R v Davis
[2015] NZHC 2289
•22 September 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-87 [2015] NZHC 2289
THE QUEEN
v
CHARLES RICHARD DAVIS SEAN MCKAY
Counsel: H K Goodhew for Crown
P V Paino for Davis
P J Knowsley for McKaySentencing:
22 September 2015
SENTENCING NOTES OF WILLIAMS J
[1] Charles Davis you appear today for sentence having pleaded guilty on
29 July 2015 to three counts:
(a) wounding with reckless disregard; (b) wounding with intent to injure; and (c) unlawful possession of a firearm.
[2] Sean McKay you appear for sentence having pleaded guilty on the same date to one count of injuring with intent to injure.
[3] You gentlemen and the prosecution have reached an agreement on the factual basis upon which I am to sentence you both. Having presided over the trial myself at
which the leading primary fact witnesses gave evidence and were tested by your
R v DAVIS & ANOR [2015] NZHC 2289 [22 September 2015]
lawyers prior to your guilty pleas being given, I am happy that the agreed factual basis upon which I am to sentence today is sound. It is only necessary for me therefore to summarise the essential agreed elements for the purposes of your sentences.
[4] The two of you were friends and you Mr McKay were temporarily staying at Mr Davis’ home on the night in question. Mr Davis you shared that address with your partner, Melissa Horo, who was originally charged as an accessory in this incident and with your then five year old son. At trial, the Crown consented to Ms Horo’s discharge.
[5] Mr Davis you didn’t know Grayson Manktelow but he was a friend of yours, Mr McKay.
[6] During the early hours of Friday 9 August last year, there were communication exchanges between Mr Manktelow and you Mr McKay in which Mr Manktelow sought payment of a $200 debt apparently for drugs and for living expenses it suggested. There had been considerable delay in repayment and you had offered a larger sum in compensation for that delay. Mr McKay you invited Mr Manktelow to the address where you were staying in order to resolve the issue.
[7] Mr Manktelow eventually arrived with a carload of young men but he went to the door alone and was let into the house. He was wearing a Headhunters’ hoodie at the time and in my view that apparel was not coincidental.
[8] Mr Davis you had a small caliber pistol in your possession at the house. It was loaded with ammunition in a magazine. You had no licence for it. Following the incident, the pistol was never found.
[9] As Mr Manktelow entered the house and walked down the hallway there was yelling between him and you, Mr McKay. Mr Davis you had been asleep but you were woken and then came out into the lounge carrying the pistol. Mr Davis, at some point you punched Mr Manktelow in the head and body striking him with what the agreed statement of facts calls a blunt instrument, to the head causing multiple
wounds. Mr Davis you forced Mr Manktelow into the lounge and pushed him onto the ground by the couch. During this exchange Mr McKay, you were sitting nearby on another couch.
[10] Mr Davis, you presented the pistol at that point in close proximity to Mr Manktelow’s face yelling at him and threatening him. You cocked the pistol ejecting a live round from the chamber apparently in order to prove to Mr Manktelow that the gun was in fact real and that he should be afraid.
[11] Then it seems you left the room and Mr Manktelow made to leave down the hallway. You, Mr McKay, then began punching Mr Manktelow repeatedly in the head and upper body preventing his departure. Some blows were blocked, perhaps the majority, it’s hard to know, but some of your blows landed on his face and head. Mr Davis you then returned from another room and joined the melee.
[12] Mr Manktelow was by this attention forced back into the lounge and onto the floor. Mr Davis, at some point you told him that if he left you’d kill him. When Mr Manktelow was on the floor, Mr Davis you continued to kick him about the head and body.
[13] Mr Davis, you then presented the pistol again and demanded Mr Manktelow remove his gang colours. Mr Manktelow was on the floor and you were standing above and in front of him. Mr Manktelow was face down with his hands up and covering and protecting the back of his head. You, Mr Davis, then pulled the trigger intentionally firing a round from the weapon. It is agreed that did not intend to kill Mr Manktelow or indeed to shoot him in the head at all. Your intention was rather to fire the weapon nearby him in order to scare him.
[14] Instead the fired bullet struck Mr Manktelow’s right hand as it was held up against the back of his head. The bullet penetrated the soft tissue near his thumb and grazed along the top of his head causing a 7 cm long furrow along the top of his skull.
[15] You Mr Davis then went outside with the pistol and threatened Mr Manktelow’s associates who were outside demanding that they get away from your house.
[16] At some point in this latter exchange, Mr Manktelow took the opportunity to run out the door, head bleeding and hand injured, and run around to the Hutt Hospital emergency department, which as luck would have it, was just around the corner.
[17] You, Mr Davis, left the address too, clearly knowing that things had got badly out of hand. You were found hiding some days later in a lock-up garage. You, Mr McKay, remained behind cleaning up the scene before leaving the address and being arrested nearby.
[18] A number of injuries were caused to Mr Manktelow, the bullet wounds to hand and head I’ve already discussed. Mrs Manktelow’s victim impact statement on behalf of her son records that Mr Manktelow’s hand is still giving him a great deal of trouble and pain. There were other wounds to his head from the beating from punches and from the blunt object. They included:
(a) a 1-2 cm V-shaped cut to Mr Manktelow’s scalp above the forehead requiring surgical staples;
(b)two small lacerations 1-3 cm long at the back of the head near the base of his skull, also needing staples;
(c) a laceration to his ear;
(d)multiple small (about half a centimetre) wounds scattered over the head; and
(e) a CT scan showed small areas of bruising on the left front and rear base of his scalp.
[19] Minor plastic surgery was required. Mr Manktelow has also suffered ongoing psychological effects. Bad headaches, hyper awareness, vigilance and the
like. He has, in ordinary parlance, been psychologically scarred by the experience. It will take some time for those invisible wounds to heal.
[20] Mr Davis, I’ll deal with your sentence first before turning to you Mr McKay.
[21] As I have said Mr Davis, you face three counts. I will treat the wounding with reckless disregard charge relating to the gunshot wound as the lead charge. That’s because although the reckless disregard element is a lesser element than “with intent” as it were, the fact that the reckless disregard charge relates to the use of a gun and the gunshot wounds Mr Manktelow suffered were more serious than the blunt instrument wounds, means that it’s still appropriate to treat the firearm-based charge as the primary one.
[22] The aggravating features of this charge are obviously that you used a lethal weapon. Indeed you and Mr Manktelow (and indeed Mr McKay who might have found himself being charged as a party) are very lucky that you’re not facing a murder charge. The gun was low caliber – true, but it was pointed at Mr Manktelow’s head while he lay on the ground, and you were clearly reckless about the risks involved in that action.
[23] Second, this became an attack to Mr Manktelow’s head – a serious aggravating feature even when weapons aren’t used. Third, there was of course the physical injury although the injury was moderate rather than serious. As I have said, this was the result more of luck than anything else.
[24] Having considered the matter, I do not think that vulnerability of Mr Manktelow is an issue in this case, at least not as the authorities treat that question. Mr Manktelow walked into your house wearing gang colours to collect a drug debt with a car full of men waiting for him outside. On the other hand, I do not consider that circumstance to be a mitigating circumstance for you either.
[25] A starting point of two and a half years1 is appropriate on the reckless disregard count. Although this is high for a reckless charge, it must be remembered
1 Upper end of Band 2 of Nuku with deduction for lesser mens rea.
that the pistol was held to the victim’s head and he was repeatedly threatened before it was intentionally fired.
[26] An uplift is required for the second attack to the head reflected in the second charge involving the blunt instrument, and for the wider assaults to head and body. I would uplift by 18 months to take proper account of that. As I have said this involved attacks to the head as well as multiple attackers at one point at least.
[27] I agree with Mr Paino that there is no justification to uplift on the firearms possession count that you faced during the trial, as the presence of the firearm is such a powerful aggravating feature on the first charge that to uplift again would be to double-count for effectively the same element.
[28] I had intended to impose a further small uplift for the fact that your offending occurred while you were on bail but I’ve been convinced by Mr Paino that that would be inappropriate. Having reconsidered Judge Hobb’s sentencing notes in the circumstances of your earlier offending giving rise to the bail matter, I consider that the sentence you received in that context, a period of imprisonment, made necessary because you were in prison at the time, was a more than sufficient recognition of the circumstances of that offending, and an uplift now would not be appropriate. I do however consider that a small uplift for your previous relevant offending is justified
– two months for that purpose.
[29] Mr Paino has advised that you have provided an apology to the victim, in fact I have an original of that letter in which Mr Davis you say all the right things. You’ve enrolled in a non-violence programme which you paid for yourself. And your counsellor advises that your engagement in the programme has been excellent so far. He tells the story gleaned from you of your background and upbringing including the context of your father’s death by violence. There can be no doubt that these are contributing factors to the circumstances in which you find yourself today.
[30] You’ve also offered $1,000 in emotional harm reparations and paid it into Mr Paino’s trust account – a practical and potentially powerful recognition of the wrong of your offending. Your pre-sentence report acknowledges that your approach
to your own assessment of your offending this time differs from the anti-social, pro- entitlement approach you’ve brought to earlier exchanges with Probation. The Probation Officer acknowledges that change, but expresses some scepticism (understandably given your history and lifestyle up to now). You have positive references from associates, from an employer, and a loving and loyal reference from your partner, Ms Horo on behalf of herself and your son.
[31] There’s no doubt in my mind that some discount is justified for the extra steps you have taken, that demonstrate in my view insight, some remorse and (I think, I’m prepared to say) a genuine attempt to change. Time will tell, I’ve been wrong before, but I expect I’m right this time. I would deduct four months for these matters.
[32] A small discount is warranted for your guilty plea. A three month deduction for that.
[33] Please stand Mr Davis.
[34] Mr Davis, adopting the wounding with reckless disregard count as the lead offence and on a totality basis, I sentence you to three years seven months’ imprisonment.
[35] On the wounding with intent charge, I sentence you to a concurrent term of two and a half years’ imprisonment. And on the possession charge, I sentence you to a concurrent term of three months’ imprisonment.
[36] I direct that you pay the $1,000 paid into Mr Paino’s trust account into Court by way of reparations to be forwarded to Mr Manktelow for his benefit.
[37] Please be seated.
[38] I turn now to you Mr McKay.
[39] Your involvement in this violent incident was limited to punches to the head
and body in response to Mr Manktelow’s attempts to leave the house. Your attack to
the head was therefore an aggravating feature of your offending as was the fact that your assaults formed part of the overall transaction including Mr Davis, and that at one point, for a short period at least, you joined the attack with Mr Davis at the same time. So the multiple attacker element is also present. But to counter that, the injury was caused by bare fist only, no weapon was involved and nothing other than fists.
[40] The Crown adds that there is victim vulnerability and it is suggested (I think) serious injury, but I consider this to be somewhat overstated. Once again it ought not to be forgotten that the victim was a man wearing gang colours collecting a drug debt preceded in the Facebook and text exchanges by the making of somewhat veiled threats to you Mr McKay about the debt.
[41] In addition, the injuries, although real enough, were moderate, and largely attributable to Mr Davis. The Crown accepts that only bruising and abrasion injuries are attributable to you.
[42] I do not consider that a starting point of three years is at all appropriate. A
starting point in the mid-range is more appropriate in your case, 18 months.2
[43] You have some relevant history. Four convictions for threatening to kill and one male assaults female. An uplift is justified on these of three months.
[44] A discount for your guilty plea is also appropriate. I accept that you pleaded guilty at the moment the charges were downgraded from wounding to injuring, though the story is somewhat complicated because there were clearly negotiations between your lawyer and the prosecution over the terms of sentence indications prior to that event. So it doesn’t seem to me to be appropriate to treat the guilty pleas as at the earliest possible time. I would discount three months for that, treating the matter generally and in the round.
[45] That leaves an end sentence of 18 months’ imprisonment.
2 Mid range in Band 2 of Nuku.
[46] It is appropriate therefore to consider whether the least restrictive sentence in your case should involve home detention. Your pre-sentence report recommends this outcome. Having said that, you have a significant record of breaching community- based sentences. In your favour, you have complied in all respects with bail since you pleaded guilty.
[47] Your circumstances seem to have changed Mr McKay. When you were first bailed I had a discussion with your mother who is here in Court supporting you again today. It’s hard to beat the loyalty of a mother. You’re a lucky man. That discussion suggested to me that your non-compliance problems may well belong to the past not the present. And the experience while you were on bail does seem to bear that out.
[48] There’s no doubt you will have issues going forward. But I’m impressed that you are attempting to address them by voluntary engagement on the Bridge programme in order to confront what I think is the root of your problem Mr McKay, addiction. If you weren’t addictive you wouldn’t’ be here and you’d be doing something that didn’t involve such horrendous stress in your life and anxiety for those around you who love you. Listen to your mother, she’s a wise woman.
[49] So you’re entitled to some credit for the three months and 23 days (apparently) during which you were incarcerated on remand and a lesser time for the eight weeks on EM bail with strict restrictions.
[50] Although I agree with Ms Goodhew that it’s not a one-to-one calculation. It’s not that simple. The fact that you were bailed then remanded in custody then bailed again all indicate that there’s a great deal more to your story than would allow a straight one-to-one calculation.
[51] I would on that basis deduct three and a half months from your home detention sentence for all of these matters.
[52] Mr McKay I therefore sentence you to six months’ home detention
accordingly with the special conditions suggested in the pre-sentence report.
[53] I have considered community work in addition, but I don’t consider that it is appropriate. What is clear to me is that you need direct and vigorous help with your addictions Mr McKay. I don’t have the power to direct you to embark on a drug and alcohol treatment programme, you’ve taken some steps already by yourself, but my view is strong on this, if you don’t receive the benefit of such a programme, you’re going to be back here again, and on much more serious charges. And it won’t be just your hands that are tied, my hands will be tied too. I say this in the hope that the Department of Corrections will take my comments into account.
[54] Stand down please.
Williams J
Solicitors:
Crown Solicitors, Wellington
A O’Connor, Wellington
Paino & Robinson, Upper Hutt