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…

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] NZHC 3332
Case: [2022] NZHC 3332
Decision Date: 9 December 2022

CaseChat Overview and Summary

Tyrone Gray appeals his sentence for an aggravated robbery of a dairy store, arguing the sentence should have been 28 months' imprisonment rather than 32 months. The appeal hinges on whether the trial judge's sentence was erroneous and whether it is manifestly excessive. The trial judge, adopting a starting point of five years, applied discounts for mitigating factors, including a guilty plea, resulting in a 32-month imprisonment term. The appellant contends the guilty plea discount was incorrectly calculated, reducing the sentence to 28 months if correctly applied. The Crown argues that any error in methodology does not render the sentence manifestly excessive, as the sentence aligns with other similar cases.

The court assessed whether the sentence was manifestly excessive despite potential errors in the sentencing methodology. The starting point was appropriate given the circumstances of the crime, including the use of a knife and the victim's psychological trauma. The court found the discounts for the guilty plea and other mitigating factors were reasonable and not significantly different from those in other similar cases. The court concluded that the sentence was not manifestly excessive, and the appellant did not argue otherwise. The appeal was dismissed, and the original sentence of 32 months' imprisonment was upheld.

Orders