Grant v The Queen
[2021] NZHC 1244
•31 May 2021
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2021-442-4
[2021] NZHC 1244
BETWEEN SAMANTHA JANE GRANT
Appellant
AND
THE QUEEN
Respondent
Hearing: 20 April 2021 Counsel:
Appellant in person
J W Cameron for Respondent
Judgment:
31 May 2021
INTERIM JUDGMENT OF ELLIS J
[1] In February this year, Samantha Grant pleaded guilty to three charges of contravening a protection order1 and one charge of wilful damage.2 She was convicted and sentenced by Judge Zohrab to nine months’ supervision.
[2]A few weeks later, Ms Grant filed an appeal against her convictions.
Background
[3] I record at the outset that I have little doubt that Ms Grant’s convictions were the outcome of a chain of very unfortunate events, to which the break-up of her marriage is central. Ms Grant is a teacher by training. She has a single previous
1 Family Violence Act 2018, ss 90(b) and 112(1)(a) [maximum penalty of three years’ imprisonment].
2 Summary Offences Act 1981, s 11 [maximum penalty three months’ imprisonment or a $2,000 fine].
GRANT v R [2021] NZHC 1244 [31 May 2021]
conviction, for driving under the influence.3 And the timing of that conviction also strongly suggests a link with Ms Grant’s marriage break-up; it seems plain (and I think Ms Grant would accept) that she has—or has had—problems with alcohol. As well, the break-up has led to relationship property proceedings in the Family Court, the result of which is now (Ms Grant advised me) the subject of an appeal by Ms Grant to this Court.4
Narrative of relevant events
[4] To the extent the following chronology involves the events giving rise to the charges, it is taken from the summary of facts to which Ms Grant pleaded guilty.5 Parts of the narrative may be incomplete as, to some extent, I have had to piece it together myself.
[5] On 18 October 2019, a temporary protection order was issued, naming Ms Grant as the respondent. A final protection order was issued on 19 January 2020. The protected persons named in the orders are Ms Grant’s former husband and his new partner. They are also the complainants in relation to the relevant charges.
[6] On 3 March 2020, Ms Grant had been drinking. She went to her ex-husband’s address in Richmond (the former family home) and broke in through a rear door. She searched the house, going into the bedrooms and moving things around. She went into the living room and removed a relatively valuable picture of Richie McCaw from the wall. She smashed two holes in the picture and stabbed it with a pen numerous times. She then fell asleep on the sofa, until she was awoken, on her ex-husband’s return home.
[7] These events initially led Ms Grant to be charged with burglary and with breaching the protection order. At that time she was already facing two other charges of breaching the protection order as a result of things that had happened in January.
3 Ms Grant also pleaded guilty to that charge, but now disputes it. That matter is beyond the scope of this present appeal.
4 See [E] v Grant [2019] NZFC 10593.
5 Ms Grant’s version of these events differs in various respects.
[8] On 18 May 2020 Judge Barkle noted that not guilty pleas had been entered to all charges and that Police opposed the continuation of bail.6 He said:
[11] Mr Zindel [Ms Grant’s lawyer at the time] propounds that bail be granted on a ‘last chance’ basis and with Ms Grant having had the salutary impact of four nights in the police cells since her arrest. Her sister and partner have travelled from Christchurch to at least, for the moment, provide some support for Ms Grant. That is a significant step on their part.
[12] Ms Grant needs to get the message, loud and clear, that a protection order needs to be complied with. The patience of the Court will have run-out very shortly. There cannot be ongoing alleged continued breaching of the order which, of course, means also breach of bail and offending on bail.
[9] After commenting that Ms Grant needed help with her alcohol use, the Judge readmitted her to bail on a “last chance” basis.
[10] Shortly afterwards, however, on 27 May, Ms Grant twice called her ex-husband’s work in an attempt to speak with him. She then posted multiple times on a public Facebook page, using his full name in the posts. On this occasion Ms Grant told Police that she had breached the protection order intentionally so that she could go to jail to have some time without alcohol.
[11] Ms Grant appeared once more before Judge Barkle, on 4 June 2020.7 The Judge recorded that Mr Zindel again sought that she be admitted to bail, acknowledging that Ms Grant has a “significant problem with alcohol which impacts on her conduct” and that this, “coupled with the breakdown of the relationship … seems to be the genesis of this ongoing alleged offending”. The Judge said:
[5] … As I accepted on 18 May 2020, Ms Grant is not the usual defendant one sees in this Court … Nevertheless, there is a stage when the risks that have to be considered in terms of s 8 Bail Act 2000 are simply too great.
[6] The difficulties I see if Ms Grant is once more granted bail are that there will be continuing interference with witnesses, being of course the complainant, her former husband and his new partner, as well as continued offending on bail. I also, of course, have to take into account the views of the complainant and the provisions of ss 8(3A) and 8(3C) Bail Act. That is because there is in place a temporary protection order in Mr [E]’s favour. In short, he has simply had enough.
6 Police v Grant [2020] NZDC 8680.
7 Police v Grant [2020] NZDC 10080.
[12] After noting that the length of time until trial might have to be more fully considered in the event that Ms Grant chose to maintain her not guilty pleas (Mr Zindel having suggested that she might seek a sentence indication), the Judge remanded Ms Grant in custody until 29 June, saying:
[8] Accordingly, Ms Grant, against all of that background, I am of a view that there are not any reasonable terms and conditions that could be provided in terms of a grant of bail that would mitigate your risk of re-offending. There is just cause for your continued detention on the basis of your ongoing interference with witnesses and propensity to offend while on bail.
[13] At the appearance on 29 June, Mr Zindel advised Judge Barkle that Ms Grant wished to go to trial, which the Judge indicated “will be at best some time in 2021”.
He said:8
[3] … That in itself would mean that Ms Grant would have, in my view, taking into account the level of offending, albeit repetitive and, I accept, distressing to the complainants, not warrant a penalty equivalent to the length of imprisonment while on remand awaiting trial.
[14] After noting that the possibility of EM bail was problematic in terms of managing bail risk, due to Ms Grant’s use of social media and the telephone, the Judge said:
[5] I am also hopeful that the 34 days Mr Zindel advises the defendant has been in custody might have brought home to Ms Grant that it is a place she certainly does not want to spend any further time. Also, I expect that she may have had some opportunity to reflect on her accepted overuse of alcohol and, one hopes, not to overindulge and thereby, it seems on occasions, then further offending take place.
[6] Accordingly, Ms Grant, I will grant you bail on conditions that I will set out in a moment, to that address. But I want you to clearly understand that leniency cannot be extended should you indulge in any more offending, at least on a straight bail with conditions approach.
[7] So, having presided at the hearing in the Family Court I know you are not an unintelligent woman. You know clearly what is required of you and I expect you now to comply with the terms of your bail.
[15] The Judge imposed an 8 pm to 7 am curfew and a condition that Ms Grant was not to access the Internet unless for employment-related matters or to contact her children.
8 Police v Grant [2020] NZDC 12175.
[16] On 9 October, Ms Grant sent texts to both complainants. As well as being in breach of the protection order, this also breached a bail condition not to contact them. Ms Grant told Police that she had not sent the texts and that her phone had been stolen for a period of three hours.
[17] On 12 October, Ms Grant appeared before Judge Zohrab.9 By this point she had become self-represented. She was remanded in custody until trial callover three days later, where Judge Riley further remanded Ms Grant in custody.
[18] And then on 3 November, Ms Grant applied for a writ of habeas corpus.10 The application was heard by Cooke J on 6 November 2020. Relying on s 14(2)(b) of the Bail Act 2000, Cooke J held that he was precluded from questioning Judge Riley’s bail ruling; he dismissed the application.
[19] At some point at around this time (the relevant date not being evident on the High Court file), the Crown took over Ms Grant’s prosecution and the charges against her were rationalised and reduced to those that were the subject of her later guilty pleas.11 And in (I think) December 2020, Ms Grant was granted EM bail, as I understand it with a 24 hour curfew.
Guilty pleas and sentencing
[20] Ms Grant says, and I am inclined to accept, that her quite lengthy time in custody and the strictures of restrictive bail (which she says included bail checks by Police in the middle of the night) overwhelmed her. On 20 January 2021 she gave written instructions to her new lawyer that she wished to plead guilty to all charges. On 9 February 2021 she made a brief appearance before Judge Zohrab and entered her pleas.12 She says, and again I am inclined to accept, that due to a problem that had arisen that morning at her EM bail address, she was in a highly distressed state.
[21]Judge Zohrab’s sentencing notes are short. He said:13
9 R v Grant [2020] NZDC 20720.
10 Grant v Chief Executive of the Department of Corrections [2020] NZDC 2944.
11 See [1] above.
12 She was represented by counsel on that day.
13 R v Grant [2021] NZDC 4822.
[2] Given the time that has been spent in custody, given the background, in my view the appropriate response is a sentence of nine months’ supervision on each charge, with a special condition that you be assessed by an A and D counsellor, and if they think it appropriate, that you undertake treatment for any alcohol and drug issues revealed by the assessment.
The appeal
[22] An appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011. Given that Ms Grant’s convictions were entered without a trial, her appeal can only succeed if she can establish that, for any reason, a miscarriage of justice has occurred.
[23] As well, it is only in exceptional circumstances that a conviction appeal will be entertained after a guilty plea.14 As the Court of Appeal said in R v Le Page:15
[16] … An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.
[24] As more recently confirmed in Richmond v R, there are four broad categories where, despite a guilty plea, there can be a miscarriage of justice:16
(a)where the defendant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)where on the admitted facts the defendant could not in law have been convicted of the offence charged;
(c)where the plea was induced by a ruling that was a mistake in law; or
(d)where trial counsel errs in his or her advice as to the non-availability of certain defences or potential outcomes.17
14 While s 115 of the Criminal Procedure Act 2011 permits the vacation of a guilty plea, that section only applies before sentence or other final determination.
15 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
16 Richmond v R [2016] NZCA 41 at [17]–[19].
17 For example, by wrongly or negligently inducing a guilty plea under the mistaken belief that no tenable defence could be advanced.
[25] As regards the last of these, I would add that erroneous “advice as to the non- availability of certain defences or potential outcomes” (ie wrong advice that certain defences were not available) must also logically encompass the erroneous absence of advice as to defences or outcomes that are available.
[26] At the heart of Ms Grant’s appeal lies her submission that she pleaded guilty under duress. As the foregoing narrative shows, during 2020 she had spent a considerable time in prison and then on restrictive bail. As the sentencing Judge noted, the time for which she was detained was likely longer than any sentence of imprisonment could have been. I have no doubt that her endurance was stretched to breaking point.
[27] The Courts are properly cautious in allowing conviction appeals on the basis of what is, in essence, a change of mind. As the Court of Appeal said in R v Merrilees:18
[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[28] Here, I consider that Ms Grant understood what she was doing when she pleaded guilty. While she felt pressure due to her circumstances, I am unpersuaded by her submission that she had tenable defences to the charges. On the basis of the information before the Court (or, more accurately, in the absence of reliable relevant information), I am unable to determine whether Ms Grant is right to say that the Richie McCaw picture belonged to her, although I do acknowledge that—if it did—the wilful damage charge could not stand.
[29] And even if I were to accept Ms Grant’s submission that it was she who needed protection from the complainants, and that she suffered hurt and violence at their
18 R v Merrilees [2009] NZCA 59.
hands, that does not afford her a defence to the protection order charges. As I understand it, she does not dispute (for example) that she did make Facebook posts about the pair and that she did send texts to her former partner.
[30] But that is not the end of the matter. I consider Ms Grant ought to have been advised that she could seek a discharge without conviction, following her guilty pleas. She says, and I am inclined to accept, that she received no advice about that possibility. In the circumstances as she describes them it is not hard to imagine that there was no discussion of options. Her instructions were clear and a sentence of imprisonment was extremely unlikely.
[31] Had such an application been made, I consider that there was a good argument to be made that the direct and indirect consequences of the convictions—and in particular the effect on her prospects of again gaining employment as a teacher— would be out of all proportion to the gravity of Ms Grant’s offending, which I assess as low, albeit distressing for the complainants. And it is, perhaps, arguable that the time she had already spent in prison compounds the severity of the consequences of conviction. So in these circumstances I have formed the preliminary view the absence of such advice falls within the fourth Richmond category and that a miscarriage has therefore occurred.
[32] The reason I say my view is preliminary is because Ms Grant’s appeal was not advanced on this basis, and Mr Cameron had no opportunity to address the point. I therefore propose to issue this judgment on an interim basis and to afford him the opportunity to respond.
[33] Accordingly, I direct that, by Tuesday 8 June Mr Cameron is to file further brief submissions (no more than two pages) addressing the issue I have raised.
[34] If Mr Cameron thinks it necessary, I will direct Ms Grant to file an affidavit setting out any discussions she had with her lawyer about her guilty plea and, in particular, whether the possibility of a discharge without conviction was raised. In the circumstances of this case I would hope that he would not require a formal “trial counsel error” process to be followed.
[35] Nothing is required of Ms Grant in the meantime. I will let her know if that changes.
Rebecca Ellis J
Solicitors:
Crown Solicitor, Nelson for Respondent
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