R v Gray

[2008] NZCA 311

IN THE COURT OF APPEAL OF NEW ZEALAND

CA370/2008
[2008] NZCA 311

THE QUEEN

v

CONRAD GRAY

Hearing:24 July 2008

Court:Baragwanath, Chisholm and Heath JJ

Counsel:J P Temm for Appellant

T Epati for Crown

Judgment:20 August 2008 at 10 am

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST SENTENCE IS ALLOWED.

BAll sentences imposed in the District Court are quashed.

CSentencing is remitted to the District Court, with a direction that it re-sentence having regard to relevant information about the appellant’s actual and prospective assistance to the police on charges brought against other persons.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]       Mr Gray pleaded guilty on arraignment in the District Court at Rotorua to one count of burglary and one of assault with a weapon.  He was sentenced to an effective term of imprisonment of three years and three months.

[2]       An extension of time to appeal having been granted by Baragwanath J on 8 July 2008, Mr Gray now challenges the sentence imposed on the grounds that it was manifestly excessive.

Background facts

[3]       Both offences arose out of incidents that occurred in Rotorua during the early hours of 14 November 2007.

[4]       At about 1.30 am Mr Gray went to his neighbour’s home in Pedlar Street.  The occupant of that house, Mr Henry, was awoken by Mr Gray’s activities.  No plausible explanation for his visit at that time of day has been provided.

[5]       By the time Mr Henry got out of bed, Mr Gray had moved to the rear of the property and was attempting to kick in the back door.  Mr Henry ran to the door in an endeavour to put a chain on.  As he turned to go back to his bedroom to call the Police on “111”, Mr Gray succeeded in kicking in the door.  He followed Mr Henry into the bedroom.

[6]       Mr Henry formed the view that Mr Gray had been drinking alcohol.  It happened that Mr Henry worked with Mr Gray’s mother and it appears that he conversed about that relationship in an endeavour to calm down Mr Gray.  Mr Henry made a cup of tea.  Mr Gray stayed in the kitchen and talked about his family and work.  At this stage, Mr Henry’s keys were on the kitchen bench.

[7]       Although Mr Henry had succeeded in calming down Mr Gray to a degree, he remained in an agitated state.  Indeed, he presented in a manner that made Mr Henry fearful of calling the police, in case Mr Gray used violence against him.  Mr Gray had expressly told Mr Henry not to call the police.

[8]       Sometime later, Mr Henry managed to convince Mr Gray to leave the house.  He noticed that Mr Gray was looking around at his possessions.  However, he was able to coax Mr Gray outside the house, where he left him.  At that stage Mr Henry went back inside the house and decided to repair damage to the back door. 

[9]       Mr Henry decided that he needed a hammer from his garage.  He could not locate his house keys but found a spare key for the garage.  He went out of the house, opening the main door.

[10]     Mr Henry noticed that the side door to the garage was open.  He found Mr Gray hiding behind his car.  When he asked Mr Gray what he was doing, Mr Gray said that he wanted “to sleep” in the garage.  Mr Henry told him to leave and went into his house to call the police.

[11]     At that stage, Mr Gray appeared in the doorway holding a large splitting axe, which he had taken from Mr Henry’s garage.  He was aggressive.  The axe was held above his shoulder.  He demanded that Mr Henry give him the telephone that he was using to telephone the police.  Mr Gray said that Mr Henry would “wear the axe” if he did not hand the telephone over.  After some initial resistance, out of fear, Mr Henry provided the telephone to Mr Gray, who turned it off.

[12]     Mr Gray talked about having family in Wellington.  He told Mr Henry not to call the police.  Mr Henry, again, managed to persuade Mr Gray to leave the house.  He agreed to let Mr Gray use his car to avoid the possibility that Mr Gray might use the axe as a weapon against him.  Those concerns were well founded: as Mr Gray left, he told Mr Henry that “if you run now I will bash you with this”, gesturing to the axe.

[13]     Mr Gray took Mr Henry’s car.  He drove off at speed down Sunset Road towards the intersection with Old Taupo Road.  He was driving without any lights on.  At this stage Mr Henry called the police.

[14]     Mr Gray was unable to negotiate the intersection between Sunset Road and Old Taupo Road, crashing the vehicle into the Video Ezy store on Old Taupo Road.  Mr Henry’s car was damaged beyond repair.

[15]     Police were called to the crash scene.  Mr Gray was inside the vehicle.  A breath test was administered at the roadside.  Mr Gray appeared intoxicated to police officers and failed a “youth” roadside breath test.

[16]     At the time of his offending, Mr Gray was 24 years old.  On 21 April 2004, he had been sentenced to a period of three years and six months’ imprisonment on charges of burglary, unlawful taking of a motor vehicle and perverting the course of justice.  The Parole Board did not see fit to release him before the sentence expiry date.  Mr Gray was released on 11 October 2007, just over a month before the offending involving Mr Henry.  Accordingly, the present offending occurred while Mr Gray was subject to conditions of parole.

Sentencing in the District Court

[17]     After reciting the background facts and referring to submissions from counsel, Judge McGuire decided that he had “no choice … but to send [Mr Gray] back to jail”.  That comment was made in the context of Mr Gray’s relatively recent release from custody on earlier charges of burglary.

[18]     The Judge took a starting point of four years and six months’ imprisonment, characterising the offending as coming within the second category of Senior v Police (2000) 18 CRNZ 340 (HC).  A credit of one year and three months (about 27 per cent) was given to reflect early guilty pleas.  The end sentence, on the burglary charges, was three years and three months’ imprisonment.  A concurrent sentence of one year’s imprisonment was imposed on the assault charge.

Submissions

[19]     Mr Temm, for the appellant, submits that a starting point of four years and six months’ imprisonment for offending of this type was manifestly excessive, particularly for a relatively young offender with an institutionalised history.  On the basis of Senior and R v Southon (2003) 20 CRNZ 104 (CA), Mr Temm submitted that a starting point of no more than three years and six months’ imprisonment was appropriate.

[20]     Mr Temm sought to persuade us that the offending on which Mr Gray was sentenced represented “a one-off instance as distinct from recidivism burglaries in its true Senior sense”.  However, Mr Gray’s criminal history reveals 17 prior burglaries.

[21]     Mr Temm also submitted that the credit given for mitigating circumstances was inadequate, referring to Mr Gray’s assistance on an unrelated inquiry.  That assistance was not drawn to the sentencing Judge’s attention.  It lay in providing information in relation to a serious offence on which Mr Gray gave evidence recently, at a preliminary hearing.

[22]     For the Crown, Ms Epati, submits that the sentence was not manifestly excessive.  She submits that a starting point of four years and six months’ imprisonment was within the available range, having regard to the totality of the offending, Mr Gray’s previous criminal history and the guidance provided, particularly, in Southon.  In addition to the 17 convictions for burglaries, Ms Epati referred to an additional 11 convictions, all of which occurred between 11 September 2001 and April 2004, involving offences of dishonesty.

[23]     Ms Epati also identified as an aggravating factor that the offending occurred after Mr Gray had been released on parole. 

[24]     Ms Epati also stressed that while the burglary offending was taken as the lead charge for sentencing purposes, the Judge correctly characterised culpability in terms of what was a serious home invasion.  Unlike the previous offending, Mr Gray’s conduct had an additional feature of a serious threat of violence. 

[25]     Ms Epati submitted that the credit for the pleas of guilty was appropriate in the circumstances.

[26]     On the issue of assistance to the authorities, Ms Epati indicated that the Crown accepted some assistance had been provided. 

[27]     After the hearing, at our request, we were provided with a letter from the officer in charge of the investigation in which assistance has been provided.

Analysis

[28]     We agree with Ms Epati that there is no basis, in terms of the approach to sentencing in cases of this type, to question the starting point taken by the Judge.  In Southon, this Court emphasised that Senior, while a helpful compilation of authorities on aspects of burglary sentencing, ought not to be treated as a guideline judgment.  Ultimately, it is necessary for the court to have regard to particular sentencing goals in the context of the facts before it.

[29]     This was a serious home invasion.  It involved threats of serious violence, which caused great distress to Mr Henry.  It undermined his entitlement to regard his home as a safe haven.

[30]     The offending, for those reasons, was more serious than that on which Mr Gray had previously been convicted.  In a case of this type, the sentencing goals of deterrence, denunciation and community protection must assume prominence: see Southon at [14].

[31]     Nor do we consider the allowance for mitigating circumstances was inadequate.  The credit for the early guilty pleas was in line with the range identified in R v Fonotia [2007] 3 NZLR 338 at [50] and [51] (CA).

[32]     The only issue that calls for further consideration is the assistance to authorities, of which Judge McGuire was unaware.  The basis on which credit should be given for assistance provided to law enforcement officers in other investigations was considered by this Court in R v Hadfield CA337/06 14 December 2006. 

[33]     The rationale for a significant credit is captured neatly in R v King (1985) 7 Cr App R (S) 227 (CA), a judgment cited with approval in Hadfield, at [26]. The Lord Chief Justice, for the Court in King, said at 230:

It is to the advantage of law-abiding citizens that criminals should be encouraged to inform upon their criminal colleagues.  They know that if they do so they are likely to be the subject of unwelcome attention, to say the least, for the rest of their lives.  They know that their days of living by crime are probably at an end. Consequently, an expectation of substantial mitigation of what would be otherwise the proper sentence is required in order to produce the desired result.  The amount of that mitigation, it seems to us, will vary… from about one-half to two-thirds reduction according to the circumstances as outlined above.

This Court emphasised, in Hadfield, that the “reduction range” identified in King includes a credit for a guilty plea: at [27].

[34]     The quality and quantity of information provided are relevant to any credit for assisting law enforcement authorities.  In R v A and B [1999] 1 Cr App R (S) 52 (CA), in a passage that was also approved in Hadfield, the Court said, at 56:

The extent of the discount will ordinarily depend on the value of the help given and expected to be given.  Value is a function of quality and quantity. If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal.  If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial. … Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed.  For all these purposes, account will be taken of help given and reasonably expected to be given in the future.

[35]     It is clear from Hadfield that, in appropriate cases, combined credits for a guilty plea and assistance may go as high as 60 per cent: see, for example, R v Zhou CA314/05 1 November 2006 and Hadfield itself.  In each case, a sentencing judge must assess the quality and quantity of information provided and determine its value, having regard to the policy factors identified in King.

[36]     For obvious reasons, we describe the nature of the assistance in issue in non-specific terms.  Mr Gray received information (not solicited from him) about allegations of serious violent offending.  He passed that information to the police.  The information is material evidence that may secure a conviction.  The police assess the value of his assistance as high.

[37]     Mr Gray gave evidence at the preliminary hearing of the charges brought against those accused of the serious violent offending.  He did so at some personal risk.  The police accept that continued assistance is likely to increase the level of risk to his personal safety.

[38]     In Hadfield, this Court adopted a submission by counsel for the Solicitor-General that the most appropriate course was for sentencing Judges to take account of anticipated future assistance at the time of sentencing and to give an offender whatever credit the Judge thought appropriate for both actual and prospective assistance.  If an offender were to renege on a promise to provide future assistance, the Crown’s remedy was for the Solicitor-General to seek leave to appeal out of time against sentence on the grounds that the sentencing Judge gave excessive credit to the offender based on the false premise that future assistance would be provided: see Hadfield at [11].

[39]     In this case, the sentencing Judge did not know of the assistance provided and promised for the future.  If we were to re-sentence, taking account of prospective as well as actual assistance provided to date, there is a risk that too much credit might be given, if Mr Gray failed to keep his promise to provide future assistance.  There is no provision for the Solicitor-General to challenge, in the Supreme Court, a sentencing decision of this Court.

[40]     Because Mr Gray has not yet given evidence at trial, we do not consider it appropriate for us to reconsider the sentence to be imposed.  We think it better to remit sentencing to the District Court, leaving appeal rights intact, both for Mr Gray and the Crown.

[41] Until 26 June 2008, this Court had no power to remit sentencing appeals. However, s 13 of the Crimes Amendment Act 2008 provided this power, by an amendment to s 385(3). Section 385(3)(c) of the Crimes Act 1961 now provides that this Court may:

(c) remit the case to the Court that imposed the sentence with a direction that such Court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal …. .

[42]     In our view, given the principles set out in Hadfield, this is an appropriate case to remit to the District Court, with a direction that it re-sentence having regard to Mr Gray’s actual and prospective assistance to the police.

Result

[43]     For the reasons given, the appeal against sentence is allowed.  All sentences imposed in the District Court are quashed.  We remit sentencing to the District Court, with a direction that it re-sentence having regard to relevant information about Mr Gray’s actual and prospective assistance to the Police.

Solicitors:
Crown Law Office, Wellington