GRANT v POLICE [2023] NZHC 3634

GRANT v POLICE [2023] NZHC 3634 [12 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-591[2023] NZHC 3634BETWEEN SHAKUR GRANTAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2023Appearances: B J Munro for appellantC M Fountain for respondentDate of judgment: 12 December 2023JUDGMENT OF JAGOSE JThis judgment was delivered by me on 12 December 2023 at 3.00pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Woodward Chrisp, GisborneKayes Fletcher Walker, Manukau[1] Shakur Grant appeals against Judge D Robinson's 11 October 2023 sentenceof him in the District Court at Manukau to 18 months' imprisonment, 1 on Mr Grant'sguilty pleas to charges predominantly of weapons' possession.2Background[2] Mr Grant was involved in two unrelated Gisborne altercations in eachSeptember 2022 and June 2023, in which he was found in possession of weapons,respectively a baseball bat and sawn-off shotgun and shells, the second altercationhaving gang overtones.Judgment under appeal[3] The Judge took the firearms offending as the lead offending. From a startingpoint range of two to three years' imprisonment for more serious offending, he reducedthat to an 18- to 27-month starting point. He uplifted the starting point to 30 months'imprisonment to reflect aggravating features in Mr Grant's possession: namely, ascut-down for concealment and risking wider harm; for use in conflict; and beingwithout a firearms licence.[4] The Judge then discounted the sentence to 18 months' imprisonment (a 40 percent discount) on account of Mr Grant's guilty pleas (the maximum 25 per cent),contributing factors in his background (10 per cent) and his time spent onelectronically-monitored bail. He declined to convert the sentence to home detentionas contraindicated by Mr Grant's previous breaches of court orders, and theseriousness of firearms offending requiring "deterrence and denunciation [to trump]rehabilitative outcomes even bearing in mind [Mr Grant's] family circumstances".31 Police v Grant [2023] NZDC 24185.2 Possessing offensive weapon (Crimes Act 1961, s 202A(4)(a): maximum penalty, three years'imprisonment); intimidation by threatening to injure (Summary Offences Act 1981, s 21(1)(a) and(3): maximum penalty, three months imprisonment); possessing firearm (Arms Act 1983, s 45:maximum penalty, four years' imprisonment); possessing ammunition (Arms Act, s 51: maximumpenalty, three years' imprisonment); failure to answer District Court bail (Bail Act 2000, s 38:maximum penalty, one year's imprisonment).3 Police v Grant, above n 1, at [40].[5] For Mr Grant, Bree Munro argues the Judge erred in declining home detention,being the least restrictive sentence appropriate in Mr Grant's particular circumstancesas relocated from Gisborne influences and with family responsibilities in Manukau.Approach on appeal[6] I must allow the appeal only if I am satisfied both there is error in the sentence,and a different sentence should be imposed.4 In any other case, I must dismiss theappeal.5 The measure of error is the sentence be "manifestly excessive"; a principle"well-engrained" in this Court's approach to sentencing appeals.6 I will not intervenewhere the sentence is within a range properly justified by accepted sentencingprinciple. Whether 'manifestly excessive' is to be assessed in terms of the sentencegiven, rather than the process by which it is reached.7Discussion[7] The Judge's reference to Mr Grant's "family circumstances" implicitly was toacknowledge the desirability of rehabilitation in the context of Mr Grant's mother'salcohol abuse and his own foetal alcohol spectrum disorder, his family's gangaffiliations in Gisborne, his relocation to Auckland with his partner's and her family'ssupport, and his new parental responsibilities. Those factors brought Mr Grant'ssentence within a short term of imprisonment, open to conversion to home detention.[8] Once the Judge arrived at a short-term sentence (which is not contested here),he was to make "considered and principled choice between the two forms ofsentence".8 That requires "a careful evaluation of all the relevant factors, including allthe relevant principles and purposes of sentencing under the Sentencing Act".9 If theJudge's expression was not expressly to recognise both forms of sentence serveprinciples of denunciation and deterrence, his decision clearly identified why4 Criminal Procedure Act 2011, s 250(2).5 Section 250(3).6 McCaslin-Whitehead v R [2023] NZCA 259 at [27], affirming Tutakangahau v R [2014] NZCA279, [2014] 3 NZLR 482 at [32]–[35].7 At [28], citing Tutakangahau v R, above n 6, at [36].8 Lauvi v R [2022] NZCA 431 at [34], reiterating Fairbrother v R [2013] NZCA 340 at [30].9 At [34].imprisonment "better qualifie[d] as the least restrictive sentence to impose taking intoaccount all the purposes of sentencing".10[9] The primary contest for the Judge then was between the desirability of keepingMr Grant in that new community and its consequent safety.11 The Judge directlyassessed Mr Grant's previous breach of a home detention sentence and his history offailing to answer bail made him unsuitable for a home detention sentence, whichunsuitability only was exacerbated by his firearms offending.12 And that was relativelyserious offending in the context of a public confrontation between gang members.[10] As plainly, that serious offending weighed more heavily in balance against thedesirability of home detention in supporting Mr Grant's independence from poorinfluences in his background and in contribution to his new parental role, which hehad been performing while on electronically-monitored bail at his new address withonly one minor curfew incursion. All those factors are evident in the Judge's decision.This is not a case in which a judge has denied home detention is an available sentenceor has given imprisonment's deterrence "complete priority" over countervailingsentencing purposes.13[11] From those perspectives, a preference for Mr Grant's short term ofimprisonment entirely was open to the Judge, and cannot be thought excessive, letalone manifestly so. I am unable to find error in the Judge's assessment and weightingof the material factors for exercise of his sentencing discretion against home detention.One or other form of sentence was required, and I cannot identify any error in theJudge's choice, especially as at the margins of outcome.Result[12] The appeal is dismissed.—Jagose J10 At [34], reiterating Fairbrother v R, above n 8, at [30].11 Sentencing Act 2002, s 16.12 Police v Grant, above n 1, at [39].13 Compare Stock v R [2023] NZCA 493 at [53], citing R v Iosefa [2008] NZCA 453 at [42], and at[54], citing Fairbrother v R, above n 8, at [29].