Gray v The the King
[2022] NZCA 659
•22 December 2022 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA287/2019 [2022] NZCA 659 |
| BETWEEN | HAYDEN ANTHONY GRAY |
| AND | THE KING |
| Hearing: | 2 November 2022 |
Court: | French, Thomas and Mallon JJ |
Counsel: | A M S Williams and K E Bucher for Appellant |
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, taking into account the aggravating features he identified, as well as the factors listed in s 9A of the Sentencing Act 2002.[6] He acknowledged that there was some overlap between the aggravating features, for example between the magnitude of the violence and the seriousness of the injuries. There was also an overlap between the victim’s vulnerability and the breach of trust.[7]
[6]Sentencing Notes, above n 2, at [16]–[20] and [24]. See also R v Taueki, above n 5, at [34] and [40].
[7]At [22].
The Judge concluded that a starting point of 11 and a half years’ imprisonment was appropriate in respect of Charge 2, which he described as more severe, and nine years’ imprisonment in respect of Charge 1, placing it in Band 2 of Taueki.[8]
[8]At [25]–[27].
The Judge allowed a discount of one year from the starting point on each charge for Mr Gray’s prior good character.[9] He concluded that a sentence of 10 and a half years’ imprisonment on Charge 2 as the lead offence reflected the totality of Mr Gray’s offending, and sentenced him to eight years’ imprisonment on Charge 1, to be served concurrently.[10]
Issues on appeal
[9]At [35].
[10]At [37] and [39]–[40].
Mr Gray appeals on the basis the Judge erred in adopting a starting point that was manifestly excessive. His argument rests on three primary submissions:
(a)The Judge erred in his treatment of the victim’s death.
(b)The Judge erred by placing the offending in Band 3 of Taueki.
(c)The starting point was out of range.
Analysis
Did the Judge err in his treatment of the victim’s death?
At the time of Mr Gray’s offending, a person could not be held criminally responsible for the killing of another unless the death occurred within a year and a day after the cause of death.[11] That provision has since been repealed.[12]
[11]Crimes Act 1961, s 162.
[12]Crimes Amendment Act 2019, s 6.
In Mr Williams’ submission, for Mr Gray, given the law at the time, the fact of the victim’s death could not be considered as a relevant factor in sentencing.
In his description of the effects of the violence that was the subject of Charge 2, the Judge said of the victim:[13]
[7] What he could not, and … did not recover from, were the injuries you inflicted on 24 July 2017. Again, there were some aspects of those injuries from which, although severe, he might have recovered. That includes the extensive haemorrhaging in his eyes. But his brain injuries which you caused that day meant that a large part of his brain died. He himself ultimately died a year and a day after you inflicted the injuries from complications arising from the injuries.
[8] … As much as those close to him strove to give Carter a quality of life, the reality is that he had very little quality of life. He had lost the ability to do the fundamental things which normal brain function allows us to do automatically.
[9] His brain never grew after the injuries. To the contrary, the haemorrhaged area of his brain filled with fluid. His short life involved hospitalisations and operations. His immune system was compromised. His gastric system was compromised. He could not feed other than by tubes or pump. Infections set in and were able to be dealt with for a time. When they no longer could be dealt with, without distressing him further, he was released from his final period in hospital and died in … palliative care …
[13]Sentencing Notes, above n 2.
In identifying the aggravating factor of causing serious injury, the Judge said:[14]
Through the 24 July offence in particular, Carter suffered injuries which were potentially fatal and caused long term, permanent disability. The impact of his brain injuries in particular was debilitating and the complications which ensued ultimately resulted in his death.
[14]At [19].
The Judge was required to analyse the seriousness of the victim’s injuries and this included identifying that the injuries were of the most extreme nature. A similar approach was taken in August v R, where this Court upheld a starting point of 14 years’ imprisonment on a charge of causing grievous bodily harm with intent to do so in a case where the victim was left in a permanent vegetative state, noting that the injuries to the victim in that case “could not have been more serious”.[15]
[15]August v R [2011] NZCA 91 at [24] and [26].
This Court in Taueki highlighted that a higher starting point is called for where the injuries are potentially fatal or are such as to cause long-term or permanent disability on the victim’s quality of life.[16] The Judge’s approach reflected the Taueki guidance. He was correct to take account of the potentially fatal nature of the injuries and that they caused the victim to be permanently disabled for a long period before his death.
[16]R vTaueki, above n 5, at [31(c)].
We are satisfied the Judge correctly assessed the aggravating feature of serious violence, including the fact that the victim ultimately died.
Was the offending correctly assessed as falling into Band 3 of Taueki?
We have already discussed the Judge’s comments on serious injury but for completeness we set out his analysis of the four aggravating features he identified:[17]
[17]Sentencing Notes, above n 2, at [19] (footnote omitted).
First, extreme violence
The 24 July offence, in particular, involved extreme violence. As explained by Dr Christian:
I think anybody who saw what happened to Carter would have recognised that this was terrible violence against an infant…
The injuries sustained through the earlier offence in large part must have resulted from your extreme squeezing of Carter’s abdomen. The fact that your violence on both occasions was unprovoked is also relevant to this assessment that the violence was extreme.
Secondly, serious injury
Through the 24 July offence in particular, Carter suffered injuries which were potentially fatal and caused long term, permanent disability. The impact of his brain injuries in particular was debilitating and the complications which ensued ultimately resulted in his death.
Thirdly, Carter’s vulnerability and defencelessness
There are no more vulnerable or defenceless victims than a baby in his first month of life.
Fourthly, the magnitude of your breach of a relationship of trust
I am required to take into account as an aggravating factor of your offending the magnitude of the breach of that relationship. Your huge breach of trust to Carter on 24 July 2017 is exacerbated by your silence following the earlier offending. At a time when [the baby’s mother] drew to the attention of the appropriate professionals what she viewed as concerning marks and crying, you remained silent as to the events that had occurred. At that point, the professionals needed to know the full medical history. But by your silence, you kept from them the very information which could have averted your later and much more devastating behaviour on 24 July. Your breach of trust is also heightened … by the fact that your 24 July offending occurred when you were alone with Carter.
In Taueki this Court identified 14 features of offending that contribute to the seriousness of the conduct and criminality involved in a grievous bodily harm offence. In respect of the four aggravating features identified by the Judge in the present case, this Court described those features as follows:[18]
(a) Extreme violence: The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence which is unprovoked or gratuitous. This reflects s 9(1)(a) and (e) of the Sentencing Act.
…
(c) Serious injury: Where the injuries suffered by the victim or victims are very serious, a higher starting point than in cases of minor injury will be called for. Section 9(1)(d) of the Sentencing Act applies. This is particularly the case where the injuries are potentially fatal or are such as to cause long-term or permanent disability impacting on the victim’s quality of life. Counsel for Mr Taueki … argued that the assessment of criminality should focus on the conduct of the attacker, not the consequences for the victim. He said that it can sometimes be a matter of luck how bad resulting injuries are. While that is true as far as it goes, it must be remembered that the offending to which this decision refers is the intentional inflicting of serious injury. An offender who acts with intent to cause grievous bodily harm and does, in fact, cause such harm cannot escape responsibility for the consequences of his or her actions. However, care has to be taken not to double-count the level of violence inflicted and the seriousness of the injuries which resulted from it.
…
(i) Vulnerability of victim: Where the victim is particularly vulnerable (for example a child, or where there is a disparity in size or strength between the attacker and the victim), that will also be a significant factor in the assessment of culpability. Section 9(1)(g) of the Sentencing Act applies. Breach of a protection order in favour of the victim will also be an aggravating factor. Where the victim is a child in the offender’s care, there will be the additional factor of breach of trust. Section 9(1)(f) of the Sentencing Act applies. Similar considerations arise with victims who are disabled in some way or otherwise defenceless.
[18]R v Taueki, above n 5, at [31].
This Court in Taueki then identified three sentencing bands:[19]
(a)Band 1, attracting starting points of between three and six years. This band was described as inappropriate for offences of extreme violence or violence that is actually life-threatening.[20]
(b)Band 2, attracting starting points of between five and 10 years. This band was described as appropriate for grievous bodily harm offending featuring two or three aggravating features.[21]
(c)Band 3, attracting starting points of between nine and 14 years. This band was described as encompassing serious offending which has three or more aggravating features where the combination of them is particularly grave.[22]
[19]At [34].
[20]At [36].
[21]At [38].
[22]At [40].
In Mr Williams’ submission, the Charge 2 offending fell within the upper end of Band 2, given there were only two serious aggravating features, being the seriousness of the harm caused and the vulnerability of the victim.
We disagree. Mr Williams is incorrect in submitting that breach of trust is not an aggravating feature in Taueki. We note that when the Court discussed vulnerability of the victim, it specifically identified breach of trust as an additional aggravating feature where the victim is a child in the offender’s care.[23]
[23]At [31(i)].
Mr Williams submitted that the Judge erred in considering that the offending involved extreme violence. While acknowledging the serious consequences of the violence on the vulnerable victim, Mr Williams contended that the victim’s vulnerability had already been taken into account as an aggravating feature. In his submission, there was no evidence to suggest the offending was prolonged to any significant extent or that the violence was otherwise gratuitous. No blows were directed towards the victim’s head and no weapons were used. On that basis, in his submission, the offending could not be considered extreme violence.
We note that attacking the head and use of weapons are separate aggravating factors identified in Taueki.[24] The presence of either or both is not a requirement of extreme violence, as this case demonstrates.
[24]At [31(d)] and [31(e)].
In his verdict, the Judge summarised his finding on Charge 2 as follows:[25]
[22] On the basis of the evidence adduced, and particularly the medical evidence, I am satisfied beyond reasonable doubt that Carter … on 24 July 2017 suffered very serious head injuries at his home in Christchurch. I am further satisfied, in the absence of any evidence of accidental trauma of a nature which would have been observed had it occurred, that Carter[’s] … head injuries that day were caused by Mr Gray applying very severe acceleration/deceleration forces to Carter’s body either by severely shaking him or by violently throwing him against a soft object. I am further satisfied that Mr Gray intended to cause really serious hurt or harm to Carter in that it must have been obvious to Mr Gray (and would have been obvious to anyone observing) that the harm which resulted was a certain or near-certain outcome of the conduct.
[25]Verdict, above n 1.
There is no doubt that the offending covered by Charge 2 involved extreme violence.
The Judge was aware that care was required not to double-count the level of violence inflicted and the seriousness of the injuries. As we noted at [6] above, he also acknowledged the overlap between the victim’s vulnerability and breach of trust.[26]
[26]Sentencing Notes, above n 2, at [22]. See at [6] above.
Furthermore, as the Judge also identified, he was required to take into account the factors identified in s 9A of the Sentencing Act, a provision which post-dated Taueki.[27] Section 9A provides:
[27]At [16].
9ACases involving violence against, or neglect of, child under 14 years
(1)This section applies if the court is sentencing or otherwise dealing with an offender in a case involving violence against, or neglect of, a child under the age of 14 years.
(2) The court must take into account the following aggravating factors to the extent that they are applicable in the case:
(a)the defencelessness of the victim:
(b)in relation to any harm resulting from the offence, any serious or long-term physical or psychological effect on the victim:
(c)the magnitude of the breach of any relationship of trust between the victim and the offender:
(d)threats by the offender to prevent the victim reporting the offending:
(e)deliberate concealment of the offending from authorities.
(3) The factors in subsection (2) are in addition to any factors the court might take into account under section 9.
(4) Nothing in this section implies that a factor referred to in subsection (2) must be given greater weight than any other factor that the court might take into account.
These factors must be taken into account when dealing with violence against children. Four of the five factors applied to Mr Gray’s offending.
The Judge was correct to place the Charge 2 offending in Band 3. Indeed, in our view, the Charge 1 offending could also have been placed in Band 3, although the Judge concluded it fell into Band 2. His assessment of the aggravating features involved a consideration of the offending that was the subject of both charges, although he concluded that extreme violence and serious injury applied in particular in respect of the Charge 2 offending.
Was the starting point within the available range?
Mr Williams noted that the Crown had sought a starting point of 10 years. He criticised the fact the Judge did not refer to any authorities other than Taueki, submitting that, had the Judge done so, it would have been clear that the starting point he adopted was outside the available range and therefore manifestly excessive. Mr Williams cited three cases involving violence against very young children, two of which are first-instance High Court decisions, which in his submission involved offending either broadly equivalent to or more serious than the present case. Starting points of between seven and eight years’ imprisonment were adopted in those cases.[28]
[28]R v Hopkins [2015] NZHC 562 at [26]; R v Lingman [2020] NZHC 3312 at [40]; and see S (CA632/2015) v R [2016] NZCA 367 at [56].
Mr Williams then referred to a number of sentencing decisions for manslaughter which in his submission involved similar aggravating features. The cases cited by him involved starting points ranging from eight to 10 years.[29]
[29]R v Huata [2017] NZHC 704; R v Lock HC Rotorua CRI-2009-069-620, 30 September 2010; Ikamanu v R [2013] NZCA 510; R v Kereopa [2016] NZHC 1664; R v Broadhurst [2008] NZCA 454; and Mehrok v R [2021] NZCA 370.
We do not regard sentencing in manslaughter cases as particularly helpful in sentencing an offender who has intentionally caused grievous bodily harm. The most obvious point is that each case must be considered on its own particular facts. Sentencing involves a full evaluation of the circumstances to achieve justice in the individual case.[30]
[30]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38]; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [120].
It might have been helpful had the Judge discussed other cases in support of his conclusion on starting points. However, there is little appellate authority on sentencing in grievous bodily harm cases that involve very young children and which discuss s 9A of the Sentencing Act.[31]
[31]Section 9A came into force on 17 December 2008.
Two relevant decisions of this Court which do deal with grievous bodily harm against very young children are R v K (pre-s 9A) and S (CA632/2015) v R. S (CA632/2015) v R was one of the three cases involving violence against very young children cited by Mr Williams.
R v K involved two co-defendants convicted of causing grievous bodily harm to their child during the first month of his life.[32] Hospital x-rays revealed a spiral (twisting) fracture to the baby’s left arm and 28 fractures of 16 ribs. While the baby was in hospital he suffered a broken right arm. The parents attempted to blame hospital staff. This Court upheld the Judge’s assessment that the offending fell within Band 3 of Taueki, as well as the starting point of nine years’ imprisonment for both parents.[33]
[32]R v K CA97/06, 19 September 2006.
[33]At [81]–[85] and see at [78].
In S (CA632/2015) v R the appellant was found guilty of causing grievous bodily harm to his partner’s son, who was aged two years and four months at the time.[34] The appellant claimed that he had left the child in a bath for a short time and returned to find him face down in the water. He claimed that, after picking up the child, he slipped and fell on him. A CT scan revealed bleeding between the inner lining of the skull and the brain. The Crown case was that the appellant lost his temper and intentionally harmed the child. The sentencing Judge had categorised the offending as falling within Band 2 and adopted a starting point of seven and a half years’ imprisonment. This Court dismissed the appeal against sentence, noting it was an orthodox application of the Taueki principles.[35]
[34]S (CA632/2015) v R, above n 28.
[35]At [57]– [58].
In both cases, the injuries suffered were far less severe than in the present case. In R v K, the Judge noted that there was no ongoing physical damage to the baby.[36] In S (CA632/2015) v R, the child was described as having made a “good recovery”.[37] While Mr Williams submitted that the appellant’s level of culpability is similar to that in S (CA632/2015) v R, we assess the offending here as more serious given the very young age of the victim, the level of violence and the seriousness of his injuries. Given the facts and starting points of the other cases, the starting point of 11 and a half years’ imprisonment in the present case reflects a broadly consistent approach.
[36]R v K, above n 32, at [84].
[37]S (CA632/2015) v R, above n 28, at [12].
In any event, the question for this Court is whether we are satisfied there was an error and a different sentence should have been imposed.[38]
[38]Criminal Procedure Act 2011, s 250(2).
In our view, the challenge to the sentence fails to take into account the seriousness of the offending covered by Charge 1 in respect of which the Judge adopted a starting point of nine years’ imprisonment. The Judge in his verdict described the offending as follows:[39]
[27] On 27 July 2017 Carter was found to have 15 fractures which showed signs of healing. Of those, eight were to the posterior right ribs, six to the posterior left ribs and one to the left distal tibia. The medical evidence was that the fact that healing was observed meant that each fracture under consideration must have occurred more than 10 days earlier.
[28] The skeletal survey established that Carter had an additional 25 fractures which showed no signs of healing, which are medically described as “acute” fractures. …
…
[30] I am satisfied beyond reasonable doubt that on at least one occasion before 24 July 2017 Carter … suffered very serious injuries in the form of multiple rib fractures at his home in Christchurch. I am further satisfied, in the absence of any evidence of accidental trauma which would have been observed had it occurred, that all the fractures to Carter's posterior ribs were caused by Mr Gray severely squeezing Carter's chest after encircling it with his hands. I am also satisfied that the injury to Carter's left ankle was caused by Mr Gray applying very severe acceleration/deceleration forces to Carter's body either by severely shaking him or by violently throwing him against a soft object. I am further satisfied that Mr Gray, in inflicting these injuries, intended to cause really serious harm to Carter in that it must have been obvious to him (and would have been obvious to anyone observing) that the harm which resulted was a certain or near-certain outcome of the conduct.
[39]Verdict, above n 1.
At sentencing, the Judge took something of an overall approach when analysing the offending, which occurred over a short period of time. He also correctly took into account other factors relevant to the seriousness of the offending, which we mentioned at [4] above. In particular he considered the fact that Mr Gray did not seek help after the first instance of causing grievous bodily harm to the victim and that he then allowed himself to be put in sole charge of the victim knowing what he had done to him previously.[40]
[40]Sentencing Notes, above n 2, at [20].
As an alternative approach, the Judge could have taken a lower starting point in respect of Charge 2 but then added the starting point for Charge 1 before addressing totality. We consider that approach would have resulted in the same final sentence.
The Judge took a starting point of 11 and a half years’ imprisonment on Charge 2 and nine years’ imprisonment on Charge 1. He correctly addressed the need for concurrent sentences, which are generally appropriate if the offences are of a similar kind and are connected, whether by time, the overall nature of the offending, or for any other reason.[41] When concurrent sentences are imposed, the most serious offence must receive the penalty appropriate for the totality of the offending.[42] As we noted at [8] above, the Judge imposed a sentence of 10 and a half years’ imprisonment on Charge 2 as the lead offence to reflect the totality of the offending, and eight years’ imprisonment on Charge 1, to be served concurrently.
[41]Sentencing Act 2002, s 84.
[42]Section 85(4)(a).
In our view, there can be no dispute with the Judge’s conclusion that a sentence of 10 and a half years’ imprisonment was appropriate for the totality of the offending. We do not consider there was an error or that a different sentence should have been imposed.
Outcome
The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch for Respondent
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