Judge heeds difficulties of prison life

A109 Light Utility Helicopter flight with mayor Gisborne City from the air in November 2023.

Young man granted leave to reapply for home detention, but not a motel.

A judge has refused to let a man serve home detention at a motel but granted him leave to apply for it again because of difficulties he is having in jail, including being forced to get facial tattoos.

Xavier Richard John Gray-Gill, 19, had a newly acquired Black Power fist tattoo covering his chin and part of his cheek, when he appeared for sentence in Gisborne District Court last week via AV-link from Hawke’s Bay Prison’s remand unit.

His counsel Leighvi Maynard told the court Gray-Gill hadn’t had that tattoo before spending the last 104 days behind bars and he had no say in getting it.

Sentencing him for two burglaries, two assaults with blunt instruments, threatening language, possession of a cannabis bong, and breach of bail, Judge Warren Cathcart imposed 18 months imprisonment. He said he would have converted it to home detention but the address Gray-Gill had already proffered at a motel was unsuitable. It wasn’t because he or the property were unsuitable but because his offending, particularly a gang confrontation in which he was involved, raised real concerns about his presence there.

Authorities had advised the court the risks involved would be too difficult to manage.

However, the judge was concerned for Gray-Gill, who he said was “the very example of someone who is obviously experiencing real difficulty in prison”. He granted him leave to apply for home detention to a different address if one became available while he was serving the prison term.

The first of the burglaries was on December 16, 2021. Gray-Gill,18 at the time, and two mates were captured on a homeowner’s CCTV footage stealing a Subaru Impreza car, valued at about $5000, from a garage on Charles Street. They also stole two tyre rims and a grease gun, valued at $2300. After gaining access to the garage through an unlocked side door, Gay-Grill prised open the front garage door, and pushed the Impreza out. He and his mates hooked it up to one of their vehicles and towed it away.

Police found the car and other items during a search of Gray-Gill’s property the next day. He claimed the vehicle was payment for a debt the victim owed.

The assault charges arose out of an incident about 1pm on July 6 last year. Gray-Gill and two Black Power associates, all in gang regalia, were in a liquor store in Gisborne when they took offence at something said to them by a man with rival gang affiliations.

An off-duty police officer saw them pursue the victim as he retreated outside and along the footpath. Gray-Gill was seen to go to a parked car and retrieve something that looked like a police extendable baton. The victim stopped outside a nearby cafe where he picked up an outdoor chair to defend himself. There was a brief standoff before he put it down again. Then Gray-Gill swung the baton directly at the man’s face, hitting him in the mouth and knocking out one of his teeth. The victim picked up a chair and tried to throw it at Gray-Gill but missed. Gray-Gill threw one at him. It glanced off his shoulder.

The victim didn’t want to lay a complaint.

Police arrested Gray-Gill the following month, seizing a cannabis bong they spotted in his car. Gray-Gill blamed the victim for the assault saying the man had walked up to them, and was being “out of it”.

The threatening language charge arose when Gray-Gill was arrested a couple of months later on suspicion of having interfered with a vehicle. Spotting the complainant nearby Gray-Gill yelled, “Is that you cuzz? I’ll f***ing smash you”.

The other burglary was in January, this year. Gray-Gill forced a window to get inside the Infracore nursery building in Rotorua’s Government Gardens, from which he stole keys, an electronic tablet, a drill, walkie-talkie radios and charging docks.

In submissions, Mr Maynard said the end sentence could come within the 24-month threshold for home detention, which should be imposed due to Gray-Gill’s youth and background circumstances.

The judge set starting points of 15 mnonths imprisonment, 10 months, and seven months respectively for the lead residential burglary, assaults, and the other burglary, with three months uplift for the remaining offending.

For totality, he reduced the overall starting point of 35 months imprisonment down to 28 for totality. reaching an overall sentence starting point of 35 months.

He allowed six months discount for Gray-Gill’s belated guilty pleas, three months discount for his youth, and a further three months for his background circumstances.

Determining the discounts, the judge said Gray-Gill’s offending had the impulsivity that was typical of youth offending. His immaturity was obvious — he clearly hadn’t appreciated what might face him in prison as was telling in his comments to a pre-sentence report writer that prison was very different to a youth remand facility.

Prison terms could be crushing on young people as it would be on Gray-Gill, the judge said. He was obviously experiencing real difficulties in there at the moment.

Gray-Gill had no choice in getting his face tattooed. He was simply told he was going to get it and told to go into a cell.

The judge said the youth discount for Gray-Gill would have been more were it not for his repeat offending, among other things. He was in prison because of it.

The judge noted Gray-Gill’s upbringing, by his own account, was a surprisingly good one compared to many the court heard about.

Raised on a farm in Wairoa, his childhood was a positive one. It was Gray-Gill who had later chosen negative associates and had been increasingly drawn into gang life.