R v Grafton HC Christchurch CRI-2010-009-016104 [2011] NZHC 1835 (23 November 2011)

Last Updated: 15 January 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI-2010-009-016104}

THE QUEEN

v

ANTHONY TREVOR GRAFTON

Hearing: 10 and 11 October 2011

(Heard at Dunedin and sentencing at Ashburton)

Appearances: P J Shamy and N M Robson for Crown

S Bailey for Accused

Judgment: 23 November 2011

_{REMARKS OF CHISHOLM J ON SENTENCING}

[1] Anthony Grafton, once again the Courts are left to deal with the tragic consequences of random violence. All I can do is to sentence you. I cannot go any distance towards addressing the tragic loss that Mr Brennan’s family has suffered.

[2] After I had delivered rulings at the beginning of the trial and the jury had been empanelled, you entered a plea of guilty to manslaughter. The charge of threatening to kill or cause grievous bodily harm was withdrawn. You are now for sentence on the charge of manslaughter.

The facts

[3] At around 6 p.m. on 11 November 2010 you punched Mr Brennan with a closed fist on Edgeware Road in Christchurch. Witnesses described your punch as a

R V GRAFTON HC CHCH CRI-2010-009-016104 23 November 2011

“haymaker” punch. Sadly, he fell, hit his head, was immediately rendered unconscious and died several days later.

[4] What led to this, we will never know. We do know that before this blow was struck you were shouting and screaming and you had picked up a rubbish tin and thrown it towards a post. We also know that Mr Brennan approached you. You will have heard the discussion between me and the lawyers about what might have been said between Mr Brennan and yourself. Clearly there was some sort of discussion but as you will have heard me tell your lawyer, I am not prepared to proceed on the basis that the discussion provoked you in the sense that you were entitled to react in the way that you did. You were not.

[5] After Mr Brennan had fallen to the pavement you did go to attend him and I have information through defence counsel today that a bystander told you to go away. You were located by the police within a relatively short time. Some of the things that you then said to the police, which I am not going to repeat, were, quite frankly, despicable.

Your personal circumstances

[6] Mr Shamy said that the information relating to your personal circumstances makes pitiful reading. That is an apt description. You will be 42 years of age in a couple of days. Clearly you have had an extraordinarily difficult upbringing and earlier life. You have not been in permanent employment for the last 25 years and for about the same period it seems that you have been living on the streets.

[7] Starting from 1986 you seem to have offended on a regular basis, virtually every year. You have 180 previous convictions. However, looking at the last

10 years the convictions for violence have been relatively limited in number. On my count there are seven, plus two for robbery. Nevertheless, in the pre-trial ruling I permitted the Crown to call what we call propensity evidence in relation to two earlier incidents that were similar to this last incident except, of course, there was not the tragic outcome of a death. Most of your offences have been for anti-social conduct and dishonesty.

[8] You have expressed remorse to the probation officer who considers that you have some insight into the offending. You have also written a letter to me, which I have read. According to the probation officer the key contributing factors behind your offending are substance abuse, a propensity for violence and your unstructured lifestyle.

[9] While the probation officer has recommended imprisonment he has reported that you have a willingness to attend alcohol and drug treatment programmes in prison if they are available. If that can be arranged by the authorities it would indeed be the best thing you could possibly do.

The psychiatric report

[10] Dr Earthrowl, a psychiatrist, has provided a detailed and thoughtful report. His report indicates that you have been involved with solvents since you were about

12 years of age. Again this illustrates the danger of young people becoming involved in that sort of conduct. You have been previously diagnosed with a number of psychiatric conditions, including a mixed personality disorder. Dr Earthrowl thinks that you currently fulfil the criteria for alcohol and drug dependency. To some extent this would impact on your ability to control responses.

Impact on the victims

[11] The Brennan family have lost a loved one. Not only did they lose Mr Brennan, but they also lost his mother within four months. Hopefully you might take on board what was said in the victim impact report Mr Shamy read. The thrust of what they are saying is “change your ways and never, ever, get in this sort of situation again”.

[12] I say for imprisonment because imprisonment is inevitable. In determining the starting point it is necessary for me to assess the gravity of the offending, taking into account the aggravating and mitigating circumstances relating to the offending.

[13] According to the Crown this offending comes within what has been often described as a “one punch” manslaughter case. On that basis the Crown submits that the starting point should be in the range of three and a half to four years. On the other hand, Ms Bailey has argued on your behalf that such a starting point would be too high and that the appropriate starting point is three years.

[14] There is no tariff for manslaughter sentencing. This was effectively an unprovoked physical attack. It was to the head and it occurred while you were on intensive supervision. I accept that the cases that have been cited indicate that the starting range for this case should be somewhere between three and a half years and four years. I adopt a midpoint of three years and nine months.

Personal aggravating features

[15] It is necessary for me to consider whether the starting point should be increased to reflect your previous history. It is an appalling history. Had violence featured more frequently than it has I would certainly have adopted Mr Shamy’s submission that the uplift should be 12 months. Instead, however, I am going to increase the sentence by six months to reflect your previous history. That would bring the sentence to four years, three months.

Mitigating factors

[16] It is now necessary to look at the mitigating side of things. You have pleaded guilty. Your counsel contends that there should be an allowance for remorse. You have indicated that you are willing to take part in restorative justice but that, of course, depends on whether the family could face it. That is entirely a matter for them. There are also psychiatric considerations.

[17] First, the guilty plea. I accept that had it not been for the earthquake there would have been a much earlier guilty plea. The Crown suggested that the allowance for the guilty plea should be in the range of 15 to 20% and Ms Bailey suggested it should be 20%. I accept the 20%. That means 10.2 months needs to come off your sentence.

[18] Now, as to remorse, I do not think the remorse that you have displayed comes within the threshold that the Supreme Court had in mind in R v Hessell.[1] In part this reflects the things that you said after the police arrived on the scene. So I am not inclined to allow any credit for remorse or for the offer to participate in restorative justice.

[19] But, taking into account your psychiatric situation, I am prepared to round up the discount to 12 months, in other words I am allowing 1.8 months to reflect the psychiatric background. That then brings me to an end sentence and I would ask you to stand while I pronounce it.

Sentence

[20] Anthony Grafton, you are now sentenced to three years and three months imprisonment for the manslaughter.

[21] Given this conviction for manslaughter you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these serious violence offences. If you are convicted of any one or more serious violence offences, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum

_{term of imprisonment.}

Solicitors:

Raymond Donnelley, P O Box 533, Christchurch

T W Fournier, P O Box 13540, Armagh Christchurch

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[1] R v Hessell [2011] 1 NZLR 607 (SC)