Police v Murray [2020] NZDC 809 (14 January 2020)

Last Updated: 21 October 2024

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT KAITAIA I TE KŌTI-Ā-ROHE KI KAITAIA

CRI-2018-091-000423

[2020] NZDC 809

NEW ZEALAND POLICE

Prosecutor v

HEWY MURRAY Defendant

Hearing:	14 January 2020
Appearances:	Sergeant S Wilkes for the Prosecutor W Cribb for the Defendant
Judgment:	14 January 2020

NOTES OF JUDGE G L DAVIS ON SENTENCING

[1] I have before me Hewitt Morris, also known as Hewy Murray. Mr Murray is before the Court today, he has a number of matters that require sentence. Those matters include events arising out of 15 January 2018, he drove with excess breath alcohol on a third or subsequent occasion on that day in Titahi Bay. The summary of facts records that Mr Murray was driving a heavy motor vehicle in the Porirua area, he reached a dead-end, he tried to reverse the vehicle back along the road, he became stuck after he backed a wheel of the trailer over a seawall onto the southern side of the road. The police were called, his breath was found to contain 831 micrograms of alcohol per litre of breath.

NEW ZEALAND POLICE v HEWY MURRAY [2020] NZDC 809 [14 January 2020]

[2] Then on 11 March, Mr Murray refused a blood specimen, he assaulted a person and he threatened to injure a person. The background to that is as follows. Mr Murray was driving a motor vehicle in Kaitaia and became involved in a verbal argument with the victim’s wife and the victim’s daughter. He was asked to leave the lounge area and he has punched one of the victims with a closed fist. The victim’s wife has attempted to intervene to stop them from assaulting her husband. The next-door neighbours also observed that.

[3] Mr Murray is then described as being dragged outside where he has threatened people, he has continued yelling and swearing. He has left the address. The police have caught up with him and they have tried to initiate breath testing procedures. He refused to undergo a breath screening test and refused to complete a blood specimen test.

[4] Then matters move from there to 4 October. Mr Murray was seen driving in the Kaitaia area, he was recognised. He had a bail condition that he was to undergo a breath screening test when required to do so, he duly did so and he failed it. He elected blood, his blood was found to contain 137 milligrams of alcohol per 100 millilitres of blood.

[5] So in other words, Mr Murray is for sentence on three drink-drive offences, one assault and one threatening behaviour charge. Matters get worse, so to speak, for Mr Murray because he has a number of previous excess breath alcohol convictions and driving convictions, one in 2013, he had a reading of 913 micrograms of alcohol per litre of breath, one in 2009, he had a reading of 101 milligrams of alcohol per 100 millilitres of blood, one in 2002, he had a reading of 512 micrograms of alcohol per litre of breath, then he had convictions recorded in 1996 for refusing a blood specimen, 1995 a reading of 628 micrograms of alcohol per litre of breath, 1992, a reading of

587 micrograms of alcohol per litre of breath, then in 1993 a reading of 539 micrograms of alcohol per litre of breath, and in 1991 a refusing a blood specimen.

[6] In other words, Mr Murray has, in addition to the three excess breath alcohol charges that he is for sentence today, eight previous drink-drive convictions. So he is for sentence on numbers nine, 10 and 11.

[7] Mr Murray came before me and I made it very clear that Mr Murray was going to jail. I spelt it out in very blunt terms to Mr Murray that he either did the time in jail or he did the time in residential rehab. When I made those comments, I did not know what the nature and extent of Mr Murray’s rehabilitative needs were. Little turned on that at the time because one could see from three close drink-drive convictions and nine others that the needs were likely to be complex.

[8] Mr Murray, in fairness to him, has embraced what the Court said. He has spent a significant period of time in residential rehab, at Odyssey House, at Wings Trust and at the Salvation Army and elsewhere. I have a number of letters and references and support letters from Mr Murray. The most recent that I was given today, I was particularly impressed by. Well, there were three that I was given today. One of them made reference to the period of sobriety that Mr Murray has. Mr Murray tells me today that he is 15 months and 10 days sober.

[9] In looking at Mr Murray, and I do not profess to be any expert on drug and alcohol matters, he looks good in the dock as well, and that is a credit to him. Some of the things that Mr Murray has been doing is attending drug and alcohol meetings, AA meetings and the like. A report from December 2019 said that he had attended 170 meetings as at December 2019. His progress has been such that he has been asked to chair other AA meetings and he is considering coming back north to set up his own AA/NA meetings with locals here in Kaitaia. All of those are really positive signs, Mr Murray.

[10] This is a particularly difficult sentencing, because numbers nine, 10 and 11, it is jail. They have happened at different times, it would be cumulative jail sentences and one could look at significant periods of time, but as I signalled, why would the Court put you through 15 months of rehab? I have never been to rehab, I do not mean that disrespectfully at all, but I imagine that in going to rehab you have been required to confront a number of personal demons, demons not only just around drinking, but probably I expect the reasons for that drinking in the first place. I do not imagine that would have been easy. I imagine it would have taken a great deal of courage, personal courage on your part. I would go so far as to say that anyone who is prepared to confront those demons, it would be cruel on the part of the Court to put them through

all of that and throw them straight back into jail. It would be demotivating, in my view.

[11] I acknowledge that you have spent some time in custody on remand for these matters early in the piece. This remains serious offending and, in my view, given the amount of time that you have spent in rehab and working on these issues, this can be dealt with in very short order. There has to be, in my view, a significant sentence to mark the seriousness of all of the offending, but I am also confident here that with the combination of an electronic sentence, locking you down with your whereabouts monitored for a significant period of time, coupled with an alcohol interlock licence, the risk to the public can be reduced quite significantly.

[12] In a number of recent decisions, including Orchard v R from the New Zealand Court of Appeal, Zhang v R, the Court of Appeal have signalled that one should not necessarily be slavishly tied to previous decisions and in particular previous tariff decisions.1 There is no tariff decision for drink-driving, let me make that clear. It is about getting to the right sentence and the just sentence, and in this case, in my view, the right sentence, the just sentence is one that recognises the seriousness of the offending, coupled with the significant work that you have done. That can be achieved today, in my view, through the entry of convictions on all matters and a sentence of 12 months’ home detention being imposed on you.

[13] That sentence is to be served at the address set out in the pre-sentence report at [address deleted]. For the duration of the sentence, you will be subject to conditions, and at the end of the sentence six months’ post-detention conditions, namely:

• (a) That you are not to possess or consume any alcohol or drugs not prescribed to you.
  
• (b) You are to attend an assessment and complete any drug and alcohol programmes as directed by the probation officer.
  

1 Orchard v R [2019] NZCA 529; Zhang v R [2019] NZCA 507.

(c) You are to attend an appropriate violence prevention programme as directed by the probation officer, and attend any other counselling, treatment or programmes that they direct.

[14] I must disqualify you from holding or obtaining a driver’s licence. On the refusing charge, that triggers the alcohol interlock provisions. So on all matters, I am going to disqualify you from holding or obtaining a driver’s licence for 28 days, beginning today, 14 January 2020, and at the conclusion of that 28 days, you are authorised to apply for an alcohol interlock licence and you are disqualified from holding or obtaining any licence, except the alcohol interlock licence, and you are authorised to apply and replace the alcohol interlock licence with a zero alcohol licence after complying with all the alcohol interlock requirements.

[15] In respect of the assault charge and the threatening behaviour charges, they are Summary Offences Act 1981 matters, I do not want to be seen to be making light of those matters, but given the significant period of home detention that I have imposed in respect of the other matters, I am going to convict and discharge you on those two matters.

[16] I am also directing you are to pay medical and analyst fees to the New Zealand Police, $211.95.

[17] The home detention, they will hook you up at 8 o’clock tomorrow night, Mr Murray, on those matters. At a personal level, let me congratulate you for the hard work that you have done, Mr Murray, it shone through all the paperwork that I have received. I think from memory, if I am not mistaking you for somebody else, and I do not mean that unkindly, I think I read The Riot Act the first time we met, so I really want to be the first one to say well done on what you have done over the course of the last 15 months. I am proud of what you have achieved.

Judge GL Davis

District Court Judge

Date of authentication: 27/01/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.