GRAY v R [2020] NZCA 548

GRAY v R [2020] NZCA 548 [6 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA307/2020[2020] NZCA 548BETWEEN JORDAN JOHN TROY GRAYAppellantAND THE QUEENRespondentHearing: 6 October 2020Court: French, Mallon and Ellis JJCounsel: G A Walsh and M J James for AppellantM H Cooke for RespondentJudgment: 6 November 2020 at 10 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of six years and nine months' imprisonment imposed inthe District Court on the charge of offering to supply methamphetamine isquashed. A sentence of five years and five months' imprisonment issubstituted.C The concurrent sentences on the other charges are confirmed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Mr Gray was sentenced by Judge Cocurullo in the District Court to six yearsand nine months' imprisonment on methamphetamine and cannabis charges, andcharges of injuring with intent to injure a police officer and injuring a police dog.1He appeals that sentence on the ground that it was manifestly excessive. He saysthe starting point on the lead offending and the uplifts for the other charges were toohigh. He also says insufficient credit was given for the matters set out in a culturalreport and that the guilty plea discount needs adjustment in light of the recent decisionof this Court in Moses v R.2The offending[2] On 28 April 2018, a police officer apprehended Mr Gray while he was ridinga push bike on a Hamilton street, advising him that he was under arrest for breach ofa protection order. Mr Gray swore at the police officer and started to ride away.The police officer followed Mr Gray in his police vehicle, activating the red and bluelights and siren of the vehicle. Mr Gray disappeared for a brief period into a propertyand then returned wearing only a shirt.[3] The officer advised Mr Gray once again that he was under arrest. Mr Graypicked up his bike and attempted to ride away. The officer, who was a dog handler,deployed the police dog, Gabby. Mr Gray pushed and kicked Gabby away. Gabbywas again deployed. This time Mr Gray grabbed Gabby around the neck and beganto twist it, causing her to scream and yelp.[4] Mr Gray escaped from the dog and attempted to enter the house from which hehad recently appeared. The officer tried to stop him from doing so, but was knockedto the ground by Mr Gray. Mr Gray kicked the officer in the right side of his head ashe was getting to his feet, again knocking him to the ground. Mr Gray went to the rearof the house, grabbed a large pole, and advanced towards the officer. Other policeofficers had arrived to assist at this point. Mr Gray retreated into the house and1 R v Gray [2020] NZDC 10290 [Sentencing Notes].2 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.barricaded himself in the bathroom. The officers forcibly entered the house and thebathroom and apprehended Mr Gray.[5] Inside the house, the police found two g of methamphetamine, $7,585 in cash,weighing scales, empty point bags and glass utensils, and 29.36 g of cannabis.Analysis of Mr Gray's phone revealed that between 1 and 28 April 2018 Mr Gray hadmade 54 offers to supply methamphetamine to 19 customers. The total amount offeredwas 235.8 g with a total value of $77,145.[6] The officer suffered bruising, swelling, superficial scratches and a four cmwound. He feared that Mr Gray was going to "finish [him] off" when Mr Gray wasadvancing with the metal pole. The officer was distressed at seeing Gabby, his loyalpartner, being hurt. Gabby suffered some limitation to her movement and straining inher neck region and was non-operational for two weeks while she recovered.[7] Mr Gray was charged with a range of offences for these events. Followinga decision by the Crown not to proceed with three of those charges, Mr Gray pleadedguilty just prior to trial to offering to supply methamphetamine (235.8 g), possessionof methamphetamine for supply (two g), possession of cannabis for supply (29.36 g),injuring a police dog, and injuring with intent to injure.3Personal circumstances[8] Mr Gray was 35 years old at the time of the offending. He said tothe pre-sentence report writer he considered his drug use had caused his offending.That accords with the police officer's opinion who said that, based on his experience,he believed Mr Gray was under the influence of methamphetamine when the offendingtook place.[9] Mr Gray has previous convictions for a range of matters. Most relevant areconvictions for possession of cannabis and methamphetamine in 2007, a convictionfor conspiring to deal methamphetamine in 2008 and a conviction for possession ofcannabis for supply on 11 August 2018 for which he was sentenced on 19 March 2018.3 Misuse of Drugs Act 1975, s 6(1)(d) and (f) and (2)(a) and (c); Policing Act 2008, s 53; and CrimesAct 1961, s 189(2).The latter offending took place when Mr Gray was on bail for the present offending.The present offending took place when he was subject to a sentence of supervisionimposed in September 2017 for other matters.[10] The pre-sentence report discussed Mr Gray's problem with drugs. A screeningtest completed as part of the report assessed him as being at a high risk of substanceabuse. The report writer recommended he complete a drug programme in custody andon release. Corrections' records showed that Mr Gray was to have been interviewedfor Odyssey House but the report writer had no further information about that.Mr Gray told the report writer that between 2011 and 2016 he was doing well and hademployment but he then lost employment when he failed a drug test.4 The reportwriter spoke to Mr Gray's former partner, who agreed he needed to rehabilitate.[11] A cultural report provided background about Mr Gray's upbringing. His fatherwas violent and associated with the Mongrel Mob. This was confirmed by Mr Gray'smother, who said that when she went to a safe house, her partner found them andassaulted her and her son. Mr Gray's father went to prison after this. Later, Mr Grayspent some time with his father and her new partner, who neglected him. He was givencannabis by the adults. He was expelled from school and moved towns, where hebecame heavily involved in drugs.District Court sentence[12] The drug offending (methamphetamine and cannabis) was treated together asthe lead offending. The quantity of methamphetamine put the offending in band twoof the guidelines in Zhang v R.5 The issue for the Judge was where it fell within thatband. The Judge rejected the submission for Mr Gray that he played a "lesser" role.He described Mr Gray as having "at least a significant role" given his offers to sell.6The Judge decided on a starting point for the lead offending of seven years'imprisonment, placing the offending towards the top of band two.74 This is consistent with Mr Gray's conviction history which shows a break from offending overthis timeframe.5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125]. Band two applies to quantitiesbetween five and 250 g and the guideline sentence for that band is two to nine years' imprisonment.6 Sentencing Notes, above n 1, at [10].7 At [12].[13] The Judge then applied a 15 month uplift for the violence against the officerand a further uplift of six months for the offending against the police dog. Theseuplifts were described as "totality" uplifts, indicating that the Judge may have imposedhigher sentences if he were sentencing on those offences in isolation from the drugoffending. This meant a starting point of eight years and nine months' imprisonmentbefore personal aggravating and mitigating factors.8[14] For personal aggravating factors the Judge added a three month uplift becausethe offending occurred while Mr Gray was subject to a sentence and a further threemonths because of Mr Gray's previous convictions. This meant a sentence of nineyears and three months before further adjustments.9[15] Before considering personal mitigating factors, the Judge made two furtheradjustments. First, he deducted three months for totality. Secondly, he allowed afurther six month discount because Mr Gray was already serving a sentence forpossession of cannabis for supply.10 This was to take "into account on a totalityprinciple what might have been the situation" if Mr Gray had been sentenced for allthe offending at the same time.11 This meant a sentence of eight years and six monthsbefore mitigating factors.[16] The Judge allowed a six month (about six per cent) discount for matters in thecultural report. In doing so, the Judge commented that all the information aboutMr Gray was "self-reported" and he was "no stranger to the Court by way ofbackground convictions for drug offending".12[17] Finally, the Judge allowed a 15 per cent discount, rounded up to a discount of15 months' imprisonment, for Mr Gray's guilty plea.13 This meant an end sentence ofsix years and nine months' imprisonment, which was ordered to be servedcumulatively on Mr Gray's existing sentence for the earlier cannabis offending.148 At [12].9 At [12].10 At [13]/11 At [7].12 At [14].13 At [15].14 At [18].Our assessmentLead offending starting point[18] Mr Walsh, counsel for Mr Gray, submits the Judge erred by categorisingMr Gray's role as significant. He says that, at most, the facts indicate that Mr Gray isa "street level dealer". He says it can be inferred from the offers to supply thatMr Gray was able to source methamphetamine, but there was no other indication ofa management or operational function, nor that he had any influence over those abovehim in the chain, and nor that he had an awareness and understanding of the scale ofthe operation. He says that, although the value of the methamphetamine offered was$77,145, Mr Gray's lesser role was demonstrated by the fact he was riding a push bikewhen apprehended. He says Mr Gray's motivation for offending was his long-standingaddiction rather than profit.[19] The Crown submits the starting point was well within range and could havebeen higher. It emphasises the number of offers in a short period of time and supportsthe Judge's conclusion that Mr Gray's role was significant. The Crown provideda range of comparator cases mainly addressing the impact addiction may have onthe sentence.15 The Crown submits there is nothing to indicate that Mr Gray'saddiction affected his knowledge of the operation or motivation for participating in it.[20] Of the cases the Crown has put forward as comparators, the most similar is thisCourt's decision in Su v R.16 That case concerned possession of methamphetamine forsupply of a similar quantity to here. The methamphetamine was packaged in smallself-sealing bags and was found alongside a tick list in Mr Su's handwriting. Mr Su'sevidence at trial also indicated that he frequently saw his co-offenders in person.This Court inferred that Mr Su must have known the scale and the operation in whichhe was involved. Taking into account the trial judge's finding that Mr Su wasan addict, the Court considered Mr Su's role was a lesser one, concluding that it waslikely he acted under direction, and was not sharing in the monetary gains beyond15 See Whiteford v R [2020] NZCA 130; Royal v R [2020] NZCA 129; Smith v R [2020] NZCA 221;and Moheebi v R [2020] NZCA 343.16 Su v R [2020] NZCA 128.receiving enough methamphetamine to feed his habit. A starting point of five anda half years' imprisonment was adopted.17[21] We consider there is little to differentiate Mr Su and Mr Gray other thanthe presence of cash at Mr Gray's house. The presence of that cash indicates thatMr Gray had some (probably temporary) control over the proceeds from sales. We donot see any significance in the fact that Mr Gray was riding a push bike, but we doaccept there was no evidence of assets or financial rewards consistent with derivingany great profit from his offending. We disagree with the Judge's view that Mr Gray'saddiction is all self-reported. It was supported by the pre-sentence report writer'sscreening test, the intended interview with Odyssey House, his former partner'scomments, his conviction history and his behaviour when confronted by the officerand his dog. We consider it more than likely that Mr Gray was involved in supplyingmethamphetamine to provide a ready source of the drug for himself, but was likely tobe receiving at least a little profit along the way.[22] We therefore consider the Judge has somewhat overstated Mr Gray's role assignificant. Of the indicia discussed in Zhang, Mr Gray had an operational functionwithin a chain, was not directing others, was not primarily motivated by profit orexpected financial gain, but did understand the scale of what he was involved in.We would place him at the higher end of "lesser" and the lower end of "significant".18This assessment of his role and the comparison with Su leads us to the conclusion thatthe seven-year starting point was too high. The fact that Mr Gray also had 29 g ofcannabis in his possession increases the seriousness of his offending, but notmaterially. We consider a starting point of six years' imprisonment for the drugoffending was appropriate.Uplifts[23] Mr Walsh submits the combined uplift of 21 months for the offending onthe police officer and his dog was too great, having regard to totality. We disagree.The aggravating features of the injury with intent to injure charge were that the attack17 At [24].18 Zhang v R, above n 5, at [126].was on a police officer in the execution of his duties, the attach involved a kick to thehead, and it was motivated by an attempt to evade arrest.19 Additionally, there was thedistressing attack on Gabby in the execution of her duties. We agree with the Crownthat had Mr Gray been sentenced on these two offences on their own, a starting pointof at least two years' imprisonment was available.[24] The 21 month uplift by the Judge therefore appropriately incorporateda discount for totality. There was also the further three month discount for totalityfrom the combined starting point after the Judge considered the uplifts for personalaggravating factors.[25] The Judge also made a six month totality reduction because Mr Gray wasserving a sentence for cannabis offending. That offending took place when Mr Graywas on bail for the present offending and, had the sentences been imposed at the sametime, a totality adjustment would have been made. We agree this was appropriate andthere is no challenge to it.[26] There was no issue taken with the three month uplift for the prior convictionsand with the similar uplift for the fact that Mr Gray was subject to a sentence.Nor could there be.Discounts[27] Mr Walsh submits that Mr Gray should have received a 15 per cent discountfor the matters in his cultural report. He says the report disclosed credible evidenceof social dislocation, drug abuse, educational underachievement and violence toan extent that it impaired choice and diminished moral culpability so as to establisha causative contribution to the offending.[28] We agree that a greater discount for those matters should have been given.We consider the Judge was wrong to discount the cultural report because it wasa self-reported history and Mr Gray had previous convictions. In fact, the culturalreport was supported by information provided by his mother and his conviction history19 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA) at [31].supported a causative link between his upbringing and resulting problematic drug use.The cultural report and the pre-sentence report also indicated some hope for Mr Gray'srehabilitation. He understood that was necessary. He was interested in undertakingrehabilitative programmes. His motivation and capacity to do so was supported bythe gap in his offending between 2011 and 2016.[29] This Court has commonly allowed discounts for cultural factors of up to 15 percent.20 We consider that was appropriate here. While the trauma of Mr Gray'schildhood appears to have been of a lesser order than the worst that the Court sees, itnevertheless involved neglect and violence and put Mr Gray on his path of drug abuse.That, along with his rehabilitative prospects, in our view warranted a discount ofsomething closer to 15 per cent than the six per cent discount given.[30] The Crown accepts the 15 per cent discount for the guilty plea was appropriate(there were discussions over the charges and the plea had been signalled earlier). It isnot challenged by Mr Gray.Final sentence[31] Applying the approach in Moses, the personal mitigating discounts arecalculated from the adjusted starting point (without the uplifts for personal aggravatingfactors). On this approach, the end sentence is five years and five months'imprisonment. This is calculated as follows:(a) The adjusted starting point is seven years' imprisonment (84 months).This constitutes a six year starting point plus 15 months for the injurywith intent to injure charge and 6 months for injuring the police dog,and minus three months for totality generally and six months becauseMr Gray was serving a sentence for cannabis offending.20 See, for example, Woodstock v R [2020] NZCA 472 at [35]; Carr v R [2020] NZCA 357 at [67];Moses v R, above n 2, at [70]; and Minogue v R [2020] NZCA 515 at [47]. Compare with Whittakerv R [2020] NZCA 241 at [46] where a discount of around four per cent was upheld but describedas "light".(b) There are uplifts of three months for offending while on sentence andthree months for the prior convictions.(c) There are discounts of 30 per cent of the adjusted starting point, being25 months (15 per cent for background factors and rehabilitativeprospects, and 15 per cent for the guilty plea).[32] We therefore conclude that the end sentence imposed by the Judge wasmanifestly excessive.Result[33] The appeal is allowed.[34] The sentence of six years and nine months' imprisonment imposed inthe District Court on the offering to supply methamphetamine charge is quashed andsubstituted with a sentence of five years and five months' imprisonment.[35] The concurrent sentences on the other charges are confirmed.Solicitors:Crown Law Office, Wellington for Respondent