Murray (aka McKenzie) v R [2014] NZHC 1930 (15 August 2014)

Last Updated: 22 August 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000052

CRI-2014-409-000037 [2014] NZHC 1930

SHANE DAVID MURRAY (AKA MCKENZIE) SAMUEL JOSEPH FRASER

v

_{THE QUEEN}

Hearing:	13 August 2014
Appearances:	A J McKenzie for Appellants MAJ Elliott for Crown
Judgment:	15 August 2014

_{JUDGMENT OF DUNNINGHAM J}

[1] Mr Murray and Mr Fraser both appeal their convictions on charges of possession of cannabis.

[2] Mr Murray received a sentence of one month’s imprisonment which, on top of his 24 month prison sentence for injuring with intent to injure, meant he was ineligible for home detention.¹ Mr Fraser was simply convicted and fined $500 plus

Court costs of $130.²

[3] Both defendants appeal on the grounds that the sentence imposed was manifestly excessive, although in Mr Murray’s case, that includes the totality of the

_{sentence imposed on the two charges.}

¹ _{Police v Murray DC Christchurch CRI-2013-009-11070, 18 June 2014 at [20]-[21].}

² Police v Fraser DC Christchurch CRI-2014-009-311, 8 April 2014 at [2].

[4] However, it is not the substance of those appeals which is addressed in this decision. Rather it is the request by both appellants to have the appeals heard by a full bench of the High Court. This request is stated to be on the grounds that “a guideline judgment from this Court is warranted due to the changing public attitudes towards personal possession of small amounts of cannabis and overseas jurisprudence supporting a revised approach to cannabis by the Court. Accordingly, a full Court may be warranted. The agreed facts and non urgency make this suitable for a guideline judgment”.

[5] Counsel for both appellants filed a memorandum in support of a full Court on

16 July 2014. In that memorandum it was submitted that:

(a) Their appeals raised “matters of general and public importance in relation to the sentencing of offenders for personal possession of cannabis, especially in light of a [sic] changing societal views on the prosecution of such offending”.

(b) In overseas jurisdictions, Court decisions do have a role in reflecting changes in public opinion in relation to various offending, citing cases such as the “Arriola” ruling³ of the Supreme Court of Argentina on the possession of drugs for personal consumption. In that case the second paragraph of article 14 of the country’s drug control legislation was declared unconstitutional, effectively decriminalising the minor possession of cannabis.

(c) The law in relation to the personal possession of cannabis has become “so arbitrary such as to make enforcement of this law uneven and thereby in breach of the rule of law” and a full bench of the High Court is required to examine these issues. This submission rested in part of an assertion that the discretion to prosecute was being exercised in quite different ways in different parts of the country and

_{also, in part, on the arbitrariness of sentencing decisions.}

³ Arriola, Case No A 891, XLVI Supreme Court of Justice, 25 August 2009.

[6] The memorandum concluded with the statement that “the appellants seek the opportunity to supplement this memorandum with oral submissions in support of a full bench should the merits of the same not be apparent from this memorandum”.

[7] Mander J, by a direction given on 25 July 2014, recorded that “the merits are not apparent to me” and so the matter was to be set down before a duty Judge so that counsel may have the opportunity to be heard further as requested.

When is it appropriate to grant an application to have a matter heard by a full

Court?

[8] Section 19(1) of the Judicature Act 1908 provides:

Each Judge or any 2 or more Judges may in any part of New Zealand exercise all the powers of the Court, except such powers as may by any statute be required to be exercised by the full Court or by any specified number of Judges.

[9] The commentary in McGechan on Procedure notes that whether or not to order a full Court, and if so, the number of judges, is a discretionary decision for the Judge to make before the hearing.⁴ Similarly, in Fay Richwhite & Co Ltd v Davison,⁵ Smellie J noted that the decision is one “entirely within the discretion of the Judge hearing the application”.

[10] In the Fay Richwhite case, factors pointing against a full bench were:

(a) the administrative factor of whether the Court had resources to provide a full bench in a timely way; and

(b) the undesirability of a two person Court because of the potential for disagreement.

In favour of a full bench was the desirability of having more than one judicial mind on the crucial issue of fact finding in the case.

⁴ _{McGechan on Procedure (online looseleaf ed, Brookers) at [J19.03].}

⁵ Fay Richwhite & Co Ltd v Davison (1997) 11 PRNZ 190.

[11] Those three considerations were discussed in Mansell v Legal Services Agency,⁶ but were not of particular relevance in that case. Instead, the relevant considerations were:⁷

(a) whether the question of law in the appeal had more general application beyond the facts of the case; and

(b) whether there had been differing dicta of the High Court on the issue in question, which needed reconciling.

[12] In Mansell, the issue was whether an application for legal aid under the Legal Services Act 2000 must be made before the matter to which the application or grant relates is finally disposed of. The appellant was declined legal aid. Her application had been completed prior to filing the proceedings but had not been able to be finalised until confirmation of income from WINZ had been received. It was finalised on 1 August 2002 but the application it related to had been dealt with on an ex parte basis on 26 July 2002, when final orders were made.

[13] It was accepted that the issue was of importance in the administration of legal aid and to practitioners throughout New Zealand and applicants for legal aid. However, the Court held that the matter was not “of such general importance such that this feature on its own warrants a full Court. There needs to be something else”.⁸

[14] The second ground was that there had been differing dicta on whether the Legal Aid Review Authority had a discretion to grant legal aid after the matter was disposed of although that did not appear borne out on the facts. The Court held that even though the issue was one of general application, a single Judge will either affirm the present line of authority and dismiss the appeal or decide that the line was

_{wrong and allow the appeal. In the latter case, the resulting conflict will presumably}

⁶ _{Mansell v Legal Services Agency (2003) 16 PRNZ 919 (HC).}

⁷ At [16]-[23].

have to be resolved by the Court of Appeal assuming leave to appeal was granted. For these reasons, the application for a full Court was declined.⁹

[15] In summary, a wide range of considerations can be taken into account in deciding whether to grant an application for a full bench. The issues raised by the appellants, including that the matter is of general and public importance and that a “guideline judgment” was sought, could justify a hearing by a full bench in appropriate cases.

Should a full court be appointed to hear the issues raised in these appeals?

[16] In the present case, the appellants have expressly stated that the case was “not an attempt ... for this court to undertake an evaluative view on the merits or otherwise of cannabis and/or its legalisation. The appellants recognise that Parliament is the appropriate vehicle for the consideration of the legal status of cannabis”. That is undoubtedly correct, and comparisons with decisions in other jurisdictions, where the courts have power to declare legislation contrary to the relevant constitution, are of no assistance.

[17] Mr McKenzie did, however, accept that the Court was being invited to set out guidance on how police should exercise their discretion to prosecute. In the case of the appellant, Mr Fraser, his conviction led to a modest sentence, and the real complaint seems to be about the exercise of the police discretion to charge. It was said for the appellants that:

... if Mr Fraser had been apprehended in the Counties Manukau Policing District he would have automatically received a formal caution and not been brought to Court and convicted for a drug offence. This Court on appeal will be asked to ensure that such arbitrary outcomes do not prevail, as such sentencing outcomes and anomalies erode confidence in the law and further create a system where people, especially young people, are criminalised on arbitrary grounds.

[18] Mr McKenzie endeavoured to tread a fine line here, by asserting that the appeals were not intended to launch an attack on the exercise of the police discretion to prosecute, acknowledging that the Courts have shied away from this, but that

issuing a “broad statement of principles” on making the decision to prosecute in low

level cannabis cases would be of assistance.

[19] It is clear that what is really being invited is some level of direction by the Courts on the exercise of the police discretion to prosecute. However, I do not consider that the Court should embark on such an exercise. As was said in Fox v Attorney-General:¹⁰

The Court’s traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the Court’s own function of responsibility for conduct of criminal trials...

[20] In any event, that “broad statement of principles”, already exists in the form of the Prosecution Guidelines issued by the Solicitor-General¹¹ which discuss the scope of the discretion and how it is to be exercised, taking into account the tests of evidential sufficiency and the public interest. Clear guidance is given as to the factors which should be considered in the exercise of that discretion.

[21] If this Court were to issue a more prescriptive set of guidelines which, from Mr McKenzie’s perspective, would ideally direct significantly fewer such prosecutions in the public interest, then I consider this Court would be overstepping the constitutional separation between the government departments which are responsible for prosecutorial decisions, and the Courts which are responsible for hearing and deciding charges when a decision to prosecute has been made. In short, this is not a reason for granting an application to have the matter heard before a full bench because it is not a matter where the Courts would intervene in any event.

[22] The next reason for seeking a full bench was based on the assertion that sentencing on this offence is arbitrary, and a guideline judgment would assist. In Mr Murray’s appeal it is to be argued that one month for a minor possession of cannabis, even with a previous such conviction dealt with by a small fine, is “excessive and similarly arbitrary”. However, the maximum sentence for the charge

_{these two appellants are facing is three months imprisonment or a $500 fine. That is}

¹⁰ _{Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA) at [31].}

¹¹ Crown Law Solicitor-General’s Prosecution Guidelines (Crown Law, 1 July 2013).

a very narrow spectrum. As Mr Elliott argued for the Crown, this is not a case where there is a wide band of available sentences, or readily identifiable categories of offending, within the offence described. To suggest guidelines for sentencing within a range where the maximum penalty is three months imprisonment would be unduly restrictive and of little assistance to the Courts.

[23] I concur with the Crown submission. In reality the main concern for Mr Murray is a conventional concern as to whether there was an error in sentence by imposing the sentences cumulatively rather than concurrently and, further, whether the totality principle was offended when imposing sentence. These are issues which are considered by this Court on a regular basis and do not justify a full Court.

Conclusion

[24] In conclusion, the matters raised by the appellants as warranting a full bench do not justify that decision, either individually, or in totality. This is because:

(a) There is no scope for a New Zealand Court to issue a judgment which might “effectively decriminalise the minor possession of cannabis”. It is a matter for Parliament to determine whether minor possession of cannabis should be decriminalised.

(b) This Court does not consider it appropriate to add any gloss on to the existing guidelines for prosecutors in exercising their discretion to prosecute for minor possession of cannabis.

(c) This is not an offence with a sufficiently diverse range of manifestations, nor is there a sufficiently broad sentencing band, for there to be any utility in issuing a guideline judgment to minimise “arbitrary outcomes” in sentencing.

(d) The subject matters of the appeals themselves are not of such nature as to warrant consideration by more than one Judge. The appeals do not require any difficult factual findings to be made and they address issues which are regularly before this Court and where a single Judge

is well placed to decide whether the sentencing Judge was in error or

_not.

Result

[25] The application for hearing before a full Court is accordingly declined.

Solicitors:

Raymond Donnelly & Co., Christchurch

A J McKenzie, Barrister, Christchurch