R v Davis - [2015] NZHC 3267

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-13832 [2015] NZHC 3267

THE QUEEN

v

DHARAM RAJ DAVIS

Hearing: 16 December 2015

Appearances:

G R Kayes/M K Regan for the Crown
D Hoskin for the Defendant

Judgment:

16 December 2015

SENTENCING REMARKS OF THOMAS J

Solicitors:
Kayes Fletcher Walker, Manukau.

Counsel:
D Hoskin, Auckland.

R v DAVIS [2015] NZHC 3267 [16 December 2015]

Introduction

[1] Mr Davis, you appear before me today having accepted a sentence indication I gave you in respect of one charge of manslaughter, the maximum penalty for which is life imprisonment.1

[2] I will not repeat my sentencing indication remarks, particularly the analysis of comparable cases and my decision, today, must be read in conjunction with my sentence indication, which is no longer subject to any suppression.

Facts

[3] The fact of the offending are that on Friday 17 October 2014, you and the deceased, Mr Hona, were employed at a distribution retail food warehouse.

[4] At around midday, you and Mr Hona had a verbal altercation. He told you that you had “a smart mouth” and challenged you to a fight, which you accepted. You agreed to meet at the gymnasium area of your workplace to sort out your differences.

[5] CCTV footage shows that you entered the gymnasium at 12.49 pm. Mr Hona raised his fists and adopted a fighting stance before you removed your upper clothing and stood bare-chested, facing him.

[6] You advanced on one another and both swung punches at each other. You then placed Mr Hona in a headlock. You both fell to the concrete floor and continued to wrestle. You straddled him as he lay on his back.

[7] After a while, he attempted to get back to his feet while you continued to straddle him. As he stood up, you moved to straddling him from behind and, again,
applied a headlock to him. As a result, he fell back to the floor.

1 Crimes Act 1961, s 171.

[8] It is not clear what happened for about a minute from this point as the CCTV camera was obstructed by gym equipment. So it is unclear from the footage how long you applied the headlock to Mr Hona.

[9] The headlock resulted in Mr Hona losing consciousness. You then got up from the floor, put your clothes back on, left the gymnasium and returned to work. You left Mr Hona in a position where his airway was compromised.

[10] At some point within the next 13 minutes or so, you told a co-worker about your altercation with Mr Hona and stated that he was lying on the ground in the gymnasium.

[11] Mr Hona was discovered by staff in the gymnasium lying unconscious and unresponsive.

[12] Ambulance officers attended and began cardiopulmonary resuscitation (CPR)

on him but those efforts were unsuccessful. Mr Hona died at the scene at 2.30 pm.

[13] In explanation to the Police, you said: “This is bullshit. This is my life. All

because he…

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.

Continue reading R v Davis

Details

AGLC: R v Davis [2015] NZHC 3267
Case: [2015] NZHC 3267
Decision Date: 16 December 2015

CaseChat Overview and Summary

The case of R v Davis involved the defendant, Dharam Raj Davis, who was charged with manslaughter following a workplace altercation that resulted in the death of Mr Hona. The incident occurred at a distribution retail food warehouse, where Davis and Mr Hona had a verbal dispute that escalated into a physical fight. The altercation resulted in Davis applying a headlock to Mr Hona, leading to his loss of consciousness and subsequent death due to manual strangulation and blunt force trauma to the head and chest. Davis accepted a sentence indication of life imprisonment, the maximum penalty for manslaughter, and appeared before the court for sentencing.

The court was required to determine the appropriate sentence for Davis, considering the nature and circumstances of the offence, the aggravating and mitigating factors, and the impact on the victim's family. The court also had to consider the principles of sentencing under the Sentencing Act 2002 and applicable case law. The key legal issues involved assessing the culpability of Davis, determining the appropriate starting point for sentencing, and deciding on any discounts for factors such as Davis's guilty plea and remorse.

The court, in its judgment, found that the offending fell within the lower end of band two of Taueki, considering the inherently dangerous nature of the attack, the seriousness of the injury, and the fact that Davis left the victim in an airway-compromised position. The court acknowledged the victim impact statements, which highlighted the devastating effect on Mr Hona's family. The pre-sentence report indicated that Davis had a history of violent offences and showed limited insight and remorse. However, Davis had written a letter to the court expressing his remorse and apologizing to the victim's family.

After considering the aggravating and mitigating factors, the court determined that a starting point of four and a half years' imprisonment was appropriate. The court accepted that Davis acknowledged responsibility and expressed some remorse, but this was not sufficient to warrant a discount for remorse beyond the 20% discount for his guilty plea. The court imposed a final sentence of three years and six months' imprisonment, taking into account the purposes and principles of sentencing and the need to hold Davis accountable for his actions.

In summary, the court sentenced Davis to three years and six months' imprisonment for the manslaughter of Mr Hona, following a workplace altercation that resulted in the victim's death. The court considered the nature and circumstances of the offence, the impact on the victim's family, and the principles of sentencing in reaching its decision.

Orders