Gray v Police
[2023] NZHC 1699
•3 July 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2023-488-000042
[2023] NZHC 1699
BETWEEN LAVINA MIA GRAY
Appellant
AND
THE NEW ZEALAND POLICE
Respondent
Hearing: 3 July 2023 Appearances:
S Thode for Appellant
N Jamieson for Respondent
Judgment:
3 July 2023
JUDGMENT OF JOHNSTONE J
Solicitors:
Crown Solicitor, Whangarei
GRAY v POLICE [2023] NZHC 1699 [3 July 2023]
[1] Davinia Gray pleaded guilty to two charges of aggravated assault1 and one charge of shoplifting.2 On 8 May 2023 she was sentenced by Judge D J McDonald to one year’s imprisonment.
[2]Ms Gray appeals against that sentence. The police oppose.
Offending
[3] On 9 March 2023 at 11.50 am, Ms Gray was seen inside a Whangārei supermarket attempting to steal a three-litre bladder of cask wine and a bottle of conditioner. A female security guard approached Ms Gray. Ms Gray pushed the security guard causing her to fall backwards. She threatened to punch the security guard. She pushed the guard again causing her on this occasion to fall forward and left the supermarket with the stolen goods. A male security guard followed Ms Gray and attempted to recover the stolen goods. Ms Gray struck him across the face twice, using her shoes as a weapon. When the guard held onto Ms Gray’s bag, Ms Gray struck the guard across the face with a closed fist.
District Court decision
[4] Judge McDonald adopted a starting point of one year’s imprisonment. In light of Ms Gray’s five previous convictions for shoplifting, and seven for assault, the Judge uplifted that starting point by four months. A full 25 per cent discount was then applied in light of Ms Gray’s guilty pleas. The Judge rejected the submission made for Ms Gray that intensive supervision would be an appropriate sentence, observing that Ms Gray had previously received a considerable amount of rehabilitative assistance without any apparent impact. Judge McDonald adopted a final sentence of 12 months’ imprisonment on the two charges of aggravated assault, with a concurrent, one-month prison sentence for the theft, and both standard and special release conditions.
Appellant’s submissions
[5]For Ms Gray, Ms Thode submitted:
1 Crimes Act 1961, s 192(1)(b) — maximum penalty: three years’ imprisonment.
2 Sections 219 and 223 — maximum penalty: three months’ imprisonment.
(a)The 12-month starting point was excessive. While a community-based starting point would have been appropriate, if imprisonment were a necessary starting point, it should have been no higher than five months.
(b)The four-month uplift was excessive. It should have been two months.
(c)Ms Gray’s personal circumstances, in particular her longstanding addiction to alcohol and methamphetamine, call for a sentence with a stronger rehabilitative focus.
(d)In light of the period of imprisonment served between the imposition of her sentence and the hearing of this appeal, an end sentence of intensive supervision would be appropriate.
Respondent’s submissions
[6] For the police, Ms Jamieson submitted that the Judge did not err, whether in respect of the selected starting point, or the deductions both as applied and rejected.
Law on appeal
[7] This Court must allow the appeal if there is an error in the sentence imposed at first instance and a different sentence should be imposed on appeal.3 Otherwise the Court must dismiss the appeal.4
[8] Before this Court may substitute its own views as to the appropriate sentence, it must find the first instance sentence to be manifestly excessive. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.5 Whether a sentence is manifestly
3 Criminal Procedure Act 2011, s 250(2).
4 Section 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
excessive is to be assessed in terms of the final sentence imposed rather than the process by which it was reached.6
Analysis
Starting point
[9] Ms Thode’s submissions for Ms Gray do not draw in aid any particular authority. Ms Gray’s offending involved two victims, each of whom were assaulted more than once: Ms Gray’s first victim was pushed over backwards, and then forwards; and her second victim was assaulted first with a pair of shoes, and then by means of a punch. As indicated, the assaults upon Ms Gray’s second victim involved attacks to the head. Violence for the purpose of avoiding responsibility for offending (here, shoplifting) is of course inherent in the aggravated assaults to which Ms Gray pleaded guilty, but offending of that type carries a maximum penalty of three years’ imprisonment rather than the maximum penalty of one year for common assault. I agree with Ms Jamieson’s submission for police that there is a need for special protection of shopkeepers, and that sentencing should reflect the principle of seeking to deter violence against them.
Uplift
[10] Against the 12-month starting point, an uplift of four months was stern. However, Ms Gray has a poor record of relevant previous offending: five convictions for shoplifting; two for burglary; and eight for assault-type offences. Further relevant sentencing principles are those of seeking to deter further offending on her part, and of protecting the retail community from her.
[11] I do not consider the starting point for the instant offending, together with the uplift, to have resulted in an excessive overall starting point.
6 Ripia v R [2011] NZCA 101 at [15].
Personal circumstances
[12] As to personal circumstances, Ms Gray received a sentence of one year’s supervision in February 2007, and later that year was convicted of breaching her supervision conditions. Following a number of sentences imposed for offending outlined above, Ms Gray received a further sentence of supervision on 6 May 2022. The current offending was committed three days after the expiry of that period of supervision. While the Judge specifically turned his mind to Ms Gray’s substance abuse issues as the root cause of her offending, he was in my view entitled to take the view they did not mitigate the appropriate sentence in light of her apparent prior failure to accept rehabilitative assistance.
Least restrictive outcome
[13] Further, in the above circumstances, the Judge did in my view not err when deciding there was no proper alternative to a sentence of imprisonment.
[14] While a sentence of intensive supervision may well have led to a longer period under Corrections’ supervision while in the community, a community-based sentence would have risked losing sight of the sentencing principle that required particular attention in this case of the need to protect the community, and in particular retail operators, from Ms Gray’s behaviour.
Result
[15]In all the circumstances outlined above, Ms Gray’s appeal is dismissed.
Johnstone J
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