R v Grant - [2009] NZCA 266

IN THE COURT OF APPEAL OF NEW ZEALAND
CA803/2008
[2009] NZCA 266
THE QUEEN
v
KOINAKI GRANT
Hearing:15 June 2009

Court:Chambers, MacKenzie and Simon France JJ
Counsel:I Jayanandan for Appellant

M F Laracy for Crown

Judgment:24 June 2009 at 12 pm

JUDGMENT OF THE COURT

A       The appeal is allowed.

B     The minimum non-parole period is quashed and a period of one year five months is substituted.

REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
[1]       The appellant pleaded guilty in the District Court at Manukau to one count of aggravated injury and one count of escaping from lawful custody. He was sentenced by Judge Clapham to two years and ten months imprisonment. A minimum non‑parole period of 23 months was imposed. He appeals against both the sentence and the minimum non-parole period.
Facts
[2]       The facts are that on 14 April 2008 the appellant and his co-offender, Mr Waara, were being held in the cells at the Pukekohe District Court for an appearance that day. The offenders began yelling out to the constable on duty as court orderly for him to come to the cell in which they were being held. He went to the cell with a rubbish bin to collect rubbish from within the cell. He unlocked the cell door leaving the key in the lock and opened the door partially, holding out the rubbish bin for rubbish to be placed in it. As he did so Mr Waara grabbed him by the arm and pulled him into the cell. The constable received a blow to the head which caused him to fall to his knee just inside the cell door, dazed and disoriented. The offender Mr Waara then began to punch him repeatedly to the side of the head while he was in a prone position on the floor, where the constable was unable to fight back or resist. The constable called for help from another prisoner within the cell, but that prisoner sat and watched the attack. The constable reached for his OC spray but could not remember what happened after that point as he apparently blacked out.
[3]       While Mr Waara was attacking the constable, the appellant took the cell keys and unlocked the rear door to the cell block area. The two offenders fled under a partially open roller door into the car park area at the rear of the Court and then ran off. The constable came to in time to see both accused escaping under the roller door. He suffered bruising and swelling to the right eye area, bruising to the head area, a sore right ear, whiplash to the neck, and suffered headaches after the assault. Two days later, both offenders were apprehended attempting to board a bus to Raetihi on which they had booked tickets under false names.
[4]       Both offenders were charged with one count of aggravated wounding and one count of escaping lawful custody. Each of them pleaded guilty to the escaping charge prior to a…

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 R v Grant

Details

AGLC: R v Grant [2009] NZCA 266
Case: [2009] NZCA 266
Decision Date: 24 June 2009

CaseChat Overview and Summary

The appeal in R v Grant was heard in the Court of Appeal of New Zealand. The appellant, Grant, had pleaded guilty to one count of aggravated injury and one count of escaping from lawful custody. He was sentenced to two years and ten months imprisonment with a minimum non-parole period of 23 months. The appellant appealed both the sentence and the minimum non-parole period imposed. The court was required to decide whether the sentence and minimum non-parole period were appropriate under the circumstances.

The court considered whether the sentence was manifestly excessive, noting that while the violence was not at the extreme end of the scale, the attack on a law enforcement officer required a deterrent approach. The court found that the sentence was not manifestly excessive. Regarding the minimum non-parole period, the court found that it was within the sentencing judge’s discretion to impose such a period but noted that the possible imposition of a minimum period had not been previously signalled, and therefore, an opportunity for submissions should have been given by the Judge. The court approached de novo both the question whether a minimum period was required and the length of that period. It found that a minimum period was appropriate for the purposes of denunciation and deterrence, and determined that a 50% minimum non-parole period was appropriate. The court found that the Judge had reached a minimum non-parole period which was manifestly excessive and adjusted it accordingly.

The court quashed the minimum non-parole period and substituted a period of one year and five months. In all other respects, the sentence was confirmed.

Orders