Baby shaking tragedy: Father Hayden Gray avoided murder charge over since-changed time limitation rule

The case was heard at the Court of Appeal sitting in Christchurch. Photo / File

A father convicted over the death of his infant son avoided a murder charge when the child died just hours after a since-changed time limitation rule lapsed.

Hayden Anthony Gray, 36, was jailed for 10-and-a-half years after being found guilty of intentionally causing grievous bodily harm to 1-month-old Carter Hutton in July 2017.

A skeletal survey later showed 40 broken bones in Carter’s ribs, arms, and legs.

Gray must’ve known that his “serious assaults on Carter”, whether they were a squeeze or a squeeze and a shake, or a series of squeezes, had changed a calm, contented baby to a fractious baby who cried a lot, a court previously heard.

The child died under palliative care one year and one day after suffering his injuries.

On Wednesday, at a Court of Appeal hearing in Christchurch where Gray’s lawyers argued that his jail term was “manifestly excessive”, a Crown lawyer confirmed he would’ve faced a charge of murder if the child had died inside the one-year time limitation.

But given that Carter died nine hours and 50 minutes after the cut-off, he could only be charged with intentionally causing grievous bodily harm.

The one-year limitation rule has since been changed.

At his appeal hearing, Gray’s lawyer Anselm Williams accepted that although Gray was convicted of serious offending “for which a serious sentence needed to be imposed”, the sentencing judge’s starting point was manifestly excessive and “didn’t accord with the authorities”.

Williams referred to other cases in New Zealand courts and argued that, in Gray’s situation, it wasn’t one where “extreme violence” existed.

He said that Carter’s injuries came as a result of his vulnerability as a small child rather than any extreme violence inflicted on him.

However, Court of Appeal Justices Christine French, Susan Thomas, and Jillian Mallon said that the victim’s size and physical state needed to be taken into account, pointing out that extreme violence towards a fully-grown male might be different to extreme violence towards a small frail person.

They also pointed out that it would be easier to break an adult’s ribs than a baby’s ribs.

And the Crown agreed.

The sentencing judge’s starting point was “absolutely right” and “beyond criticism”, Crown prosecutor Deirdre Elsmore told the court.

She also confirmed that Gray would’ve been charged with murder – not manslaughter or intentionally causing grievous bodily harm - if it didn’t fall outside of the time limitation period.

“The injuries that were suffered by Carter were extreme,” Elsmore said.

The year in hospital before he died saw him suffer painfully and terribly, which was intensely upsetting for his caregivers, the court heard.

“The impact on Carter was almost worse than death for that last year,” Elsmore said.

The Court of Appeal panel reserved its decision.

When Gray was sentenced at the High Court in Christchurch in May 2019 by Justice Rob Osborne, the baby’s mother said she could never forgive him.

“Hayden, what you did to my little boy has ruined my life and my family forever,” she said.

“Life will never be the same again.”

Her family has been left “broken” by Gray’s “damn stupidity” in what was every parent’s “worst nightmare”.