R v Davis
[2013] NZHC 2716
•18 October 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-057-1382 [2013] NZHC 2716
THE QUEEN
v
DANIEL JAMES DAVIS
Hearing: 18 October 2013
Appearances: K Raftery for Crown
G Newell for Prisoner
Sentence: 18 October 2013
SENTENCING REMARKS OF LANG J
R v DANIEL JAMES DAVIS [2013] NZHC 2716 [18 October 2013]
[1] Mr Davis, you appear for sentence today having pleaded guilty following a sentence indication hearing to a charge of murder. That charge, as you know, carries a maximum sentence of life imprisonment. The Court is also required to impose a minimum term of imprisonment that you must serve before being eligible to apply for parole.
[2] Can I begin these sentencing remarks by acknowledging the presence today of Mr Knibb’s family and friends. This is a very difficult day for them. They confront the end of the criminal justice process. That is the end of a very long series of events for them. It began in July 2012, more than a year ago.
[3] I heard today three victim impact statements read to the Court in a tone that I regard as being both moving and measured. I have also had the benefit of receiving a large number of other victim impact statements from persons closely associated with Mr Knibb’s family. Can I say that reading those statements makes it clear that their loss is a huge one. Mr Knibb was clearly a loving and much loved man. Nothing that this Court does today can ever restore to this family and to Mr Knibb’s friends the loss they suffered in July last year. The sympathy of the Court, however, is with you.
[4] I need now to set out the factual background to this matter, even though I did that during the sentence indication hearing. I will not repeat all of the factual background. I will attach my remarks at the sentence indication hearing to my sentencing notes and they will form part of it. Many of the people present in Court today will also have been present at the sentence indication hearing, so they will already be aware of the factual matrix that led to this charge being laid.
Factual background
[5] The charge to which Mr Davis pleaded guilty arose out of an incident that occurred late on the evening of Friday 27 July 2012. Mr Knibbs was a 66 year old retired man, who lived in a caravan in a campground in a rural area.
[6] On the evening of 27 July, he went to a nearby tavern to socialise with other patrons. There, he drank alcohol and watched sport on a television set in the bar.
When it came time for him to leave at about 11.30 pm, you, Mr Davis, offered to provide him with a lift home because you were concerned that he had consumed too much alcohol to be able to drive safely. The two of you then set off in your vehicle, but a short way down the road, Mr Knibb asked if you could drive him back to the tavern so that he could pick up his vehicle. You obliged, and he then drove his vehicle back to his caravan. You followed him and, after arrival at the caravan, the two of you then drank some more alcohol and socialised some more. You did this in a utility shed near the caravan.
[7] Once you had finished drinking and socialising, you went to leave. The events that occurred after that are known only from the contents of a police interview that you subsequently gave. So far as neighbours were concerned, they heard the two of you returning at around midnight and they also subsequently heard some banging noises. Nobody, however, knew exactly what had happened until you later told the police.
[8] Over the weekend, Mr Knibb’s son became concerned about the fact that he had not heard from his father and could not contact him on his cellphone. He went to the caravan on one occasion and knocked, but obtained no response. He also called Mr Knibb’s cellphone and could hear it ringing inside the caravan, but nobody answered it.
[9] By Monday, Mr Knibb’s family were obviously concerned. His two sons went to the caravan. When they got no response, they were able to gain entry to the caravan by removing or breaking a window. When they entered the caravan, they were shocked and horrified to find their father lying dead in a pool of blood on the floor of the caravan.
[10] The police were immediately called and an investigation was undertaken. The police learned, immediately of course, that Mr Knibb had left the tavern in your company on the Friday evening and you immediately became a person of interest in the police investigation.
[11] Mr Knibb’s body was referred to a pathologist for a post-mortem examination. This revealed that Mr Knibbs had extensive bruising to his head, neck and chest areas. All of these were consistent with being due to blunt force trauma. Head injuries included soft tissue bruising, abrasions and lacerations. He also had a fractured nose and left cheek bone. A neck injury included soft tissue bruising and fractures to the thyroid and hyoid bones. The pathologist found that these could be consistent and that death was consistent with either manual strangulation or injury from blows. The injuries to the chest included a fractured rib.
[12] The pathologist concluded that Mr Knibb died of asphyxia due to obstruction of his upper airway. This was caused by a broken denture plate becoming lodged in his airway. It was also exacerbated by bleeding caused by the fractured nose and by the fact that you had placed a plastic bag in Mr Knibb’s mouth. You told the police later that you did that to stop blood coming out of his mouth. All of those factors contributed to Mr Knibb’s death.
[13] When the police interviewed you, you initially denied any involvement in Mr Knibb’s death. Ultimately, however, you agreed that you had gone back to the caravan and drunk alcohol with Mr Knibb. You said that you then went to leave and walked outside the address to your vehicle. At that point you decided to go back into the caravan and ask Mr Knibb for money. When he evidently refused, you caused the injuries that led to his death.
[14] During the sentence indication hearing, counsel agreed that your intention at that time was to take money in the event that it was not freely offered. Inherent in that concession was the notion that you also intended to use whatever means might be necessary to overcome Mr Knibb’s resistance to money being taken from him. In other words, you went back into the caravan with the intention of asking for money and, if agreement was not forthcoming, you were going to use whatever violence was necessary to obtain money from Mr Knibb.
[15] I found, for reasons that it is not necessary to go into at this stage, that your intention at the time you went back into the caravan was sufficient to bring into play
ss 103 and 104 of the Sentencing Act 2002. This requires the Court to impose a minimum term of 17 years imprisonment unless that would be manifestly unjust.
[16] At the sentence indication hearing the Crown had accepted that it might be manifestly unjust to impose a minimum term of 17 years imprisonment, but contended that a minimum term of at least 14 years imprisonment was appropriate. Your counsel had submitted that a minimum term of no more than 12 years imprisonment was appropriate to mark your offending.
[17] I concluded, having regard to relevant cases cited to me by counsel, that an appropriate minimum term of imprisonment to reflect the gravity of your offending and other relevant matters was 13 years imprisonment. I indicated that if you were to plead guilty shortly after the sentence indication hearing, you would be sentenced to a minimum term of 12 years imprisonment.
[18] Through your counsel, you accepted the sentence indication. For that reason it is now necessary for me to sentence you in accordance with it.
[19] After the sentence indication hearing, I received two reports. The first of these was a pre-sentence report setting out background material about you and your upbringing. The second was a report that I directed to be obtained pursuant to s 38(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 at the request of your counsel. This is a report from a psychiatrist, and was obtained to provide the Court with assistance regarding matters that might be relevant to the sentencing process.
[20] Both reports make reference to your extensive use of alcohol since an early age. You clearly have significant problems with alcohol consumption. This has manifested itself in a number of ways, including difficulties between you and your family. It has led you in the past to become involved on occasions in fights. It has also led you to offend by driving your motor vehicle on numerous occasions whilst having excess breath or blood alcohol.
[21] The report from the psychiatrist makes it clear, however, that you have no form of mental disorder that would otherwise explain your offending, or that would otherwise be relevant to the sentencing process.
[22] I take the view that the reports shed some light on the reasons why this dreadful event happened. Quite clearly, you were affected by alcohol on the night in question, and your past history demonstrates that you are prone to become involved in incidents involving violence when you have consumed considerable quantities of alcohol. Obviously, the prison and parole authorities are going to need to take whatever steps they can to ensure that you receive treatment for those issues before your eventual release.
[23] For present purposes, however, the matters contained in the reports do not persuade me that any adjustment is required to the sentence that I indicated would be available in the event that you pleaded guilty.
Sentence
[24] Mr Davis, on the charge of murder to which you have pleaded guilty, you are sentenced to life imprisonment. You are ordered to serve 12 years of that sentence before being eligible to apply for parole.
[25] Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
G Newell, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CRI-2012-057-1382 [2013] NZHC 2157
THE QUEEN V
DANIEL JAMES DAVIS
Hearing: 23 August 2013
Court:Lang J Brown J
Counsel: K Raftery and N F Flanagan for the Crown
G J Newell for the Defendant
Judgment : 23 Augsut 2013
SENTENCE INDICATION (Delivered by Lang J)
Solicitors: Crown Solicitors, Auckland
Counsel: G J Newell, Auckland
[1] Mr Davis is charged with the murder of Mr Stephen John Knibb. He has pleaded not guilty, and his trial is due to commence in this Court on 2 September
2013. Mr Davis has now sought a sentence indication from this Court. A sentence indication is an indication of the sentence the Court would impose in the event that Mr Davis was to enter a guilty plea to the charge in the near future.
[2] As a consequence, the provisions of ss 60-64 and ss 115-116 of the Criminal Procedure Act 2011 are engaged. This means that, in the event that Mr Davis accepts the sentence indication, the Court is bound to impose the sentence as indicated on him. The only exception will be if new material comes to light indicating that the basis upon which the sentence indication has been given should be reconsidered. In that event, it may be necessary to give Mr Davis the opportunity to revisit the issue of his plea.
[3] In addition, any publication of anything said or done at this hearing is prohibited, and it is a criminal offence to breach this prohibition. Importantly, the sentence indication will only be available for the time period given by the Court at the conclusion of the indication. In the event that Mr Davis proceeds to trial and is found guilty, the trial Judge will impose a sentence that he or she considers to be appropriate having regard to the evidence given at the trial. Whatever has been said and done at this hearing will be of no relevance to any subsequent sentencing.
[4] I record that for the purposes of the hearing today I have been provided with the following materials:
(a) Agreed summary of facts;
(b) Copy of the pathologist’s report;
(c) Victim Impact Statements (some of which are at this point unsigned); (d) Transcript of Mr Davis’ videotaped interview by the police; and
(e) Full written submissions by both counsel together with copies of relevant authorities.
Background
[5] The charge that Mr Davis faces arises out of an incident that occurred late on the evening of Friday 27 July 2012. Mr Knibb was a 66 year old retired man who lived in a caravan in a rural area. On the evening of 27 July he went to a nearby hotel, where he socialised with those present and watched sport on a television set in the bar. He left the hotel at about 11.30 pm in the company of Mr Davis. Mr Davis initially agreed to drive Mr Knibb home because Mr Knibb was in an intoxicated state. Some distance down the road, however, Mr Knibb asked to go back to the hotel so that he could uplift his vehicle and drive himself home. Mr Davis complied with this request, and took Mr Knibb back to the hotel where Mr Knibb got into his car. Mr Davis then followed Mr Knibb’s vehicle back to the caravan park a short distance away where Mr Knibb was living.
[6] The two men then went into a utility shed near the caravan and drank alcohol for a period. At the end of this Mr Davis went to leave. What happened after that point is known only from the interview that Mr Davis subsequently gave to the Police.
[7] So far as the outside world is concerned, there was nothing further heard from Mr Knibb over the weekend. His son endeavoured to contact him with no success. On one occasion his son went to the caravan and knocked but obtained no response. He then called Mr Knibb’s cellphone and could hear this ringing inside the caravan, but nobody answered it.
[8] On Monday 30 July 2012, Mr Knibb’s two sons went back to the caravan. When they obtained no response on this occasion, they removed or broke a window and gained access to the caravan. There they made the shocking discovery of Mr Knibb’s battered and bruised body lying in a pool of blood on the floor of the caravan.
[9] The Police were immediately called and an investigation was undertaken. The Police learned that Mr Knibb had left the hotel with Mr Davis. They also spoke to Mr Knibb’s neighbours and discovered that the neighbours had heard the men
returning at around midnight. They had heard the sound of raised voices and banging.
[10] The Police interviewed Mr Davis at some length. Initially he denied any involvement in Mr Knibb’s death. Ultimately, however, he agreed that he had gone back to the caravan park and had drunk alcohol with Mr Knibb. He said that he then went to leave, and walked outside the address to his car. At that point he decided he would ask Mr Knibb for some money.
[11] An issue arises as to Mr Davis’ state of mind at this point. In his interview with police, Mr Davis said only that he went back to ask for money. He made no mention of intending to steal it if Mr Knibb did not provide it willingly. The summary of facts, however, specifically records that he decided to go back into Mr Knibb’s caravan in order to steal money.
[12] Today counsel have conferred, and it has been agreed that I should proceed on the basis that Mr Davis went back into the caravan to ask for money. He intended at that time to take money in the event that it was not freely offered. Inherent in that concession is the notion that he also intended to use whatever means was necessary to overcome Mr Knibb’s resistance to his money being taken from him. In other words, Mr Davis went back into the caravan with the intention of asking for money and if agreement was not forthcoming, to use whatever violence was necessary to obtain money from Mr Knibb.
[13] Mr Davis said that after he asked Mr Knibb for money, Mr Knibb refused. At that point Mr Davis became angry, and in his own words “he flipped”. He immediately began punching Mr Knibb about the face and chest. When Mr Knibb fell to the ground, Mr Davis leapt on top of him and began strangling him. When the police asked Mr Davis the level of force that he had used whilst doing this, he said “pretty much all I had”. When Mr Knibb was incapacitated, Mr Davis searched through the caravan. He then took some items from it including a bone pendant, a bottle of liquor and some packaged medication. He then returned to his home address.
[14] At the conclusion of the police interview Mr Davis took the police to his home address. There they found blood stained clothing. In a mini skip outside the address they found further items of blood stained clothing. They also found items belonging to Mr Knibb including his wallet, keys and packaging from medication taken from the caravan.
The issues
[15] Against that background it is necessary to consider the sentence to be imposed on Mr Davis. The only sentence that can be imposed in these circumstances is a sentence of life imprisonment. Neither counsel suggests that a lesser sentence should be imposed.
[16] Whenever the Court imposes a sentence of life imprisonment, it is required to have regard to the provisions of ss 103 and 104 of the Sentencing Act 2002 (“the Act”). These prescribe the minimum term of imprisonment that the Court must impose whenever it imposes a life sentence of imprisonment. In general terms, the minimum term must be not less than 10 years imprisonment. The Court must, however, impose a sentence that properly reflects the need to denounce the crime, to hold the offender accountable for it and to protect the community.
[17] The Court is also required to consider whether the circumstances that have given rise to the offending are such as to trigger the provisions of s 104 of the Act. Section 104 of the Act requires the Court to impose a minimum term of 17 years imprisonment unless it would be manifestly unjust to do so.
Application of s 104
[18] In this case the Crown says that aspects of Mr Davis’ offending trigger the provisions of s 104. It points out that Mr Davis was a young man who attacked a man who was considerably older than himself, and also significantly affected by alcohol. It acknowledges that this is not sufficient to trigger s 104(1)(g), which entitles the Court to take into account the fact that a victim may be particularly vulnerable. Nevertheless, the Crown says that this is a factor that must be weighed in the mix. The thrust of the Crown submission that s 104 is engaged based on the
fact that Mr Davis was unlawfully on Mr Knibb’s premises for the purposes of carrying out the crime of robbery. This is a factor that the Court can take into account under s 104(1)(c). That section applies if the murder involved the unlawful entering into or unlawful presence in a dwelling place.
[19] In the present case there is no dispute that Mr Davis was initially on Mr Knibb’s property with his full consent. Throughout the time they were drinking together he was obviously there with Mr Knibb’s consent. The issue arises as to the status of Mr Davis on Mr Knibb’s property after he decided to go back into the caravan to ask for money.
[20] I take the view that the Crown must be correct in saying that at that point his presence on the property became unlawful. It became unlawful because he had decided that if Mr Knibb did not give him money, he would take it from Mr Knibb using whatever force was necessary to overcome resistance. I therefore take the view that s 104(1)(c) is engaged and that s 104 of the Act is triggered. As a result, it would be necessary for the Court to impose a sentence of 17 years imprisonment unless that would be manifestly unjust.
Manifestly unjust
[21] I therefore need to consider whether it would be manifestly unjust to impose the minimum term that Parliament has decreed for this type of offending. In assessing this issue, I find it helpful to consider what the minimum term would have been but for the factor that brings s 104 into play. Counsel have referred a large number of cases to me. All cases involving the charge of murder obviously differ in many ways. No one case is ever exactly the same as another. To that extent other cases only provide broad assistance in assessing where the answer lies.
[22] I have found the two most helpful cases to be R v MacLaughlin1 and R v Ranapia.2 In both of those cases the victim was badly beaten, in fact beaten to death, by the offender using blows from fists and kicks. In both cases the attacks
appear to have been significantly more sustained than that in the present case.
1 R v MacLaughlin HC Auckland CRI-2004-092-4430, 11 October 2005.
2 R v Ranapia HC Whangarei CRI-2008-088-4443, 23 October 2009.
[23] Nevertheless, the attack in the present case must have been reasonably sustained simply because of the level of injuries that Mr Knibb suffered. A post- mortem report showed extensive bruising to the head, neck and chest of Mr Knibb. All of these were consistent with being due to blunt force trauma. The head injuries included soft tissue bruising, abrasions and lacerations. He also had a fractured nose and left cheekbone. The neck injury included soft tissue bruising and fractures to the thyroid and hyoid bones. The pathologist found that these could be consistent with either manual strangulation or blows. The injuries to the chest included a fractured rib. The pathologist concluded that Mr Knibb died of asphyxia due to obstruction of his upper airway. This was caused by a broken denture plate becoming lodged in the airway. It was also exacerbated by bleeding caused by the fractured nose and by the fact that Mr Davis placed a plastic bag in Mr Knibb’s mouth for the reason, he said, of stopping blood coming out of Mr Knibb’s mouth. All of those factors contributed to Mr Knibb’s death.
[24] In both the cases to which I have referred the Court adopted a starting point for a minimum term of imprisonment of 11 years. That is the appropriate starting point in the present case in my view but for the aggravating factors relating to Mr Davis’ intention to rob Mr Knibb in his own caravan using violence if necessary. I take the view that an increase of six years to reflect those aggravating factors is far too great to reflect their gravity in terms of the purposes and principles of sentencing contained in the Act. I therefore take the view that this case falls outside the range of cases to which s 104 is designed to apply, and that it would be manifestly unjust to impose a minimum term of 17 years imprisonment.
The appropriate minimum term
[25] This leads me to the next issue, which is what the appropriate minimum term should be having regard to the aggravating factors I have identified. The Crown contends that a minimum term of at least 14 years imprisonment is necessary. Counsel for Mr Davis submits that a minimum term of no more than 12 years imprisonment is appropriate. I consider that the answer lies in the middle of the two submissions. I consider that the additional aggravating factors upon which the Crown relies warrant the addition of two years to the minimum term than would
otherwise be appropriate. I therefore fix a minimum term of imprisonment as
13 years as being appropriate.
Allowance for guilty plea
[26] Counsel accept that credit should be given for a guilty plea. In the present case this comes at a late date because of the proximity of the trial. Nevertheless, a guilty plea would achieve several objectives, all of which must be given concrete recognition. The first of these is that Mr Davis will have accepted full responsibility for Mr Knibb’s murder. The second is that the family and friends of Mr Knibb will be spared the trauma of reliving his last hours through the medium of a court trial. That is a traumatic and distressing experience for any family of a deceased person, and that is an important issue. Finally, it will save society and the State the inevitable cost of a reasonably lengthy criminal trial.
[27] The credit to be given to a guilty plea in these circumstances is different to that given when the Court is ordinarily passing sentence. In those circumstances the Court can apply a discount of up to 25 per cent to reflect an early guilty plea. In cases involving minimum terms of imprisonment, however, different principles apply. Generally speaking, deductions of no more than one to three years are made from minimum terms of imprisonment to reflect a guilty plea. I take the view that an appropriate deduction in the present case is one year.
Result
[28] This means that, in the event that Mr Davis wants to accept this sentence indication, he would be required to serve a minimum term of 12 years imprisonment before being permitted to apply for parole.
[29] The trial is drawing near, and it is important that an early decision be made. Mr Davis must, however, have time to reflect upon his options and come to a considered decision. Balancing those two factors, I will leave this sentence indication open until 5 pm on Monday 26 August 2013. In the event that Mr Davis decides to accept the sentence indication, his counsel should file a memorandum to that effect with the Registry. Mr Davis would then be required to attend the criminal
callover at 9 am on 28 August 2013, when a guilty plea will be accepted. At that point the proceeding will be adjourned for approximately six weeks to obtain the necessary reports and signed victim impact statements. At present, although I have a number of victim impact statements and have read them before the hearing today, some of those are unsigned and that will need to be rectified.
[30] So that is the indication of the Court. Mr Newell, if you could file a memorandum on Monday.
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