R v Davis HC Christchurch CRI-2010-009-010257

[2011] NZHC 451

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-009-010257

THE QUEEN

v

GARETH WILLIAM DAVIS

Prisoner

Appearances: M Zarifeh for Crown

D Bunce for Prisoner

Judgment:      4 May 2011

REMARKS ON SENTENCE OF CHISHOLM J

[1]      Gareth Davis, you can remain seated until I finally impose sentence on you.  I

will ask you to stand at that stage.

[2]      You have pleaded guilty to rape, four counts of unlawful sexual connection, one of abduction for sex, a count of wounding with reckless disregard and finally one of threatening to kill.   Those pleas were entered in the District Court but the District Court declined jurisdiction after the Crown indicated that it wished the issue of preventive detention to be considered.   Hence you are being sentenced in this Court.

[3]      The offending involved one complainant who was known to you.   She is a

20 year old female.  Her ordeal extended over three hours.

[4]      At around 11.00 p.m. on 9 July 2010 the victim returned to her home from work.  She found her partner was not home and sent a text to you asking whether

R V DAVIS HC CHCH CRI-2010-009-010257 4 May 2011

you were with him. As it happened you were with him at a tavern.  However, instead of replying at that stage you went home and sent a text to the victim saying that her partner was at your home with you.  In truth he was still at the tavern.  Then about

1:00 a.m. in the morning you phoned the victim asking her to come and pick up her partner.

[5]      By the time she arrived you had armed yourself with a knife, the blade of which was about 20 cm in length.   You were hiding outside your home in the darkness.    When  she  arrived  you  got  in  the  passenger  seat  of  her  car  and  at knifepoint made her drive to a secluded area.  When she attempted to ring 111 you disabled her telephone and threw it into the darkness.

[6]      After you arrived at the secluded area you forced her out of the car and inflicted an eight centimetre wound on her chin. You then performed oral sex on her, unsuccessfully tried to penetrate her (by way of penile penetration) and you digitally penetrated her vagina and anus.  Then you forced her to drive to another location where you raped her.  This was a prolonged episode involving force and also a threat to kill her.   To say that this ordeal was terrifying for your victim is to understate the position.

[7]      Ultimately, after three hours, you allowed her to drive you home and she immediately called the police.

[8]      I do not know whether you have read the victim impact statements but it is perfectly clear to me, Mr Davis, that the impact on this victim has been severe, as one would expect it to be.  She now has a permanent scar on her chin.  Apart from that she suffered bruising and a rash that was probably attributable to being on the ground.   She suffered immense psychological trauma and has had to take time off work. These events will be on her memory forever.

[9]      As far as you are concerned, Mr Davis, you are 26 years of age now.  At the time of the offending you were 25.  You have eight previous convictions, the most serious of these convictions was in 2006 when  you were sentenced to a year’s imprisonment with leave to apply for home detention in relation to injuring with

intent to injure.  As I understand it, home detention was granted and you did not actually serve a term of imprisonment.  The other convictions relate to drink driving (3), other driving offences, trespass and breach of a community work order.

[10]     In 2003 you were acquitted on two counts of grievous bodily harm on the basis of automatism and in 2004 you were acquitted on a charge of rape.

[11]     According to the probation officer you have a “horrendous” alcohol problem. It was the probation officer’s view that you have a degree of insight into your offending and that you are motivated to take treatment.  Mr Bunce has read various extracts from the report in that regard.  But, given your poor problem solving and your use of alcohol, the probation officer was of the view that there is a high risk of reoffending.

[12]     Because  preventive  detention  is  being  considered  two  health  assessors’ reports were obtained, one from a psychologist, Ms Bremner, and the other from a psychiatrist, Dr Parker.

[13]     Ms Bremner conducted extensive interviews with you and has provided a lengthy report.   She formed the view that you have hostility towards women as a result of the rape allegation in respect of which you were acquitted.  There is also reference to wishing to harm women which is, of course, a matter of considerable concern.

[14]     Having conducted various tests Ms Bremner concluded that the risk of you committing another relevant sexual or violent offence was moderate to high.   She noted that you had no treatment history and was therefore not in a position to determine the efficacy or otherwise of treatment intervention.   She accepted that there was a need for assistance.

[15]     Unfortunately the interview with Dr Parker was not completed because you withdrew from the interview.  This seems to have occurred after Dr Parker probed your previous acquittal and your current offending.  Like Ms Bremner, Dr Parker did not think that you were being completely honest with him.  He noted that you had

received treatment for your alcohol problem since 2007.   Dr Parker expressed the view that you were unlikely to have been acting under automatism when the alleged grievous bodily harm offending arose in 2003.  In other words he expressed the view, and gave reasons for it, that you had been wrongly acquitted.

[16]     Dr Parker noted a resentment and anger towards women, thoughts of harming women and homicidal thoughts.  He also endorsed the earlier reports to the extent that they had concluded that you have a major alcohol problem.   He declined to assess the likelihood of reoffending but noted similarities between the events giving rise to the 2003 grievous bodily harm acquittal and the current offending.

Finite Sentence

[17]     A finite sentence is a sentence with an end and I am going to consider this possibility before moving to the issue of preventive detention.

[18]     I take the rape count as the lead charge.  In determining the starting point I am guided by the recent decision of the Court of Appeal in R v AM.  Both Mr Zarifeh and Mr Bunce agree that in terms of that decision you fall within band 3.   They differ, however, as to where you fall within that band   (which indicates a starting point of between 12 and 18 years).   The Crown suggests that the starting point should be within the range of 15 to 17 years whereas Mr Bunce suggests that the starting point should be at the bottom of the band, namely, 12 years.

[19]     In assessing the starting point I take into account your culpability and the relative seriousness of this offending.  There is to a large extent, I think, a measure of agreement that there are aggravating features that makes this offending very serious indeed.

[20]     First, premeditation: you effectively lured your victim to your home.   You obtained a knife and lay in wait, all indicating premeditation and planning.   This is against a background where the reports I have indicate that you have anger towards women, and a desire to exact revenge.  Nothing that I have read provides any other

explanation as to why you lured this woman and subjected her to the ordeal that followed.

[21]     Secondly, there is the degree of violence:   albeit recklessly, the knife was used.  I agree with the Crown that it was used so that you could establish control over this victim. The multiple offending involved violence as well as a threat to kill.

[22]     Thirdly, there is the abduction:   you held this woman against her will for around three hours.

[23]     Next, there is the harm to your victim:  it is physical and emotional.  Perhaps it could be more accurately described as psychological.  There was extremely serious harm to your victim in this case.

[24]     Finally, there is the scale of the offending:  you subjected your victim to a multitude of indecencies.

[25]     When I put all those factors together I am drawn to the conclusion that the starting point needs to be in the middle of band 3.  To my mind it is certainly more serious than the examples given by the Court of Appeal in R v AM at para [105] to illustrate a starting point at the bottom of the range.   Thus I reject Mr Bunce’s submission that the starting point should be 12 years.   I adopt a starting point of

15 years. There is nothing to indicate an uplift beyond 15 years.

[26]     So I then turn to the issue of the discounts.  I should mention at this stage that there was some debate as to whether I should apply the Supreme Court sentencing decision in R v Hessell.   I have no doubt that it should be applied, and I apply it accordingly.

[27]     First I consider whether there should be any discount for remorse.  If I was approaching the matter on the basis of the probation officer’s report alone I would have probably have provided some discount for remorse.   But, having read the reports of the psychologist and psychiatrist it seems to me that there were developments that render it inappropriate for any discount to be allowed for remorse.

Both health professionals were concerned about the accuracy of what you told them. There were also questions in their minds about the genuineness of your remorse. And to cap things off you walked out on the interview with Dr Parker.  So I decline to allow any credit for remorse.

[28]     You are entitled to a full credit for your guilty pleas which were entered at the first available opportunity.   That will be at the maximum credit of  25% which equates to three years and nine months.  Subject to the issue of preventive detention the sentence indicated by consideration to this point would be one of 11 years and three months’ imprisonment.

Preventive detention

[29]     This aspect causes me immense concern.  I have heard extremely helpful and constructive submissions from Mr Zarifeh and Mr Bunce.  I have certainly not found this an easy issue to resolve and have changed my mind on more than one occasi on when considering this aspect.

[30]     The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to its safety.

[31]     The rape constitutes a qualifying offence under s 87(2)(a) of the Sentencing Act  2002.   You  are  over  18 years of  age  which  satisfies paragraph  (b)  of that subsection.

[32]     Under s 87(2)(c) the Court needs to be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released following the finite sentence.  The information that I have from the probation officer is that there is a high  risk  of  reoffending  although  that  is  not  expressed  with  reference  to  the preventive detention criteria.  Ms Bremner was of the view that you pose a moderate to high risk of reoffending in relation to qualifying sexual or violent offences.  As I have already indicated, Dr Parker declined to quantify the risk but did conclude that you pose a greater risk than the population at large.

[33]     In  terms  of  risk,  everyone  has  been  concerned  about  your  anger  and resentment towards women and your fantasies about harming them.  There has, as I have already mentioned, been reference to homicidal thoughts.   In terms of risk, there is probably enough to pass the threshold in s 87(2)(c).

[34]     But that is not the end of the matter.   The five factors in s 87(4) must be considered.

[35]     First,  any  pattern  of  serious  offending  disclosed  by  your  history.     In considering this matter I do not go behind the acquittals which I take at face value. So in terms of any pattern that might exist, these are the considerations. You were 25 years  of  age  when  this  most  recent  offending  occurred.    The  only  previous conviction that could be regarded as significant was the conviction in 2006 for grievous bodily harm.  In terms of the current offending, while it involved multiple offending it involved only one series of events.   When all those factors are put together I would have difficulty in concluding that there had been a pattern of serious offending of the type that would normally accompany a  sentence of preventive detention.

[36]     The  next consideration is the seriousness of  the  harm to  the  community caused by your offending.  It could not have been more serious.

[37]     The  third  factor:    information  indicating  a  tendency  to  commit  serious offences in the future.   This is the really difficult consideration.   Understandably, Mr Zarifeh has submitted that this is a situation where the risk indicators are strong. The Crown fears that if you are not sentenced to preventive detention you are likely to reoffend and in possibly a more serious way than in this current offending.  This reflects your homicidal thoughts.

[38]     Mr Zarifeh has emphasised your low self esteem, your alcohol problem, your resentment and anger towards women, and your homicidal tendencies.  He suggests that you do not have the requisite openness for treatment to be successful and that the only way your risk to the community can be managed is by sentencing you to

preventive detention.  (I expect that you understand that preventive detention means an indefinite sentence of imprisonment.)

[39]     On  your behalf Mr Bunce has argued that the Crown has overstated the position, that the risk is not as serious as has been indicated and that your problems are not, as he put it, “so hopelessly deep-rooted” that they cannot be addressed by treatment.

[40]     As I have  already indicated  there is clearly a  risk  of  reoffending.   This reflects the matters that were mentioned by Mr Zarifeh.

[41]     The next consideration is the absence of efforts by you to address the cause or causes of the offending.  It is apparent that you have received treatment for alcohol dependency since 2007 and it can be inferred that that has not worked.  Apart from that it appears that you have not received treatment to address the sexual issues.  In effect the crown says that your attitude is such that treatment would be a waste of time and the only solution is to impose a sentence of preventive detention so that it will be in your hands whether or not you come out of prison.

[42]     I note  however  that  Ms Bremner  has specifically addressed  this issue  of treatment.   She seems to indicate that it could be of benefit.   Clearly there is a correlation between risk and successful treatment.

[43]     Finally, I need to take into account the principle that a lengthy determinative sentence is preferable if it provides adequate protection to society.

[44]     Having  traversed  those  matters  I  now  step  back  and  assess  whether preventive  detention  should  be  imposed.    This  is  an  extremely  finely balanced matter.  Do you understand Mr Davis that you are facing the prospect of spending the rest of your life in prison?.   Do you realise that?   (Prisoner indicates that he does).

[45]     Albeit  with  misgivings,  I  have  decided  that  a  finite  sentence  should  be imposed rather than a sentence of preventive detention.  Amongst other things this

reflects  your age and the absence of a history of offending of this nature.  I note that you have not been to prison before.   My decision also reflects that you have not received the benefit of any psychological or other interventions (except in relation to alcohol) and the indication from Ms Bremner that intervention might be beneficial.

[46]     I hope I am not wrong, Mr Davis, in declining to adopt the pessimistic view about treatment expressed by the Crown.  You are going to have to make sure that you take up every opportunity for assistance given to you in prison.  If not, and you come back to Court for offending that could give rise to a sentence of preventive detention, you may well find yourself in prison indefinitely.   So I hope you take this warning, change your attitude in numerous respects, especially towards women.

[47]     Now would you stand please.

Sentence

[48]     You are sentenced to 11 years and three months on the rape.  In addition the following concurrent sentences will be imposed.  On each count of sexual violation and the abduction count, five years’ imprisonment.   On the wounding charge, one years’ imprisonment.    And  on  the  charge  of  threatening  to  kill,  three  months’ imprisonment.   In other words, the total sentence is 11 years and three months’ imprisonment.

[49]     You are to serve a minimum of six years imprisonment which is between

50 and 60% of the sentence that I have just imposed.  It was accepted on your behalf that  a  minimum  period  of  imprisonment  was necessary.   This minimum  period reflects the seriousness of your offending, your attitude towards women, and the need to protect the community.

[50]     When  you  pleaded  guilty in  the  District  Court  Judge  Erber  gave  you  a warning which we call a first warning in relation to the three strikes legislation. Although it might not be strictly necessary I am going to repeat the warning that was given by Judge Erber.  You will have also received written notice of this warning.  If you are convicted of any serious violence offence, other than murder, committed

after this warning and if a Judge imposes this sentence then you will serve that sentence without parole or early release.  If you are convicted of murder after this warning then you must be sentenced to life imprisonment.   That will be served without parole unless it would be manifestly unjust.   In that event the Judge must sentence you to a minimum term of imprisonment.