Griffin v The King - [2024] NZCA 632

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA8/2019
[2024] NZCA 632

BETWEEN	CODY PAUL GRIFFIN Applicant
AND	THE KING Respondent

Court:	Mallon, Dunningham and Powell JJ
Counsel:	D J Allan for Applicant B F Fenton for Respondent
Judgment: (On the papers)	3 December 2024 at 1 pm

JUDGMENT OF THE COURT

AThe applications to adduce further evidence are granted.
BThe application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

The applicant, Mr Griffin, is serving a sentence of 10 years nine months’ imprisonment for manslaughter and aggravated robbery. Because his offending comprised “stage-2” offences under the “three strikes” provisions of the Sentencing Act 2002 which were in force at the time, he is required to serve that sentence without parole.
Mr Griffin appealed his sentence to this Court in 2019, but that appeal was dismissed (the 2019 judgment).[1]
[1]Griffin v R [2019] NZCA 422 [2019 CA judgment].
Mr Griffin now applies to recall the 2019 judgment in order to advance a new argument relying on the subsequent decisions in Fitzgerald v R,[2] and Matara v R,[3] saying the non‑parole order imposed on the second strike should be quashed because it constitutes a breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).
[2]Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
[3]Matara v R [2021] NZCA 692, (2021) 30 CRNZ 808.
The Crown opposes the application for recall.

The offending

Mr Griffin was sentenced for his first strike offence in 2011, when he was 19.[4] The charges on which he was sentenced were wounding with intent to cause grievous bodily harm and unlawful possession of a firearm and ammunition.
[4]R v Griffin DC Rotorua CRI-2011-069-135, 27 May 2011 [first strike offending].
The facts giving rise to those charges were as follows. Mr Griffin had been driving around with co-offenders who were making “gang-related gesturing and noises” to a man walking along the road.[5] He then pointed a rifle at the victim and fired at him. The projectile struck the victim in the scrotum, irreparably damaging a testicle, and lodged in his right thigh.
[5]At [5].
The Judge described the offending as “in the realms of a drive‑by shooting” with a “gang overtone”.[6] From a starting point of seven years’ imprisonment, with credits for guilty plea, youth and remorse, Mr Griffin was sentenced to five years and three months’ imprisonment. At the conclusion of sentencing the Judge also provided the following warning: “You need to understand something. Any more firearms for you, you are going to get a big, long sentence. Do you understand?”[7]
[6]At [11].
[7]At [26].
The second-strike offending involved an aggravated robbery carried out with two co-offenders in July 2017. Mr Griffin brought three firearms and ammunition to the rural property. He was also the driver. He and his co-defendants knew a firearm was to be used in the robbery and…

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 Griffin v The King

Details

AGLC: Griffin v The King [2024] NZCA 632
Case: [2024] NZCA 632
Decision Date: 3 December 2024 at 1 pm

CaseChat Overview and Summary

Cody Paul Griffin, an applicant serving a sentence for manslaughter and aggravated robbery, sought to recall a previous judgment to argue that his non-parole order constituted a breach of section 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). He claimed that the non-parole order, combined with the Department of Corrections' administration of his sentence, prevented him from participating in reintegration programs until near the end of his sentence. The Crown opposed the application for recall, asserting that the non-parole period itself did not breach section 9, nor did the delayed access to reintegration programs.

The Court considered the legal principles for recalling a judgment and noted that a recall could occur if there was a breach of section 9 of NZBORA warranting recall. The Court examined whether the non-parole order and the delayed reintegration programs made the sentence disproportionately severe. The Court concluded that the non-parole order in itself did not breach section 9, as the offenses were serious and involved the use of firearms. The Court also noted that reintegration programs were not the only means of assistance available to Mr. Griffin. The Court held that the sentence did not reach the high threshold of being grossly disproportionate under section 9 of NZBORA.

The Court granted leave to adduce further evidence but declined the application for recall. The Court's reasoning was based on the nature of the offenses, the expected consequences of the non-parole order, and the availability of other reintegration opportunities. The Court found that the sentence did not breach section 9 of NZBORA.

Orders