Gray v The the King - [2022] NZCA 659

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA287/2019
[2022] NZCA 659

BETWEEN	HAYDEN ANTHONY GRAY Appellant
AND	THE KING Respondent

Hearing:	2 November 2022
Court:	French, Thomas and Mallon JJ
Counsel:	A M S Williams and K E Bucher for Appellant D L Elsmore for Respondent
Judgment:	22 December 2022 at 2 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Following a Judge-alone trial in the High Court before Osborne J, Hayden Gray was convicted of two charges of causing grievous bodily harm with intent to cause grievous bodily harm.[1] The victim was Mr Gray’s son, Carter. Mr Gray appeals his sentence of 10 and a half years’ imprisonment on the basis it is manifestly excessive.[2]

Background

[1]R v Gray [2019] NZHC 941; and R v Gray [2019] NZHC 942 [Verdict].

[2]R v Gray [2019] NZHC 1135 [Sentencing Notes]. The notice of appeal indicated that Mr Gray intended to appeal his conviction as well. The conviction appeal was abandoned on 26 August 2022.

The victim was born on 24 June 2017. On 24 July 2017, the victim was in Mr Gray’s sole care. Mr Gray inflicted serious head injuries upon the victim by shaking him or violently throwing him against a soft object (Charge 2). The victim died a year and a day after sustaining those injuries.
While the victim was in hospital being treated for those injuries, medical staff noticed evidence of injuries suffered some 10 days prior. This involved approximately 40 fractures which had been caused by Mr Gray squeezing, shaking or throwing the victim against soft objects (Charge 1).

Decision under appeal

The Judge described the offending as “very grave” and identified four aggravating features: extreme violence, serious injury, vulnerability of the victim and breach of trust.[3] The Judge considered other factors were relevant to the seriousness of the offending, these being that Mr Gray had not used the earlier incident as an opportunity to address any difficulties, that he did not dial 111 immediately (which extended the period during which the victim’s brain was deprived of oxygen), and that he did not take responsibility for the conduct, causing suspicion to fall on the victim’s mother.[4]
[3]Sentencing Notes, above n 2, at [19] and [21].
[4]At [20].
The Crown had submitted that the offending fell into Band 3 of R v Taueki,[5] the guideline judgment for sentencing offending involving grievous bodily harm, and that a starting point in the vicinity of 10 years’ imprisonment was appropriate. Mr Gray’s trial counsel accepted that Band 3 was appropriate but submitted the starting point should have been at the lower end of Band 3, conceding that a higher starting point would have been available if the Judge viewed the victim’s death as an aggravating factor of the offending.
[5]R v Taueki [2005] 3 NZLR 372 (CA).
The Judge decided that the offending fell into Band 3 of Taueki

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 The the King

Details

AGLC: Gray v The the King [2022] NZCA 659
Case: [2022] NZCA 659
Decision Date: 22 December 2022 at 2 pm

CaseChat Overview and Summary

Hayden Anthony Gray was convicted by a Judge alone in the High Court of causing grievous bodily harm to his infant son, Carter, on two occasions. The victim sustained fatal injuries from the second incident, dying a year and a day after the offending. Gray appeals his sentence of 10 and a half years' imprisonment, contending that it is manifestly excessive. This appeal was heard by the New Zealand Court of Appeal, with the appeal dismissed.

The Court of Appeal considered three issues in relation to the sentence imposed: whether the Judge erred in his treatment of the victim's death; whether the offending was correctly assessed as falling into Band 3 of the sentencing guideline judgment, R v Taueki; and whether the starting point was out of range. In relation to the first issue, the Court noted that the Judge was correct to take into account the victim's death and the potentially fatal nature of the injuries, in line with Taueki. The second issue was also rejected by the Court, which found that the Judge was correct to place the offending in Band 3 of Taueki, considering the aggravating features and other relevant factors. Finally, in relation to the third issue, the Court concluded that the starting point of 11 and a half years' imprisonment for the more severe offending was within the available range and appropriate, particularly given the seriousness of the offending covered by Charge 1.

The Court of Appeal found no error in the sentence imposed and dismissed the appeal.

Orders