R v Murray CA382/02 [2003] NZCA 336 (6 May 2003)

Last Updated: 3 August 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA382/02

THE QUEEN



v



PAUL LOUIS MURRAY

Hearing: 28 April 2003

Coram: Anderson J Baragwanath J Paterson J

Appearances: R Mansfield for the Appellant
K Raftery for the Crown

Judgment: 6 May 2003

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction

[1] In the early hours of 12 May 2002, Mr Murray fired a shot from a .22 calibre semi-automatic rifle which hit the victim in his abdomen. Mr Murray was arrested the next day and charged that “with intent to cause grievous bodily harm to ... caused grievous bodily harm to ...”. In early August 2002, before the preliminary hearing, Mr Murray pleaded guilty to the charge. On 23 August 2002, he was sentenced to a term of ten years imprisonment, and a minimum period of imprisonment of six years was imposed pursuant to s 86 of the Sentencing Act 2002. Mr Murray now appeals against both the sentence and the imposition of the minimum period of imprisonment, on the grounds that both are manifestly excessive.

Background facts

[2] The incident which led to the shooting arose from illegal street drag racing in South Auckland during the evening of 11 May and the early morning of 12 May 2002. There were approximately 200 persons gathered near a service station in East Tamaki for the purpose of either participating in or supporting this street drag racing.
[3] Mr Murray lent his sister’s car to two acquaintances. While at the scene, they became involved in a dispute with a third party who used a bottle to smash a hole in the rear window of the car. When Mr Murray, who was in the area in another car, was advised of the damage to his sister’s car, he directed that his two associates return with him to his Otara address.
[4] At the Otara address, a fourth person was phoned and arrived shortly after with a .22 calibre semi-automatic rifle with a telescopic sight and a silencer. Mr Murray was shown by this person how to use the rifle.
[5] Mr Murray and his two associates then returned to the East Tamaki scene, taking the rifle with them. On arrival at the scene, Mr Murray got out of the vehicle and commenced firing in the general direction of the forecourt of a service station. It was accepted by his counsel that he was described as scoping his targets before firing and yelling out the words “bring it on.”
[6] After a number of shots, one of which went through the car door of the victim, the victim threw a glass bottle towards Mr Murray. It smashed on the road in front of him. Mr Murray then lined up the victim, took aim and fired. The victim was hit in the abdomen and required surgery at the Middlemore Hospital.
[7] Mr Murray and his two associates immediately left the scene, and hid the car at a Pakuranga address, after changing its registration plates. Another associate disposed of the rifle. Five spent and seven live .22 bullets were found on the ground near where Mr Murray stood while shooting.
[8] At the time of the incident he was 23 years of age, single and unemployed. He had been released from prison 13 days before and was on parole.

Pre sentence report

[9] The probation officer in his pre sentence report noted that one of the factors which contributed to the offence was Mr Murray’s propensity for violence. This propensity had been noted in a previous probation report. Added to this propensity was the masking effect of drugs on Mr Murray’s ability to make a realistic assessment of his behaviour and the influence of his criminal associates to seek retribution for what had been done to Mr Murray’s sister’s car. The report in the summary noted that Mr Murray “has not responded positively to any intervention to change his offending behaviour.”
[10] Mr Murray told the probation officer that he had spent the 13 days since his release from prison “chilling out ... with mates ... smoking lots of cannabis... methamphetamines ... not sleeping much ... had been ‘up’ most of the time.”
[11] The report also noted that Mr Murray has a history of over 40 offences of which five show a propensity for violence. He also had outstanding fines of $10,045 which the sentencing Judge remitted. The probation officer assessed Mr Murray as being of a high risk of reoffending. Mr Murray accepted that his anger and criminal associates had contributed to his behaviour and stated that he was motivated and willing to address these issues. The probation officer noticed, however, that the promise was similar to that made prior to his most recent sentence, but noted that in the pre sentence report for the earlier offence, he was also assessed as “having a low level of motivation because he: does not acknowledge a propensity towards violence ... has made limited attempts to modify his behaviour in the past ... has a history of non-compliance with community based sentences and Court orders.” The report concluded by noting that this previous assessment had proven to be accurate given the offending which occurred very shortly following his release from custody.

The sentencing

[12] After stating the facts, the Judge noted that the victim suffered considerably as a result of his wound. In the Judge’s view it was fortuitous that he did not lose his life. Because of Mr Murray’s financial position, reparation was not ordered to compensate the victim for his financial costs of repairing his car and obtaining new clothes.
[13] The Judge noted the number of previous offences with the significant ones being possession of an offensive weapon in November 1997, common assault in November 1998, demanding to steal in July 2000 and in May 2001, two convictions, one for possessing a knife in a public place and the other for possessing an offensive weapon. The probation officer’s assessment of Mr Murray having a propensity for violence was noted, as was his failure to respond positively to any intervention to change his offending behaviour.
[14] The aggravating factors were noted to include that the offence involved the actual use of violence, the use of a weapon, the effect on the victim, elements of pre-meditation and planning, and Mr Murray’s previous convictions. Further aggravating factors were that Mr Murray acted out of revenge and in retribution, the offending occurred in a public place where a relatively large number of people were gathered, and firing openly in such circumstances was clearly extremely dangerous. The Judge characterised the offence as deliberate and somewhat brazen.
[15] The only mitigating factor taken into account was Mr Murray’s plea of guilty. The Judge noted that at the time Mr Murray was affected by the voluntary consumption, either of alcohol or drugs, but correctly did not assess this as a mitigating factor.
[16] The Judge took into account the purposes of s 7 of the Sentencing Act 2002, and in particular noted the need to denounce Mr Murray’s conduct, and the need to deter not only Mr Murray, but to send a message to other like minded offenders that this sort of behaviour would not be tolerated by the Courts or by the community generally. The protection of the public and deterrence aspects clearly outweighed, in the Judge’s mind, the need to rehabilitate Mr Murray.
[17] An important element in the sentencing was the acceptance of the Crown’s submission that under the provisions of s 8(d) of the Sentencing Act, a sentence near the maximum was appropriate because this offending was within the most serious range for which this sort of offence had been laid down. The maximum prison sentence for the offence is 14 years and the Judge adopted as a starting point a term of 12 years. After giving a credit for the guilty plea, he imposed a sentence of 10 years.
[18] The Judge also imposed a minimum term of imprisonment of six years, as in his view the offence was sufficiently serious to justify a sentence longer than would otherwise be applicable.

Grounds of appeal

[19] Mr Mansfield, for Mr Murray, submitted that a sentence of ten years imprisonment was manifestly excessive for two reasons:

1. The Judge erred when he considered that under s 8(d) of the Sentencing Act, the offending fell into the category “near the most serious of its type”. Accordingly, the starting point of twelve years was inappropriate; and
2. The early plea of guilty should have entitled Mr Murray to a discount of one third rather than the one sixth which he was given.

The submission in respect of the minimum term of imprisonment was that the offending was not “sufficiently serious” in the circumstances to take the offence out of the ordinary range of offending of this particular kind.

[20] Counsel in submitting that this case was not near the most serious of its type, reviewed previous cases and referred to the aggravating features of this case. While it was acknowledged that the use of a firearm was an aggravating feature, it was submitted that it was not a special aggravating feature. Although it was acknowledged that there was pre-meditation and planning, it was submitted that these factors related to the intention to cause damage to motor vehicles and not to persons, and there was no intention to shoot at any person until a bottle was thrown at Mr Murray. It was accepted that his retaliation in the circumstances was disproportionate to the initial incident and the throwing of the bottle, however it was submitted that the person injured was not an innocent party or member of the public.
[21] Several cases were referred to in support of the submission that the starting point was out of line with previous authority of this Court. In R v Hereora [1986] 2 NZLR 164, the victim was shot with a .303 rifle. Hereora deliberately fired several times at members of an opposing gang in a public place where there was danger to persons working or passing nearby. The shooting was fully pre-meditated. Initially, Hereora was only sentenced to two years imprisonment but on a Solicitor-General’s appeal this was increased to six years with this Court noting that a sentence of seven years would have been appropriate.
[22] In Hereora this Court referred to English practice where cases of wounding or causing grievous bodily harm with intent where there has been an impulsive act of violence involving the use of a weapon or intent to inflict serious injury commonly attract a sentence of between three to five years; that from five to eight years is reserved for cases exhibiting a combination of aggravating features; and up to twelve years is imposed where unusually grave aggravating features are present. Mr Mansfield submitted that Mr Murray’s case fell within the second category of between five to eight years.
[23] Other cases relied upon by counsel included R v Curry, Commock, & Milford (CA272/00, CA273/00 and CA226/00 of 28 September 2000), R v Winter & ors (CA452-454/96 of 26 February 1997), R v Williams (CA177/96 of 20 August 1996), and R v Christie (CA95/96 of 25 July 1996). These were all serious cases and in Curry, this Court held that a starting point of nine years imprisonment was appropriate, in Winter it held that the combination of aggravating features could be regarded as putting the case in the nine to twelve year range, and in Christie held that a starting point of nine to ten years was appropriate. It was submitted on the basis of these and other cases that a starting point of twelve years was in the circumstances manifestly excessive.

The Crown’s submissions

[24] Mr Raftery, for the Crown, submitted that neither the starting point of twelve years nor the discount of two years was inappropriate in the circumstances of this case. Further, this was a case to which s 86 of the Sentencing Act applied and a minimum term of imprisonment was appropriate. The Crown’s position was that the implications of s 8(d) of the Sentencing Act did not lead the Judge to impose a sentence that could not otherwise be justified. This was a case where a firearm was used, the appellant had fired at least five shots at or in the direction of a large crowd gathered in the forecourt of a service station and there had been the potential for more serious injury, the shooting was pre-meditated and an act of retribution, there was a “gang type” dimension to the offending and the appellant was on parole. The combination of the aggravating factors put this case into the top bracket of eight to twelve years identified in Hereora.
[25] In respect of the minimum non-parole period, the Crown’s submission was that this was a case sufficiently serious to impose such a sentence because the possibility of release after one third of the sentence would not represent sufficient denunciation, punishment and deterrence.

Discussion

[26] This Court in R v Afamasaga (CA271/02, 21 November 2002) did not agree that s 8(d) of the Sentencing Act will lead to a general increase in tariff and other sentences. It was not argued that there is a need to review upwards the sentencing for this type of offence. The Court has already recognised that starting points of twelve years may be appropriate in some cases, a sentence very near the maximum of fourteen years.
[27] Section 8(e) of the Sentencing Act makes it mandatory for a sentencing Judge to take into account the general desirability of consistency with appropriate sentencing levels in respect of similar offending in similar circumstances. In our view this section is relevant in this case.
[28] We accept that the pre-meditation in this case appears to have been to damage property. The shooting of the victim was an improvident response to the victim throwing a bottle. However, this observation does not undermine the seriousness of the offence. Mr Murray, who had been out of prison for 13 days and had spent most of that time smoking cannabis and taking methamphetamines, was responsible for taking a loaded gun to a place where approximately 200 members of the public were assembled, some of them in a state of conflict with others, for the purposes of retaliation. Taking a loaded gun to the locality was not only foolhardy, but also dangerous in the circumstances. Mr Murray deliberately aimed the gun at the victim and not only caused serious injury to him, but also endangered other members of the public. Serious offending whilst on parole is a significantly aggravating factor. The circumstances were such that, in our view, a starting point of more than eight years imprisonment was appropriate.
[29] However, on the basis of consistent sentences, when the circumstances of this case are considered against cases such as Hereora, Curry, Winter, Williams and Christie, we are of the view that a starting point of twelve years was manifestly excessive. This was compounded when the discount for the guilty plea was less than normally given.
[30] We have also considered two English cases, namely, R v Sullivan & Keeling (1987) 9 Cr.App.R.(S) 196, and Chesterman (1984) 6 Cr. App.R. (S) 151. Keeling was sentenced to 15 years imprisonment after being found guilty of possessing a firearm with intent to endanger life and of inflicting grievous bodily harm with intent. Chesterman was also found guilty of causing grievous bodily harm with intent and sentenced to 12 years imprisonment. The circumstances of both these cases were more serious than those in the present case. Keeling used an accomplice to lure his brother out of his house on the pretext that he had scrap metal for sale, and then shot him with a shotgun separately in each leg. The brother lost one leg and the other was seriously damaged. Chesterman shot a police officer with a shotgun while the police officer was trying to persuade him to put it down. The sentencing Judge noted that he “deliberately took this firearm and had it in your possession with murder in your heart.” These cases confirm that a starting point of twelve years would be appropriate in very serious cases but, in our view, the present case does not fall into these categories.
[31] We are of the view that an appropriate starting point in this case is ten years imprisonment. A discount of 25% is appropriate for the early plea of guilty. Thus, the final sentence would be seven and a half years imprisonment.

Minimum period of imprisonment

[32] The circumstances which have led us to the view that this was a serious case warranting a starting point of 10 years also confirm that this is a case for a minimum period of imprisonment. This Court in R v Brown [2002] NZCA 243; [2002] 3 NZLR 670 noted that a sentencing Judge had a discretion to impose a minimum term of imprisonment if in the eyes of the community a release after one third of the sentence would “represent insufficient denunciation, punishment and deterrence in all the circumstances” (para 23). The act of a person under the influence of drugs taking a firearm for retaliatory purposes to a public area and deliberately aiming the same at a member of the public is sufficient to set this case apart from the ordinary range of cases. The circumstances were sufficiently serious to allow the imposition of a minimum period of imprisonment.
[33] In our view, the appropriate minimum term of imprisonment is four years.

Result

[34] We allow the appeal and quash the sentence of ten years imprisonment. In lieu thereof we impose a term of imprisonment of seven and a half years and order that Mr Murray must serve a minimum term of imprisonment of four years.

Solicitors:
The Crown Solicitor, Auckland