Grant v Police

[2023] NZHC 3634

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-591

[2023] NZHC 3634

BETWEEN

SHAKUR GRANT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 December 2023

Appearances:

B J Munro for appellant

C M Fountain for respondent

Date of judgment:

12 December 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 12 December 2023 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Woodward Chrisp, Gisborne Kayes Fletcher Walker, Manukau

GRANT v POLICE [2023] NZHC 3634 [12 December 2023]

[1]                  Shakur Grant appeals against Judge D Robinson’s 11 October 2023 sentence of him in the District Court at Manukau to 18 months’ imprisonment, 1 on Mr Grant’s guilty pleas to charges predominantly of weapons’ possession.2

Background

[2]                  Mr Grant was involved in two unrelated Gisborne altercations in each September 2022 and June 2023, in which he was found in possession of weapons, respectively a baseball bat and sawn-off shotgun and shells, the second altercation having gang overtones.

Judgment under appeal

[3]                  The Judge took the firearms offending as the lead offending. From a starting point range of two to three years’ imprisonment for more serious offending, he reduced that to an 18- to 27-month starting point. He uplifted the starting point to 30 months’ imprisonment to reflect aggravating features in Mr Grant’s possession: namely, as cut-down for concealment and risking wider harm; for use in conflict; and being without a firearms licence.

[4]                  The Judge then discounted the sentence to 18 months’ imprisonment (a 40 per cent discount) on account of Mr Grant’s guilty pleas (the maximum 25 per cent), contributing factors in his background (10 per cent) and his time spent on electronically-monitored bail. He declined to convert the sentence to home detention as contraindicated by Mr Grant’s previous breaches of court orders, and the seriousness of firearms offending requiring “deterrence and denunciation [to trump] rehabilitative outcomes even bearing in mind [Mr Grant’s] family circumstances”.3

1      Police v Grant [2023] NZDC 24185.

2      Possessing offensive weapon (Crimes Act 1961, s 202A(4)(a): maximum penalty, three years’ imprisonment); intimidation by threatening to injure (Summary Offences Act 1981, s 21(1)(a) and (3): maximum penalty, three months imprisonment); possessing firearm (Arms Act 1983, s 45: maximum penalty, four years’ imprisonment); possessing ammunition (Arms Act, s 51: maximum penalty, three years’ imprisonment); failure to answer District Court bail (Bail Act 2000, s 38: maximum penalty, one year’s imprisonment).

3      Police v Grant, above n 1, at [40].

[5]                  For Mr Grant, Bree Munro argues the Judge erred in declining home detention, being the least restrictive sentence appropriate in Mr Grant’s particular circumstances as relocated from Gisborne influences and with family responsibilities in Manukau.

Approach on appeal

[6]                  I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.4 In any other case, I must dismiss the appeal.5 The measure of error is the sentence be “manifestly excessive”; a principle “well-engrained” in this Court’s approach to sentencing appeals.6 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.7

Discussion

[7]                  The Judge’s reference to Mr Grant’s “family circumstances” implicitly was to acknowledge the desirability of rehabilitation in the context of Mr Grant’s mother’s alcohol abuse and his own foetal alcohol spectrum disorder, his family’s gang affiliations in Gisborne, his relocation to Auckland with his partner’s and her family’s support, and his new parental responsibilities. Those factors brought Mr Grant’s sentence within a short term of imprisonment, open to conversion to home detention.

[8]                  Once the Judge arrived at a short-term sentence (which is not contested here), he was to make “considered and principled choice between the two forms of sentence”.8 That requires “a careful evaluation of all the relevant factors, including all the relevant principles and purposes of sentencing under the Sentencing Act”.9 If the Judge’s expression was not expressly to recognise both forms of sentence serve principles  of  denunciation  and  deterrence,  his  decision  clearly  identified  why

4      Criminal Procedure Act 2011, s 250(2).

5      Section 250(3).

6      McCaslin-Whitehead v R [2023] NZCA 259 at [27], affirming Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

7      At [28], citing Tutakangahau v R, above n 6, at [36].

8      Lauvi v R [2022] NZCA 431 at [34], reiterating Fairbrother v R [2013] NZCA 340 at [30].

9 At [34].

imprisonment “better qualifie[d] as the least restrictive sentence to impose taking into account all the purposes of sentencing”.10

[9]                  The primary contest for the Judge then was between the desirability of keeping Mr Grant in that new community and its consequent safety.11 The Judge directly assessed Mr Grant’s previous breach of a home detention sentence and his history of failing to answer bail made him unsuitable for a home detention sentence, which unsuitability only was exacerbated by his firearms offending.12 And that was relatively serious offending in the context of a public confrontation between gang members.

[10]              As plainly, that serious offending weighed more heavily in balance against the desirability of home detention in supporting Mr Grant’s independence from poor influences in his background and in contribution to his new parental role, which he had been performing while on electronically-monitored bail at his new address with only one minor curfew incursion. All those factors are evident in the Judge’s decision. This is not a case in which a judge has denied home detention is an available sentence or has given imprisonment’s deterrence “complete priority” over countervailing sentencing purposes.13

[11]              From those perspectives, a preference for Mr Grant’s short term of imprisonment entirely was open to the Judge, and cannot be thought excessive, let alone manifestly so. I am unable to find error in the Judge’s assessment and weighting of the material factors for exercise of his sentencing discretion against home detention. One or other form of sentence was required, and I cannot identify any error in the Judge’s choice, especially as at the margins of outcome.

Result

[12]The appeal is dismissed.

—Jagose J

10     At [34], reiterating Fairbrother v R, above n 8, at [30].

11     Sentencing Act 2002, s 16.

12     Police v Grant, above n 1, at [39].

13     Compare Stock v R [2023] NZCA 493 at [53], citing R v Iosefa [2008] NZCA 453 at [42], and at [54], citing Fairbrother v R, above n 8, at [29].