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]…

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 R v Gray

Details

AGLC: R v Gray [2008] NZCA 311
Case: [2008] NZCA 311
Decision Date: 20 August 2008

CaseChat Overview and Summary

Conrad Gray was convicted of burglary and assault with a weapon in the Rotorua District Court, and was sentenced to an effective term of imprisonment of three years and three months. Gray appealed against his sentence on the grounds that it was manifestly excessive. The New Zealand Court of Appeal allowed the appeal against sentence, quashed all sentences imposed in the District Court, and remitted sentencing to the District Court with a direction that it re-sentence having regard to Gray's actual and prospective assistance to the police on charges brought against other persons. The Court found that the starting point of four years and six months’ imprisonment for the offending was appropriate, but the sentencing judge was unaware of the assistance Gray provided to the police in other investigations. The Court emphasised that in appropriate cases, combined credits for a guilty plea and assistance may go as high as 60 per cent.

The Court of Appeal held that the starting point for sentencing was appropriate, but the sentencing judge was not aware of Gray's assistance to the police in other investigations. The Court found that in appropriate cases, combined credits for a guilty plea and assistance may go as high as 60 per cent. The Court thought it better to remit sentencing to the District Court, leaving appeal rights intact, both for Gray and the Crown. The Court held that this was an appropriate case to remit to the District Court, with a direction that it re-sentence having regard to Gray’s actual and prospective assistance to the police.

Orders