The Queen v Grant [2009] NZCA 266 (24 June 2009)

Last Updated: 1 July 2009

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 preliminary hearing. Guilty pleas to the other count were entered following depositions, in November 2008, when the initial charge of aggravated wounding was reduced to one of aggravated injury: specifically, that, with intent to commit the crime of escaping lawful custody, the offenders injured the constable.
[5] In sentencing, Judge Clapham referred to the victim impact statement as to the effect of the incident on the constable. He noted that the victim was a police constable working in the cell where large numbers of people are processed and that a distinguishing feature was the arrangement reached between the offenders to proceed in the manner they did, which necessarily involved some planning. He referred to the need for an element of deterrence. He dealt with the matter on the basis that both offenders were equally culpable, though he observed that the co-offender Mr Waara was probably more responsible for the initiation of the ploy and the escaping. As to the Sentencing Act 2002 purposes of sentencing, he referred to the need for a high level of deterrence in respect of those who, by their ploy, attack police officers merely going about their duty; for protection of the community; and for a clear denunciation of the conduct of such persons. He indicated a starting point for the offending in the region of three to four years, from which he allowed a discount for the guilty pleas to give an end sentence of two years and ten months. As to a minimum non-parole period he said:

[25] Because of the necessity in my view to make it clear that there needs to be deterrence and denunciation, I fix a minimum non-parole period to hold the offenders accountable, to deter others, denounce their conduct and protect the community, of two years imprisonment.

[6] It was subsequently pointed out to the Judge that the minimum non-parole period of two years exceeded the two-thirds maximum provided in s 86 of the Sentencing Act. To correct that error, the Judge subsequently adjusted the minimum to 23 months.
[7] The Judge went on to impose on Mr Waara a cumulative sentence of 12 months imprisonment in respect of a further robbery charge, with a concurrent sentence of nine months for a further burglary charge, which he alone faced.

The term of sentence

[8] In the written submissions, counsel for the appellant challenges both the term of the sentence imposed and the minimum non-parole period imposed. In oral submissions, while not abandoning the proposition that the sentence was manifestly excessive, Ms Jayanandan acknowledged the difficulty in contending that the sentence was manifestly excessive. That acknowledgement was a responsible one.
[9] This Court in R v Thomas [2003] NZCA 272; (2003) 20 CRNZ 538 upheld a sentence of four and a half years imprisonment, following a guilty plea, for aggravated injury in circumstances where a police officer, dealing with a driver undergoing breath screening procedures, was struck violently in the face resulting in a significant wound to the cheek requiring reconstructive surgery. The Court noted a number of aggravating features in support of the five and a half year starting point. Those included the use of a weapon, serious injury leaving the officer bleeding and unconscious by the side of the road, and in particular the fact that it was an attack on an officer in the course of his duty. The Court at [31] cited with approval the following observation of this Court in R v Williams CA177/96 20 August 1996 at 4:

Where an attack is made on a police officer, what may otherwise have been considered to be an appropriate sentence should be increased to take into account this feature. Only in this way can the Courts do what it [sic] can to protect police officers acting in the course of their duty.

[10] In this case, too, the fact that the victim was a constable acting in the course of his duties is a serious aggravating feature. While the level of violence inflicted was less than that involved in Thomas, there was in this case an element of planning. Furthermore, the escape from custody was a significant additional feature of the totality of the offending. We consider that the starting point of three and a half to four years was within the available range. The final sentence of two years ten months represents a discount of between about a quarter and a third, depending on whether the starting point was three and a half years or four years. That discount was within the available range. The sentence was not manifestly excessive.

The minimum non-parole period

[11] The more substantial point relates to the minimum non-parole period of 23 months which was imposed. As we have noted, that period was intended to correct the original error. However, that period too is marginally in excess of the two-thirds maximum.
[12] Counsel for the appellant submits that the offending did not warrant a minimum non-parole period for the purposes identified by the Judge at [25]. Counsel acknowledges that such offending should be deterred, and that officers of the Court should be afforded a safe working environment. However, she submits that the offending was not at the higher end of offences of this nature so as to warrant a minimum non-parole period. Counsel submits in the alternative that if a minimum non-parole period was required, a period of less than two-thirds was appropriate.
[13] Counsel for the respondent submits that it was within the sentencing Judge’s discretion to impose a minimum period for the reasons which he gave, having regard to the fact that this was an engineered assault on a law enforcement officer to enable the offenders to escape custody. Counsel submits that while minimum periods of imprisonment will be rare where the sentence falls at the lower end of the spectrum, the need for deterrence and denunciation of this type of offending is apparent and justified. Counsel notes that a minimum non-parole period was found justified in Thomas and submits that the same considerations apply here.
[14] The first question is whether a minimum period of imprisonment (MPI) under s 86 of the Sentencing Act 2002 was appropriate. As Ms Laracy acknowledged in her oral submissions, the Crown did not seek an MPI, and the Judge had apparently not indicated a prior intention to consider the imposition of an MPI so as to obtain the benefit of submissions on that issue.
[15] Previous decisions of this Court make clear the need for a proper consideration and enunciation of the reasons for imposing an MPI, and for the obtaining of submissions to assist in that process.
[16] In R v Rongonui CA321/00 9 May 2001, a Full Court (dealing with the predecessor provision to s 86) noted that it is not sufficient to leave the sentencing Court’s reasons as to whether an MPI should be imposed to be inferred from the general sentencing remarks. It said that, where no submissions had been addressed to that question on either side, the appropriate course was to invite submissions on the point.
[17] In R v Boyd CA89/03 24 June 2003, Doogue J, delivering the judgment of the Court, said:

[16] The sentencing Judge appears to have taken the view that he had to consider a minimum period of imprisonment under s 86, notwithstanding that there was no request by the Crown for him to follow such a course. Certainly the Judge has a discretion to consider the exercise of the power vested in him under s 86. However, if the Judge determines to consider the exercise of the power he must give the parties an opportunity to be heard. It is not clear in this case whether he invited submissions from counsel. If he did not do so the result would be contrary to natural justice and s 27(1) of the New Zealand Bill of Rights Act 1990.

[17] In any event he gave no reasons for imposing a minimum term of imprisonment. He was obliged to do so in accordance with the provisions of s 31 Sentencing Act 2002. At the very least the substance of his reasons should have been clear.

[18] That position was reiterated in R v Clayton [2008] NZCA 348. The Court in that case also noted that where the Crown has sought an MPI, or clearly signalled that an MPI may be available, it is up to the defence to respond and no further opportunity for submissions is required. In this case, the possible imposition of an MPI had not been previously signalled, so an opportunity for submissions should have been given by the Judge.
[19] Because that was not done, we must approach de novo both the question whether a minimum period was required, and the length of that period. A full opportunity to make submissions on these issues has been available in this Court.
[20] Under s 86(2), an MPI may be imposed where the usual minimum parole period of one-third of the sentence is inadequate for all or any of the purposes of:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.
[21] In this case, the purposes which may justify the imposition of an MPI are the purposes of denunciation and deterrence (particularly, of others). We agree with the Crown’s submissions that an MPI was appropriate here. This was a deliberate attack on a law enforcement officer to facilitate an escape from custody. The facilitation of flight was an element inherent in the charge, under s 191(1) of the Crimes Act 1961, but the fact that the attack was directed at a law enforcement officer, and that the flight which was facilitated involved an escape from custody in Court cells, added elements which justify the imposition of an MPI.
[22] As to the term of that minimum period, the sentencing notes do not contain any indication of the Judge’s reasoning for having adopted a minimum non-parole period at the top of (in fact above) the available range. As this Court made clear in R v Brown [2002] 3 NZLR 670 (CA), a sentencing Judge who has concluded that the threshold for the imposition of a minimum period is crossed must then, as a matter of sentencing discretion, determine both whether to impose a minimum sentence and, if so, what is the appropriate period, between one-third of the nominal sentence and the maximum prescribed. It is wrong simply to go to the point of two-thirds of the sentence without carefully reviewing the circumstances of the offence and of the offender.
[23] In approaching the length of the minimum period required de novo, we consider that the principal matters justifying the imposition of a minimum period, and in determining the length of that period, are the circumstances of the offending, rather than the circumstances of the offender. The dominant factor is that this offending involved an attack on a police officer, for the purpose of effecting an escape. That requires a deterrent approach. On the other hand, the level of violence involved was not at the extreme end of the scale. We consider that a minimum period of 50% is appropriate to reflect those purposes of s 86 which relate to the offending. The circumstances of the offenders were not such as to require an addition to that minimum period to reflect the purposes of protection of the community from the offenders, or any particular additional element of deterrence of the offenders.
[24] We consider that a 50% minimum non-parole period is consistent with the authorities. In Thomas, a 50% period was upheld. In R v Drewett [2007] NZCA 48, R v Peacock CA451/05 4 September 2006, R v Tuiletufuga CA205/03 25 September 2003, and R v Wi [2009] NZCA 81, cases of violent offending with sentences of a similar order to that here, minimum periods of between 43% and 57% have been upheld or imposed by this Court.
[25] For these reasons, we consider that a period of one-half of the sentence properly reflects the purposes of denunciation and general deterrence. In fixing the period at the maximum, we consider that the Judge has reached an MPI which is manifestly excessive, and that the MPI must be adjusted accordingly.
[26] This adjustment may create some disparity between the appellant and his co-offender. The position is somewhat complicated by the fact that Mr Waara was subjected to an additional sentence. We direct that this judgment be referred to counsel for Mr Waara.

Result

[27] The appeal against sentence is allowed, to the extent that the minimum non-parole period is quashed and a period of one year and five months is substituted. In all other respects, the sentence is confirmed.

Solicitors:
Crown Law Office, Wellington