Gray v R

Case [2020] NZCA 548 6 November 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA307/2020
[2020] NZCA 548

BETWEEN	JORDAN JOHN TROY GRAY Appellant
AND	THE QUEEN Respondent

Hearing:	6 October 2020
Court:	French, Mallon and Ellis JJ
Counsel:	G A Walsh and M J James for Appellant M H Cooke for Respondent
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…

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 R

Details

AGLC: Gray v R [2020] NZCA 548
Case: [2020] NZCA 548
Decision Date: 6 November 2020 at 10 am

CaseChat Overview and Summary

Jordan John Troy Gray appeals against his sentence for drug supply and violent offending. The Court of Appeal agrees that the District Court sentence was manifestly excessive. The appeal is allowed, and the sentence is quashed and replaced with a sentence of five years and five months' imprisonment. The concurrent sentences for the other charges are confirmed.

The Court of Appeal first examines the District Court's starting point for the lead offending, which was six years and nine months' imprisonment. The Court of Appeal finds that the starting point was too high. The offending was serious, but the Court of Appeal considers that Mr Gray's role in the offending was lesser than the District Court found. The Court of Appeal considers that the presence of cash at Mr Gray's house was not sufficient to find that he had a significant role in the operation. It considers that Mr Gray was more likely to be a street-level dealer who supplied methamphetamine to feed his own addiction but was likely to be receiving some profit along the way. The Court of Appeal considers that a starting point of six years' imprisonment for the drug offending was appropriate.

The Court of Appeal next considers the uplifts for the violent offending. The Court of Appeal considers that the 21-month uplift for the violent offending was appropriate. The Court of Appeal also considers that the three-month uplift for the fact that the offending occurred while Mr Gray was subject to a sentence and the three-month uplift for Mr Gray's prior convictions were appropriate.

The Court of Appeal then considers the discounts. The Court of Appeal considers that a greater discount should have been given for the matters in the cultural report. The Court of Appeal considers that the trauma of Mr Gray's childhood, which put him on his path of drug abuse, and his rehabilitative prospects warranted a discount of something closer to 15 per cent than the six per cent discount given. The Court of Appeal also considers that the 15 per cent discount for the guilty plea was appropriate.

Finally, the Court of Appeal considers the 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 six 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.

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.

Orders