R v Grant
[2015] NZHC 2395
•1 October 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-009-5171 [2015] NZHC 2395
THE QUEEN
v
WILLIAM ALEXANDER HAMISH GRANT
Hearing: 1 October 2015 Appearances:
C J Boshier for Crown
E C Bulger for PrisonerJudgment:
1 October 2015
SENTENCING NOTES OF DUNNINGHAM J
[1] William Grant, you are for sentence today, having pleaded guilty to two charges of disfiguring with intent to cause grievous bodily harm and one of injuring with intent to cause grievous bodily harm.
[2] Now convictions have been entered on each charge and you have received the necessary three strikes warning.1
[3] When the matter came before Judge Neave on the 28 August 2015 he declined jurisdiction and transferred it to this Court because the question of whether preventive detention should be imposed was live.
1 R v Grant DC Christchurch CRI-2014-009-5171, 21 November 2014 (Judge Crosbie); R v Grant
DC Christchurch CRI-2014-009-10203, 12 December 2014 (Judge Garland).
R v GRANT [2015] NZHC 2395 [1 October 2015]
[4] Now as you are aware the first two charges carry a maximum sentence of
14 years’ imprisonment each and the second charge carries a maximum sentence of
10 years.
[5] However, the principal issue which I must deal with today is whether you should be sentenced to a finite term of imprisonment or to a term of preventive detention. Now having heard from the Crown and your counsel, Ms Bulger, I have reached the view that preventive detention is the appropriate sentence. Now because this is a different sentence from the kind that was indicated to you by Judge Neave, you must be formally provided with an opportunity to withdraw your plea of guilty. Now I understand you have taken instructions on that possibility? Thank you very much Ms Bulger.
[6] Now I have to go through the background to each of the offences.
Summary of facts
[7] So the charges arise out of three separate incidents and I will deal with them chronologically. They all occurred while you were serving a prison term for a conviction on a charge of wounding with intent to cause grievous bodily harm against your former girlfriend.
[8] Now the first incident occurred on 17 January 2014. You and your victim were in the changing room/toilet area near the kitchen of the Otago Correction facility in Milton. Following an altercation with your victim you bit the earlobe of your victim, severing a portion of the ear completely. While your victim underwent surgery in Dunedin hospital to reattach the earpiece, that was not successful, and your victim is permanently disfigured.
[9] Now on Saturday 19 April 2014, you were a prisoner at Christchurch Men’s Prison in Rolleston. Again, your victim was a prisoner and at the time of the offence you were working together in the kitchen in the prison. You had a physical altercation in that area, that morning, but at the conclusion of it, the two of you shook hands and moved on. However, just before 11.00 am that same morning, you entered the cell of your victim and began punching your victim around the head and
face area. You then leaned over your victim and bit off approximately a 10 to
12 millimetres off the top of your victim’s right earlobe. The victim’s wound bled profusely. You spat out the portion of your victim’s severed ear and left his cell.
[10] Again, although the victim was taken to Christchurch Hospital and surgeons attempted to reattach that portion of the ear that had been removed, that was unsuccessful. That victim too now has permanent disfiguration. He also received bruising to his face which was significant on the right side.
[11] The third offence also took place at Christchurch Men’s Prison. On Saturday
25 October 2014 you were on the upper walkway in one of the units of that prison where for approximately five minutes, you paced back and forth. The victim in this matter then also made his way along the walkway and leaned against the metal railing to overlook the lower floor and speak with another inmate. You then approached the victim from behind and out of the victim’s line of sight. You then removed a metal improvised stabbing device from the waistband of your tracksuit bottom and stabbed your victim approximately three times in the lower back area. Your victim managed to wrestle you to the ground and held you there until prison staff intervened.
[12] Your victim sustained three shallow strike wounds to his lower back. Two of the wounds were approximately five centimetres in length and the third was a shallow puncture wound.
[13] Now I have limited information about the impact of your offending on the victims. But it is clear that as a consequence of the first two offences is, at the very least, both of your victims have been permanently disfigured.
Personal circumstances
[14] So I now turn to your personal circumstances. It appears that your early years were not particularly remarkable, although your parents separated when you were about seven, with you and your brother remaining with your mother, but also spending time with your father in the school holidays.
[15] However, a significant incident in your childhood was the abuse and bullying you received from an older boy when you were around 9 years old. That appears to have only stopped when you changed schools. And it seemed not long after this you started getting into trouble at school and acting up. Nevertheless, you appeared to enjoy school and you showed academic ability and you participated in rugby and drama.
[16] However, once you started high school, on your own admission, you turned into a bully yourself, having been the butt of bullying when you were younger. It seems that, although you were good at sports and were the vocalist in a band, the academic side of school got left behind and you became involved in drugs and petty crime.
[17] You were required to leave your first school half way through your second year there and the next school expelled you after just 10 days.
[18] Your life then seems to have spiralled out of control. It was marked by substance abuse, an addiction to violence and displays of anti-social and racist behaviour. When you were just 16 you committed the offence for which you were imprisoned and that was an extended violent attack on your then girlfriend. While serving that sentence you committed the further three offences for which you are now being sentenced.
[19] However, as I will come back to, you retain the full support of your parents, and your maternal grandparents. And on the Court file there are several detailed letters from them which express faith in your abilities to be re-socialised and to make the most of your intellectual and physical talents which you undoubtedly have.
Preventive detention
[20] Now as you are aware, you have pleaded guilty to violence offences which trigger consideration of the preventive detention provisions of the Sentencing Act
2002. Before I can impose preventive detention, I have to be satisfied that a qualifying violent offence has been committed and that you were over 18 at the time. Now both of those requirements are met. The third is that I have to be satisfied that
you are likely to commit another qualifying violent offence if released from prison at the sentence expiry date of any finite sentence that might be imposed. And that is the issue which reports under s 88 have been prepared.
[21] And then when I actually go on to consider whether to impose a sentence of preventive detention, I have to take into account:
87 Sentence of preventive detention
…
(a) any pattern of serious offending disclosed by the offender's history; and
(b) the seriousness of the harm to the community caused by the offending; and
(c) information indicating a tendency to commit serious offences in future; and
(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[22] Because I have to apply that principle that a lengthy determinate sentence is preferable to preventive detention, I need to consider first what that finite sentence would be if preventive detention was not imposed. Now to that end I am not constrained by Judge Neave’s sentencing indication as I am not proposing to abide by it, but I do not intend to materially depart from it.
Finite sentence
[23] So the seriousness of the crimes you have committed is indicated by the maximum penalty available of 14 years.
[24] And in setting a starting point, I will take the two charges of disfiguring with intent to cause grievous bodily harm as what we call the lead offences. Once a starting point for that is set, I have to uplift that to reflect the further charge of injuring with intent.
[25] Now there are no mitigating features of that offending and the aggravating features of those charges are:
(a) extreme violence: I mean biting off the ear off a prisoner takes substantial force and is clearly extreme. So I consider that factor is present to a moderate to high degree.
(b)premeditation: in relation to the first biting victim, you sought the victim out in his cell. So I consider this factor is present in a moderate degree.
(c) serious injury: both the attacks resulted in irreparable injuries and permanent disfigurement. So I consider that factor is present in a high degree.
(d)attacking the head: clearly that occurred, but I have already accounted for that factor in relation to the seriousness of the injuries and I do not see it as otherwise increasing your culpability.
(e) harm: again, I have considered this factor and it is clear the harm caused was substantial.
[26] In terms of aggravating features relating to you, you do not have an extensive criminal history, but the previous offence for which you were currently serving a prison sentence is extremely serious, and all the present offending has occurred while you were serving a sentence for that offending.
[27] In terms of mitigating features, the key features are your guilty pleas and your youth. With some reservation I accept that you should be allowed the full
25 per cent discount for your guilty pleas. In reflecting your youth I note that when you were sentenced for the first offence you were given an effective 20 per cent discount for youth. Unfortunately, that did not prompt efforts to address your behaviour and any discount I give you now must be less than what was given on that occasion.
[28] Now although the Crown has said that there should be some discount for remorse, in my view there is no evidence that supports that assertion. The pre-sentence report clearly establishes that you are not remorseful, though you are perhaps regretful for the consequences of his actions. So I do not consider a discount would be justifiable there.
[29] Now your lawyer, Ms Bulger, has also sought to make out a case for a further discount based on your willingness to engage with treatment and intervention, and because you “enjoy significant family support”. I think the fact that your family has rallied to support you in the face of this very serious offending, is commendable and I really hope you can fulfil their confidence in you. However, it can have little impact on the sentencing process. As to your willingness to engage in treatment, that assertion must be seen in light of previous attempts at intervention, which you have rejected.
[30] Now applying those matters to a potential finite sentence, the lawyers have both referred me to the guideline decision in Taueki and I accept that given the seriousness of the January and April incidents, each offence would attract a sentence at the top of what we call Band 2, and that is where a starting points is between five
and 10 years’ imprisonment.2 And I consider a combined starting point of 12 years’
imprisonment should apply for these two offences. I would uplift that by two years to account for your previous conviction and the fact that your offences have occurred while you were subject to a sentence.
[31] That starting point must then be uplifted to take into account the further injuring charge. In sentencing on that charge I consider the incident involved premeditation and a moderate degree of injury. The Crown says the uplift should be between two and a half and four years, and your lawyer says it should be at the lower end of that. I would apply an uplift of three years to reach a total of 17 years. From that I would deduct a year to reflect your youth and your rehabilitative prospects to take that back to 16 years. I would then apply a 25 per cent discount for your guilty
pleas, to take that back to 12 years.
2 R v Taueki [2005] 3 NZLR 372 (CA).
[32] That sentence would then be served cumulatively on the existing sentence of four and a half years. It would result in an end total sentence of 16 and a half years.
[33] I must then stand back and consider whether the total effect of that sentence is out of all proportion to the culpability inherent in your total offending. When I do that, I am satisfied that a sentence of 16 and a half years is not disproportionate. While it is a long sentence, the reality is, the offending was serious and I do not consider, having regard to the principles of sentencing, that a lesser sentence could be imposed. But more importantly, I do not think that given the risk you pose to the community if you do not engage properly with psychological intervention and treatment, that it is sufficient to protect the community. That is why I go on to consider preventive detention.
Should preventive detention be imposed?
[34] Now you will have had explained to you that preventive detention is an indefinite sentence. A minimum period of imprisonment is fixed after which release is at the discretion of the Parole Board. You must satisfy the Board that you are fit for release. The nature of that sentence means that if you are released, you would remain on parole indefinitely, subject to any conditions that the Parole Board may impose. You would be at risk of recall if any further offending occurred.
[35] The main purpose of preventive detention is to protect the community from someone who is a danger to them.
[36] Now the main considerations which tell against the imposition of preventive detention are your age, you were only 18 at the time of these offences, and the fact you have not yet taken up any kind of expert psychological support which both your family and the experts say is required to support you to reintegrate into society.
[37] That said, while I am sympathetic to you and your family, I am required to consider the interests of the community and the likelihood that you will be a danger to the community on your release from prison. Based on the finite sentence I have proposed that would be when you were in your early thirties.
[38] To make that judgment I have the assistance of the two reports from the health assessors that were prepared for the purpose of sentencing, and the pre-sentencing report. Those reports have been careful and detailed and they reach the following conclusions.
[39] They say you have expressed no remorse for your offending and in relation to that previous offending in 2011; you tend to blame your victim. You have not engaged well in treatment to date, although you do now say that you recognise the need for psychological assistance to reduce your future risk. It seems too, that you do not have a clear perception of the risk you pose. While you say you do not want to be violent when you are eventually released, you do continue to display violent attitudes. You have a past history of regular use of alcohol, cannabis and other substances, and the reports say you exhibit signs of personality dysfunction within the borderline and narcissistic categories and you exhibit mood instability, impulsivity, aggression and a lack of remorse and empathy.
[40] Dr Austin considers that the historical and situational risk factors she has identified suggest you pose a significant risk of further serious violent offending in the absence of meaningful engagement in psychological treatment and the completion of appropriate treatment programmes. Dr Austin considers if you do offend again your potential victims could include your intimate partners or acquaintances, who could be male or female and the violence could be serious in nature and could involve the use of a weapon. Dr Austin observes that while you state you are prepared to try and address your psychological needs and risks, this is yet to be tested out in a meaningful fashion.
[41] The other writer, Ms Brown, considers you to be at a very high risk of further violent offending. Any process to reduce your violent offending risk would require intensive treatment given the entrenched nature and complexity of your presentation. I am particularly concerned about the evidence of your desensitisation to violence contained in this report. That includes the event which took place on a farm that you stayed on after you were expelled from school where you bludgeoned a calf to death using a weed grubber and where you conceded that you had enjoyed the violence
and were unable to stop until the animal died. You have also reported other violence towards animals in the past.
[42] There is also concern that there was an admitted sexual arousal during the commission of your offending in 2011, where you said you enjoyed the violence inflicted on your victim, an ex-girlfriend. That violence included punching her in the face, throwing her against the walls, kicking her, smashing her head against the vanity, stomping on her head, stabbing her with a comb and repeatedly smashing a soap dispenser against her head, and where that violence continued, even though she had lost consciousness for a period.
[43] While you said to one report writer that you had “grown out of your fascination with violence”, your behaviour within prison casts serious doubts on that statement. I am also concerned about your reported indifference to this violence where you apparently said you did not see the ear biting as being a major issue and you showed no concern to the victims of your offences, saying that these things were simply to be expected within the prison environment.
[44] Finally, the pre-sentence report prepared for sentencing reiterates the conclusions in those other reports. It says you enjoy violence, you get excited by violence and your strongly held beliefs reinforce your justification to behave in this way. The probation officer sees you as “an exceptionally high risk of offending again in prison and capable of the most serious of offending in part inspired by your desire to inflict harm”. He too, says the risk is unlikely to abate when you eventually return to the community unless you can make significant change, either of your own volition or with assistance.
[45] So there can be no doubt that a pattern of serious offending has developed and I have information about your tendency to commit serious offences in the future. Indeed you not only concede that you are at high risk of further offending, but your statements reveal that you both enjoy the act of inflicting violence, and the shock value of telling people about it. Thus, while your youth is a factor that must be brought to bear in my assessment, the fact that you have amassed these four very
serious convictions in a short space of time reinforces the content of the reports that you are at a high risk of reoffending.
[46] In terms of the absence of, or failure of efforts by you to address the causes of your offending, much has been made of the fact that you have had little opportunity to address the causes. But this does overlook the fact that you have been given an opportunity to participate in programmes, but you have been unable or unwilling to see them through to completion because of your anger, your unwillingness to engage, and other behaviour. Group therapy has proved inappropriate for you and you have refused to continue individual sessions because you consider such treatment is not of any benefit. The statements that you now make that you are willing to address your psychological issues must be considered in this light and again I say these are bare assertions which are yet to be tested.
[47] So finally, I must consider whether a finite sentence is preferable if it is able to provide adequate protection for society. Again, your youth is highly relevant, but weighed against that is the fact that you have been undeterred by your previous sentence and you appear ambivalent about engaging in treatment to address the root cause of your behaviour.
[48] So I have reached the view that, despite your youth and your comparative lack of psychological intervention, you do pose an extreme risk to the community and it cannot be met by anything other than a sentence of preventive detention.
[49] But it is important to note this does not stop you addressing these issues with help and being released on parole in due course. So while I consider that a minimum period of imprisonment is required, I have decided to set a relatively short minimum period of imprisonment to provide you with some incentive to make the changes that are required to allow you to be released into the community, albeit subject to ongoing conditions of parole. That minimum period of imprisonment I am going to impose will be 6 years. It is to run from the date of commission from the first of the three offences you have pleaded guilty to, so effectively, it will be shorter for the
balance.3
3 i.e. the second offence.
[50] I consider that this achieves the appropriate balance between protecting the community if you fail to address the causes of your offending, but giving you a real chance to be released while you are still young if you take the opportunity to make the changes which your family believes you are capable of.
[51] Mr Grant I would ask you to stand now please. I will now formally sentence you on the two charges of disfiguring with intent to cause grievous bodily harm. You are sentenced to preventive detention. You are to serve a minimum period of imprisonment of six years. The minimum period of imprisonment is to run from the date of commission of the first of these two offences.
[52] On the charge of injuring with intent, I sentence you to three years’
imprisonment to run concurrently with the disfiguring sentences.
[53] Your lawyer has sought name suppression for you and I looked and saw that was sought and previously declined when Judge Becroft sentenced you on the first offence. Now look, I accept that any publication has adverse effects on you, but more particularly on your family, including your younger brothers. However, I am not satisfied that there are such issues of extreme hardship that would warrant overriding the normal position that sentencing is a public process. I also think it is a lack of practical effect given that name suppression has not been granted on the earlier occasion, so therefore name suppression is declined.
Solicitors:
Raymond Donnelly & Co., Christchurch
E C Bulger, Christchurch