Gray v The the King

[2022] NZHC 3332

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-000060

[2022] NZHC 3332

BETWEEN

TYRONE ALAN HORI GRAY

Appellant

AND

THE KING

Respondent

Hearing:

7 December 2022

Counsel:

BJ Grbavac for Appellant

RB Annandale for Respondent

Judgment:

9 December 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me 9 December 2022 at 4pm

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Whangarei.

High Street Law Limited, Auckland.

GRAY v THE KING [2022] NZHC 3332 [9 December 2022]

The appeal

[1]    Tyrone Gray and a female co-defendant with whom Mr Gray had recently entered a relationship robbed a dairy with a knife. Mr Gray received a sentence of  32 months’ imprisonment.1 Mr Gray appeals. He contends the sentence should have been 28 months’ imprisonment.

Principle

[2]    An appeal in this context must be allowed if there was an error in the sentence and a different one should be imposed2 or, in short, if the sentence is manifestly excessive. The Court of Appeal has described the manifestly excessive concept as “well-ingrained” and “consistent with the statutory language”.3

Background

[3]The offending occurred sometime after 6 pm on 18 July 2021.

[4]    Mr Gray and the co-defendant drove to a dairy in Waipapa, having covered the registration plates with paper and a sock. The defendants went into the dairy. Mr Gray was wearing a cap and hoodie, which were pulled low to cover his face. The co- defendant wore a hoodie and mask. Mr Gray had a knife.

[5]    The victim yelled at the defendants. Mr Gray presented the knife and jabbed it toward her. The co-defendant kicked the victim in the stomach. She fell to the ground. The defendants took tobacco to the value of almost $1,500.

[6]    Police quickly determined the identity of the offenders. Both defendants acknowledged the offending to Police.

1      The co-defendant received a sentence of 11 months’ home detention: R v  Murray-Josephs [2022] NZDC 15308. She was treated as having a lesser role; was 21 years of age; a first offender; and had spent 11 months on electronically monitored bail. Disparity is not advanced as a ground of appeal.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[7]    Mr Gray was  then 26 years of age, and  a first  offender.  He was  charged  20 July 2021. He pleaded guilty 22 September 2021.

[8]    Judge M Howard-Sager adopted a starting point of five years’ imprisonment.4 The Judge deducted a total of 20 percent for mitigating factors including Mr Gray’s lack of previous convictions, offer to engage in restorative justice and rehabilitative prospects. The Judge deducted five months for “restrictive bail conditions”.5 The Judge then deducted 25 percent for Mr Gray’s guilty plea.

A précis of the competing cases

[9]    Mr Gray contends the Judge erred. On his behalf, Mr Grbavac observes the guilty plea discount was in fact 18 percent, not 25 percent, as the Judge applied the discount to the net sentence rather than applying it as a proportion of the starting point. In terms of the case law, Mr Grbavac says the Judge failed to follow the two-step sentencing methodology identified by the Court of Appeal in Moses v R.6 Mr Grbavac notes had the Judge correctly applied the guilty plea discount, the sentence would have been 28 months’ imprisonment, not 32 months.7

[10]The Crown acknowledges these points but contends:

(a)The Judge did not err by utilising different methodology, citing the Court of Appeal’s decisions in Kinita v R8 and Cheung v R.9

(b)The sentence is not manifestly excessive even if the Judge did err.

Analysis

[11]   The Crown’s contention the Judge did not err derives from this observation in the cited cases:10

4      R v Gray [2022] NZDC 6651.

5 At [18].

6      Moses v R [2020] NZCA 296Z, [2020] 3 NZLR 583.

7      The lesser term is advanced as the correct sentence.

8      Kinita v R [2021] NZCA 201.

9      Cheung v R [2021] NZCA 175.

10     Kinita at [13], citing Cheung at [20].

It did not follow that sentences using the three-step methodology were wrong. The sentencing judge fixes the starting point and any uplifts and discounts in an evaluative way by reference to sentencing purposes, principles and factors found in the Sentencing Act. The sentence is imposed after standing back and asking whether it is just. The three-step methodology, like the two-step one that replaced it, structured the sentencing analysis in pursuit of consistency and transparency. The only concrete limit imposed was the 25 per cent cap on a guilty plea discount. The change of methodology was limited to calculation of the guilty pleas discount, albeit the most common and usually the largest. It is only when a guilty plea discount is combined with other substantial discounts that the methodology is liable to produce a materially different outcome, as the facts of Moses itself demonstrate. And on appeal, the question is not whether a given methodology was followed but whether the end sentence was manifestly excessive.

[12]   Context is everything in law. The cited observation was made in the context of an argument Moses should be retrospectively applied to all sentencing decisions, meaning to all sentencings before Moses. Unsurprisingly, the argument was rejected. This context does not arise here and should not be seen as controlling. Otherwise, Moses could simply be ignored. In any event, the same observation emphasises the overarching question is whether, despite error, the sentence is manifestly excessive. As will be apparent, that is the issue here. This is best addressed by examination of the starting point, then discounts.

[13]   The leading judgment  in relation to the starting point remains that of the  Full Court of the Court of Appeal in R v Mako.11 The Court said this:

[56] A further example can be given taking another  combination  of  features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without 20 assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken 25 five years, and in bad cases six years, should be the starting point.

[14]   It could be argued the starting point should have been less than that adopted because of what Mr Hunt told the pre-sentence report writer about the circumstances surrounding the offending: he had learned his father’s cancer had returned, his mother had also “suffered a medical adventure”, and Mr Hunt had recently separated from his

11     R v Mako [2000] 2 NZLR 170.

former partner, then entered a relationship with the co-defendant. But, as against this mix:

(a)The victim was confronted by two offenders, both of whom were disguised.

(b)Mr Gray had a knife, which he jabbed towards the victim.

(c)The co-offender kicked the victim to the stomach with sufficient force to knock her to the ground.

(d)Victim impact appears far from insignificant (the primary effect appears to be psychological trauma, which may be ongoing).

[15]   It follows the starting point cannot be impeached. Mr Grbavac did not argue otherwise.

[16]   It is common ground the primary mitigating feature is Mr Gray’s prompt guilty plea. It warranted full discount of 25 percent.

[17]   Mr Gray remained on bail until sentencing on 13 April 2022. He was subject to a 24-hour curfew but was allowed to work—and did so. On 2 February 2022, the curfew was varied to an overnight one (from 8 pm to 6 am). As observed, the Judge deducted five months for these “restrictive … conditions”12.

[18]   This level of discount appears a little generous. First, bail was not electronically monitored. Second, and as observed, Mr Gray was allowed to work despite the 24-hour curfew, and his last three months or so on bail were on more relaxed conditions.

[19]   The remaining discounts all concern personal mitigating factors. Mr Gray was 26 and a first offender.   References described him as a good father and worker.    The Judge accepted Mr Gray was remorseful because he had offered to participate in

12     R v Gray [2022] NZDC 6651 at [18].

a restorative justice conference and the pre-sentence report described him as “genuinely remorseful”. These aspects and Mr Gray’s participation in counselling sessions also implied the prospect of rehabilitation.13 The Judge allowed 20 percent for this mix, but this reduces to 17 percent once full credit is applied for the guilty plea in accordance with Moses and the same bail deduction applied, or 19 percent if the bail deduction is reduced to three months given the observations at [18].

[20]   This suggests the sentence is not manifestly excessive because the discounts for personal mitigating factors are (a) not appreciably different from those given by the Judge, and (b) consistent with discount levels in other cases.14 Furthermore, an end sentence of 32 months’ imprisonment for an aggravated robbery involving the features at [14] would not typically be regarded as manifestly excessive unless perhaps there was something exceptional about the commission of the offence or offender. Nothing in relation to the former arises and while Mr Gray can point to a matrix of personal mitigating circumstances, these do not amount to exceptional circumstances either. Again, Mr Grbavac did not argue otherwise.

[21]   This leaves one point. Mr Grbavac argued this was a case in which the Judge intended to impose sentence X, but mistakenly imposed sentence Y. The significance of this argument is that there is a body of case law in which appellate courts have reduced seemingly unimpeachable sentences, meaning sentences which are not manifestly excessive, when the sentencing court intended to pass a lower sentence but because of some error, often arithmetical, imposed a more severe one.15 These cases are difficult to reconcile with the manifestly excessive principle. The idea is that the defendant should have the benefit of the (lesser) sentence the Judge intended to impose and for this reason, the manifestly excessive principle is not engaged.16

[22]   This case is not within that body of law. It is beyond argument the Judge intended to impose a 32-month term of imprisonment. And, as explained, the sentence is not manifestly excessive.

13     A cultural report revealed Mr Gray had been exposed to family violence and gangs, but Mr Gray described his parents “as always pretty good, to be honest”.

14     See, for example, the recent decision of Aitken v R [2022] NZCA 593.

15     See, for example, Paekau v R [2020] NZCA 332.

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Result

[23]The appeal is dismissed.

……………………………..

Downs J