23] Your second strike offence was an aggravated robbery, which occurred in March 2015. At around 2.00am, you accosted the male victim on a public walkway near Claudelands Bridge here in Hamilton. You pushed the victim against a railing, demanding his property, and then punched him in the face, breaking some of his teeth. You then produced a knife and forced it against his throat with sufficient force to choke him. You took two cellphones and some cigarettes from him. In relation to that aggravated robbery you were convicted and sentenced to 28 and a half months’ imprisonment and given a second and final strike warning.5
Purposes and principles of sentencing
[24] Mr Davis, the purposes for which I sentence you today are to hold you accountable for the harm you have caused by your offending and to promote in you a sense of responsibility for that harm, as well as to denounce and deter your conduct and to protect the community from you.6
4 R v Davis DC Hamilton CRI-2014-019-804, 2 July 2014.
5 R v Davis [2015] NZDC 15681.
6 Sentencing Act 2002, ss 7(1)(a), 7(1)(b), 7(1)(e), 7(1)(f) and 7(1)(g).
[25] In sentencing you, I must bear in mind the general desirability of consistency with sentencing levels in similar cases and the need to take into account the gravity of the offending in this particular case, including the degree of your culpability.7 I must also take into account any circumstances personal to you that would mean a sentence that is otherwise appropriate is disproportionately severe.8
Approach to sentencing in relation to third-strike murder
[26] The three-strikes regime was introduced into the Sentencing Act in 2010.9 Parliament stated that the purpose of the new regime was to deny parole to certain repeat offenders and to offenders guilty of the worst murders, and to impose maximum terms of imprisonment on persistent repeat offenders who continue to commit serious violent offences.10 Here the Crown does not contend that you are guilty of one of the worst type of murders imaginable, but rather it says that you are a persistent repeat offender who continues to commit serious violent offences and you are thus one of the offenders against whom the three strikes provisions of the Sentencing Act are directed.
[27] The Court of Appeal has observed that the rationale behind the regime appears to have been to reduce violent crime, and thus improve public safety, through deterrence and incapacitation.11
[28] Mr Davis, you have been convicted of murder after having previously been convicted of two serious violent offences12 and having received first and final warnings in accordance with the three-strikes regime. Section 86E of the Sentencing Act therefore requires that you are to be sentenced to life imprisonment without parole unless the Court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so. If the Court considers that life imprisonment without parole is manifestly unjust, it must impose a minimum period of imprisonment of at least 20 years. If the Court is satisfied that a minimum period of imprisonment of 20 years would also be manifestly unjust, it must determine a
7 Sentencing Act, ss 8(a) and 8(e).
8 Sentencing Act, s 8(h).
9 Sentencing and Parole Reform Act 2010, s 6(1).
10 Sentencing and Parole Reform Act, s 3.
11 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [76].
12 As defined in s 86A of the Sentencing Act.
minimum period of imprisonment in accordance with the usual or normal approach to sentencing for murder.
[29] The Court of Appeal considered the effect of the three-strikes regime specifically in relation to second and third-strike murders in R v Harrison.13 The Court commented regarding the meaning of the words “manifestly unjust” in s 86E as follows:
[106] … While Parliament mandated a presumption of life without parole once the qualifying conditions for such a sentence were met, the inclusion of an exception for manifest injustice requires that it be given an interpretation that makes the legislation work consistently with the Bill of Rights Act. We are driven to the conclusion that the test for circumstances that are manifestly unjust must be of sufficient breadth to ensure that any sentence imposed under s 86E is not grossly disproportionate. The test requires a principled approach.
[107] The question then is what “manifestly unjust” should actually mean as used in s 86E of the Sentencing Act. Drawing together the threads of the earlier discussion, we recognise the mandatory nature of the whole-of-life sentences to be imposed in cases to which s 86E applies. But, when the qualifying requirements are met, regard must be had to the need to comply with the overarching constitutional requirement that the sentence must not constitute disproportionately severe punishment. The assessment, as noted, is different to that undertaken in respect of the application of the manifestly unjust exception in ss 102 and 104 because of the fundamentally different statutory purposes, context, and consequences.
[30]The Court of Appeal then made the following observations:14
(a)The judicial approach to the scope of the manifestly unjust exception is intended to avoid wholly disproportionate, that is, grossly disproportionate, sentencing outcomes.
(b)The case for a finding of manifest injustice must be clear and convincing. This follows from the use of the word “manifestly”. However such cases need not be rare or exceptional.
(c)The determination requires an assessment of the circumstances both of the offence and the offender:
(i)The fact that the case is a stage-2 murder as opposed to a stage-3 murder is relevant. This factor may inform the nature and extent of the recidivism involved.
(ii)The consequences of a whole-of-life sentence (without parole) are a relevant factor. Personal mitigating factors under
13 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602.
14 At [108].
s 9(2), including mental health, relative youth and a guilty plea, fall to be considered in the balance.
(d)The sentence that would have been imposed but for s 86E is relevant to this assessment. The sentencing judge will consider, and give weight to, the applicable purposes and principles of sentencing in ss 7, 8 and 9 of the Sentencing Act.
(e)Other relevant (non-exclusive) factors include:
(i)Whether an offender has any, or limited, ability to understand the relevance and importance of a first or final warning.
(ii)Whether the factual matrix of the qualifying offence or offences, or of the index offence, points to a higher or lower level of culpability.
(iii)Whether the offender is likely to re-offend such that there is a need for community protection.
(f)The inquiry into the applicability of the manifestly unjust exception is an intensely factual one.
[31] I therefore adopt the following approach to sentencing in accordance with the Court of Appeal’s judgment in Harrison:15
(a)I begin with the recognition that the sentence for a stage-3 murder is presumed to be life imprisonment with parole.
(b)I will then determine the appropriate sentence for this offence in terms of the standard application of ss 102, 103 and 104 of the Sentencing Act. This will require me to consider your actual culpability based on the facts of the case, as compared with other murder cases.
(c)Next I will consider the statutory presumption of a whole-of-life sentence under s 86E and determine whether the “manifestly unjust” exception applies, applying the approach described by the Court of Appeal in Harrison that I have just referred to.
15 See [109]–[110].
(d)If the “manifestly unjust” exception applies, I must then determine whether it would also be manifestly unjust to impose a minimum period of imprisonment of 20 years.
(e)If a minimum period of imprisonment of 20 years is found to be manifestly unjust, I will impose the lesser minimum period I have determined to be appropriate.
Submissions
[32] Before proceeding further, I shall now briefly summarise the submissions of both the Crown and the defence.
Crown
[33] In terms of aggravating features of the offending, the Crown submits that the offence involved violence at a very high level with the most serious outcome possible. It refers to the injuries sustained by Aroha and the extent of the loss and harm to her family as evident from the contents of the victim impact statements that have been read to the Court this morning.
[34] The Crown submits that s 104 of the Sentencing Act is engaged because of the cruelty, depravity and callousness of the murder.16 If accepted, this means that a minimum period of 17 years’ imprisonment would ordinarily be imposed. The Crown cites a number of cases which it says are comparable with the present case and I will consider those in more detail shortly. The Crown further submits that even if s 104 does not apply, a minimum period of 17 years’ imprisonment would still be appropriate, based on the aggravating features of the offending. The Crown says that a reduction of one to two years from that level would adequately reflect your early guilty plea and any remorse that you may arguably display, noting that its case against you was a strong one.
16 Section 104(1)(e).
[35] The Crown therefore submits that a sentence of life imprisonment with a minimum period of 15 years would be the appropriate sentence for this murder were it not a third-strike offence.
[36] The Crown submits that this is not a case where the “manifestly unjust” exception applies. It cites a number of factors to which I will refer in due course, and says that you should be sentenced to life imprisonment without parole in accordance with the statutory presumption.
[37] As an alternative submission the Crown says that if the Court finds that the manifestly unjust exception does apply, then the presumptive 20-year minimum period of imprisonment should be imposed.
[38] The Crown therefore advances alternative sentencing options for the Court: either life imprisonment without parole, or life imprisonment with a 20-year minimum period of imprisonment.
Defence
[39] Mr Davis your counsel Mr Sutcliffe submits that your offending does not trigger s 104(1)(e) of the Sentencing Act, by having a high level of brutality, cruelty, depravity or callousness. He compares the cases cited by the Crown to your case, and submits that the murder in this instance standing alone would attract a minimum period of imprisonment of around 11 years.
[40] Having regard to that minimum period, Mr Sutcliffe then submits that a whole- of-life sentence would be manifestly unjust. He cites a number of factors, which again I will address in due course. Relying on those same factors, Mr Sutcliffe also argues that a minimum period of 20 years’ imprisonment would be manifestly unjust.
The appropriate sentence for this offence leaving aside the three-strikes regime
[41] I will now address and determine your culpability and the appropriate sentence that you would receive, but for the engagement and application of the three-strikes regime.
[42] I commence with the presumption that the crime of murder carries a sentence of life imprisonment.17 When sentencing for murder as a stand-alone offence, the main issue for the Court is therefore the appropriate minimum period of imprisonment, which is the period that the offender must spend in prison before becoming eligible for parole. When sentencing for murder the Court must consider whether s 104 of the Sentencing Act is engaged, in which case the Court must impose a minimum period of at least 17 years’ imprisonment. If s 104 is not engaged, s 103 provides that the Court must impose a minimum period of at least 10 years’ imprisonment.
Is s 104 engaged in the present case?
[43] The Crown submits that the present case does engage s 104(1)(e), because it says the murder was committed with a high level of brutality, cruelty, depravity or callousness. It submits that the treatment of Aroha was cruel and callous, in that she was left alone to die on the floor of the garage, and thereby afforded no dignity in the circumstances of her death. The Crown says that after the killing, you embarked on a course of conduct designed to defeat the course of justice and to avoid responsibility and culpability.
[44] Mr Sutcliffe, however, submits that your offending does not engage s 104(1)(e). He points out that although there was a delay in notifying the authorities for some 12 - 13 hours, you did eventually call an ambulance. Rather than displaying callousness, Mr Sutcliffe says your actions might be explained by the fact that you were struggling to decide how to deal with what you had done. Although you ultimately decided to concoct a story in order to try to avoid responsibility, Mr Sutcliffe submits that that in itself is not particularly egregious.
[45] Mr Sutcliffe is entirely correct when he submits that every murder is, in a very real sense, brutal, cruel, depraved and callous.18 What is required to engage s 104(1)(e) is the presence of those factors to a “high level”. I have considered the cases cited by the Crown, all of which involve violent murders committed in a domestic violence context.19 I agree with Mr Sutcliffe’s submission that each of those
17 Sentencing Act, s 102(1).
18 R v Slade [2005] 2 NZLR 526 (CA) at [40].
19 R v Ngeru HC Wellington CRI-2008-085-5996, 11 December 2009; R v Callaghan [2012] NZHC
cases is somewhat more serious than the present, involving greater degrees of brutality, cruelty, depravity or callousness,20 with the possible exception of R v Akuhata which involved a drowning and thus quite different facts. In all those cases, apart from Akash v R in which the victim was known to the offender to be pregnant at the time he stabbed her repeatedly with a knife, the Court held that s 104(1)(e) was not engaged. While the fatal attack on Aroha in this case was without doubt brutal, cruel and callous, having compared the circumstances of the cases relied on by the Crown, I do not consider that those factors were present at a high level. I therefore find that s 104(1)(e) is not triggered in relation to the assault upon Aroha that caused her death. My conclusion on this point, however, is in no way intended to minimise the gravity and awfulness of what occurred in the present case.
[46] Mr Davis, the Crown relies on your actions after the murder as demonstrating a high level of cruelty or callousness. However, the fact that you left Aroha’s body for a period of 12 - 13 hours and initially sought to avoid responsibility is not unusual in cases of murder and does not of itself amount to a high level of callousness sufficient to engage s 104(1)(e). I note that in R v Callaghan, cited by the Crown, the offender took much more extensive steps to conceal his involvement in the victim’s death, including dismembering the victim’s body, and in that case s 104(1)(e) was not triggered.21
596; R v Prole [2013] NZHC 1267; R v Eddy [2014] NZHC 1543; R v Akuhata [2015] NZHC
1098; Akash v R [2017] NZCA 122.
20 Compare R v Ngeru HC Wellington CRI-2008-085-5996, 11 December 2009, where the blows inflicted were extremely violent and the victim was said to have suffered similar damage as in a high-speed accident; R v Callaghan [2012] NZHC 596, where a baseball bat was used to strike the victim; R v Prole [2013] NZHC 1267; where the offender used a knife to stab the victim around 11 times; R v Eddy [2014] NZHC 1543, where the offender stabbed the victim in the abdomen several times, and then cut her throat with a double slashing motion, almost from ear to ear; Akash v R [2017] NZCA 122, where the offender knew the victim to be pregnant and stabbed her with a knife.
21 R v Callaghan [2012] NZHC 596. Among other things, the offender purchased kerosene and cleaning materials and cleaned and concealed evidence of the crime; he removed the victim’s body from the address and dismembered it, ultimately burying it in the Waitakere Ranges; he used her mobile phone and replied to text messages on her behalf to make it appear she was still alive; and he took her car and drove it to Hamilton, leaving it there, consistent with engineered text messages. It was not until two weeks after the murder that he advised police she was missing.
What minimum period of imprisonment would be appropriate?
[47] Having determined that s 104 does not apply, I next turn to consider what minimum period of imprisonment would be appropriate. Section 103(2) of the Sentencing Act provides that:
The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[48] In my view the aggravating factors of the offending in the present case are the attack and fierce blows directed to Aroha’s head and the extent of the violence used, in that she was struck at least four times about the head and torso and probably more, causing fractures and significant injuries. I also note Aroha’s vulnerability in that she was physically much smaller than you, and consequently she was effectively defenceless. The fact that Aroha’s murder was the product of domestic violence, and that the attack upon her occurred in the place where she was living with you, warrants additional denunciation and deterrence.22 I also consider that your callous actions after killing Aroha are aggravating, in that you did not alert the authorities to her situation for approximately 12 – 13 hours. As the Crown observes, the pathologist was unable to rule out the possibility that the outcome for Aroha may have been different had an ambulance been called immediately after the assault had occurred.
[49] There are no mitigating features of the offending. There can be no suggestion that you were provoked. Aroha’s text message contact with her former partner, cannot provide any excuse for your violent attack on her.
22 R v Ngeru HC Wellington CRI-2008-085-5996, 11 December 2009 at [27]; R v Akuhata [2015] NZHC 1098 at [40].
[50] In light of the aggravating features of the present offending, I consider that a 10-year minimum period is insufficient to denounce and deter your conduct. Having regard to the cases cited by the Crown, I consider that a minimum period of 13 years appropriately reflects your culpability in relation to the present offending.
[51] I then turn to consider factors personal to you Mr Davis, which may warrant some increase to or deduction from a 13 year minimum. Mr Davis you have multiple previous convictions for violence, including, most seriously, your two previous strike offences. I accept the assessment of the pre-sentence report writer that you present a high risk to the community, and an uplift of two years is accordingly warranted to reflect your criminal offending history and the risk of harm to the community.23
[52] On the other hand Mr Davis, you did plead guilty on 27 March this year soon after you were arrested on 16 February. Your entering of a guilty plea came at a relatively early stage, and it has spared the victim’s family the ordeal of a trial. Further, the guilty plea is a tangible indication that you do accept responsibility for the offending, which is confirmed by the observations in the pre-sentence report and the psychological report. It is however relevant to bear in mind in this context that the Crown case against you was a strong one, and included evidence of admissions made by you. In the circumstances I consider that a discount of one year adequately reflects your guilty plea.24
[53] I do not consider that you display any real or genuine remorse. Your comments to the pre-sentence report writer, confirmed by the psychological assessment, indicate that you lack empathy for Aroha’s family and consequently it appears that you have only limited appreciation and understanding of the effects of what you have done.
[54] Putting to one side the three-strikes regime, I would therefore impose a sentence of life imprisonment on you Mr Davis with a minimum period of 14 years’ imprisonment.
23 Compare R v Prole [2013] NZHC 1267 at [29]; R v Eddy [2014] NZHC 1543 at [44]–[46]. In
both cases an uplift of two years was imposed for previous convictions and a high level of risk to the community.
24 See Akash v R [2017] NZCA 122 at [22]–[26], where the Court of Appeal observed that Mr Akash initially denied involvement and tried to cover up his crime, and that the case against him was strong. Nevertheless, his guilty plea was early and warranted a discount of one year.
Three-strikes regime
Is a whole-of-life sentence in this case “manifestly unjust”?
[55] Mr Davis, I now turn to address the issue of whether the imposition on you of a whole of life sentence without parole would be manifestly unjust. As the Court of Appeal observed in Harrison,25 the overall question in this context is whether it would be grossly disproportionate, given the circumstances of the offending and the offender, for you to be subject to a whole-of-life sentence.
[56] I have had regard to three cases in which the Court has been required to consider whether a sentence of life imprisonment without parole is manifestly unjust in the context of a second-strike murder. In R v Harrison, the Court of Appeal dealt with two appeals and in both instances upheld the lower courts’ decision not to impose a whole-of-life sentence. Mr Harrison’s first strike offence was indecent assault, which was described as being at the lower end of seriousness for that type of offending.26 That was a relevant consideration when assessing disproportionality. As for the second-strike murder, the Court considered that the appropriate minimum period of imprisonment would have been 13 years if he was being sentenced on a stand-alone basis. The Court then observed that:27
This provides a useful comparator to the possible s 86E sentence of life without parole. As Mr Harrison was aged 44 he could, should he live to the age of 75, have served over 30 years in prison. This differential clearly raises issues of significant disproportionality.
(footnote omitted)
[57] A further relevant factor was the fact that the victim’s father had forgiven the offender and did not seek the imposition of a whole-of-life sentence.
[58] In Mr Turner’s case, the Court of Appeal accepted that the circumstances of the murder were brutal and callous. However, the circumstances of the offender were such as to displace the presumption of a whole-of-life sentence. Mr Turner was 29 years old when sentenced, meaning a whole-of-life sentence could have resulted in
25 At [110].
26 At [128].
27 At [131].
him spending approximately 50 years in prison, assuming a standard life expectancy. The Court also noted that Mr Turner suffered from mental health disabilities including severe personality disorder and schizophrenia.
[59] In R v Heihei, where the defendant had stabbed and killed his brother during a fight, Lang J held that it would be manifestly unjust to impose a whole-of-life sentence on the offender in respect of a second-strike murder.28 Factors which influenced the Judge included the previous offending, where the first strike offence was of a different type and low level of culpability; the finding that the offending would otherwise attract a minimum period of 10 years’ imprisonment; the views of the offender’s parents who were victims; and the fact the offender was 31 years old and who could be expected to live another 40 - 50 years.
[60] In another case, R v Puna, Cull J also held that it would be manifestly unjust for the offender to receive a whole-of-life sentence for a second-strike murder.29 The defendant had repeatedly kicked the victim in the head over an extended period while he lay defenceless on the ground, and had turned away a member of the public who came to assist the victim, by saying that he was asleep. Cull J found that s 104(1)(e) applied to the offending, in that the murder was committed with a high level of brutality and callousness, with the attack continuing over a period of 40 minutes to an hour. Nevertheless, the offender was only 19 years old at the time of the offence. His previous convictions were relatively minor, including his previous strike offence, and he had positive prospects for rehabilitation. He had also expressed genuine remorse. The purposes and principles of sentencing did not require a whole-of-life sentence, so found Cull J, and her Honour held that to impose such a sentence would be manifestly unjust.
[61] The Crown here says that this is the first time that an offender has appeared for sentence on a third-strike offence of murder. Although the Crown does not contend that the circumstances of this particular murder make it one of the worst cases imaginable, it does submit that you are one of the repeat offenders to whom the legislation is directed. The Crown refers to your previous convictions, in particular
28 R v Heihei [2017] NZHC 2243.
29 R v Puna [2018] NZHC 79.
the serious circumstances in which the strike offences were committed, and it submits that you have demonstrated a ready recourse to serious violence and that you are a recidivist, that is a repeat offender.
[62] The Crown submits that the factors in favour of a whole-of-life sentence for you are as follows:
(a)that this offence is a stage-3 murder, which demonstrates the extent of your recidivism;
(b)your extensive criminal history at the age of only 26;
(c)the relatively short period of time between your strike offences, given that you served periods of imprisonment between the two;
(d)the fact that you were subject to release conditions at the time of the murder;
(e)the fact that you have repeatedly breached release conditions in the past; and
(f)your statements as noted in the pre-sentence report, in which you acknowledge that you present a risk to the community and that in order to avoid that risk you should be imprisoned for life, which effectively amounts to a rejection of the possibility of any future rehabilitation.
[63] The Crown also refers to the Court of Appeal’s explanation in Harrison of the correct approach to the assessment of disproportionality of sentence arising from the application of s 86E, and refers to each of the four factors identified by the Court of Appeal as relevant to an assessment of disproportionality.30 It says that here:
(a)there is no suggestion that you did not understand the prior two warnings;
30 At [96].
(b)you do present a high risk of violent reoffending;
(c)the circumstances of the murder do not point to a lower level of culpability than is usual or normal in cases of this kind, and while not in the worst category of murders, the present offending, says the Crown, is nevertheless serious; and
(d)the need for deterrence, denunciation, and community protection here is high.
[64] Accordingly the Crown submits that none of the factors identified by the Court of Appeal are to be construed in terms favourable to you in terms of pointing to manifest injustice were you to be imprisoned for life without parole.
[65] The most concerning of these factors are your criminal history, which indicates an impulsive and ready tendency to resort to serious violence, and also your comments to the author of the pre-sentence report regarding the on-going risk of future offending you present to the community. You have not expressed any remorse for your offending. These factors engage the sentencing purpose of protecting the community from you.
[66] On your behalf, Mr Sutcliffe submits that the following factors indicate a whole-of-life sentence would be manifestly unjust:
(a)in comparison with other murder cases, your offending is not one of the worst murders, as is evident by the assessment that I have undertaken and by which I have concluded that a minimum period of 14 years’ imprisonment would appropriately reflect and mark your culpability - Mr Sutcliffe assessed it at 11 years;
(b)you entered an early guilty plea at an early stage;
(c)your previous strike offences resulted in relatively low sentences being imposed when compared to the maximum penalties that were available
for those offences, reflecting that they were not considered to be in the range of the most serious offences of their type; and
(d)at age 26 years old, you are still a young man who may realistically be expected to live for another 50 or more years.
[67] I add to Mr Sutcliffe’s list your mental health difficulties. You were diagnosed at a young age with attention deficit hyperactivity disorder and oppositional defiant disorder, and as an adult you were diagnosed with severe alcohol use disorder. The index offending, this present offence against Aroha, occurred while you were intoxicated, and your own assessment is that much of your previous offending was also influenced by alcohol. These factors favour the imposition of a rehabilitative sentence. I also note that you have attempted suicide on at least two occasions in the past.
[68] Although the Crown case against you was clearly strong, you must nevertheless be given some credit for having accepted responsibility for your offending by pleading guilty. This indicates that there remains some possibility of rehabilitation in the future, although your rehabilitative prospects must at the present stage be regarded as limited due to your own apparent lack of any motivation to change. However, it is clear from the contents of the pre-sentence report and the psychologist’s report that you have been proceeding during the interviews upon the understanding that a sentence of life imprisonment without parole is the inevitable sentence you now face. You appear to have resigned yourself to spending the rest of your life in prison and consequently your negative attitude towards rehabilitation is in those circumstances unsurprising.
[69] I find this to be a finely balanced case. Several of the mitigating features that were present in the cases of Harrison, Turner, Heihei and Puna are simply not present in your case. The victims here, that is Aroha’s family, favour the imposition of a sentence of life imprisonment without parole, and I do not overlook their views on that matter. I have however concluded that a life sentence without parole would be manifestly unjust for you Mr Davis. At the age of 26, you can be expected to live for
approximately 50 more years based on standard male life expectancies.31 As I noted earlier, the sentence that reflects your level of culpability and those factors personal to you is life imprisonment with a minimum period of 14 years’ imprisonment. The discrepancy between a life sentence requiring that you serve a minimum of 14 years’ imprisonment, and one without parole which could result in your imprisonment for approximately 50 years, is very significant. On the basis of your life expectancy, a life sentence without parole would be in excess of three times longer than the sentence you would receive but for the three-strikes regime. I consider that such a sentence would be grossly disproportionate to a sentence that would be imposed where the provisions of s 86E were not engaged.
[70] Furthermore, despite what you have said in the course of being interviewed by the writer of the pre-sentence report, having carefully considered the contents of that report and the psychologist’s report, I do not think that it can be concluded that future rehabilitation is entirely out of the question.
[71] In my view the purposes and principles of sentencing do not require a sentence of life imprisonment without parole in your case.
Is the 20-year minimum manifestly unjust?
[72] Having determined that a whole-of-life sentence is manifestly unjust, I must impose a 20-year minimum period unless I determine that to do so is manifestly unjust.
[73] The Crown submits that no further deduction should be allowed for mitigating factors at this stage of the process because they would have already been taken into account in reducing the severity of the penalty from a whole-of-life sentence to one in which parole becomes an option.
[74] However, in my view it is not correct to say that mitigating factors cannot be taken into account when assessing whether a minimum period of 20 years is manifestly unjust, despite the fact that those factors and issues have already been considered earlier. The question must again be whether a minimum period of 20 years’
31 See R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [93].
imprisonment would be grossly disproportionate, given all the circumstances of the offending and the offender.
[75] In the present case, Mr Davis, I do not consider that a minimum period of 20 years’ imprisonment would be grossly disproportionate. The minimum period of 14 years’ imprisonment to which you would otherwise be subject is in my view not so removed in its duration from a minimum period of 20 years as would make it grossly disproportionate, and I acknowledge the Crown’s submission that you are a recidivist offender who presents a high risk of re-offending and from whom the community is to be protected. The need for community protection, denunciation and deterrence leads me to conclude that having regard to the circumstances of your offending and of you personally, imposing the presumptive 20 year minimum period upon you, Mr Davis, is not manifestly unjust.
[76] This is yet a further case of what is commonly termed “domestic violence” and in this case, of course, having fatal consequences. Mr Davis your attack on Aroha was cowardly. You were much stronger than her and the ferocity of your punches to her head would have instantly prevented her from taking any action to avoid your assault. You, however, repeatedly punched her and from what yourself have said, then proceeded to choke her. Mr Davis, you had received two prior formal written warnings of the likely consequences if you committed a further serious violent offence. In enacting the provisions of s 86E of the Sentencing Act Parliament did so in order to protect the community from repeat offenders such as you.
[77] Sadly, and tragically for Aroha and her whānau, you ignored the warnings you were given and you took no steps to change how you were living your life. Rather, you continued to live as you had previously, including frequently consuming alcohol and in doing so putting yourself in the same sort of circumstances in which you had offended previously. Your ready recourse to the sort of brutal violence that you directed at the defenceless Aroha has resulted in the loss of life of a young woman who had much to live for and every right to feel safe in her home. You are someone who has shown that you cannot be trusted in the community. Furthermore, you cannot be trusted to control and restrain yourself in terms of your reactive nature and ready recourse to violence.
[78] So the sentence that I shall impose is both appropriate as a punishment for your offending and as a necessary means of protecting the public from you. The community will simply not tolerate violent assaults on women, be they in public settings or in the home. Sadly it is often the case that women are particularly vulnerable when they are in their own homes and too often those responsible for violence against them are men with whom they are in relationships. This sentence should send a clear message to all and everyone that any such violence will not be tolerated and those who do offend can expect nothing less than stern punishment in order to deter violence and to protect the community.
[79] It is important for everyone to understand that a term of life imprisonment remains a life sentence irrespective of the minimum period of imprisonment imposed by the Court, in this case 20 years. At the expiration of the applicable minimum period of imprisonment, the offender can apply for release on parole but such release is not automatic. The Parole Board will only release an offender if and when satisfied that they do not pose a risk to the public. Even if an offender is released, they can be recalled to prison at any time should they breach their release conditions or re-offend. Thus an offender sentenced to life imprisonment will remain subject to the sentence for the rest of their life.
Result
[80] Mr Davis, please stand. On the charge of murder, you are sentenced to life imprisonment. Pursuant to s 86E(4) of the Sentencing Act I impose a minimum period of 20 years’ imprisonment upon you before you are eligible to apply for parole.
[81]Stand down.
Paul Davison J