Murray v R [2015] NZCA 538 (13 November 2015)

Last Updated: 19 November 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA624/2014 [2015] NZCA 538
BETWEEN	SHANE DAVID MURRAY Appellant
AND	THE QUEEN Respondent

Hearing:	18 August 2015 (further submissions 27 October 2015)
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	A J McKenzie for Appellant M J Lillico for Respondent
Judgment:	13 November 2015 at 10:00 am

JUDGMENT OF THE COURT

1. Leave to appeal is granted.
2. The appeal is allowed.

100. Mr Murray’s sentence of one month’s (cumulative) imprisonment for possession of cannabis is quashed. On that charge, Mr Murray is convicted and discharged.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] Shane Murray pleaded guilty in the Christchurch District Court to committing acts of domestic violence: one charge each of assault with intent to injure and being unlawfully on a property. Mr Murray also pleaded guilty to a distinct charge of possession of cannabis. Mr Murray was sentenced on 18 June 2014 by Judge O’Driscoll to two years’ imprisonment on the domestic violence charges, and one month’s imprisonment (cumulative) for possession of cannabis.^[1]
[2] Mr Murray appealed to the High Court against that cumulative sentence of one month’s imprisonment for possession of cannabis.^[2] He did so by reference to s 7(2)(b) of the Misuse of Drugs Act 1975.
[3] Section 7(2)(b) provides:

(2) Subject to subsection (3), but without prejudice to any liability under section 6, every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction—

...

(b) to imprisonment for a term not exceeding 3 months or to a fine not exceeding $500 or to both in any other case:

provided that, where any person is convicted of an offence against subsection (1) relating only to a Class C controlled drug and is liable to a penalty under paragraph (b), the Judge or District Court Judge shall not impose a custodial sentence (being a sentence under which a person is liable to be detained in a prison within the meaning of the Corrections Act 2004) unless, by reason of the offender's previous convictions or of any exceptional circumstances relating to the offence or the offender, the Judge or District Court Judge is of the opinion that such a sentence should be imposed.

[4] Justice Gendall dismissed Mr Murray’s appeal on 2 October 2014.^[3] In doing so, he said:

[28] I accept in this case that Mr Murray’s cannabis offending was low level offending. I also accept that there is this proviso in s 7(2)(b) against imprisonment for this type of offending, and Mr Murray’s offending would not normally have attracted a sentence of imprisonment. However, in this case, given the custodial sentence imposed for the more serious offending of assault with intent to injure and unlawfully being on the victim’s property, in my view Judge O’Driscoll cannot be criticised for imposing a cumulative one month’s sentence of imprisonment in this case, and I refer to Norman v Police.^[4]

[29] In any event, any sentence appeal turns on whether the end sentence resulted in an aggregate term wholly out of proportion to the gravity of the offence when viewed as a whole. In my assessment, Judge O’Driscoll was entirely correct in the end sentence he imposed upon Mr Murray.

[5] Mr Murray now applies for special leave to appeal that decision to this Court. He says that Gendall J was wrong to conclude that, because he was to receive a custodial sentence for the domestic violence offending, Judge O’Driscoll could not be criticised for imposing a cumulative sentence of one month’s imprisonment for his cannabis offending. He says the correct approach to s 7(2)(b) raises a question of general or public importance. Alternatively, he argues that if his appeal is not heard he would suffer a miscarriage of justice, albeit not a grave one.

Procedural history of this appeal

[6] Pursuant to a direction of Harrison J, we heard Mr Murray’s application for leave and his substantive appeal together. We did so on 18 August 2015. Subsequently, we requested further submissions from counsel on the interpretation of the proviso to s 7(2), and on the application under the Criminal Procedure Act 2011 of the totality principle to appeals involving sentences with constituent parts.
[7] We thank counsel for those further submissions.

Analysis

[8] We are satisfied that the question of the correct approach to the proviso found in s 7(2)(b) of the Misuse of Drugs Act is one of general or public importance. On that basis, we grant leave for this second appeal.
[9] As Mr McKenzie’s very helpful supplementary submissions establish, the proviso is best understood as parliamentary acknowledgement, at the time of the passage of the Misuse of Drugs Act in 1975, of the then current approach to sentencing for possession of cannabis. The courts were reluctant to sentence offenders to prison for simple cannabis possession. That Act was introduced as the Drugs (Prevention of Misuse) Bill in 1974.^[5] As introduced, it did not contain the proviso now found in s 7(2)(b). The proviso first appeared in the Select Committee version of the Bill, but with little explanation or comment from the Select Committee itself. Mr McKenzie pointed us to helpful parliamentary commentary in the speech from the Minister of Health on the second reading of the Bill:^[6]

Clause 7, dealing with the possession and the use of controlled drugs, transforms the bare supply of class C drugs to persons over the age of 18 into a less serious offence. The Select Committee has to some extent created a new distinction by recommending that a custodial sentence — the expression introduced in clause 6 — shall not ordinarily be passed for the possession or use of a Class C drug. This principle is in line with the current practice of the courts.

[10] Understood in that light, in our view the proviso requires a sentencing judge to step back and assess the significance of a particular offender’s cannabis possession offending. The proviso directs consideration of an offender’s previous convictions and other “exceptional circumstances” relating to the offence or the offender. We do not think the fact that a person is, at the time, to receive a custodial sentence satisfies — without more — the proviso. Rather, and for example, where there had been extensive “simple” possession offending dealt with over time by noncustodial sentences, the court might conclude that a sentence of imprisonment was the least restrictive sentencing outcome appropriate. Alternatively, charges for simple possession could be laid in connection with charges for other drug offending, where the possession of cannabis was, in effect, part of an overall pattern of offending. The point is that the satisfaction of the proviso is something that must be determined by reference to the statutory criteria. To that extent, we think Gendall J erred, as did the High Court in the case to which he referred, Norman v Police.^[7]
[11] In our view, and in the circumstances of this case, that conclusion is sufficient to dispose of this appeal. We therefore allow Mr Murray’s appeal, and quash the one month’s cumulative sentence imposed upon him for possession of cannabis. We will order him convicted and discharged for that offending.
[12] But, we note that it is not to be taken that a conviction and discharge will always, or even in the majority of like cases, be the necessary outcome. For example, a fine may well be an appropriate sentence for cannabis possession offending, including where a defendant has been sentenced to imprisonment on another charge. Section 13 of the Sentencing Act 2002 separately requires the court to impose a fine for such offending, unless various criteria are satisfied. That is not appropriate in this case because Mr Murray has served his sentence.
[13] Given Mr Murray has already served his term of imprisonment, this is not, in our view, an appropriate case to consider Mr Murray’s challenge to Justice Gendall’s alternative reasoning regarding the totality principle.^[8] We do not, therefore, need to consider the second matter on which we sought further submissions, namely the application under the Criminal Procedure Act of the totality principle to appeals involving sentences with constituent parts.

Result

[14] Mr Murray’s application for leave to appeal his sentence of one month’s cumulative imprisonment for possession of cannabis is granted. That appeal is allowed and that sentence quashed. Mr Murray is convicted and discharged for that offending.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Murray (AKA) McKenzie DC Christchurch CRI-2013-009-11070, 18 June 2014.

^[2] Mr Murray did not challenge his sentence for the domestic violence offending.

^[3] Murray AKA McKenzie v Police [2014] NZHC 2439.

^[4] Norman v Police HC Tauranga CRI-2011-470-20, 8 August 2011.

^[5] Drugs (Prevention of Misuse) Bill 1974 (28–1).

^[6] (18 July 1975) 399 NZPD 3143.

^[7] Norman v Police, above n 4, at [14].

^[8] Murray AKA McKenzie v Police, above n 3, at [29].