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Grant v R

Grant v R

Case [2017] NZCA 614 19 December 2017

Criminal Liability

Sentencing

Mens Rea & Intention

Prevention of Reoffending

Extended Supervision Order

Brain Maturation

Age at Time of Offending

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA628/2015
[2017] NZCA 614

BETWEEN	WILLIAM ALEXANDER HAMISH GRANT Appellant
AND	THE QUEEN Respondent

Hearing:	13 November 2017
Court:	Brown, Courtney and Toogood JJ
Counsel:	M R Bott for Appellant M L Wong for Respondent
Judgment:	19 December 2017 at 3.00 pm

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of preventive detention imposed on the charges of disfiguring with intent to cause grievous bodily harm is quashed and a sentence of twelve years’ imprisonment cumulative on the appellant’s existing sentence of four and a half years’ imprisonment is imposed. A minimum period of imprisonment of six years is imposed on the first disfiguring with intent to cause grievous bodily harm charge.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

The appellant, Mr Grant, pleaded guilty in the District Court at Christchurch to two charges of disfiguring with intent to cause grievous bodily harm and one of injuring with intent to cause grievous bodily harm. The matter was transferred to the High Court at Christchurch in order for preventive detention to be considered.
On 1 October 2015 Dunningham J sentenced Mr Grant to preventive detention in respect of the two charges of disfiguring with intent to cause grievous bodily harm, with a minimum period of imprisonment of six years to run from the date of commission of the first offence.[1] A concurrent sentence of three years’ imprisonment was imposed on the charge of injuring with intent to cause grievous bodily harm.
[1]R v Grant [2015] NZHC 2395. The date of the first offence was 17 January 2014.
Mr Grant appeals against the sentence of preventive detention, primarily on the ground that his counsel at sentencing failed to obtain an independent report from a psychologist. The appeal is based in substantial part on a report of Professor James Ogloff, a clinical and forensic psychologist, which Mr Grant seeks to adduce as fresh evidence on appeal.

Background

The offending

The charges arose out of three separate incidents that occurred while Mr Grant was serving a sentence of imprisonment of four and a half years for a violent attack on his former girlfriend committed when Mr Grant was 16 years old.
The first incident occurred on 17 January 2014 while Mr Grant was a prisoner at the Otago Correctional Facility. Following an altercation with the complainant, a fellow inmate, Mr Grant bit off a portion of the complainant’s earlobe. The surgery to reattach the severed part of the ear was unsuccessful and the victim is permanently disfigured. This gave rise to the first charge of disfiguring with intent to cause grievous bodily harm.
In April 2014 Mr Grant had been transferred to the Christchurch Men’s Prison and was working in the kitchen with the second complainant, who was also an inmate. Mr Grant had an altercation in the kitchen with the complainant on the morning of 19 April,…

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 Grant v R

Details

AGLC: Grant v R [2017] NZCA 614
Case: [2017] NZCA 614
Decision Date: 19 December 2017 at 3.00 pm

CaseChat Overview and Summary

William Alexander Hamish Grant appeals against the sentence of preventive detention imposed by Dunningham J in the High Court at Christchurch. Mr Grant was sentenced to preventive detention in respect of two charges of disfiguring with intent to cause grievous bodily harm, with a minimum period of imprisonment of six years. A concurrent sentence of three years’ imprisonment was imposed on the charge of injuring with intent to cause grievous bodily harm. Mr Grant's appeal is based on the ground that his counsel at sentencing failed to obtain an independent report from a psychologist. He seeks to adduce a report of Professor James Ogloff, a clinical and forensic psychologist, as fresh evidence on appeal. The appeal raises issues about the appropriateness of the sentence of preventive detention in the circumstances, and the role of developmental factors in risk assessment.

The Court of Appeal allows the appeal. The sentence of preventive detention is quashed and a sentence of twelve years’ imprisonment, cumulative on the appellant’s existing sentence of four and a half years’ imprisonment, is imposed. A minimum period of imprisonment of six years is imposed on the first disfiguring with intent to cause grievous bodily harm charge.

The Court found that the decision to impose the sentence of preventive detention was finely balanced, having regard to Mr Grant’s age at the time of the offending and the fact that the offences occurred in the prison environment. However, the balancing exercise was hampered for two reasons. First, in the absence of an independent report, the Judge did not have the benefit of the behavioural context which has been addressed in Professor Ogloff’s report. Second, the alternative course of a finite sentence with the possibility of an extended supervision order (ESO) was not considered. In the Court’s view, those two factors in combination cause the balance to tip in favour of a finite sentence, which, with targeted intervention, should provide the necessary degree of community protection with reference to Mr Grant.

Orders