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 wanted to be the man.”

Injuries to the victim

[14]     A post-mortem examination was carried out which determined that the direct cause of Mr Hona’s death was manual strangulation associated with blunt force trauma of the head and chest although other conditions (such as hypertensive heart disease, dilated cardiomyopathy and obesity) were identified as conditions contributing to his death.

Victim impact statement

[15]     We had just heard the victim impact statements of two of Mr Hona’s sisters read out today.  They talk about the fact that you took their brother, a valued and treasured member of the family. Their lives have changed completely as a result.

[16]     I would also like to refer to the victim impact statement of Mr Hona’s wife. They were together for 22 years.  They had five children together.  The eldest is 20, the youngest is only five.  She describes how she and her husband had gone through a great deal in their time together, that eventually they moved to Glen Innes and had lived there for about 13 years before his death.  She says, there, they tried to make a new life for themselves and their children.  They made real changes to their lives and started planning and achieving goals they had set and it was very different from the life they had left behind.  She discusses how traumatic it was on the day her husband had died and, for the first couple of months afterwards, she continued to be a mess and in shock.

[17]     She then discusses the impact on the children.  She says that he was like a child himself so his bond with his children was special.  She says the children have not yet dealt with their grief.

[18]     She says she knows that it was a pre-arranged fight but she does not believe that it would ever have been his intention to hurt you.  She says he always wanted to help people.  She considers he would have been trying to teach you a lesson with the end result that you would sort out your differences and get along together.  But, she says, he was never given that opportunity to help you.

Pre-sentence report

[19]     I  have  considered  the  pre-sentence  report  prepared  by  the  Community Probation Service.   It seems you offered very little during the interview process which made it very difficult for the writer of the report to gauge any level of insight or remorse and to determine what treatment needs you might have.

[20]     The writer notes this is your eighth appearance before the Court and ninth conviction for a violent related offence. This current offence represents an escalation in your risk of harm to others and re-offending.

[21]     By way of explanation, you told the report writer that there had been tension between you and the victim for a few weeks, and you agreed to fight it out; that you

thought, when you left the gymnasium, that he was still alive.   However, you expressed no remorse and are described as having limited insight into the offending.

[22]     Obviously,  your  propensity  for  violence  is  identified  as  a  factor  in  the offending.   You told the report writer you were not willing to engage in any rehabilitative programmes and would prefer to serve your sentence without attending any programmes.

[23]     Nevertheless, the recommendation is that you work alongside your assigned case manager and psychologist to help identify high risk situations and to develop safety plans to mitigate the risk.  Your risk of re-offending and risk of harm to others is assessed as high.

Letter to the Court

[24]     You consider, Mr Davis, that the report unfairly reflects your attitude towards the offending and you have written a letter to the Court.

[25]     First of all, you thank your family for their support and apologise to them for what has happened.  To the family of Mr Hona, you say there is nothing you can say or do that will bring back their loved one.  But you say you truly apologise for your actions which have resulted in this situation.

Approach to sentencing

[26]     Mr Davis, there is a three-stage approach to sentencing.  First, the appropriate starting point is set.   Secondly, allowance is made for personal aggravating and mitigating factors; and finally, there is a discount for a guilty plea.2

[27]     Your sentence Mr Davis, must be consistent with the purposes and principles of the Sentencing Act 2002 as well as applicable guideline judgments and other case

law.3

2      See Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

3      R v Edwards [2006] 3 NZLR 180 (CA) at [42].

Analysis

[29]     For the reasons given at the sentence indication hearing, I consider that the offending  falls  within  the  lower  end  of  band  two  of  Taueki.    The  factors  in aggravation are (1) the attack which targeted Mr Hona’s head and neck area directly,5 involving the inherently dangerous manoeuvre of a chokehold; (2) the seriousness of the injury, that is, death; and (3) that you left the victim motionless on the floor of the gymnasium.  You did not assist him or seek assistance from others.  The coronial

report notes that the victim was left in an airway-compromised position for approximately 16 minutes and, if the victim’s brain was not already oxygen deprived from the chokeholds, it probably became so shortly afterwards.

[30]     My assessment is reinforced by the comment in Taueki that band one is not appropriate for offences of extreme violence or violence which is actually life threatening.6     The Court of Appeal has since said that the Taueki bands will not always  be  relevant  in  a  manslaughter  sentencing  and  a  cautious  approach  is required.7

[31]     I have considered comparable cases for guidance,8  including “one-punch”

manslaughter cases.

[32]     As the Court of Appeal said in Murray v R, starting points adopted in cases of single punch deaths may need to be increased where the culpability was higher as a

4      The  purpose  include  the  need  to  hold  Mr  Davis  accountable  for  the  harm  done  to  the community; to promote in him a sense of responsibility for, and an acknowledgement of, that harm; to denounce and deter his conduct; to provide for the interests of Mr Hona’s family; and to assist in his rehabilitation and reintegration.   The principles of sentencing under s 8 of the Sentencing Act 2002 which I must consider include the gravity of the offending; the seriousness of the type of offence; consistency with appropriate sentencing levels and similar offenders who have  committed  similar  offences;  and  the  need  to  impose  the  least  restrictive  outcome appropriate in the circumstances.

5      R v Fairbrough, [2014] NZHC 229 8 at [27].

6      At 36.

7      Murray v R [2013] NZCA 177 at [20].

8      Murray v R, above n 7, at [27]

actually used and the fact that death resulted.9

[33]     In any event, an analysis of the one punch manslaughter cases shows that the context and level of culpability is the crucial consideration.10

[34]     In light of the considerations, I am satisfied that a starting point of four and a

half years’ imprisonment is appropriate.

[35]     I turn to consider the aggravating and mitigating factors personal to you, Mr Davis.  There are no mitigating factors which may warrant a discount.  Your pre- sentence report was not positive but I accept you acknowledge responsibility and a degree of remorse in the letter you have written to me.

[36]     However, what you have expressed in your letter is insufficient to attract any discount for remorse over and above that inherent in your guilty plea.  As noted at the sentence indication, I consider the agreed 20 per cent discount for the guilty plea a generous one in the circumstances, particularly given the very late timing of the guilty plea.

[37]     There is no uplift for your previous convictions.  Although you were on bail at the time of this offending, the charges relevant to bail were of an entirely different nature  to  this  offending  and  it  is  not  alleged  that  you  were  in  breach  of  bail conditions.  Furthermore, you were acquitted on those charges.  No uplift is imposed.

[38]     I apply the agreed discount of 20 per cent for your guilty plea.

Conclusion

[39]     Mr Davis, the end sentence is 3 years and 6 months’ imprisonment and you are so sentenced.

9      At [21] and noting the comments in R v Tai [2010] NZCA 598.

10     For example, R v Ioata [2013] NZCA 235, where a one punch when the victim was blindsided resulted in a starting point of five years and R v Bryenton HC Auckland CRI-2009-004-3080, 7

April 2009 where one punch resulted in a four year starting point.

Thomas J