Gray v R
[2015] NZCA 297
•10 July 2015 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA67/2015 [2015] NZCA 297 |
| BETWEEN | ANTONY FREDRICK GRAY |
| AND | THE QUEEN |
| Hearing: | 9 June 2015 |
Court: | Harrison, Andrews and Gilbert JJ |
Counsel: | P Dacre QC for Appellant |
Judgment: | 10 July 2015 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Andrews J)
Introduction
Antony Gray has appealed against the sentence of nine years and four months imprisonment imposed by Judge Andrée-Wiltens in the Auckland District Court on 21 November 2014 for drug dealing and related firearms offending.[1] The Judge also imposed a minimum period of imprisonment of 50 per cent of the sentence.[2]
Background
[1]R v Gray DC Auckland CRI-2013-044-1786, 21 November 2014 at [16].
[2]At [18].
Following execution of a search warrant on 17 April 2013, Mr Gray was arrested on 18 April 2013 and indicted on one charge of supplying methamphetamine,[3] two charges of possession of methamphetamine for supply (involving 18 and 285 grams of methamphetamine respectively), one charge of possessing cannabis for supply (involving 286 grams of cannabis), four charges of unlawful possession of a firearm, two charges of unlawful possession of a restricted weapon, and one charge of unlawful possession of ammunition.
[3]This was a composite charge, in which 23 particulars of incidents of supply were set out.
Mr Gray was initially held in custody, but was released on EM bail on 31 May 2013 to enable him to receive treatment at Capri Hospital. Having successfully completed a course of treatment, Mr Gray was released on a 24-hour curfew on 27 June 2013, with leave to attend follow-up treatment.
The police executed further search warrants on 7 and 27 November 2013, following which Mr Gray was arrested and charged on a Crown Prosecution Notice, with two charges of unlawful possession of a pistol, four charges of unlawful possession of a restricted weapon, two charges of unlawful possession of ammunition, and one charge of attempting to defeat the course of justice. The latter charge related to a telephone call made by Mr Gray when he was first held in custody, in which he arranged for a motor vehicle and assets to be moved from his home and placed in storage, in order that they would not be seized by the police.
Mr Gray was then remanded in custody. While he was in custody, Mr Gray was attacked by a fellow inmate and sustained an injury to his elbow. The injury has subsequently required surgery.
Mr Gray pleaded guilty to all 20 charges against him on 6 October 2014. He disputed the particulars set out in the charge of supplying methamphetamine. A disputed facts hearing was held on 17 October 2014, following which the Judge held that at least 31.85 grams of methamphetamine had been supplied over the 23 particularised occasions.[4]
[4]R v Gray DC Auckland CRI-2013-044-1786, 21 October 2014.
Mr Gray was sentenced on 21 November 2014. The Judge took the methamphetamine offending as the lead charges. On the basis of the total quantity of methamphetamine supplied by Mr Gray, or in his possession, the Judge adopted a starting point of eight years six months imprisonment. The Judge applied an uplift of two years for the balance of Mr Gray’s offending, noting that it involved serious offending. He applied a further uplift of six months in view of Mr Gray’s previous history of drugs offending, and the fact that Mr Gray had offended while on bail.
The Judge declined to apply a discount on account of the injury suffered while Mr Gray was in custody or on account of his having successfully completed the Capri programme, or the time spent on EM bail. The Judge allowed a discount of 15 per cent for Mr Gray’s guilty pleas, to arrive at an end sentence of nine years and four months imprisonment. The Judge imposed a minimum period of imprisonment of 50 per cent, on the basis that Mr Gray had demonstrated that he is a risk to the community, and that a minimum period of imprisonment was inevitable.
Appeal submissions
While he submitted that the starting point should have been eight years, Mr Dacre QC accepted that he could not realistically challenge the starting point adopted of eight years’ six months’ imprisonment. That concession was appropriate, as Mr Gray’s offending was clearly within band 3 of R vFatu (albeit, at the lower end) for which the suggested starting point is eight to eleven years’ imprisonment.[5] Mr Dacre’s appeal submissions focussed on the uplifts and the Judge’s refusal to allow discounts.
[5]R v Fatu [2006] 2 NZLR 72 (CA) at [34]
.
Mr Dacre submitted that the uplift for “other offending” should have been one year, and that while an uplift of three months could be applied for Mr Gray’s prior offending, no uplift was required for “offending while on bail”. In that respect, Mr Dacre submitted that only one charge of possessing “one round” of ammunition (found in Mr Gray’s home) fell within this category. He submitted that the offence of attempting to defeat the course of justice had been committed while Mr Gray was in custody (not on bail), and that all the remaining charges related to items which were found in the vehicle removed to storage shortly after he was arrested in April 2013. Mr Dacre further submitted that the Judge should have given discounts to recognise Mr Gray’s rehabilitative efforts, the time he spent on EM bail, and the fact that he suffered an injury while in custody, rendering him vulnerable in the prison system.
Mr Dacre did not challenge the discount for Mr Gray’s guilty pleas, but submitted that the discounts and uplifts which should have been applied cancelled each other out, leading to an end sentence of eight years and six months imprisonment. Mr Dacre further submitted that there was no need to impose a minimum period of imprisonment.
Analysis
We do not accept Mr Dacre’s submission that the uplift of two years for the balance of Mr Gray’s offending was too high. It was, if anything, generous. We accept Mr Corlett’s submission that the nature and range of the weapons concerned would, on a stand-alone basis, have justified a starting point of more than three years imprisonment.[6] The quantity of cannabis found would have attracted a starting point of 18 months’ to three years imprisonment, and the charge of attempting to defeat the course of justice would have attracted a starting point in the order of three years’ imprisonment. On a totality basis, an uplift of two years for these offences could not be challenged.
[6]Mr Corlett listed 15 weapons, which he described as “highly lethal” and including military assault rifles, shotguns and stun guns.
We also reject Mr Dacre’s submission that the Judge erred in applying an uplift for offending while on bail. First, we reject his submission that the charge of attempting to defeat the course of justice should be disregarded, because it occurred while Mr Gray was in custody. The important point is that it was committed after Mr Gray had been charged. Further, as Mr Corlett noted, one box of ammunition was found in Mr Gray’s home, not one round.
Nor do we accept that the Judge’s refusal to allow discounts for Mr Gray’s rehabilitative efforts, his time on EM bail, and the injury he suffered while in custody amount to errors justifying our interfering with the sentence. In particular, we are not persuaded that the Judge erred in considering the injury to be a “personal circumstance” against which the deterrence of methamphetamine offending is more important.[7] Regarding Mr Gray’s time on EM bail, and his rehabilitative efforts, we note that during these periods, Mr Gray was maintaining a storage facility, in which a vehicle and firearms were later located.
[7]At [14]. See Sarah v R [2013] NZCA 446 at [42].
Mr Dacre submitted that the question of when Mr Gray should be released could properly be left to the Parole Board. In argument, he accepted that this Court has held that minimum periods of imprisonment are commonly imposed in cases involving serious drug offending, in particular to deter an individual offender, and to protect the community.[8] While Mr Dacre maintained his submission that a minimum period of imprisonment is not necessary in the present case, he did not seek to make any further submissions. We are satisfied that the Judge did not err in imposing a minimum period of imprisonment of half of the sentence imposed.
Decision
[8]See, for example R v Zhou [2009] NZCA 365 at [17]–[20].
For the reasons set out above, Mr Gray’s appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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