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High Court of New Zealand Decisions |
Last Updated: 14 November 2018
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
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CRI-2018-409-000091
[2018] NZHC 2849 |
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BETWEEN
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JOSHUA STEPHEN MURDOCH
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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1 November 2018
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Appearances:
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Appellant in person
P A Norman for Respondent
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Judgment:
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2 November 2018
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JUDGMENT OF GENDALL J
MURDOCH v NEW ZEALAND POLICE [2018] NZHC 2849 [2 November 2018]
Introduction
[1] On 21 August 2018, the appellant, Mr Murdoch pleaded guilty in the District Court to a charge of threatening to cause grievous bodily harm. Judge Gilbert convicted and sentenced him to nine months’ supervision. Mr Murdoch now appeals his conviction and sentence on the basis that “he felt pressured to plead guilty by his lawyer and the Judge”.
[2] Mr Murdoch appeared before me in person in support of his appeal. Ms Norman, appeared as counsel for the respondent.
Factual background
[3] The charge to which Mr Murdoch pleaded guilty was one of threatening to cause grievous bodily harm to a woman who worked at the Ministry of Social Development. On 25 May 2018, Mr Murdoch had telephoned the Ministry to arrange emergency housing. His telephone call was transferred from the contact centre to the victim in this matter. During the discussion, Mr Murdoch became verbally aggressive and began shouting at the victim. He stated “I’m gonna fucking come down there and smash your face in! I’m gonna tear the place apart and rip your face off”. Mr Murdoch had previously been trespassed from that particular office of the Ministry of Social Development for assaulting a security guard.
District Court decision
[4] Before the Court is a transcript of the hearing discussion before Judge Gilbert, between the Judge, Mr Murdoch, his counsel at the time Mr Dickson, and Sergeant Kay for the Police. Mr Dickson at the outset notes that Mr Murdoch no longer wants Mr Dickson to act for him. The Judge addresses Mr Murdoch, who began recounting his version of events and his frustration with Mr Dickson. All parties present discussed supervision as an appropriate sentence, and Mr Murdoch requested counselling. The Judge explained to Mr Murdoch what a sentence of supervision would entail, and that he would get that should he choose to plead guilty. Mr Murdoch it seems, agreed with that, and then pleaded guilty.
[5] In his formal sentencing judgment, Judge Gilbert outlined the offending and the plea, and sentenced Mr Murdoch to nine months’ supervision.
Principles on appeal
[6] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Section 232 of that Act, provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.1
[7] Section 232 makes clear that not every error or irregularity causes a miscarriage of justice. Instead there must be a “real risk” that the outcome of the trial was affected. The Supreme Court in the decision R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.2
[8] The Court of Appeal also has said that it is only in “exceptional circumstances” that an appeal against conviction will be entered after a plea of guilty, and that an appellant must show that a miscarriage of justice will result, if the conviction is not overturned.3
[9] The Supreme Court, too, has held that a miscarriage of justice is more than an inconsequential or immaterial mistake, or irregularity.4
[10] The Supreme Court in Condon v R held that a mere departure from good practice does not render a trial unfair.5 Instead the errors or irregularities must depart
1 Criminal Procedure Act 2011, s 232(4).
2 R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
3 R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 at [16]; R v Proctor [2007] NZCA 289 at [4]; R v Merrilees
[2009] NZCA 59 at [34].
4 Matenga v R [2009] NZSC 18.
5 Condon v R [2006] NZSC at [78].
from good practice in a manner “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.6
[11] The present appeal proceeds by way of rehearing, and the court on appeal must examine the Judge’s reasoning carefully and come to its own decision on the facts.7 However, it is also generally only in exceptional circumstances that a court on appeal will interfere with the trial Judge’s findings of fact.8 Where a question of credibility is the central focus of the appeal, and the lower court has had the opportunity to listen to the witnesses, some deference to the lower court’s judgement may be appropriate.
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.9 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.10 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.11
Submissions
[13] No written submissions or material has been provided by the appellant in support of his appeal. Notwithstanding this Mr Murdoch appeared before me on 1 November 2018 and made submissions to advance this appeal.
[14] It is appreciated that the appellant is a lay person and not trained in the law and, as a result, his oral submissions at times were a little difficult to follow.
8 Rae v Police HC Hamilton CRI-2006-419-162 at [38].
9 Criminal Procedure Act 2011, ss 250(2) and 250(3).
10 Tutakangahau v R [2014] NZCA 279 at [36]; [2014] NZCA 279; [2014] 3 NZLR 482.
11 Ripia v R [2011] NZCA 101 at [15].
Notwithstanding this, I accept at the outset, that the appellant is entirely genuine in bringing this appeal.
[15] That said, as best I can tell from the submissions advanced before me, the appellant maintains:
(a) Initially, Mr Murdoch said that he was not sure why he was here at the hearing of this appeal but essentially, he explained that at the time in question, he was someone who “was trying to get his life back on track”.
(b) Prior to this, Mr Murdoch indicated he had, in his words, been in a “bad headspace”. He said he was trying to get away from what he described as an “unhealthy situation” living and being involved with a group of homeless.
(c) Mr Murdoch was at pains to emphasise that both at the time of these events and now he was and is trying to get emergency accommodation and, linked to this, some form of job or employment to make a positive break from his previous situation.
(d) Previously, Mr Murdoch said he had spoken to someone in the office of the Ministry of Social Development in question who he claimed had “hung up on me and I don’t know why”. This, he said, had led him to a sense of frustration which, in turn developed when the events in question arose.
(e) Notwithstanding all of these matters, Mr Murdoch did not endeavour to deny that he had made the threat in question, nor that this would have had a scary impact upon the complainant and led to her concerns expressed in her victim impact statement.
(f) Turning to the events in the District Court before Judge Gilbert, Mr Murdoch, in his words “did not know or understand 100 per cent
what was happening”. He went on to say that he “just felt I was getting wound up and found it all quite annoying”. He said, too, that he was particularly annoyed at one stage when a parole officer “got my name wrong”.
[16] Notwithstanding all these comments, before me Mr Murdoch did not address matters which arose from the transcript of the legal discussion before Judge Gilbert at the time. Nor, as best as I am able to tell, did Mr Murdoch provide any other evidence or material to support the contention in his notice of appeal that “he felt pressured to plead guilty by his lawyer and the Judge” when he was before Judge Gilbert.
[17] Having concluded his comments regarding his conviction appeal, I then invited Mr Murdoch to address the Court on any submissions he had regarding his appeal against the sentence of nine months supervision imposed by Judge Gilbert. Despite this specific invitation, Mr Murdoch effectively provided no further comment or submission on the issue of whether an error had occurred in the sentence that was imposed and that a different sentence should have been reached.
Respondent’s submissions on conviction appeal.
[18] At the outset, Ms Norman for the respondent noted that the sole issue here in relation to the appellant’s conviction is whether a miscarriage of justice will result, unless Mr Murdoch is able to impugn his guilty plea and have it set aside.
[19] When this appeal was first filed it seems the Crown was informed that Mr Murdoch sought disclosure of the audio recording of the telephone call during which he threatened the complainant/victim. I am told now that no such audio recording exists. No issue was taken with this before me. Matters then proceeded on this basis.
[20] As Ms Norman for the respondent confirmed, from the appellant’s stated grounds of appeal, the likely “exceptional circumstance” he advances to justify his appeal would seem to be simply that Mr Murdoch did not intend to plead guilty to the charge when he did so. It is noted again, however, that no affidavit or other material or written submissions have been filed or provided by Mr Murdoch. It is suggested,
therefore, quite properly in my view, that the Court here is only able to draw inferences from the transcript of discussions which took place in Court between Judge Gilbert, Mr Dickson and Sergeant Kay at the time. This transcript is before me.
[21] From that transcript, the following matters highlighted by the respondent emerge:
(a) At the outset, Mr Dickson sought leave to withdraw despite having filed a case management memorandum (CMM). The stated reason was that Mr Murdoch no longer wished Mr Dickson to act for him and Mr Murdoch confirmed this.
(b) So far as Mr Murdoch’s guilty plea was concerned, page 3 line 17 of the transcript contains the following exchange:
Q (Judge Gilbert) Yep, well Mr Dickson’s filed what we call,
it’s a memorandum so it’s a notice for the Court saying that you had intended to plead guilty to this charge.
A (Mr Murdoch) Yes
(c) An exchange followed discussing the outcome which was a possible fine and community work, at which point Mr Murdoch explained that he would be unable to pay a fine.
(d) On page 5 of the transcript, Judge Gilbert addresses Mr Dickson. Mr Dickson states that a supervisory sentence would be a good step forward for Mr Murdoch and Mr Murdoch then at line 27 on page 5 of the transcript says he would like further counselling.
(e) Finally, at line 7 on page 6 of the transcript, Judge Gilbert addresses Mr Murdoch and explains that if he were to plead guilty, he would receive a sentence of supervision and then he explains what this would entail. Lastly, Judge Gilbert asks Mr Murdoch on two occasions whether he intended to plead guilty to the charge. Thereupon,
Judge Gilbert read the charge to him again, to which Mr Murdoch said he did plead guilty.
[22] While leave for Mr Dickson to formally withdraw as counsel for Mr Murdoch was never formally granted, Judge Gilbert clearly addressed Mr Murdoch directly throughout and it seems clear Mr Murdoch made his views clear to the Court.
[23] The respondent says that Judge Gilbert’s discussions at the time about pleas and the likely sentence to be imposed were predicated on Mr Murdoch’s intention to enter a guilty plea, an intention he had confirmed on several occasions in discussions in Court. I accept that this was the position. I accept also that Judge Gilbert, was himself cautious to fully explain the implications of the guilty plea, the nature of the sentence of supervision he intended to impose and to be sure that Mr Murdoch understood what was being said. In my view, Mr Murdoch’s responses outlined in the transcript show that he did understand and I am satisfied too, from all the material before the Court, that there is no indication here of there being any “pressure” imparted on Mr Murdoch from Judge Gilbert or Mr Dickson.
[24] I am satisfied, too, as the Court of Appeal has said in R v Merrilees:12
Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned.
[25] From the Court transcript, there is also, as I see the position, no merit in Mr Murdoch’s claim that he did not understand the significance of his guilty plea and that it was made by him while subjected to improper pressure from Judge Gilbert or his counsel.
[26] The misgivings Mr Murdoch expresses now about having pleaded guilty really stand alone and are unsupported. They are not sufficient for me to conclude that any miscarriage of justice has occurred in this case. No grounds have been established to satisfy the test that Mr Murdoch’s guilty plea should be set aside.
12 R v Merrilees, above n 3, at [35].
Respondent’s submissions on the sentence appeal
[27] Ms Norman, for the respondent, claims in her submissions that the basis on which Mr Murdoch’s sentence appeal is advanced is somewhat unclear and I agree. His appeal is against the sentence of nine months supervision which Judge Gilbert imposed.
[28] The charge of threatening to cause grievous bodily harm carries a maximum penalty of seven years’ imprisonment.
[29] Although there is no guideline judgment for offences of this type, because gravity and culpability often varies widely, certain decisions which I footnote below are of some assistance.13
[30] The decision in Annas v R (a case bearing some similarity to the present) of nine months’ imprisonment for a charge of threatening to kill, although seen as “stern” was said to be within range for a situation not dissimilar to the present.
[31] What seems clear to me is that Judge Gilbert in imposing his sentence of supervision appears to have taken this as both the starting and end point for the charge Mr Murdoch faced. From his sentencing remarks, I am satisfied the sentence imposed by Judge Gilbert was a lenient one. It focused very much on Mr Murdoch’s rehabilitative and re-integrative needs in terms of s 7(1)(h) of the Sentencing Act 2002. This is in contrast to the more punitive sentence originally mooted by counsel being one of community work and a fine.
[32] To Mr Murdoch’s credit here, the thrust of many of his oral submissions made in open Court to me was that he wished now to be able to turn his life around and to get matters back on track from what he said was an unhealthy situation for him. In my view, Judge Gilbert may well have had in mind thoughts similar to these when imposing the sentence of supervision he did. As I see it, this sentence of supervision
13 Allan v R HC Dunedin CRI-2011-412-37, 1 December 2011, Simon v R [2014] NZCA 207, Lawrence v R [2015] NZHC 1122 (11 months’ imprisonment for four charges of threatening to kill three politicians via email) and Annas v R [2011] NZCA 49 (sentence of nine months’ imprisonment on a charge of threatening to kill a WINZ manager by telephone following hard on the heels of the appellant being trespassed).
was an appropriate one and it is hoped that it might well be able to assist Mr Murdoch in making new plans and a fresh start for his future.
[33] But, in any event, Mr Murdoch has placed nothing before the Court that might support his appeal. Overall, I am satisfied there was no error in the sentence imposed which was indeed a lenient and appropriate one in all the circumstances.
Conclusion
[34] For all the reasons I have outlined above, Mr Murdoch’s appeal against both conviction and sentence is dismissed.
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Gendall J
Raymond Donnelly & Co., Christchurch Copy to: Mr Murdoch
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