THE QUEEN v DANIEL BARRY JAMES DAVEY [2001] NZCA 77 (22 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca465/00

THE QUEEN

V

DANIEL BARRY JAMES DAVEY

Hearing:	22 March 2001
Coram:	Tipping J
	Robertson J
	Young J
Appearances:	O S Winter for Appellant
	J C Pike for Crown
Judgment:	22 March 2001

judgment of the court DELIVERED BY YOUNG j

[1] This is a sentence appeal by Daniel Barry James Davey.

[2] The appellant, along with two other young men, Kenny Lee Waerea and James Phillip Teamotahi Maehe Ngataki, went to a house at 19 Railway Terrace, Ohau on the night of 15 May 2000.This house belonged to a man who was a friend of the appellant's family.He was away overseas at the time, as the appellant knew. Unfortunately, however, it was occupied on a house-sitting basis by Colin Nichol Morrison.He was 72 and in poor health.

[3] The appellant and his two co-offenders had initially intended to burgle the house which they hoped would be unoccupied.However, when they arrived they saw Mr Morrison's car in the driveway.So, a revised plan was entered into. Pursuant to this plan, the appellant waited some distance away (to avoid the possibility of identification) while his co-offenders knocked on the door. When Mr Morrison answered the door, they asked for petrol.Mr Morrison told the two young men where the petrol was.Mr Ngataki went away, got the petrol and then returned. He then attacked Mr Morrison.In the course of this attack, Mr Morrison was dragged inside the house and beaten very severely. Indeed, he nearly died and has suffered serious permanent injuries as a result of the violence which occurred.

[4] On the sentencing Judge's conclusions of fact, the appellant and Mr Waerea then went inside and gathered property from the house.This was placed in Mr Morrison's car.The appellant and his co-offenders then drove off to Waipukurau and disposed of the stolen property.

[5] Mr Winter, for the appellant, sought to challenge the Judge's conclusion that the appellant went inside the house.There was, however, as he conceded, evidence available to the Judge that this is what did happen (despite the appellant's evidence to the contrary).He also conceded that the Judge's conclusion on this point was not inconsistent with the verdicts of the jury at trial (to which we will refer shortly).The sentencing Judge had presided over a trial which had lasted for a number of days.In those circumstances, it would obviously not be right for us to differ from his assessment of the facts.

[6] Mr Ngataki pleaded guilty before trial to a charge of aggravated robbery, that is robbery aggravated by the contemporaneous infliction of grievous bodily harm.He was sentenced to 11 years imprisonment, a sentence which was reduced to 8 years on appeal to this Court after the trial of the appellant and Mr Waerea.This reduction reflected, amongst other factors, the fact that he gave evidence at the trial of the appellant and Mr Waerea.

[7] The appellant and Mr Waerea stood trial in the High Court at Palmerston North on an indictment which, as amended, alleged:-

Sections 235(1)(a), 1.THE CROWN SOLICITOR at Palmerston 17C and 66 North charges that DANIEL JAMESBARRY Crimes Act 1961 DAVEY and KENNY LEE WAEREA with (AggravatedJAMES PHILLIPTEAMOTAHIMAEHE Robbery)NGATAKIatOhau onthe 15^th day ofMay2000 did rob COLIN NICHOL MORRISON ofvariousproperty,andatthattimeorimmediately before or thereafter, did cause himgrievous bodily harm.

Sections 235(1)(b), 1A.THE CROWN SOLICITOR at Palmerston 17C and 66 North chargesasanalternativechargethat Crimes Act 1961 DANIELJAMESBARRYDAVEYand(AggravatedKENNYLEE WAEREA being togetherwithRobbery)JAMESPHILLIPTEAMOTAHI MAEHE NGATAKIatOhauonthe 15^thday of May 2000 did rob COLIN NICHOL MORRISON ofvarious property

Section 241(a)2.THE CROWN SOLICITOR at Palmerston Crimes Act 1961 North further chargesthatDANIELJAMES (Burglary)BARRY DAVEYandKENNYLEEWAEREAatOhau onthe15^th dayofMay 2000 did break and enter a dwelling houseat 19 Railway Terrace with intent to commitacrime therein.

[8] When the amended indictment was presented, both the appellant and Mr Waerea pleaded guilty to count 3.The appellant was eventually acquitted on count 1 and convicted on count 2.In the case of Mr Waerea, the jury could not agree on count 1 and he was convicted on count 2.The Crown elected not to proceed with a retrial against Mr Waerea on count 1.

[9] The appellant is 17.His adolescence has been difficult to say the least. It has been characterised by drug abuse and drug dependency with associated educational, social and other difficulties.His behaviour resulted in him coming to official attention and he was the subject of family group conferences organised by Child Youth and Family Services.He has convictions for trespass and threatening behaviour.

[10] Mr Waerea is also 17. Although there are some indications, perhaps, of some difficulties in the months leading up to the offence, he had a normal and happy adolescence and had been reasonably successful at school and particularly at sport.

[11] There can be no doubt that it was the appellant who set in train the events of 15 May 2000.It was his idea that he and the co-offenders should go the house at Railway Terrace and burgle it.

[12] The jury, by its verdicts, must have concluded that the appellant was a party to a robbery of Mr Morrison which was aggravated in that it was carried out in concert but that it had not been established, beyond reasonable doubt that he was a party to the infliction of grievous bodily harm on Mr Morrison. The appellant was hidden at the time the incident began and was thus not directly involved in the assault on Mr Morrison.However, the jury by its verdict on count 2 must be taken to have rejected the appellant's defence that he had resiled from the joint enterprise at the point when that joint enterprise extended to robbery.

[13] In the result, therefore, neither of these young men was convicted on count 1.They, therefore, had to be sentenced on the basis that they were not parties to the infliction of grievous bodily harm on Mr Morrison.But they nonetheless had to be sentenced on the basis that their conduct was still inexcusable.With Mr Morrison lying on the floor of the house with terrible injuries, neithersought to summon help.Instead they proceeded to steal property from the house and then left.The telephone was disconnected so that Mr Morrison was unable to summon help.Both men, after the robbery, continued to behave in a disgraceful way with the appellant boasting to a friend that he should have killed Mr Morrison and Mr Waerea boasting that he had hit Mr Morrison on the head with a walking stick (a boast from which he sought to resile at trial by asserting that it had been mere bravado).

[14] The Judge, in his sentencing remarks, reviewed the factual background.He then went on:-

[4] I accept the jury's verdict that you did not do anything with the intention of causing Mr Morrison grievous bodily harm and that you were not in the room when he was being beaten. I also give Waerea the benefit of the doubt when he claimed that it was only bravado when he said he had hit the victim.Plainly the jury was troubled by that particular aspect of this case.However you left Mr Morrison and the telephones were pulled out so he could not get help.He was not found until the next day.

[5] The photos and the victim impact reports I have describe Mr Morrison's injuries as horrendous.The description of these and his remarkable fortitude and recovery fill some five closely typed pages.Apart from the wounds a stroke was triggered off and he became partly paralysed.His memory and mental capacity has been affected.Despite these he is still improving and he has made a remarkable recovery.He still, however, complains that his hearing has been badly affected by what was done. I do not go into more detail in the interests of his privacy.If you have not already done so you should be made to read the reports.

[6] Fixing the starting point for sentencing is comparatively easy in this case.The maximum sentence for aggravated robbery with home invasion is now 19 years imprisonment.The Court of Appeal on Monday fixed the starting point for Ngataki's case as 12 years imprisonment and referred to the case of R v Mako [2000] 2 NZLR 170 which has also been referred to by counsel.In describing this category of case the Court said this:

"Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more.Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years."

I consider that the Crown's suggestion of an eight year starting point in itself shows clemency and compassion in your case.I am prepared to accept that as the appropriate starting point for composing a sentence for each of you.

[7] You will be aware that the Court of Appeal reduced Ngataki's sentence to eight years because of his guilty plea, his age, his co-operation with the police including giving evidence at yourtrial, and his being a first offender.Neither of you pleaded guilty to aggravated robbery even when I reduced the charge. You continued Mr Morrison's agony and distress.You continued to try to minimise your involvement.While I accept that none of you set out to commit a violent robbery, once violence took place you took full advantage of it to complete the burglary.Neither of you withdrew or took any steps to stop the violence or help the victim.

[8] You were each only 16 when this took place.You come from good and caring families.You, Waerea, are a first offender.You, Davey, have a longstanding drug problem and have offended in that context.I have also read the drug counsellor's report that has been recently put before the Court.There is some suggestion that you each may have taken drugs before all this started.If you had it is no excuse whatsoever. I have read, too, the letters that have been written in Waerea's support.This incident apart you are plainly a talented and worthwhile young man.

[9] The Courts representing the community are deeply troubled by youth violence.It has often been said that adult acts attract adult sentences. However I am prepared to make special allowance for your youth and, in Waerea's case, for his lack of previous offending and good character.In Davey's case the fact that he organised the crime is a serious aggravating factor.If it was not for him none of this would have happened. As far as treatment for your serious drug problem is concerned that must be addressed in the context of a prison sentence.As far as the prisoner Waerea is concerned I do not see that there are any special circumstances relating to this case or to you when one considers the careful and the discriminatory way the jury went about reaching its verdict.

[´0] The sentences must not only reflect the general public's outrage at home invasion with this dreadful violence but also the local community's outrage at what you did.On the other hand savage penalties that destroy all hope of rehabilitation have no place in a civilised society.I need say no more.

[11] Davey you are sentenced to six years imprisonment on both charges.Waerea you are sentenced to five years imprisonment on both charges.

[15] The appeal is based solely on alleged disparity, in essence a comparison between the penalty imposed on the appellant, as compared to that imposed on Mr Waerea. The position of Mr Ngataki (whose culpability, in one sense, was considerably greater than the two men the Judge was sentencing but who had nonetheless pleaded guilty and shown tangible remorse by giving evidence at trial) can be put on one side as not being relevant to the present exercise.

[16]Mr Winter, for the appellant, argued that the Judge's assessment of the relative culpability of the two men he was sentencing was well adrift of the reality. The primary points he made were as follows:-

1. The appellant was found guilty on count 1 whereas the jury was undecided in respect of Mr Waerea.Mr Winter described the acquittal as meaning

that the jury found that DAVEY did not as a party or principal take an active part in inflicting the very serious violence that was meted out to ... the victim of the offending.

He saw this as putting Mr Davey in a different position from that of Mr Waerea in respect of whom the jury disagreed on count 1.

2. A complaint about the Judge's comment that "none of this would have happened"if it were not for the appellant, a statement which Mr Winter accepts is correct as far as it goes but does not allow for the reality that none of the offenders was reluctant to become involved and that Mr Waerea was more active than the appellant in the disposal later of the stolen items.

[17] We see these grounds as lacking cogency whether viewed separately or collectively.

[18] The acquittal of the appellant on count 1 does not mean what Mr Winter asserts.It simply means that it was not established beyond reasonable doubt that the appellant was guilty on count 1.The result of the trial process as a whole was the same as far as Mr Waerea was concerned.Both men were entitled to be sentenced on the basis explained by the Judge in his remarks, that is that they were not parties to the infliction of grievous bodily harm.In that context, the fact that Mr Waerea was perhaps more exposed than the appellant at trial to the possibility of a guilty verdict on count 1 is irrelevant.

[19] We are reluctant to become involved a discussion of the comparative culpability of the appellant's initiation of the offending as compared to the significant role taken by Mr Waerea in terms of the disposal of the stolen property.The Judge seems to have been of the view that the former factor was more significant than the latter.This is such a matter of appreciation that it would not be open to us to differ from his assessment, particularly as he heard all the evidence.

[20] In that context it seems to us that it was perfectly open to the Judge to distinguish between the appellant and Mr Waerea on the two grounds which he gave: the fact that the appellant initiated the offending and his worse record.

[21] In those circumstances we see no basis for a successful disparity argument and the appeal is, accordingly, dismissed.

Solicitors

Barltrop Graham, Fielding for Appellant

Crown Law Office, Wellington