Grant v Police [2014] NZHC 3164 (11 December 2014)

Last Updated: 3 February 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000368 [2014] NZHC 3164

MARK LUCAS GRANT Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	1 December 2014
Appearances:	Manpreet Kaur and Ina Stewart for the Appellant Hannah Musgrave for the Respondent
Judgment:	11 December 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 11 December 2014 at 11:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

GRANT v NEW ZEALAND POLICE [2014] NZHC 3164 [11 December 2014]

Introduction

[1] The appellant, Mark Lucas Grant, pleaded guilty in the Pukekohe District Court to one charge of burglary. He was sentenced to two years and nine months’ imprisonment.

[2] He appeals that sentence on the basis that the starting point was manifestly excessive and that inadequate discounts were given for his remorse and other mitigating factors.

Background

[3] On 18 June 2014 Mr Grant was driving his car around the Waiuku area. He drove to two houses for the purpose of assessing of whether their occupants were at home and thus whether they presented as suitable targets for him to burgle. Both properties were occupied and Mr Grant used the ruse of seeking directions in an attempt to avoid suspicion. However, one of those to whom he spoke became suspicious and wrote down his registration number.

[4] Mr Grant drove to a third address. No one was at home. He broke into the house by standing on an air conditioning unit and forcing the bathroom window open. He then rifled through the drawers in the main bedroom and stole jewellery, an expensive men’s watch, cameras and a jewellery box containing more jewellery. The items had a high monetary and sentimental value to their owners.

[5] Mr Grant was apprehended by the Police when he returned home with the stolen property.

[6] The victim impact statement underscores the stress and the longer term effects the burglary has had on the victims.

[7] Mr Grant has a long list of previous convictions stretching back to 2001. Amongst those are numerous theft and property convictions and, by my calculation, some 34 previous convictions for burglary. He has served terms of imprisonment,

most recently three years’ imprisonment imposed in December 2009 following his

conviction on seven charges of burglary.

District Court decision

[8] The sentencing Judge noted that the factors contributing to the offending were Mr Grant’s sense of entitlement especially when he found himself unable to meet his financial obligations. She noted the medium risk of re-offending he posed but commented on the reference to the assessment of a high risk of re-offending in the psychological report.

[9] Her Honour took a starting point of three years’ imprisonment with an uplift of 12 months’ imprisonment in recognition of Mr Grant’s previous convictions. With a full guilty plea discount of 25 per cent and an additional month’s discount for remorse a final sentence of two years and nine months’ imprisonment was imposed.

Starting point

[10] Ms Kaur submits that the starting point of three years’ imprisonment was manifestly excessive and that a more appropriate starting point would have been two years and six months inclusive of the uplift for previous convictions.

[11] In support of that submission she refers me to Poole v R.¹ There a starting point of three years’ imprisonment for the burglary of a residential address during the day was adopted. Approximately $2,500 worth of property was taken. However, a crucial distinguishing factor between that case and the present is that in Poole it was the offender’s fifth burglary and thus the strongly aggravating aspect of recidivism present in Mr Grant’s case is not engaged.

[12] Ms Kaur also refers to Samuels v Police where a starting point of three years’

imprisonment was taken.² However, one of the important distinguishing factors in that case was that the property taken was a hand bag containing $50 worth of cash.

¹ Poole v R [2014] NZHC 1226.

Given the description and nature of the goods in the present case their value, although not specified, must inevitably be very much greater.

[13] In my view Ms Musgrave for the Crown is correct when she submits that the present offending is very similar to that in Taikato v Police.³ There the offender was sentenced to three years’ imprisonment on a single charge of burglary. He had broken into a family home by forcing a window. Once inside he stole a DVD, camera, four guns, ammunition and a Sony play station. The total value of the goods taken was $2,700. He had 30 previous convictions for burglary. A starting point of

four years’ imprisonment was taken in that case and one year’s discount given for the

plea of guilty.

[14] In the course of his judgment, Hansen J in Taikato referred to the Court of Appeal’s decision in Southon v Police⁴ which requires an emphasis to be placed on deterrence and the need to protect the community when sentencing recidivist burglars.

[15] Although a four year starting point was taken in Taikato it is important to note that that figure included previous convictions. The starting point in Taikato thus equates with that set by the Judge in relation to Mr Grant.

[16] It is difficult to make precise comparisons between the present case and Taikato. The monetary value of the goods is likely to be comparable. Furthermore, it cannot be ignored that Mr Grant’s offending was planned and premeditated. The burglary was the third house he had reconnoitred for the purposes of assessing it is potential to burgle.

[17] On the authority of Taikato the Judge’s uplift of 12 months’ imprisonment

was within the range available.

[18] The next question is whether the Judge gave sufficient weight to the mitigating factors. Ms Kaur submits that the Judge failed to give sufficient credit for

_{Mr Grant’s remorse. He participated in a restorative justice conference, which the}

³ Taikato v Police HC Tauranga CRI-2004-113-114, 17 December 2004.

victims did not attend. The report of that conference recorded Mr Grant’s remorse.

Mr Grant has also offered to pay for the items which were not covered.

[19] The Judge gave a three month discount to reflect the remorse which equates to a discount of about six to seven per cent.

[20] Ms Kaur also submits that the Judge placed too much weight on Mr Grant’s risk assessment and insufficient weight on the factors sitting behind that risk, in particular the abuse Mr Grant suffered as a child, his possible neurological problems and his responses to treatment. She submits that the Judge’s focus was on deterrence and denunciation rather than on possible future rehabilitative interventions.

[21] There is some force in Ms Kaur’s submissions on this point. The Judge made little reference to the pre-sentence report and the psychologist’s report other than referring to the risk assessment. She ignored the fact that the appellant’s rate of re- offending had reduced. His last burglary conviction was in 2009. Furthermore, Mr Grant had a steady job and a stable relationship. The offending occurred when he had been off work sick and his employer had requested a medical certificate. Mr Grant became agitated and stressed when he realised he was unable to afford a medical certificate. This led him to re-offend. The report noted that any future offending was likely to be triggered by acute financial stress, a condition which the report described as a psychological pattern.

[22] Against Mr Grant’s appalling previous history, not only of burglary but of other offences of dishonesty, emphasis needs to be placed on deterrence and protection when sentencing recidivist burglars. This assessment is not straightforward.

[23] However, Mr Grant does seem to have broken the inexorable pattern of frequent offending by keeping out of trouble for the five years preceding the present offending. His offending in the present circumstances, although inexcusable, is explicable. Mr Grant’s concerted efforts to make changes in his life and the evident support he has from his new partner leads me to conclude that the Judge should have

given greater credit for the efforts which Mr Grant has taken to change his life around and to accept responsibility.

[24] In my view a greater discount than three months was called for. I am of the view that in the special circumstances of this case a 15 per cent discount for remorse and the steps Mr Grant has taken to make changes in his life is appropriate resulting in a final sentence of two years and six months.

Result

[25] The appeal is allowed.

[26] The sentence of two years and nine months’ imprisonment is quashed.

_{[27] A sentence of two years and six months’ imprisonment is substituted.}

Moore J

Solicitors:

Public Defence Service, Auckland

Crown Solicitor, Auckland