R v Gray

Case [2008] NZCA 224 10 July 2008

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA128/08
[2008] NZCA 224
THE QUEEN
v
MARK ANTHONY GRAY
Hearing:24 June 2008

Court:Baragwanath, Rodney Hansen and Harrison JJ
Counsel:R M Mansfield for Appellant

M D Downs and S P Symon for Crown

Judgment:10 July 2008 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]       Mr Mark Gray appeals against a sentence of two years and nine months’ imprisonment imposed following his conviction in the High Court at Auckland on one charge of supplying cannabis.
High Court
[2]       Mr Gray was one of 10 people who faced trial jointly and separately on a range of drug dealing offences. He was acquitted on the two principal charges of supplying methamphetamine and conspiring with the others to supply the same drug.
[3]       The Crown’s case was based on intercepted audio and telephone communications together with one witness who gave evidence of an actual supply of a small quantity of cannabis. Allan J, who had the benefit of hearing the evidence in a trial of 20 weeks duration, found the relevant facts of Mr Gray’s offending as follows:
[60]     … The Crown case is that you were a regular and consistent dealer in cannabis, purchasing significant quantities and either reselling that for a profit or for the most part, selling smaller quantities to your associates. You traded from your home. The Crown has referred to a number of passages in the transcripts of recorded conversations which, it contends, establish that the quantity of cannabis sold by you exceeded two pounds. As part of the Crown calculations reference is made by you to ‘four and a half’ as the purchase price for one particular sale … The Crown says this is more likely to be a reference to $4,500 for a pound, but counsel accepts that it could refer also to $450 for an ounce.
[61]     Mr Mansfield submits that for present purposes the Court must adopt the alternative most favourable to the prisoner. I agree. To do otherwise would be to engage in impermissible speculation.
[62]     The Crown relies also on your debt collecting activities. Specific reference is made by the Crown to your having at one stage, $20,000 in outstanding debts and to evidence of actual collections of some $6,600 … In your favour I infer that some at least of the debt collecting must have related to [legitimate trading], but I am satisfied that at least a significant portion of the debt collecting related to your cannabis business, because that is precisely what it was. The regularity of your references throughout the transcript to having made supplies to a range of people, provide justification for the Crown submission that you were engaged in a consistent drug dealing exercise.

[4] Allan J recorded that Mr Ron Mansfield, Mr Gray’s counsel, accepted the Crown’s submission that the offending fell within the category of small scale commercial dealing with a starting…

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 224
Case: [2008] NZCA 224
Decision Date: 10 July 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mark Anthony Gray appealed against his sentence for supplying cannabis, which was two years and nine months imprisonment. The appeal was dismissed by Baragwanath, Rodney Hansen, and Harrison JJ. The appeal contested the severity of the sentence imposed by Allan J in the High Court at Auckland. The primary legal issue was whether the sentence was excessive, given the nature of the offence and the effect of bail conditions on the appellant’s liberty.

The court examined the submissions that the sentencing range for supplying cannabis should be one to three years instead of two to four years, as established in R v Terewi. The court noted that while some prior cases suggested a distinction between cultivating and supplying cannabis, recent authority, including R v Keefe, R v Leighs, R v McLaine, and R v Taui, indicated that no such distinction should be made. The court further held that statutory penalties and legislative intent suggested that supplying cannabis might be viewed as more serious than cultivating it. Consequently, the court rejected the appellant's first ground of appeal.

Regarding the appellant's second ground of appeal, the court acknowledged that a sentencing judge might reduce the starting point for restrictive bail conditions but emphasized that such a deduction was discretionary and not automatic. The court found that Allan J had appropriately exercised his discretion by allowing a three-month reduction for the bail conditions imposed on Mr. Gray. Therefore, the appeal against sentence was dismissed.

Orders