GRAY v POLICE [2023] NZHC 1699

GRAY v POLICE [2023] NZHC 1699 [3 July 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2023-488-000042[2023] NZHC 1699BETWEEN LAVINA MIA GRAYAppellantAND THE NEW ZEALAND POLICERespondentHearing: 3 July 2023Appearances: S Thode for AppellantN Jamieson for RespondentJudgment: 3 July 2023JUDGMENT OF JOHNSTONE JSolicitors:Crown Solicitor, Whangarei[1] Davinia Gray pleaded guilty to two charges of aggravated assault1 and onecharge of shoplifting.2 On 8 May 2023 she was sentenced by Judge D J McDonald toone 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 Whangāreisupermarket attempting to steal a three-litre bladder of cask wine and a bottle ofconditioner. A female security guard approached Ms Gray. Ms Gray pushed thesecurity guard causing her to fall backwards. She threatened to punch the securityguard. She pushed the guard again causing her on this occasion to fall forward andleft the supermarket with the stolen goods. A male security guard followed Ms Grayand 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 Graystruck 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 lightof Ms Gray's five previous convictions for shoplifting, and seven for assault, the Judgeuplifted that starting point by four months. A full 25 per cent discount was then appliedin light of Ms Gray's guilty pleas. The Judge rejected the submission made forMs Gray that intensive supervision would be an appropriate sentence, observing thatMs Gray had previously received a considerable amount of rehabilitative assistancewithout any apparent impact. Judge McDonald adopted a final sentence of 12 months'imprisonment on the two charges of aggravated assault, with a concurrent, one-monthprison 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-basedstarting point would have been appropriate, if imprisonment were anecessary starting point, it should have been no higher than fivemonths.(b) The four-month uplift was excessive. It should have been two months.(c) Ms Gray's personal circumstances, in particular her longstandingaddiction to alcohol and methamphetamine, call for a sentence with astronger rehabilitative focus.(d) In light of the period of imprisonment served between the impositionof her sentence and the hearing of this appeal, an end sentence ofintensive supervision would be appropriate.Respondent's submissions[6] For the police, Ms Jamieson submitted that the Judge did not err, whether inrespect 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 atfirst instance and a different sentence should be imposed on appeal.3 Otherwise theCourt 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 willgenerally not intervene where the sentence is within the range that can properly bejustified by accepted sentencing principles.5 Whether a sentence is manifestly3 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] NZCA47 at [30].excessive is to be assessed in terms of the final sentence imposed rather than theprocess by which it was reached.6AnalysisStarting point[9] Ms Thode's submissions for Ms Gray do not draw in aid any particularauthority. Ms Gray's offending involved two victims, each of whom were assaultedmore than once: Ms Gray's first victim was pushed over backwards, and thenforwards; and her second victim was assaulted first with a pair of shoes, and then bymeans of a punch. As indicated, the assaults upon Ms Gray's second victim involvedattacks 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 Graypleaded 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. Iagree with Ms Jamieson's submission for police that there is a need for specialprotection of shopkeepers, and that sentencing should reflect the principle of seekingto 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 convictionsfor shoplifting; two for burglary; and eight for assault-type offences. Further relevantsentencing principles are those of seeking to deter further offending on her part, andof protecting the retail community from her.[11] I do not consider the starting point for the instant offending, together with theuplift, 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'ssupervision in February 2007, and later that year was convicted of breaching hersupervision conditions. Following a number of sentences imposed for offendingoutlined 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 ofsupervision. While the Judge specifically turned his mind to Ms Gray's substanceabuse issues as the root cause of her offending, he was in my view entitled to take theview they did not mitigate the appropriate sentence in light of her apparent prior failureto accept rehabilitative assistance.Least restrictive outcome[13] Further, in the above circumstances, the Judge did in my view not err whendeciding there was no proper alternative to a sentence of imprisonment.[14] While a sentence of intensive supervision may well have led to a longer periodunder Corrections' supervision while in the community, a community-based sentencewould have risked losing sight of the sentencing principle that required particularattention in this case of the need to protect the community, and in particular retailoperators, from Ms Gray's behaviour.Result[15] In all the circumstances outlined above, Ms Gray's appeal is dismissed._____________Johnstone J