Murray aka McKenzie v Police [2014] NZHC 2439 (2 October 2014)

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BETWEEN	SHANE DAVID MURRAY AKA MCKENZIE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	2 October 2014
Appearances:	M Starling for Appellant M A Elliott for Respondent
_Judgment:	_{2 October 2014}

imprisonment imposed by Judge O’Driscoll in the Christchurch District Court on

(a) twenty-four months’ imprisonment for a charge of assault with intent to injure;¹

²Summary Offences Act, 29(1)(a). Maximum penalty of three months’ imprisonment or fine of

[2] Judg	Mr e O’Dr	Murray bring a rather limited appeal here on the basis that iscoll erred only by:
	(a)	imposing a sentence of imprisonment for Mr Murray’s cannabis offending; and
	(b)	overlooking s 7(2)(b) of the Misuse of Drugs Act 1975.

[3] Turning to the background facts, first with regard to the assault with intent to injure and being unlawfully on a property, Mr Murray and the victim were in a relationship for about a year that ended several months ago. The victim lived with her two children in a rented home in Christchurch.

[4] On 16 November 2013 before midnight, the victim arrived home early, closed the doors to the house and went to bed.

[5] On 17 November 2013 at about 12:30 a.m. Mr Murray went to the victim’s address. He entered the house through a closed unlocked door. He went to her bedroom and woke the victim as he sat on her bed and started verbally abusing her.

[6] He grabbed at her and punched her repeatedly in the face, then grabbed at her mouth causing his fingers to push against her gums inside her mouth. He told her “you’re fucking lucky I don’t kill you” and told her that she was a bitch. Mr Murray grabbed the victim’s head and pulled her by the hair. She got up and walked in the direction he was pulling her. He spat in her face.

[7] Once in the lounge Mr Murray shoved the victim down onto the couch into a sitting position. He covered her mouth with the palm of his hand and squeezed her throat while having his fingers on one side of her windpipe and his thumb on the other. The victim struggled to breathe while he did this.

[8] After letting the victim get up, Mr Murray forced her onto the floor and put his foot on one side of her face, pinning her to the ground. He pulled her hair upwards as he held her down until the victim convinced him she needed something for her face. Mr Murray gave the victim a flannel and some frozen peas, but punched the victim in the face again before sitting in silence. He eventually left the address.

[9] The victim suffered heavy swelling around her left eye and cheek, causing her left eye to close completely. She also suffered scratching wounds spread over her neck, face and behind her ears, as well as minor abrasions to areas of her lower arms, hands and torso.

[10] As to the possession of cannabis charge, on 7 February 2014 at about 4 pm, Mr Murray breached his electronically monitored bail condition by leaving his home address in Bromley, Christchurch. At about 6.30 pm on the same day, the police spoke to Mr Murray at his home address with regard to the breach.

[11] A smell of cannabis was detected and a Search and Surveillance Act 2012 search was conducted. Located on a table in his workshop was a ziplock bag containing 1.6 grams of cannabis.

[12] In explanation Mr Murray stated he received the cannabis as a “thank you”

[14] The Judge adopted a starting point on the charge of assault with intent to injure of 24 months’ imprisonment. He excluded the aggravating feature of home invasion, and imposed an uplift of six months’ imprisonment to reflect that feature. Judge O’Driscoll imposed a further uplift of three months’ imprisonment to take into

account the previous conviction involving violence against the same victim the previous year. This brought the adjusted starting point to one of two years and nine months’ imprisonment.

[15] With regard to downward adjustments, it appears Judge O’Driscoll reduced the overall starting point by one month to have regard to the totality of the offending and that it was committed while Mr Murray was on EM bail.

[16] Judge O’Driscoll then allowed a further discount of eight months to take into

account Mr Murray’s early guilty plea. This brought the sentence down to one of

[17] On the charge of being unlawfully on the victim’s property, Judge O’Driscoll imposed a two month concurrent sentence because he took it into account as an aggravating factor in the assault with intent to injure.

[18] With regard to the charge of possession of cannabis, Judge O’Driscoll imposed a cumulative sentence of one month’s imprisonment to reflect the unrelated and different offence.

[19] Judge O’Driscoll had regard to the totality principle and then found that the overall sentence of 25 months’ imprisonment he was imposing did not offend the principle.

[20] Turning now to the legal principles governing an appeal, s 250 of the Criminal Procedure Act 2011 governs sentence appeals from the District Court to the High Court. It provides:

(a) for any reason, there is an error in the sentence imposed on conviction; and

[21] The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957. Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 as

(a) Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(b) The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(c) The practical effect of preserving the previous approach is that the appeal court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.⁵If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.

(d) In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(e) Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and should continue to be utilised when considering s 250(2).

(f) The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence

[22] Turning now to the present case, it is well-established that an appellate Court should not interfere with a sentence imposed by a District Court Judge unless the sentence is manifestly excessive or wrong in principle.⁶In particular, the Court should not substitute its own opinion for that of the sentencing Judge.⁷Whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed rather than the process by which the sentence was reached.⁸

[23] In terms of the totality principle, the essence of this is that cumulative or consecutive sentences should not be such “as to result in an aggregate term wholly out of proportion to the gravity of the offences, viewed as a whole” and I refer to Bradley on that.⁹

[24] Where cumulative sentences are imposed, some may need to be shorter than would otherwise be appropriate for the offence, so as to make the overall sentence length fairly reflect the totality of the offending.

[25] In the circumstances of the present case, a cumulative sentence imposed for the cannabis offending in my view was entirely justified. The question on appeal turns on whether a sentence of imprisonment should have been imposed for this low level cannabis offending.

[26] Turning to the proviso in s 7(2)(b), Mr Murray says Judge O’Driscoll erred

by imposing a sentence of imprisonment for his offending and overlooking s 7(2)(b)

⁶_{R v Brooks [1950] NZLR 658 (CA) at 659; R v
Radich [1954] NZLR 86 (CA) at 87.}

Provided that, where any person is convicted of an offence against subsection (1) of this section relating only to a Class C controlled drug and is liable to a penalty under paragraph (b) of this subsection, 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.

[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

[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.

[30] Turning for a moment just to consider the home detention issue, even if I had been persuaded here that the one month’s cumulative sentence was unjustified, it would not in my view necessarily follow that even if Mr Murray’s end sentence was not more than two years he should have been granted home detention. I have concluded that because of the seriousness of his previous offending and the overall seriousness of the present offending, home detention might not have been

High Court of New Zealand Decisions

Murray aka McKenzie v Police [2014] NZHC 2439 (2 October 2014)