Gray v R
[2020] NZCA 548
•6 November 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA307/2020 [2020] NZCA 548 |
| BETWEEN | JORDAN JOHN TROY GRAY |
| AND | THE QUEEN |
| Hearing: | 6 October 2020 |
Court: | French, Mallon and Ellis JJ |
Counsel: | G A Walsh and M J James for Appellant |
Judgment: | 6 November 2020 at 10 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of six years and nine months’ imprisonment imposed in the District Court on the charge of offering to supply methamphetamine is quashed. A sentence of five years and five months’ imprisonment is substituted.
CThe concurrent sentences on the other charges are confirmed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Gray was sentenced by Judge Cocurullo in the District Court to six years and nine months’ imprisonment on methamphetamine and cannabis charges, and charges of injuring with intent to injure a police officer and injuring a police dog.[1] He appeals that sentence on the ground that it was manifestly excessive. He says the starting point on the lead offending and the uplifts for the other charges were too high. He also says insufficient credit was given for the matters set out in a cultural report and that the guilty plea discount needs adjustment in light of the recent decision of this Court in Moses v R.[2]
The offending
[1]R v Gray [2020] NZDC 10290 [Sentencing Notes].
[2]Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
On 28 April 2018, a police officer apprehended Mr Gray while he was riding a push bike on a Hamilton street, advising him that he was under arrest for breach of a protection order. Mr Gray swore at the police officer and started to ride away. The police officer followed Mr Gray in his police vehicle, activating the red and blue lights and siren of the vehicle. Mr Gray disappeared for a brief period into a property and then returned wearing only a shirt.
The officer advised Mr Gray once again that he was under arrest. Mr Gray picked up his bike and attempted to ride away. The officer, who was a dog handler, deployed the police dog, Gabby. Mr Gray pushed and kicked Gabby away. Gabby was again deployed. This time Mr Gray grabbed Gabby around the neck and began to twist it, causing her to scream and yelp.
Mr Gray escaped from the dog and attempted to enter the house from which he had recently appeared. The officer tried to stop him from doing so, but was knocked to the ground by Mr Gray. Mr Gray kicked the officer in the right side of his head as he was getting to his feet, again knocking him to the ground. Mr Gray went to the rear of the house, grabbed a large pole, and advanced towards the officer. Other police officers had arrived to assist at this point. Mr Gray retreated into the house and barricaded himself in the bathroom. The officers forcibly entered the house and the bathroom and apprehended Mr Gray.
Inside the house, the police found two g of methamphetamine, $7,585 in cash, weighing scales, empty point bags and glass utensils, and 29.36 g of cannabis. Analysis of Mr Gray’s phone revealed that between 1 and 28 April 2018 Mr Gray had made 54 offers to supply methamphetamine to 19 customers. The total amount offered was 235.8 g with a total value of $77,145.
The officer suffered bruising, swelling, superficial scratches and a four cm wound. He feared that Mr Gray was going to “finish [him] off” when Mr Gray was advancing with the metal pole. The officer was distressed at seeing Gabby, his loyal partner, being hurt. Gabby suffered some limitation to her movement and straining in her neck region and was non-operational for two weeks while she recovered.
Mr Gray was charged with a range of offences for these events. Following a decision by the Crown not to proceed with three of those charges, Mr Gray pleaded guilty just prior to trial to offering to supply methamphetamine (235.8 g), possession of methamphetamine for supply (two g), possession of cannabis for supply (29.36 g), injuring a police dog, and injuring with intent to injure.[3]
Personal circumstances
[3]Misuse of Drugs Act 1975, s 6(1)(d) and (f) and (2)(a) and (c); Policing Act 2008, s 53; and Crimes Act 1961, s 189(2).
Mr Gray was 35 years old at the time of the offending. He said to the pre‑sentence report writer he considered his drug use had caused his offending. That accords with the police officer’s opinion who said that, based on his experience, he believed Mr Gray was under the influence of methamphetamine when the offending took place.
Mr Gray has previous convictions for a range of matters. Most relevant are convictions for possession of cannabis and methamphetamine in 2007, a conviction for conspiring to deal methamphetamine in 2008 and a conviction for possession of cannabis for supply on 11 August 2018 for which he was sentenced on 19 March 2018. The latter offending took place when Mr Gray was on bail for the present offending. The present offending took place when he was subject to a sentence of supervision imposed in September 2017 for other matters.
The pre-sentence report discussed Mr Gray’s problem with drugs. A screening test completed as part of the report assessed him as being at a high risk of substance abuse. The report writer recommended he complete a drug programme in custody and on release. Corrections’ records showed that Mr Gray was to have been interviewed for Odyssey House but the report writer had no further information about that. Mr Gray told the report writer that between 2011 and 2016 he was doing well and had employment but he then lost employment when he failed a drug test.[4] The report writer spoke to Mr Gray’s former partner, who agreed he needed to rehabilitate.
[4]This is consistent with Mr Gray’s conviction history which shows a break from offending over this timeframe.
A cultural report provided background about Mr Gray’s upbringing. His father was violent and associated with the Mongrel Mob. This was confirmed by Mr Gray’s mother, who said that when she went to a safe house, her partner found them and assaulted her and her son. Mr Gray’s father went to prison after this. Later, Mr Gray spent some time with his father and her new partner, who neglected him. He was given cannabis by the adults. He was expelled from school and moved towns, where he became heavily involved in drugs.
District Court sentence
The drug offending (methamphetamine and cannabis) was treated together as the lead offending. The quantity of methamphetamine put the offending in band two of the guidelines in Zhang v R.[5] The issue for the Judge was where it fell within that band. The Judge rejected the submission for Mr Gray that he played a “lesser” role. He described Mr Gray as having “at least a significant role” given his offers to sell.[6] The Judge decided on a starting point for the lead offending of seven years’ imprisonment, placing the offending towards the top of band two.[7]
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125]. Band two applies to quantities between five and 250 g and the guideline sentence for that band is two to nine years’ imprisonment.
[6]Sentencing Notes, above n 1, at [10].
[7]At [12].
The Judge then applied a 15 month uplift for the violence against the officer and a further uplift of six months for the offending against the police dog. These uplifts were described as “totality” uplifts, indicating that the Judge may have imposed higher sentences if he were sentencing on those offences in isolation from the drug offending. This meant a starting point of eight years and nine months’ imprisonment before personal aggravating and mitigating factors.[8]
[8]At [12].
For personal aggravating factors the Judge added a three month uplift because the offending occurred while Mr Gray was subject to a sentence and a further three months because of Mr Gray’s previous convictions. This meant a sentence of nine years and three months before further adjustments.[9]
[9]At [12].
Before considering personal mitigating factors, the Judge made two further adjustments. First, he deducted three months for totality. Secondly, he allowed a further six month discount because Mr Gray was already serving a sentence for possession of cannabis for supply.[10] This was to take “into account on a totality principle what might have been the situation” if Mr Gray had been sentenced for all the offending at the same time.[11] This meant a sentence of eight years and six months before mitigating factors.
[10]At [13]/
[11]At [7].
The Judge allowed a six month (about six per cent) discount for matters in the cultural report. In doing so, the Judge commented that all the information about Mr Gray was “self-reported” and he was “no stranger to the Court by way of background convictions for drug offending”.[12]
[12]At [14].
Finally, the Judge allowed a 15 per cent discount, rounded up to a discount of 15 months’ imprisonment, for Mr Gray’s guilty plea.[13] This meant an end sentence of six years and nine months’ imprisonment, which was ordered to be served cumulatively on Mr Gray’s existing sentence for the earlier cannabis offending.[14]
Our assessment
Lead offending starting point
[13]At [15].
[14]At [18].
Mr Walsh, counsel for Mr Gray, submits the Judge erred by categorising Mr Gray’s role as significant. He says that, at most, the facts indicate that Mr Gray is a “street level dealer”. He says it can be inferred from the offers to supply that Mr Gray was able to source methamphetamine, but there was no other indication of a management or operational function, nor that he had any influence over those above him in the chain, and nor that he had an awareness and understanding of the scale of the operation. He says that, although the value of the methamphetamine offered was $77,145, Mr Gray’s lesser role was demonstrated by the fact he was riding a push bike when apprehended. He says Mr Gray’s motivation for offending was his long-standing addiction rather than profit.
The Crown submits the starting point was well within range and could have been higher. It emphasises the number of offers in a short period of time and supports the Judge’s conclusion that Mr Gray’s role was significant. The Crown provided a range of comparator cases mainly addressing the impact addiction may have on the sentence.[15] The Crown submits there is nothing to indicate that Mr Gray’s addiction affected his knowledge of the operation or motivation for participating in it.
[15]See Whiteford v R [2020] NZCA 130; Royal v R [2020] NZCA 129; Smith v R [2020] NZCA 221; and Moheebi v R [2020] NZCA 343.
Of the cases the Crown has put forward as comparators, the most similar is this Court’s decision in Su v R.[16] That case concerned possession of methamphetamine for supply of a similar quantity to here. The methamphetamine was packaged in small self-sealing bags and was found alongside a tick list in Mr Su’s handwriting. Mr Su’s evidence at trial also indicated that he frequently saw his co-offenders in person. This Court inferred that Mr Su must have known the scale and the operation in which he was involved. Taking into account the trial judge’s finding that Mr Su was an addict, the Court considered Mr Su’s role was a lesser one, concluding that it was likely he acted under direction, and was not sharing in the monetary gains beyond receiving enough methamphetamine to feed his habit. A starting point of five and a half years’ imprisonment was adopted.[17]
[16]Su v R [2020] NZCA 128.
[17]At [24].
We consider there is little to differentiate Mr Su and Mr Gray other than the presence of cash at Mr Gray’s house. The presence of that cash indicates that Mr Gray had some (probably temporary) control over the proceeds from sales. We do not see any significance in the fact that Mr Gray was riding a push bike, but we do accept there was no evidence of assets or financial rewards consistent with deriving any great profit from his offending. We disagree with the Judge’s view that Mr Gray’s addiction is all self-reported. It was supported by the pre-sentence report writer’s screening test, the intended interview with Odyssey House, his former partner’s comments, his conviction history and his behaviour when confronted by the officer and his dog. We consider it more than likely that Mr Gray was involved in supplying methamphetamine to provide a ready source of the drug for himself, but was likely to be receiving at least a little profit along the way.
We therefore consider the Judge has somewhat overstated Mr Gray’s role as significant. Of the indicia discussed in Zhang, Mr Gray had an operational function within a chain, was not directing others, was not primarily motivated by profit or expected financial gain, but did understand the scale of what he was involved in. We would place him at the higher end of “lesser” and the lower end of “significant”.[18] This assessment of his role and the comparison with Su leads us to the conclusion that the seven-year starting point was too high. The fact that Mr Gray also had 29 g of cannabis in his possession increases the seriousness of his offending, but not materially. We consider a starting point of six years’ imprisonment for the drug offending was appropriate.
Uplifts
[18]Zhang v R, above n 5, at [126].
Mr Walsh submits the combined uplift of 21 months for the offending on the police officer and his dog was too great, having regard to totality. We disagree. The aggravating features of the injury with intent to injure charge were that the attack was on a police officer in the execution of his duties, the attach involved a kick to the head, and it was motivated by an attempt to evade arrest.[19] Additionally, there was the distressing attack on Gabby in the execution of her duties. We agree with the Crown that had Mr Gray been sentenced on these two offences on their own, a starting point of at least two years’ imprisonment was available.
[19]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA) at [31].
The 21 month uplift by the Judge therefore appropriately incorporated a discount for totality. There was also the further three month discount for totality from the combined starting point after the Judge considered the uplifts for personal aggravating factors.
The Judge also made a six month totality reduction because Mr Gray was serving a sentence for cannabis offending. That offending took place when Mr Gray was on bail for the present offending and, had the sentences been imposed at the same time, a totality adjustment would have been made. We agree this was appropriate and there is no challenge to it.
There was no issue taken with the three month uplift for the prior convictions and with the similar uplift for the fact that Mr Gray was subject to a sentence. Nor could there be.
Discounts
Mr Walsh submits that Mr Gray should have received a 15 per cent discount for the matters in his cultural report. He says the report disclosed credible evidence of social dislocation, drug abuse, educational underachievement and violence to an extent that it impaired choice and diminished moral culpability so as to establish a causative contribution to the offending.
We agree that a greater discount for those matters should have been given. We consider the Judge was wrong to discount the cultural report because it was a self‑reported history and Mr Gray had previous convictions. In fact, the cultural report was supported by information provided by his mother and his conviction history supported a causative link between his upbringing and resulting problematic drug use. The cultural report and the pre-sentence report also indicated some hope for Mr Gray’s rehabilitation. He understood that was necessary. He was interested in undertaking rehabilitative programmes. His motivation and capacity to do so was supported by the gap in his offending between 2011 and 2016.
This Court has commonly allowed discounts for cultural factors of up to 15 per cent.[20] We consider that was appropriate here. While the trauma of Mr Gray’s childhood appears to have been of a lesser order than the worst that the Court sees, it nevertheless involved neglect and violence and put Mr Gray on his path of drug abuse. That, along with his rehabilitative prospects, in our view warranted a discount of something closer to 15 per cent than the six per cent discount given.
[20]See, for example, Woodstock v R [2020] NZCA 472 at [35]; Carr v R [2020] NZCA 357 at [67]; Moses v R, above n 2, at [70]; and Minogue v R [2020] NZCA 515 at [47]. Compare with Whittaker v R [2020] NZCA 241 at [46] where a discount of around four per cent was upheld but described as “light”.
The Crown accepts the 15 per cent discount for the guilty plea was appropriate (there were discussions over the charges and the plea had been signalled earlier). It is not challenged by Mr Gray.
Final sentence
Applying the approach in Moses, the personal mitigating discounts are calculated from the adjusted starting point (without the uplifts for personal aggravating factors). On this approach, the end sentence is five years and five months’ imprisonment. This is calculated as follows:
(a)The adjusted starting point is seven years’ imprisonment (84 months). This constitutes a six year starting point plus 15 months for the injury with intent to injure charge and 6 months for injuring the police dog, and minus three months for totality generally and six months because Mr Gray was serving a sentence for cannabis offending.
(b)There are uplifts of three months for offending while on sentence and three months for the prior convictions.
(c)There are discounts of 30 per cent of the adjusted starting point, being 25 months (15 per cent for background factors and rehabilitative prospects, and 15 per cent for the guilty plea).
We therefore conclude that the end sentence imposed by the Judge was manifestly excessive.
Result
The appeal is allowed.
The sentence of six years and nine months’ imprisonment imposed in the District Court on the offering to supply methamphetamine charge is quashed and substituted with a sentence of five years and five months’ imprisonment.
The concurrent sentences on the other charges are confirmed.
Solicitors:
Crown Law Office, Wellington for Respondent
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