Murphy v Police [2018] NZHC 251 (27 February 2018)

Last Updated: 6 March 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000155 [2018] NZHC 251

BETWEEN	CRAIG LEONARD MURPHY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 February 2018
Appearances:	N R Rout for the Appellant C Bernhardt for the Respondent
Judgment:	27 February 2018

JUDGMENT OF DUNNINGHAM J

[1] Mr Murphy was sentenced by Judge Couch to 16 months’ imprisonment after pleading guilty to charges of receiving (over $1000), unlawful possession of a firearm, possession of cannabis, possession of utensils, and breach of parole.¹

[2] He now appeals that sentence saying it is manifestly excessive and that it should have been imposed concurrently with a sentence he was already serving on other charges.

The offending

[3] In March 2016 Mr Murphy was released on parole in relation to a sentence of four years, nine months for receiving, drugs, weapons, and driving charges imposed in 2014.² One of the conditions of parole was not to possess illegal drugs.

¹ Police v Murphy [2017] NZDC 25758.

² R v Murphy DC Christchurch CRI-2013-009-005552, 29 August 2014.

MURPHY v NEW ZEALAND POLICE [2018] NZHC 251 [27 February 2018]

[4] In July 2017 Police executed a search warrant of Mr Murphy’s home. They found two chainsaws and a weed cutter, with a combined value of nearly $3000, that had been stolen in a burglary two months earlier. A semi-automatic .22 gauge rifle, two grams of cannabis, and a methamphetamine pipe were also located at the property.

Sentencing

[5] Judge Couch identified the lead charge as receiving. He said the gravity of that offending was “significant”, and took a starting point of 12 months’ imprisonment. He then applied uplifts of four months for the firearm charge, and two months for the cannabis and utensils charges. He also applied a further three month uplift for the fact the offending occurred while on parole, and three months for Mr Murphy’s previous offending. The Judge noted Mr Murphy’s criminal record includes 21 previous convictions for dishonesty offending, including three of receiving, and a previous firearms conviction.

[6] From this overall starting point of 24 months, the Judge applied the full 25 per cent discount for guilty pleas to reach a sentence of 18 months.

[7] The Judge then turned his attention to whether the sentence should be imposed concurrently with, or cumulatively on, the sentences which Mr Murphy was already serving of parole. At the time of sentencing Mr Murphy had six months left on that sentence. While his Honour said he saw “the rationale” in the submission that he should impose it concurrently, with release conditions to take effect upon completion of both sentences, he decided that the Parole Board were best placed to impose conditions. Thus he imposed the sentence cumulatively on the existing sentence. The end sentence was 16 months, which appears to reflect a further reduction of two months to acknowledge the fact that as a result of his offending the appellant was recalled to serve the balance of his 2014 sentence.

Jurisdiction and approach to appeal

[8] Mr Murphy appeals as of right.³ This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.⁴ If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with.

[9] It is not enough that the Judge made an error in his reasoning: the focus is on the sentence imposed rather than the process by which the sentence was reached.⁵

Submissions

Appellant

[10] Mr Rout, for Mr Murphy, takes no issue with the starting point for the receiving charge, but says the uplifts adopted were too high “when the case is considered as a whole”.

[11] The four month uplift for the firearm charge was excessive, he says, in light of Mr Murphy’s explanation of that offending. Mr Murphy explained at sentencing that the firearm had been left in the shed at the property by previous tenants, along with considerable amounts of other property. He said he had been given credit on his rent for clearing the property, and he was still in the process of doing so when the property was searched. Mr Rout notes the Judge did not comment on that explanation, and in the absence of its rejection, four months was excessive. He also notes there was no link between the firearm offending, and the (minor) drug offending and there was no suggestion the firearm would or could be used as there was no ammunition found on the property.

[12] Regarding the two month uplift for the drug offending, he notes that the maximum penalty for cannabis possession is three months, and this was very low level

³ Criminal Procedure Act 2011, s 244.

⁴ Criminal Procedure Act, s 250.

⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

offending. He says possession of pipes is “generally a ‘washing up’ charge” and rarely attracts a significant penalty. Mr Rout says the appellant was in a “difficult position” on parole because he had slipped back into methamphetamine use but did not seek assistance because of fear of recall.

[13] As to the three month uplift for offending while on parole, Mr Rout says the Judge was wrong to say that the previous offending was similar in nature. There, he says, the lead charges were Class A drug supply charges, and the receiving and firearms charges were given concurrent sentences. Both this uplift and the three month uplift for previous convictions, he says, are disproportionate to the starting point, and constitute double counting.

[14] Mr Rout also challenges the Judge’s decision to impose cumulative sentences. The effect of s 91(5) Parole Act 2002 is that none of the time between recall and sentence would be taken into account as pre-sentence detention in determining his sentence end date. The result, he says, is that “the appellant has lost 9 months of parole, in addition to the 16 months’ imprisonment”.

Respondent

[15] Mr Bernhardt for the respondent submits that the starting point and uplifts were within range. Given that the offending was “entirely independent from the 2014 offending and in no way a connected series of offences”, Mr Bernhardt submits the Judge was also correct to adopt a cumulative approach.

[16] Regarding totality, Mr Bernhardt accepts that the totality principle is not limited to sentencing on a single occasion for multiple offences, and thus Mr Murphy’s previous sentence was relevant. However, he says here the sentences were not for connected events, nor particularly proximate, nor has only a small portion of that previous sentence been served. The effective two month discount, he says, was sufficient to reflect totality in light of the six months remaining on that sentence.

Analysis

Uplifts

[17] The firearms charge carries a maximum penalty of four years’ imprisonment and as such is not an insignificant charge. Although Mr Rout emphasised that no ammunition was found in the search, and so there was no evidence it would be used, I still consider a four month uplift is within the available range indicated by case law.

[18] For example, in R v Smith, the defendant was being sentenced on charges of manufacturing methamphetamine and being in possession of certain associated equipment as well as a charge of being in unlawful possession of a firearm, namely a
.22 rifle.⁶ In that case, the Judge accepted that there was no evidence that the weapon
had been used in recent times, nor was ammunition found in the defendant’s possession. Lang J accepted the firearm was not, in reality, related in any way to his drug offending. Had it been he would have imposed a sentence of approximately 12 months’ imprisonment but, in the circumstances, he uplifted the starting point by four months. Similarly, in McCleary v Police, where again there was nothing to indicate that the defendant intended to use the firearm as there was no ammunition or any other equipment found with it, a starting point of four months was applied.⁷ In R v Sisson, the defendant faced a range of methamphetamine charges, and was charged with unlawful possession of a .22 calibre rifle with no ammunition close to the rifle nor did the rifle have a magazine.⁸ A term of three months’ imprisonment was imposed, although it was to be served concurrently and was not reflected in an uplift.

[19] Mr Murphy’s explanation of how the firearm came into his possession does not assist him. Mr Rout expressly explained this was not in effect a denial of the charge, but rather an explanation which went to the level of culpability involved.⁹ I consider the sentence imposed reflects the relatively low level of culpability. The offence

⁶ R v Smith HC Auckland CRI-2006-090-9488, 13 March 2008.

⁷ McCleary v Police [2014] NZHC 1581.

⁸ R v Sisson HC Auckland CRI-2006-090-1151, 25 May 2007.

9. Section 66 Arms Act 1983 provides that an occupier of property on which a firearm is found, avoids possession being deemed if he can prove it was not his property and it was in the possession of some other person.

carries a maximum penalty of four years’ imprisonment so the four months uplift was at the very low end of the scale.

[20] The Judge was also entitled to uplift the sentence for the drug offending. Again, the seriousness of the offending is low, and it would have been open to the Judge not to impose an uplift. However, the real issue is whether the uplift imposed was excessive and that can only be assessed when looking at the appropriateness of the overall sentence in light of the totality of the offending as I discuss below.

[21] I do not accept the submission in relation to the uplift for offending on parole that the Judge was wrong to see this as similar offending to the offending he had been sentenced for. Mr Murphy was on parole in relation to receiving and firearms charges, which are the same charges he faces again. The fact that he was also on parole on a more serious drug dealing charge does not detract from this. Regardless, there is no need for the offending on parole to be similar in nature to previous offending – the purpose of such an uplift is to reflect the added gravity of the offending arising out of the flagrant disregard for Court sanctions. In this case, the uplift also recognises the discrete charge of breach of parole conditions.

[22] Nor was it unreasonable, on its own, to impose an uplift for previous convictions. Mr Murphy has a long history of dishonesty offending, and it is routine for a sentencing Judge to recognise recidivist offending with an uplift. There is no double counting, as this uplift recognises Mr Murphy’s extensive criminal history, and not just the most recent offending in respect of which he was on parole.

Should the Judge have imposed a concurrent sentence?

[23] As Mr Bernhardt submitted, concurrent sentences are generally appropriate when the offending is similar in kind and part of a connected series of events. That was not the case here. However, as Judge Couch recognised, when sentencing someone recalled from parole, care needs to be taken that requiring an offender to serve the remainder of their first sentence as well as the fresh sentence does not constitute double-punishment. The approach the Judge took here, in allowing a
discount to acknowledge the defendant had spent time in custody after being recalled from parole, is in line with the Court of Appeal’s approach in Vernon v R.¹⁰

[24] In Vernon, the Judge indicated that an uplift of 18 months would have been appropriate for the fact the offending occurred while on parole and in the broader context of the offender’s previous convictions. However, to take account of the fact the offender had been recalled and would serve 14 months of the previous sentence before the fresh sentence, that uplift was reduced to 12 months. Similarly, in Jarden v Police, the appeal was successful where the sentencing Judge had uplifted the sentence by six months for prior offending and for the fact the offending was committed on parole, but had not accounted for the time spent recalled.¹¹ On appeal the Court quashed the uplift of six months to account for the 10 months to be served on the recalled sentence. In Tukuafu v R the sentencing Judge had taken into account the fact the offending was while on parole in fixing the starting point.¹² On appeal, the sentence was reduced by five months to account for the seven months remaining on the recalled sentence.

[25] The principle to be distilled from those cases is that the Court should be wary of punishing the offender twice by applying a discrete uplift for offending while on parole when there is already a degree of punishment in the offender having to spend the rest of the would-be parole time in custody. While the length of the lost parole time will be relevant in determining how much the uplift for offending on parole should be tempered, the cases do not stand for the proposition that a discrete discount should be applied proportionate to the amount of lost parole. It is the uplift that brings the risk of double punishment, not the recall itself.

[26] While in the cases cited above the discount has been applied to uplifts for offending on parole and criminal record together, I see no principled reason why that should be so. Subject to overall totality, there is no risk of double-punishment for a discrete uplift for previous convictions unrelated to those on which the offender was on parole.

¹⁰ Vernon v R [2010] NZCA 308.

¹¹ Jarden v Police [2017] NZHC 2539.

¹² Tukuafu v R [2015] NZCA 251.

[27] Here, the Judge uplifted the sentence three months to reflect that the offending was on parole. He decreased it by two months (although, oddly, after guilty plea discount) in acknowledgement that Mr Murphy would, as a consequence of his offending, also serve nine months on a recalled sentence. While I accept in theory there was nothing wrong in this approach, the reduction of two months in light of the nine extra months served seems ungenerous when compared with the other cases discussed above where the reductions were; six months to reflect an extra 14 months served in Vernon, six months to reflect an extra 10 months served in Jarden, and five months to reflect the extra seven months served on the existing sentence in Tukuafu. However, in my view, this is an issue best addressed when considering the totality of the penalty imposed for the offending.

Totality

[28] When a number charges are sentenced at once, and especially when a number of uplifts are imposed, each of them justifiable on their own, it is well established that a sentencing Judge needs to take a step back and ask whether the overall sentence accurately reflects the gravity of the offending.

[29] In this case, while the Judge said he needed to consider whether the sentence he imposed should be concurrent or cumulative with the existing sentence, he only addressed that issue in terms of imposing conditions relating to alcohol and drug treatment which would then take effect upon the completion of both sentences. He did not address the issue of whether, to reflect the totality of the offending, there should be some overlap on the sentences or some other way of recognising that, as a consequence of some of the current offending, he was serving a further nine months of his original sentence.

[30] In my view, although the current offending was separate from the original for which he was sentenced in 2014 (and as such a cumulative sentence was appropriate), it was artificial to ignore that a further nine months would be served for the breach of parole independently from the other matters he was being sentenced for. Taking that into account, I consider there should have been some further discount for totality. In
my view, a reduction of a further three months would be sufficient to achieve this, taking the sentence to one of 13 months.

Conclusion

[31] The appeal is allowed. The sentence of 16 months’ imprisonment on the charge of receiving is quashed and substituted with a sentence of 13 months’ imprisonment, to be cumulative on the current sentence imposed in 2014. The sentence on all other charges remains unaltered.

Solicitors:

Better Lawyers Limited, Christchurch Raymond Donnelly & Co., Christchurch