Robert Davis v New Zealand Police
[2024] NZHC 2742
•23 September 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000237
[2024] NZHC 2742
ROBERT DAVIS v
NEW ZEALAND POLICE
Hearing: 2 July 2024 Appearances:
H Woo for the Appellant
S Vreeburg for the Respondent
Judgment:
23 September 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 23 September 2024 at 12 pm Registrar/Deputy Registrar
Counsel/Solicitors:
H Woo, Public Defence Service, Auckland Meredith Connell, Crown Solicitor Auckland
DAVIS v POLICE [2024] NZHC 2742 [23 September 2024]
Introduction
[1] Robert Davis appeals the sentence of 23 months’ imprisonment imposed by Judge C M Ryan at Auckland District Court on 7 May 2024.1 Mr Davis was convicted of the following offences (numbering 15 in total):
(a)attempted theft between $500 and $1,000;2
(b)theft over $1,000;3
(c)burglary;4
(d)assault on a person in a family relationship;5
(e)assault on police;6
(f)resisting police (x 2);7
(g)unlawfully in a building;8
(h)possession or use of a Class A controlled drug (x 3);9
(i)possession of utensils (x 2);10 and
(j)failing to answer Court bail (x 2).11
1 Police v Davis [2024] NZDC 10344.
2 Crimes Act 1961, ss 219, 223(c), 72 and 311(1): maximum penalty of six months’ imprisonment.
3 Sections 219 and 223(b): maximum penalty of seven years’ imprisonment.
4 Section 231: maximum penalty of 10 years’ imprisonment.
5 Section 194A: maximum penalty of two years’ imprisonment.
6 Summary Offences Act 1981, s 10: maximum penalty of six months’ imprisonment or a $4,000 fine.
7 Section 23(a): maximum penalty of three months’ imprisonment or a $2,000 fine.
8 Section 29(1)(a): maximum penalty of three months’ imprisonment or a $2,000 fine.
9 Misuse of Drugs Act 1975, s 7(1)(a) and 7(2): maximum penalty of six months’ imprisonment and/or a $1,000 fine.
10 Section 13(1)(a) and 13(3): maximum penalty of one years’ imprisonment and/or a $500 fine.
11 Bail Act 2000, s 38: maximum penalty of one years’ imprisonment or a $2,000 fine.
[2] The essential point on appeal is whether the Judge erred by adopting uplifts resulting in an adjusted starting point out of proportion to the totality of the overall offending and, consequently, whether the end sentence was manifestly excessive.
[3] Mr Davis argues that the appropriate end sentence consistent with the totality principle should instead be 14 and a half months’ imprisonment.
[4]The respondent opposes the appeal.
The offending
[5] Between February 2022 and May 2024, Mr Davis committed a range of dishonesty, drug and violence-related offences; the details of which are relevantly set out in the sentencing notes.12 The offending included:
(a)forcefully opening a front counter window of the Market Gallery in Auckland with his hands. He took money out of a staff tip jar and poured it into a bag. He spent 30 minutes inside the building before he left. Mr Davis was on bail for earlier offending at the time.
(b)resisting arrest when apprehended by police, by tensing his arms and thrashing about to avoid being handcuffed. He managed to escape but was found 20 minutes later and was placed in handcuffs.
(c)standing over his partner in an agitated state and throwing her to the ground when confronted by police, causing her to fall backwards.
(d)being found in an apartment in a complex without reasonable or lawful excuse and in possession of two clear small plastic bags filled with a white crystalline substance believed to be methamphetamine. A NIK test of the white crystalline substance tested positive for amphetamine. Police weighed the crystal substance in its bag and it weighed 1.87 grams.
12 Police v Davis, above n 1, at [12]–[24].
[6]Notably, Mr Davis committed 13 of the 15 offences detailed whilst on bail.
District Court decision
[7] The Judge prefaced her sentencing notes by recording that there is no pre-sentence report because Mr Davis failed to turn up, having absconded from the Grace Foundation.13 She noted that he absconded within a week of being granted EM after a series of bail breaches and re-arrests for failing to appear. He was not apprehended until police caught him committing further offences.
[8] I observe that the procedural history was an inauspicious start for someone seeking leniency and potentially a non-custodial sentence.
[9] The Judge referred to Mr Davis’ criminal history in Australia and deportation to New Zealand following his most recent incarceration in Australia for similar offending. She recorded Mr Davis’ explanation through his counsel that:14
… he left his whole family behind and, of course, he can never go back to see them which caused him to be depressed and ... to revert to the type of offending he had done in Australia …
[10] I pause to interpolate that this picture is a common one in this court. The impact of deportation was not overlooked by the Judge.
[11] After analysing the cases referred to by defence counsel, the Judge adopted a six-month starting point for the lead charge of burglary which the defence had advanced, on the basis that it was at the lower end of the scale.
[12] She noted that, being separate offences, the charges could attract cumulative sentences but that she intended to deal with them by providing uplifts totalling 24 months as follows:
(a)four months for three charges of possession of a Class A controlled drug;
13 At [2].
14 At [27].
(b)four months for two charges of possession of utensils for consuming methamphetamine;
(c)two months for one charge of assault on police;
(d)two months for two charges of resisting police;
(e)four months for two charges of failing to answer court bail;
(f)four months for one charge of theft over $1,000; and
(g)four months for assault on a person in a family relationship.
[13]This led to an adjusted starting point of 30 months’ imprisonment.
[14] At the second sentencing stage, focusing on factors personal to Mr Davis, the Judge determined that the persistent offending whilst on bail and similar Australian convictions (prior to his deportation to New Zealand) justified a further uplift of two months.
[15] She then applied a total credit of 30 per cent to arrive at the end sentence of 23 months as follows:
(a)guilty plea: 15 per cent (four and a half months); and
(b)effect of drug addiction and deportation: 15 per cent (four and a half months).
[16] Although a short sentence, meaning there was a possibility of home detention, the Judge said this was not available in this case because Mr Davis cannot be trusted on an EM sentence. She recorded that a 23-month sentence is effectively an 11 and a half month sentence meaning that Mr Davis would be eligible for automatic parole in about three months.
[17] Finally, the Judge imposed standard release conditions in addition to a special condition that Mr Davis is to abstain from illicit drugs, and attend and complete a drug and alcohol course to the satisfaction of a probation officer.
Law on appeal
[18] An appeal against sentence must be allowed if the Court is satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed.15 Otherwise, the Court must dismiss the appeal.16 For the appellant to succeed, he must demonstrate that there was a material error that has resulted in a “manifestly excessive” sentence being imposed.17
[19] The Court does not start afresh and substitute its own opinion for that of the original sentencer.18 The focus is on the end sentence imposed and whether it was within range, rather than the correctness of the process by which the sentence was reached.19
Respective submissions
[20] There is no challenge to the starting point. The overarching ground of appeal is that, even if the discrete uplifts adopted for each (type of) offence were within range, the combined total of those uplifts resulted in an adjusted starting point out of proportion to the totality of the overall offending. However, in addition, Mr Woo, counsel for Mr Davis, also relied on comparative cases to specifically challenge three of the respective uplifts: possession of utensils (x 2),20 failure to answer Court bail (x 2)21 and assault on a person in a family relationship.22
[21] The respondent argued that the uplifts applied were justified and, in some cases, could have been higher. Ms Vreeburg, counsel for the respondent, referred to
15 Criminal Procedure Act 2011, s 250(2).
16 Section 250(3).
17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
18 At [30].
19 At [36].
20 Menefy v Police [2020] NZHC 162; and Martin v New Zealand Police [2022] NZHC 856.
21 Jensen v New Zealand Police [2020] NZHC 726.
22 Skerten v New Zealand Police [2021] NZHC 3425.
other cases which she submitted supported the Judge’s approach.23 She submitted that in relation to assault on a person in a family relationship, Mr Davis’ offending is more serious than the offending in Skerten v New Zealand Police24 as it involved pushing the victim to the ground and standing in a threatening manner over the victim.
[22] Ms Vreeburg contended that, while the lead offence (burglary) was at the lower end of the scale, the starting point could have been significantly higher, as could the uplift for Mr Davis’ overseas convictions. Further, that the credits allowed were generous, particularly regarding the (late) guilty pleas. She relied on decisions of this court suggesting that delays to guilty pleas which arise from failures to attend scheduled hearings and absconding from EM bail should reduce the availability of credit to no more than five per cent.
Discussion
[23] Section 85(2) of the Sentencing Act 2002 provides that, when sentencing an offender for cumulative sentences of imprisonment, the Court must ensure that the final sentence is not wholly out of proportion to the gravity of the overall offending.
[24] I accept Mr Woo’s submission that it is instructive to consider “stand-alone” starting points for uplifts as a way of checking that, imposed as uplifts, they do not infringe the totality principle. This is because the objective of the totality principle is to prevent grossly disproportionate sentences. As observed by Downs J in Toluono v New Zealand Police, the principle conventionally entails some reduction of the starting point that would have been adopted had the offending stood alone.25
[25] Just because totality is not explicitly referred to in sentencing does not mean that it has not been considered.26 As the Court of Appeal explained in Rihari v R,27
23 Porter v New Zealand Police [2017] NZHC 384: Uplift of three months for three charges of possession of utensils; Puata v New Zealand Police [2017] NZHC 2006: Cumulative sentences of four months’ imprisonment on each of the two possession of utensils charges; and Hau v Police Department [2018] NZHC 2369: Uplift of four months for one charge of failing to answer District Court bail.
24 Skerten v New Zealand Police, n 22.
25 Toluono v New Zealand Police [2017] NZHC 809 at [21].
26 Kite v R [2018] NZCA 485 at [21].
27 Rihari v R [2022] NZCA 437 (footnotes omitted).
how a total sentence for multiple offending is constructed is a matter for individual discretion and assessment.
[26] I am satisfied that the Judge did, as required, consider whether the overall period of imprisonment at each step was in keeping with the gravity of the overall offending. If each of the uplifts had been standalone offences, a sentence of an order exceeding the uplift by some margin would have been warranted. On that score, I did not find any of the cases relied on by Mr Woo to be useful as each had different facts.
[27] In any event, if different weighting is given to the various types of offending, it is ultimately a matter of “swings and roundabouts”. I say this because the starting point for the lead offending (burglary) could have been higher by three to four months and the discount for guilty pleas could have justifiably been considerably lower (five to ten per cent) given the delays attributable to Mr Davis absconding while on EM bail. Just as in Porter v New Zealand Police, this is precisely the type of case where the end sentence, rather than the individual steps, must be the focus.28
[28] Having concluded that the totality principle was inherently factored into the uplifts imposed and that the final sentence does reflect Mr Davis’ overall criminality, I find no error in the sentence imposed.
[29] Finally, although Mr Davis did not resurrect his argument for a sentence of home detention, for completeness, I record my agreement with the Judge’s reasoned analysis as to why a sentence of imprisonment was the least restrictive outcome in the circumstances. In particular, Mr Davis’ repeated non-compliance with EM bail, including his ongoing offending and his absconding from a rehabilitative address, means that a sentence of home detention would be quite inappropriate.
[30]Accordingly, I dismiss the appeal.
............................................................
Walker J
28 Porter v New Zealand Police, above n 23, at [24].
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