R v Davoren HC Napier CRI-2010-016-000240

[2011] NZHC 482

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-016-000240

THE QUEEN

v

VERNON PERCY DAVOREN

Appearances: S Manning for Crown

A Malik for Prisoner

Judgment:      13 May 2011

REMARKS ON SENTENCE OF CHISHOLM J

[1]      Vernon Davoren you appear for sentence today.  You can remain seated and I will ask you to stand when I actually pass sentence on you.  You are being sentenced today for injuring with intent to injure.  That was the verdict of a jury following a trial.  You had been charged with injuring with intent to cause grievous bodily harm and the jury found you not guilty on that more serious charge but found you guilty on the lesser charge of injuring with intent to injure. The victim was a police officer, now a Detective.

[2]      On  7  December  2010  Miller  J  sentenced  your  son,  Mr Waihape,  to imprisonment for two years and three months on a charge of injuring with intent to injure. Your son had pleaded guilty to that charge before the trial began.

[3]      I should also mention that the trial in which you were found guilty of injuring with intent to injure was a second trial.  For reasons that had nothing at all to do with

you, the first trial had to be aborted.  At that earlier trial both you and your son had

R V DAVOREN HC NAP CRI-2010-016-000240 13 May 2011

entered pleas of not guilty to the only charge you were facing at that time - injuring with intent to cause grievous bodily harm.

The offending[1]

[1] Headings added

[4]      On 29 January 2010 you were in Gisborne visiting your mother.  You were walking along Ranfurly Street with Mr Waihape towards your mother’s house.  At that  stage  it  was  your  intention  to  go  back  to  your  family  in  Auckland. Unfortunately, at the same time a detective and a trainee detective, both in plain clothes, were driving along Ranfurly Street in the opposite direction.  Their car was unmarked.   The detectives gave evidence at trial that you yelled abuse at them, including the word “pigshit” as well as other abuse.  Their evidence was that you were told to desist, but the abuse continued.  The police officers then turned around and came alongside where you and your son were walking.

[5]      One officer got out of the car and you were pepper sprayed.  At some stage the second officer also got out of the car.  Further pepper spraying took place.  In the end result there were, as Mr Malik said, effectively two fights.

[6]      As far as the fight in which you were involved is concerned, it was not disputed at trial that the police officer that you were fighting with was punched while he was on the ground.  Indeed he was punched repeatedly.  The police officer also alleged that you had also tried to throttle him. You denied that had happened.

[7]      Mr Malik suggested that because the jury found you not guilty of the more serious charge I ought to proceed on the basis that they had accepted that you had punched the police officer but rejected the allegation that you had tried to throttle him.  For the Crown, Mr Manning argued that that would not be appropriate and that it is well open for me to proceed on the basis that the jury had accepted that you tried to throttle the police officer.  I am going to take the conservative view of proceeding on the basis that the jury accepted the repeated punching on the ground but did not accept that you attempted to throttle the officer.  Self defence was clearly rejected by

the jury.

[8]      While these events were in progress your son was involved in the fight with the other police officer.  Miller J sentenced your son on the basis that he was not involved in the initial abuse and that after his victim was on the ground your son used the victim’s tie as a means of throttling and controlling him.  Miller J also noted that your son’s victim briefly lost consciousness and that after that he was punched again.    I  mention  these  matters  because  it  is  going  to  be  necessary for  me  to endeavour to compare your offending with the offending of your son.

[9]      The incident was relatively brief.   The evidence seemed to be clear that it only lasted for one minute, 47 seconds.  That is the time between the initial call for help and the arrival of the reinforcements.   The arrival of police reinforcements brought the incident to an end.

The victim

[10]     Your victim suffered cuts, abrasions and bruises to his face and body.  The victim impact report indicates that he still suffers pain.  He has also described the difficulties that he now faces in discharging his role as a police officer.

Prisoner’s personal situation

[11]     Turning to your personal situation, Mr Davoren:  you are 40 years of age; in

2008 you were sentenced to home detention for unlawfully carrying a firearm; the year before that you were sentenced to supervision for male assaults female (two counts); and there is a common assault in 1989 for which you were sentenced to periodic detention.  While there are also some other previous convictions they are irrelevant for present purposes.

[12]     The probation officer noted:

The key factor assessed as contributing to Mr Davoren’s offending is his volatile behaviour.   He does not acknowledge that this was a factor in his offending, stating that he acted in self defence.

Clearly, Mr Davoren, you do have a volatile element which you must control.  It was perfectly apparent to me during the trial, especially when you were giving evidence,

[13]     On  the  positive  side  the  probation  officer  reported  that  there  are  no indications of harmful drug use.  In the past you have complied with sentences of home  detention,  community  work,  supervision  and  periodic  detention.     The probation officer considered that there was a low risk of reoffending.

[14]     When you were remanded for sentence a home detention appendix to your report was requested.  Unfortunately this has not been completed because there was no-one home on the two occasions that the probation service visited.   Despite the notes that were apparently left, there was no contact with the probation service.

Approach to sentencing

[15]     In terms of the sentence that I need to impose three primary matters provide guidance.   First there is a decision, which you have heard mentioned, called R v Harris.[2]Secondly, there are the remarks and the sentence of Miller J when he sentenced Mr Waihape.   And, finally, there are the submissions, both written and oral, that have been presented today.

[2] R v Harris [2008] NZCA 528

[16]     In terms of R v Harris there are three possible bands for offending of this kind (injuring with intent to injure).  Band 1 is where there is little or no injury.  In that situation something less than imprisonment would normally be imposed.  Band

2 involves a situation where there is moderate injury and in that situation a sentence of up to two years imprisonment is usually imposed.   Band 3 involves a situation where there is serious injury and the range indicated by the Court of Appeal in that situation is 18 months to five years.  The Court of Appeal also made it clear that in addition to the seriousness of the injuries, aggravating and mitigating features need to be taken into account.

[17]     In the case of your son, Miller J identified a number of aggravating features. First there was what he described as “substantial violence”.  Secondly, he referred to

the attack to the head when the police officer was not resisting. And, thirdly, he took into account that Mr Waihape knew that his victim was a police officer acting in the execution of his duty.

[18]     The Judge started at three years imprisonment.  Even though your son had a very recent previous conviction for injuring with intent to injure Miller J decided not to add an uplift to reflect that factor because he noted that, unlike you, Mr Waihape was not the instigator.

[19]     Miller J allowed a credit of 10% (four months) for your son’s guilty plea.  He made a further reduction to reflect, first, what he considered to be your son’s misguided loyalty to you, and, secondly, the positive references that your son was able to rely on.

[20]     Notwithstanding the mitigating factors, Miller J was in no doubt that there had to be a sentence of imprisonment because there had been an attack on police officers. The sentence was two years and three months.

[21]     Counsel’s submissions have, of course, been very helpful.

[22]     For the Crown, Mr Manning emphasised that you were the instigator of the incident.  He suggests that when the offending is looked at in the round you are more culpable than your son.  Given those matters, Mr Manning suggested that the starting point and the end sentence should be more than three years imprisonment.

[23]     On  the  other  hand,  Mr  Malik  suggested  that  this  was  quite  an  unusual situation.  In effect there were two separate fights.  While the incident began when the police attempted to arrest you, you did not incite or direct your son to become involved.   He did so of his own accord.   Thereafter, says Mr Malik, there were essentially two separate incidents and, as far as the incident in which you were involved is concerned, it did not carry the element of throttling which means it is a less serious incident.  Mr Malik argues that it is possible in this case to arrive at a sentence within the home detention range, namely one that is two years or less.

[24]     I begin by considering the aggravating and mitigating features.  This involves trying to draw a comparison between your offending and your son’s offending.  This is not particularly easy. There are a number of similarities and differences.

[25]     As far as the aggravating features are concerned, it is clear in my mind that you were the instigator of the incident in the sense that if there had not been abuse coming from your lips the whole thing would not have happened.  On the other hand, when   considering   this   aspect   and   trying   to   compare   your   sentence   with Mr Waihape’s, I need to take into account that Miller J approached the matter on the basis that your son’s previous conviction for offending of this nature was counterbalanced by the fact that he was not the instigator.  I will come back to that.

[26]     The second aggravating feature is that there was an attack to the head.  This was a sustained attack to the head while the police officer was on the ground. Again, drawing a comparison with the offending of your son, I do not think that I can responsibly say that the repeated punches to the head rendered you as culpable as your son who not only subjected his victim to sustained punches to the head but also subjected him to strangulation.  I am probably taking a very charitable as far as you are concerned in this regard.

[27]     The third aggravating factor is that your victim was a police officer in the execution of his duty.  Mr Malik has rightly said that I need to be satisfied that you knew this and that the officer was acting in the execution of his duty and not beyond his powers.  I am afraid that having heard the evidence, Mr Davoren, I am perfectly satisfied that you knew by the time the assaults began that your victim was a police officer. This is, of course, a serious aggravating feature.

[28]     It is now necessary to endeavour to arrive at a starting point, taking into account R v Harris, and the three aggravating features that I have mentioned.  This is a difficult balancing exercise and in the end I agree with Mr Manning that I should look at the matter in the round.

[29]     Having done that, I cannot see that your culpability could be any less than your son’s.  This indicates a starting point of three years.  I do not see that there is any justification for a higher starting point.   In terms of mitigating factors I am afraid, Mr Davoren, that there are none that I can properly take into account. You are sentenced to imprisonment for three years.

Solicitors:

Elvidge & Partners, P O Box 609, Napier 4140

Eric Forster, Barrister, P O Box 838, Hasting 4156