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Gray v Police

Gray v Police

Case [2018] NZHC 3245 10 December 2018

Sentencing

Manifestly Excessive Sentence

Starting Point

Uplift for Previous Convictions

Discount for Guilty Plea

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-333

[2018] NZHC 3245

BETWEEN
JEREMY EARL SNOW GRAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 December 2018

Appearances:

R Slade and N Lim-Kwan for the Appellant M Mortimer for the Respondent

Judgment:

10 December 2018

ORAL JUDGMENT OF GORDON J

Solicitors: Crown Solicitor, Auckland
Public Defence Service, Auckland

GRAY v POLICE [2018] NZHC 3245 [10 December 2018]

Introduction

[1]The appellant, Jeremy Gray, pleaded guilty to the following charges:

(a)Burglary;1

(b)Receiving;2

(c)Theft;3 and

(d)Failure to answer bail.4

[2] On 14 August 2018, Judge Gibson in the District Court at Auckland sentenced Mr Gray to two years and four months’ imprisonment.5

[3]Mr Gray appeals his sentence on the basis that it is manifestly excessive.

[4]The Crown opposes the appeal.

[5] The notice of appeal was filed out of time. Counsel oversight is the explanation. I grant the necessary extension as the delay was not lengthy and there is no opposition by the Crown.

[6]Mr Gray has been in custody since he was sentenced.

Factual background

[7]The offending comprises several discrete incidents. I summarise these briefly.

[8] At about 11:25 am on 16 September 2017, Mr Gray was driving a Nissan motor vehicle in Parnell. He drove into a petrol station and filled his vehicle with $87.13 worth of petrol. He then drove off without paying.

1      Crimes Act 1961, s 231(1)(a).
2      Section 246(1).
3      Section 219(1)(a).
4      Bail Act 2000, s 38(a).
5      New Zealand Police v Gray [2018] NZDC 18201.

[9] Between 5:30 pm and 9 pm on 30 September 2017, Mr Gray and his associate entered onto the property at 19 Weston Avenue, Papatoetoe. They had squeezed through a gap in the fence from a neighbouring address. The victim was inside the property at the time.

[10] Mr Gray noticed a work van parked on the driveway. He opened the sliding door of the van and, with the assistance of his associate, stole multiple power tools from inside the van. The tools had a total value of approximately $5,500.

[11] Between 12 am and 10 am on 25 January 2018, a blue Merida Big Seven 300 mountain bike was stolen from a property in Hillsborough. It was valued at $899. The following day, at about 4 pm, Mr Gray went into a bike shop in Eden Terrace. He sold that same blue Merida Big Seven 300 mountain bike for $250.

District Court decision

[12] Judge Gibson identified the burglary charge as the lead charge.6 After setting out the facts and Mr Gray’s previous convictions, the Judge then referred to Arahanga v R:7
[8] … which [is] not a tariff decision but is a decision usually referred to in sentencing of domestic burglaries and which indicates that for a relatively straight forward burglary starting points of between 18 months and two and a half years’ imprisonment ought to be taken.

[13] The Judge stated that although Mr Gray did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gray v Police

Details

AGLC: Gray v Police [2018] NZHC 3245
Case: [2018] NZHC 3245
Decision Date: 10 December 2018

CaseChat Overview and Summary

The appellant, Jeremy Gray, appealed against the two years and four months’ imprisonment sentence imposed by the District Court. The Crown opposed the appeal. The appeal was filed out of time, but the Court granted an extension due to counsel oversight and the absence of opposition by the Crown. The appellant had been in custody since his sentencing. The appellant pleaded guilty to charges of burglary, receiving, theft, and failure to answer bail. The District Court Judge adopted a starting point of two years’ imprisonment for the burglary charge, which the appellant argued was excessive. The appellant also contended that the uplifts for the remaining offending and previous convictions were excessive, and that insufficient credit was given for his guilty pleas. The Crown submitted that the starting point was at the upper end of the available range and that the uplifts and discounts applied by the Judge were appropriate.

The Court found that the starting point for the burglary charge should have been 12 months’ imprisonment, given the lack of evidence of premeditation or planning and the lower risk of confrontation. The Court upheld the uplifts for the remaining offending and previous convictions but reduced the uplift for the remaining offending to three months’ imprisonment. The Court found the discount for the guilty pleas to be appropriate. The Court considered a sentence of home detention to be appropriate and quashed the original sentence of imprisonment. The Court ordered a sentence of four months and two weeks’ home detention, to be served concurrently with sentences of home detention for the remaining charges. The Court imposed special conditions for the home detention, including participation in treatment and cultural programmes, and additional conditions proposed by the Grace Foundation.

Orders