GRANT v R [2021] NZHC 1244

GRANT v R [2021] NZHC 1244 [31 May 2021]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2021-442-4[2021] NZHC 1244BETWEEN SAMANTHA JANE GRANTAppellantAND THE QUEENRespondentHearing: 20 April 2021Counsel: Appellant in personJ W Cameron for RespondentJudgment: 31 May 2021INTERIM JUDGMENT OF ELLIS J[1] In February this year, Samantha Grant pleaded guilty to three charges ofcontravening a protection order1 and one charge of wilful damage.2 She was convictedand sentenced by Judge Zohrab to nine months' supervision.[2] A few weeks later, Ms Grant filed an appeal against her convictions.Background[3] I record at the outset that I have little doubt that Ms Grant's convictions werethe outcome of a chain of very unfortunate events, to which the break-up of hermarriage is central. Ms Grant is a teacher by training. She has a single previous1 Family Violence Act 2018, ss 90(b) and 112(1)(a) [maximum penalty of three years'imprisonment].2 Summary Offences Act 1981, s 11 [maximum penalty three months' imprisonment or a $2,000fine].conviction, for driving under the influence.3 And the timing of that conviction alsostrongly suggests a link with Ms Grant's marriage break-up; it seems plain (and I thinkMs Grant would accept) that she has—or has had—problems with alcohol. As well,the break-up has led to relationship property proceedings in the Family Court, theresult of which is now (Ms Grant advised me) the subject of an appeal by Ms Grant tothis Court.4Narrative of relevant events[4] To the extent the following chronology involves the events giving rise to thecharges, it is taken from the summary of facts to which Ms Grant pleaded guilty.5 Partsof the narrative may be incomplete as, to some extent, I have had to piece it togethermyself.[5] On 18 October 2019, a temporary protection order was issued, namingMs Grant as the respondent. A final protection order was issued on 19 January 2020.The protected persons named in the orders are Ms Grant's former husband and his newpartner. They are also the complainants in relation to the relevant charges.[6] On 3 March 2020, Ms Grant had been drinking. She went to her ex-husband'saddress in Richmond (the former family home) and broke in through a rear door. Shesearched the house, going into the bedrooms and moving things around. She went intothe living room and removed a relatively valuable picture of Richie McCaw from thewall. She smashed two holes in the picture and stabbed it with a pen numerous times.She then fell asleep on the sofa, until she was awoken, on her ex-husband's returnhome.[7] These events initially led Ms Grant to be charged with burglary and withbreaching the protection order. At that time she was already facing two other chargesof breaching the protection order as a result of things that had happened in January.3 Ms Grant also pleaded guilty to that charge, but now disputes it. That matter is beyond the scopeof this present appeal.4 See [E] v Grant [2019] NZFC 10593.5 Ms Grant's version of these events differs in various respects.[8] On 18 May 2020 Judge Barkle noted that not guilty pleas had been entered toall charges and that Police opposed the continuation of bail.6 He said:[11] Mr Zindel [Ms Grant's lawyer at the time] propounds that bail begranted on a 'last chance' basis and with Ms Grant having had the salutaryimpact of four nights in the police cells since her arrest. Her sister and partnerhave travelled from Christchurch to at least, for the moment, provide somesupport for Ms Grant. That is a significant step on their part.[12] Ms Grant needs to get the message, loud and clear, that a protectionorder needs to be complied with. The patience of the Court will have run-outvery shortly. There cannot be ongoing alleged continued breaching of theorder which, of course, means also breach of bail and offending on bail.[9] After commenting that Ms Grant needed help with her alcohol use, the Judgereadmitted her to bail on a "last chance" basis.[10] Shortly afterwards, however, on 27 May, Ms Grant twice called herex-husband's work in an attempt to speak with him. She then posted multiple timeson a public Facebook page, using his full name in the posts. On this occasion Ms Granttold Police that she had breached the protection order intentionally so that she couldgo to jail to have some time without alcohol.[11] Ms Grant appeared once more before Judge Barkle, on 4 June 2020.7 TheJudge recorded that Mr Zindel again sought that she be admitted to bail,acknowledging that Ms Grant has a "significant problem with alcohol which impactson her conduct" and that this, "coupled with the breakdown of the relationship seems to be the genesis of this ongoing alleged offending". The Judge said:[5] As I accepted on 18 May 2020, Ms Grant is not the usual defendantone sees in this Court Nevertheless, there is a stage when the risks that haveto be considered in terms of s 8 Bail Act 2000 are simply too great.[6] The difficulties I see if Ms Grant is once more granted bail are thatthere will be continuing interference with witnesses, being of course thecomplainant, her former husband and his new partner, as well as continuedoffending on bail. I also, of course, have to take into account the views of thecomplainant and the provisions of ss 8(3A) and 8(3C) Bail Act. That isbecause there is in place a temporary protection order in Mr [E]'s favour. Inshort, he has simply had enough.6 Police v Grant [2020] NZDC 8680.7 Police v Grant [2020] NZDC 10080.[12] After noting that the length of time until trial might have to be more fullyconsidered in the event that Ms Grant chose to maintain her not guilty pleas (Mr Zindelhaving suggested that she might seek a sentence indication), the Judge remandedMs Grant in custody until 29 June, saying:[8] Accordingly, Ms Grant, against all of that background, I am of a viewthat there are not any reasonable terms and conditions that could be providedin terms of a grant of bail that would mitigate your risk of re-offending. Thereis just cause for your continued detention on the basis of your ongoinginterference with witnesses and propensity to offend while on bail.[13] At the appearance on 29 June, Mr Zindel advised Judge Barkle that Ms Grantwished to go to trial, which the Judge indicated "will be at best some time in 2021".He said:8[3] That in itself would mean that Ms Grant would have, in my view, takinginto account the level of offending, albeit repetitive and, I accept, distressingto the complainants, not warrant a penalty equivalent to the length ofimprisonment while on remand awaiting trial.[14] After noting that the possibility of EM bail was problematic in terms ofmanaging bail risk, due to Ms Grant's use of social media and the telephone, the Judgesaid:[5] I am also hopeful that the 34 days Mr Zindel advises the defendanthas been in custody might have brought home to Ms Grant that it is a placeshe certainly does not want to spend any further time. Also, I expect that shemay have had some opportunity to reflect on her accepted overuse of alcoholand, one hopes, not to overindulge and thereby, it seems on occasions, thenfurther offending take place.[6] Accordingly, Ms Grant, I will grant you bail on conditions that I willset out in a moment, to that address. But I want you to clearly understand thatleniency cannot be extended should you indulge in any more offending, atleast on a straight bail with conditions approach.[7] So, having presided at the hearing in the Family Court I know you arenot an unintelligent woman. You know clearly what is required of you and Iexpect you now to comply with the terms of your bail.[15] The Judge imposed an 8 pm to 7 am curfew and a condition that Ms Grant wasnot to access the Internet unless for employment-related matters or to contact herchildren.8 Police v Grant [2020] NZDC 12175.[16] On 9 October, Ms Grant sent texts to both complainants. As well as being inbreach of the protection order, this also breached a bail condition not to contact them.Ms Grant told Police that she had not sent the texts and that her phone had been stolenfor a period of three hours.[17] On 12 October, Ms Grant appeared before Judge Zohrab.9 By this point shehad become self-represented. She was remanded in custody until trial callover threedays later, where Judge Riley further remanded Ms Grant in custody.[18] And then on 3 November, Ms Grant applied for a writ of habeas corpus.10 Theapplication was heard by Cooke J on 6 November 2020. Relying on s 14(2)(b) of theBail Act 2000, Cooke J held that he was precluded from questioning Judge Riley's bailruling; he dismissed the application.[19] At some point at around this time (the relevant date not being evident on theHigh Court file), the Crown took over Ms Grant's prosecution and the charges againsther were rationalised and reduced to those that were the subject of her later guiltypleas.11 And in (I think) December 2020, Ms Grant was granted EM bail, as Iunderstand it with a 24 hour curfew.Guilty pleas and sentencing[20] Ms Grant says, and I am inclined to accept, that her quite lengthy time incustody and the strictures of restrictive bail (which she says included bail checks byPolice in the middle of the night) overwhelmed her. On 20 January 2021 she gavewritten instructions to her new lawyer that she wished to plead guilty to all charges.On 9 February 2021 she made a brief appearance before Judge Zohrab and entered herpleas.12 She says, and again I am inclined to accept, that due to a problem that hadarisen that morning at her EM bail address, she was in a highly distressed state.[21] Judge Zohrab's sentencing notes are short. He said:139 R v Grant [2020] NZDC 20720.10 Grant v Chief Executive of the Department of Corrections [2020] NZDC 2944.11 See [1] above.12 She was represented by counsel on that day.13 R v Grant [2021] NZDC 4822.[2] Given the time that has been spent in custody, given the background,in my view the appropriate response is a sentence of nine months' supervisionon each charge, with a special condition that you be assessed by an A and Dcounsellor, and if they think it appropriate, that you undertake treatment forany alcohol and drug issues revealed by the assessment.The appeal[22] An appeal against conviction is governed by s 232 of the Criminal ProcedureAct 2011. Given that Ms Grant's convictions were entered without a trial, her appealcan only succeed if she can establish that, for any reason, a miscarriage of justice hasoccurred.[23] As well, it is only in exceptional circumstances that a conviction appeal willbe entertained after a guilty plea.14 As the Court of Appeal said in R v Le Page:15[16] An appellant must show that a miscarriage of justice will result if hisconviction is not overturned. Where the appellant fully appreciated the meritsof his position, and made an informed decision to plead guilty, the convictioncannot be impugned.[24] As more recently confirmed in Richmond v R, there are four broad categorieswhere, despite a guilty plea, there can be a miscarriage of justice:16(a) where the defendant did not appreciate the nature of, or did not intendto plead guilty to, a particular charge;(b) where on the admitted facts the defendant could not in law have beenconvicted of the offence charged;(c) where the plea was induced by a ruling that was a mistake in law; or(d) where trial counsel errs in his or her advice as to the non-availability ofcertain defences or potential outcomes.1714 While s 115 of the Criminal Procedure Act 2011 permits the vacation of a guilty plea, that sectiononly applies before sentence or other final determination.15 R v Le Page [2005] 2 NZLR 845 (CA) at [16].16 Richmond v R [2016] NZCA 41 at [17]–[19].17 For example, by wrongly or negligently inducing a guilty plea under the mistaken belief that notenable defence could be advanced.[25] As regards the last of these, I would add that erroneous "advice as to the non-availability of certain defences or potential outcomes" (ie wrong advice that certaindefences were not available) must also logically encompass the erroneous absence ofadvice as to defences or outcomes that are available.[26] At the heart of Ms Grant's appeal lies her submission that she pleaded guiltyunder duress. As the foregoing narrative shows, during 2020 she had spent aconsiderable time in prison and then on restrictive bail. As the sentencing Judge noted,the time for which she was detained was likely longer than any sentence ofimprisonment could have been. I have no doubt that her endurance was stretched tobreaking point.[27] The Courts are properly cautious in allowing conviction appeals on the basisof what is, in essence, a change of mind. As the Court of Appeal said in R vMerrilees:18[35] It is often the case that an offender pleads guilty reluctantly, butnevertheless does so, for various reasons. They may include the securing ofadvantages through withdrawal of other counts in an indictment, discounts onsentencing, or because a defence is seen to be futile. Later regret over theentering of a guilty plea is not the test as to whether that plea can be impugned.If a plea of guilty is made freely, after careful and proper advice fromexperienced counsel, where an offender knows what he or she is doing and ofthe likely consequences, and of the legal significance of the facts alleged bythe Crown, later retraction will only be permitted in very rare circumstances.[28] Here, I consider that Ms Grant understood what she was doing when shepleaded guilty. While she felt pressure due to her circumstances, I am unpersuaded byher submission that she had tenable defences to the charges. On the basis of theinformation before the Court (or, more accurately, in the absence of reliable relevantinformation), I am unable to determine whether Ms Grant is right to say that the RichieMcCaw picture belonged to her, although I do acknowledge that—if it did—the wilfuldamage charge could not stand.[29] And even if I were to accept Ms Grant's submission that it was she who neededprotection from the complainants, and that she suffered hurt and violence at their18 R v Merrilees [2009] NZCA 59.hands, that does not afford her a defence to the protection order charges. As Iunderstand it, she does not dispute (for example) that she did make Facebook postsabout the pair and that she did send texts to her former partner.[30] But that is not the end of the matter. I consider Ms Grant ought to have beenadvised that she could seek a discharge without conviction, following her guilty pleas.She says, and I am inclined to accept, that she received no advice about that possibility.In the circumstances as she describes them it is not hard to imagine that there was nodiscussion of options. Her instructions were clear and a sentence of imprisonment wasextremely unlikely.[31] Had such an application been made, I consider that there was a good argumentto be made that the direct and indirect consequences of the convictions—and inparticular the effect on her prospects of again gaining employment as a teacher—would be out of all proportion to the gravity of Ms Grant's offending, which I assessas low, albeit distressing for the complainants. And it is, perhaps, arguable that thetime she had already spent in prison compounds the severity of the consequences ofconviction. So in these circumstances I have formed the preliminary view the absenceof such advice falls within the fourth Richmond category and that a miscarriage hastherefore occurred.[32] The reason I say my view is preliminary is because Ms Grant's appeal was notadvanced on this basis, and Mr Cameron had no opportunity to address the point. Itherefore propose to issue this judgment on an interim basis and to afford him theopportunity to respond.[33] Accordingly, I direct that, by Tuesday 8 June Mr Cameron is to file furtherbrief submissions (no more than two pages) addressing the issue I have raised.[34] If Mr Cameron thinks it necessary, I will direct Ms Grant to file an affidavitsetting out any discussions she had with her lawyer about her guilty plea and, inparticular, whether the possibility of a discharge without conviction was raised. In thecircumstances of this case I would hope that he would not require a formal "trialcounsel error" process to be followed.[35] Nothing is required of Ms Grant in the meantime. I will let her know if thatchanges._____________________Rebecca Ellis JSolicitors:Crown Solicitor, Nelson for Respondent