Grainger v The Queen - [2017] NZHC 2483

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-24

CRI-2017-425-27 [2017] NZHC 2483

BETWEEN
HOLLY LOUELLA GRAINGER

Appellant

AND

THE QUEEN

Respondent

Hearing: 9 October 2017

Appearances:

R Eagles for Appellant S McKenzie for Crown

Judgment:

11 October 2017

JUDGMENT OF MANDER J

[1] The appellant, Ms Holly Grainger, was sentenced to a total of three years imprisonment on charges of possession of cannabis for supply, offering to supply cannabis, burglary, and intentional damage.1 She appeals that sentence alleging it is manifestly excessive. In respect of the burglary offending, she alleges she received a disproportionately severe sentence in comparison to her co-offenders.

Background

[2] The police executed a search warrant at Ms Grainger and her partner’s home in December 2015. Text messages show that Ms Grainger had three ounces of cannabis which she had packaged for sale and offered to sell to a number of people. Ms Grainger admitted this offending, and said it was a joint venture with her partner.

1 R v Grainger [2017] NZDC 10958.

GRAINGER v R [2017] NZHC 2483 [11 October 2017]

[3] The second set of offending occurred while Ms Grainger was on bail for this cannabis offending. In January 2016, she and four associates unlawfully entered a residential address. Ms Grainger confronted and threatened a man sleeping in one of the bedrooms with a crowbar. A second occupant of the address was stood over by one of Ms Grainger’s associates, and threats made about what would happen should he call the police. Ms Grainger went to a third occupant’s bedroom and, after threatening this person with the weapon, demanded the return of a pool table which she claimed was not his property.

[4] Ms Grainger then proceeded to smash a television screen, a window and a door. She took $80 from the victim’s wallet and a mobile phone valued at $150. Four mag wheels were taken from the garage by Ms Grainger and her associates. One of her associates also took an amplifier from one of the victim’s cars, the window of which Ms Grainger smashed.

[5] When apprehended by the police, Ms Grainger admitted smashing items and taking the money and phone. Initially charged with aggravated burglary, Ms Grainger pleaded guilty to burglary during her trial.

Sentencing

[6] Judge Callaghan sentenced Ms Grainger on the basis the cannabis offending represented the most serious offending. The Judge observed that it was apparent from the number of people that Ms Grainger texted about the cannabis that this was not a one-off event but rather ongoing commercial drug dealing. Following the guidance provided by the Court of Appeal in R v Terewi a starting point of two years and four months was adopted, which was slightly lower than the two years and six month starting point adopted for her partner who also faced a charge of cannabis cultivation.2

[7] In relation to the burglary offending, Judge Callaghan considered Ms Grainger to be one of the main…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grainger v The Queen

Details

AGLC: Grainger v The Queen [2017] NZHC 2483
Case: [2017] NZHC 2483
Decision Date: 11 October 2017

CaseChat Overview and Summary

Holly Louella Grainger appeals against her sentence of three years imprisonment for various offences, contending that the sentence is manifestly excessive. The sentencing Judge had adopted a starting point of two years and four months for the drug-related offences, and a starting point of 18 months for the burglary charges. The appeal was heard by Mander J, who concluded that while the starting point for the drug-related offences was appropriate, a lesser starting point for the burglary was warranted. The starting point for the drug-related offences was appropriate, as the Court found that the cannabis offending involved ongoing drug dealing, which is generally punishable by a starting point of two to four years imprisonment. The Judge had also taken into account the fact that Ms Grainger was not facing a charge of cannabis cultivation, which justified a lesser starting point. However, the starting point for the burglary charge was found to be excessive. The Judge had taken into account Ms Grainger's role in the offending and her use of a weapon, which justified a starting point of 18 months. However, when applying the totality principle, the effective starting point for the burglary charge reduced to 14 months. When combined with the adjusted starting point for the drug-related offences, the cumulative starting point was three years and two months, which after applying a 20 per cent reduction for the guilty pleas resulted in a sentence of two years and six months imprisonment.

The appeal was allowed and the sentence was substituted with a sentence of two years and six months imprisonment for the drug-related offences and burglary. The one-month concurrent term of imprisonment on the charge of intentional damage was not affected.

Orders