BETWEEN DANIEL ROSS MURCHAppellantANDCROWNRespondent
[2024] NZHC 1283
•22 May 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2024-425-15
[2024] NZHC 1283
BETWEEN DANIEL ROSS MURCH
Appellant
AND
CROWN
Respondent
Hearing: 20 May 2024 Appearances:
S Williamson for the Appellant M B Brownie for the Respondent
Judgment:
22 May 2024
JUDGMENT OF MCHERRON J
[1] Daniel Murch was sentenced on 2 February 2024 in the District Court at Invercargill, to:1
(a)three years and one month’s imprisonment in relation on four charges of injuring with intent to injure;2
(b)one charge of male assaults female;3
(c)two charges of threatening to kill;4
(d)one charge of wilful damage;5
1 R v Murch [2024] NZDC 2235 (Judgment under appeal).
2 Crimes Act 1961, s 189(2). Maximum period of imprisonment: 5 years.
3 Crimes Act 1961, s 194(b). Maximum period of imprisonment: 2 years.
4 Crimes Act 1961, s 306(1)(a). Maximum period of imprisonment: 7 years.
5 Summary Offences Act 1981, s 11(1)(a). Maximum penalty: 3 months’ imprisonment or a fine not exceeding $2,000.
MURCH v CROWN [2024] NZHC 1283 [22 May 2024]
(e)one charge of unlawfully taking a motor vehicle;6
(f)one charge of driving whilst disqualified being a third or subsequent offence;7 and
(g)one charge of driving with excess breath alcohol (third or subsequent).8
[2] Mr Murch appeals this sentence on the basis it was manifestly excessive. For the reasons set out below, I agree. I substitute a sentence of two years and seven months’ imprisonment.
The facts
[3] Mr Murch got into an argument with his then partner in January 2023. The argument escalated. Mr Murch snatched her keys out of her hand and refused to give them back to her. This prevented her from leaving the address. Mr Murch then punched, kicked and stomped her multiple times in a prolonged attack that lasted approximately 15 minutes. Mr Murch had been drinking, and his behaviour was unpredictable.
[4] Mr Murch punched the victim multiple times in the right side of her face and her head. He punched her left eye. He punched her multiple times to her back and ribcage area. He then picked her up by the neck and threw her to the ground. He kicked and stomped on her torso and legs multiple times. He then picked up a hammer and threatened to kill her with the hammer.
[5] Mr Murch then damaged her vehicle with the hammer, saying “I’m going to fuck your car up so you can’t leave”.
6 Crimes Act 1961, s 226(1)(a). Maximum period of imprisonment: 7 years.
7 Land Transport Act 1998, ss 31(1)(a) and 32(4). Maximum penalty: 2 years imprisonment or a fine not exceeding $6,000.
8 Land Transport Act 1998, ss 56(1) and 56(4). Maximum penalty: 2 years’ imprisonment or a fine not exceeding $6,000.
[6] She said she was “petrified” and too scared to leave the address as she believed he would kill her. She jumped out the bathroom window to seek help and hid in the bushes after calling Police.
[7] Mr Murch took her car and searched for her, before driving to Invercargill, with excess breath alcohol and while disqualified. He was arrested at a traffic stop. He told an attending officer he would “fucking kill him”.
District Court sentencing decision
[8] The Judge recorded counsel’s agreement that Mr Murch’s family violence offending fell within band 2 of Nuku v R.9 The attacks to the head, the prolonged violence, and the rural (and therefore isolated) nature of the offending, were accepted by both parties as aggravating features.10
[9] The Judge indicated he would assess the threat to kill offence first, and as the lead charge.11 He considered it was a very serious charge in the context of the case, after assessing all the elements in the threat.12
[10] The Judge’s starting point was 18 months for threatening to kill.13 The Judge assessed a second starting point for the injuring with intent to injure charges and male assaults female, assessed together: two and half years’ imprisonment.14
[11] The Judge then imposed an uplift of four months’ imprisonment for the damage to, and taking of, the victim’s vehicle. He imposed a further uplift of six months for the driving related offending, and the threat to kill the police officer. He would have imposed a further uplift for Mr Murch’s previous convictions, but the Crown did not seek an uplift and so the Judge did not do so.
[12]The Judge then added together:
9 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
10 Judgment under appeal, above n 1, at [23].
11 At [28] and [30].
12 At [28] and [29].
13 At [30], citing Auckram v New Zealand Police [2022] NZHC 1446 and Burton v R [2014] NZCA 221.
14 At [31].
(a)the starting point of 18 months for threatening to kill;
(b)the starting point of two and a half years for the other violent offending; and
(c)the uplifts.
[13] After adding together these components, the Judge reached a total starting point of four years and 10 months’ imprisonment.15
[14] He then applied a 25 per cent discount for Mr Murch’s guilty pleas, and a 10 per cent discount for Mr Murch’s extensive time on bail with a 24 hour curfew.16
[15]The final sentence was therefore three years and one month’s imprisonment.
Approach to sentence appeal
[16] I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.17
[17] Mr Murch submits that the sentence was manifestly excessive. Whether a sentence is manifestly excessive is assessed by reference to the end result, rather than the process by which it was reached.18 The Court does not simply start afresh or simply substitute its own opinion for that of the original sentencer.19 A claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.20
15 At [33].
16 At [34].
17 Criminal Procedure Act 2011, s 250.
18 Tutangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
19 At [30].
20 At [32].
[18] If there is an material error in the sentencing process, the Court will then form its own view of the appropriate sentence.21
Argument
For the appellant
[19] Mr Williamson advances this appeal on the basis that the sentence was manifestly excessive, on the basis of the:
(a)adjusted starting point of four years ten months; and/or
(b)18 months for one charge of threatening to kill.
[20] Mr Williamson submits that the Judge erred by adopting two discrete starting points and did not properly address, or act in accordance with, the principle of totality.22
[21] Mr Williamson notes that Ibrahim v R involved conduct that was within band three of the tariff case of Nuku v R.23 However, both parties in the present case accepted Mr Murch’s offending as lying within band two. Band two provides for a starting point of up to three years’ imprisonment.
For the respondent
[22] For the Crown, Mr Brownlie acknowledges that the end sentence imposed was “stern”. However, he submits that it was within the available range to the Judge.
[23] Mr Brownlie further submits that a 10 per cent discount for time spent subject to restrictive bail was “generous” and provides case law to that effect.
21 At [30] citing Te Aho v R [2013] NZCA 47 at [30].
22 Mr Williamson points me to the cases of Ibrahim v R [2023] NZHC 429, Newton v Police [2019] NZHC 1923, Auckram v New Zealand Police, above n 13 and R v Hunter [2017] NZDC 21046 in developing this argument.
23 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
Analysis
The principle of totality
[24] The Sentencing Act 2002 provides how the Court must consider the totality of offending:24
85 Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed, —
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[25] The purpose of s 85 is clear. While individual sentences need to be decided in a manner that reflects the seriousness of each offence, the total sentence must be structured in a manner that avoids a result that is wholly disproportionate to the gravity of the overall offending.25
[26]Section 85 is to be read alongside s 84, which provides:
24 Sentencing Act 2002, s 85.
25 R v O CA258/05, 3 March 2006 at [19].
84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3)In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a)the time at which they occurred; or
(b)the overall nature of the offending; or
(c)any other relationship between the offences that the court considers relevant.
[27] In the present case, I consider that the Judge erred in applying the totality principle as reflected in s 85. The structure of the Judge’s overall sentence suggests he intended to impose concurrent sentences, reflecting the connected series of offending. This was appropriate, and corresponds with both parties’ submissions on sentence in the District Court.
[28] In the District Court, the Crown submitted that, given the interconnected nature of the offending, the Court should take a global starting point. The Crown submitted that starting point should be three years’ imprisonment for all of the family violence offending, with uplifts for the wilful damage and unlawfully taking a motor vehicle (four months) and the driving offences and the threat to kill the police officer (eight months), leading to a total starting point of four years.
[29] Counsel for Mr Murch also submitted that the starting point should take into account all of the violence that Mr Murch committed.
[30] However, the way in which the Judge combined the two starting points, of 18 months for the threats to kill the victim and two and a half years for the other violent offending towards her, was more in the nature of a cumulative sentence. Adding these separate starting points together without adequately adjusting for totality has, in my
view, led to the total period of imprisonment being wholly out of proportion to the gravity of the overall offending.
[31] In order to explain further why I consider the judgment under appeal contains an error, it is necessary to explain in more detail how the Judge reached his decision.
Threatening to kill
[32] The Judge meticulously assessed the elements of the threatening to kill charge.26 He said he “could take as the lead charge the charge of threatening to kill, because in the context of this case it is a very serious charge”.27 The Judge was satisfied for that charge alone the appropriate starting point would be 18 months.28 It seems the Judge did not wish to assess the family violence offending as a whole, but instead considered the offences of threatening to kill and the other violent offences against the victim separately.
Other violent offending
[33] The Judge then assessed the vicious attack that occurred at the time Mr Murch was threatening to kill the victim and concluded that the appropriate starting point for that violent offending on its own was two and a half years’ imprisonment.
Uplifts and totality
[34] The Judge determined the uplifts proposed by the Crown were appropriate but reduced the uplift relating to the driving charges and threat to kill the police officer by two months. This resulted in a starting point of six months.29 This reduction was because, the Judge recognised, he “must, of course, take into account the principles of totality”.30 This is the only reference to totality in the Judge’s reasons.
26 Judgment under appeal at [30].
27 At [30]. In the end result, however, the Judge seems to have treated the injuring with intent to injure offending as the lead charges.
28 At [30], citing Auckram v New Zealand Police and Burton v R, above n 13.
29 At [32].
30 At [32].
[35] In my view, in making a single two month reduction to one of the uplifts, the District Court did not pay sufficient regard to the totality principle, as required by ss 84 and 85 of the Sentencing Act. I agree with Mr Williamson’s submission that a reduction of more than two months was warranted to reflect that the offending occurred as one series of events. Concurrent sentencing was appropriate. And to comply with s 85(4), it is necessary to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of the overall offending.
[36] In Ibrahim v R, to which both counsel referred in their submissions, Brewer J noted that the role of the Judge on appeal is to look at the whole of the sentence to determine whether the end sentence is manifestly excessive.31 I intend to follow that approach.
[37] However, in focusing on whether the end sentence is manifestly excessive, I should not ignore any material errors in the District Court’s application of the Sentencing Act. The material error I consider occurred in the present case is that the starting point was too high, given the facts, because of the way two discrete starting points were added together without sufficient allowance for the totality of the offending.
[38] Ibrahim v R also involved combined starting points for two separate offences that were nevertheless part of a “single and emotionally charged incident with events occurring in a very short time”.32 Brewer J assessed the combined starting point as six and a half years.33 He then adjusted the combined starting point for totality, reducing it to four years’ imprisonment.34 In relation to a further offence, threatening to kill a third party, Brewer J noted the offence carries a maximum term of imprisonment of seven years, and the threats were serious ones. He considered an uplift of six months was warranted.35 This took the overall starting point to four and a half years. After applying discounts, Brewer J determined the lowest end of the
31 Ibrahim v R, above n 22, at [4].
32 Ibrahim v R above n 22 at [22].
33 At [21]: three years for assault with a weapon and three and a half years for injuring with intent to injure.
34 At [22].
35 At [23].
sentencing range applicable to Ms Ibrahim’s offending and personal circumstances was two years and eight months’ imprisonment.36
[39] I respectfully consider the approach taken by Brewer J in Ibrahim v R represents the orthodox approach to the application of s 85(4), in relation to concurrent sentences. The requirement is that, once the adjusted final starting point has been arrived at for the various offences, the judge should stand back and assess the issue of totality overall.37
[40] In the present case, to comply with s 85(4), it was necessary for the Judge to ensure that the most serious offence received the penalty that was appropriate for the totality of the offending.38
[41] I agree with the Crown’s submission to the District Court that a starting point of three years’ imprisonment for the full sum of the family violence offending, comprising the charges of threatening to kill, injuring with intent to injure and male assaults female, was appropriate for the totality of the offending. I consider Mr Murch’s offending is at the most severe end of conduct within band two of Nuku v
R.39 I reject the Crown’s submission on the appeal that the starting point actually
determined by the Judge was not outside the available range. That submission cannot stand, given the applicability of band two of Nuku v R and my conclusion that the Judge has erred in applying s 85(4).
36 At [33]. The sentence under appeal was two years and four months’ imprisonment, but Brewer J did not increase the sentence because it would cut across a sentence indication on the basis of which Ms Ibrahim had pleaded guilty. Moreover the Crown had not appealed the sentence and counsel had not been able to seek instructions on Brewer J’s indication he was considering increasing the sentence.
37 Polaapau v R [2020] NZCA 227 at [44].
38 Whether the Judge thought the most serious offence was threatening to kill, or injuring with intent to injure, is not entirely clear from the decision. Assessed with reference to the higher starting point determined by the Judge, it was arguably injuring with intent to injure.
39 Band two of Nuku v R involves three or fewer of the aggravating factors listed in R v Taueki [2005] 3 NZLR 372 at [31]. The factors that are identified in the Judge’s decision as supporting a band two sentence are the attacks to the head and the victim’s vulnerability. To these I would potentially add use of the weapon (the hammer) and the extreme the violence. At the least therefore, this set of facts justifies the highest starting point for band two.
Uplifts
[42] I agree with the Judge that the uplifts as submitted by the Crown were appropriate. In my view, it is not appropriate to apply a further two month discount to the driving offences and threatening to kill, in light of my decision to apply totality considerations more generously to the starting point itself (as was done in Ibrahim v R). That brings the sentence with uplifts, but before discounts, to four years’ imprisonment.
[43] The 25 per cent discount given in respect of Mr Murch’s guilty pleas was accepted by both parties as appropriate. I agree.
[44] The 10 per cent further discount applied by the Judge in respect of Mr Murch’s restrictive bail conditions, including adherence to a 24 hour curfew, is opposed by the Crown. Mr Brownlie submitted five per cent was more appropriate. I have considered the other cases on which the Crown’s submission is based but I am not persuaded the Judge’s approach was wrong in law or principle.40 In any event, the effect of this discount will be reduced by about a month, as a result of the approach I have taken to application of the totality principle in accordance with s 85.
[45] Applying these discounts to the uplifted starting point of four years, results in a sentence on the lead offence (injuring with intent to injure) of two years and seven months’ imprisonment (rounded down to the nearest month).
Result
[46] Mr Murch’s appeal against his sentence is allowed. I substitute the following terms of imprisonment (to be served concurrently):
40 Mr Brownlie referred to Kreegher v R [2021] NZCA 22 in which the Court of Appeal upheld a discount of five percent where the appellant was subject to a 7pm to 7am curfew for three years without breach. However, I note that the five per cent discount in that case amounted to a six month discount. Mr Brownlie also referrred to R v Halohalo [2022] NZHC 3031. In that case Mr Halohalo had been subject to a 24-hour curfew for ten months. Campbell J considered only a modest discount of one month was justified on account of Mr Halohalo’s breach of his bail conditions, on one occasion seriously.
(a)two years and seven months on each of the four charges of injuring with intent to injure;
(b)eight months on each of the charges of driving while disqualified, driving with excess breath alcohol (third or subsequent offence) and threatening to kill the police officer.
[47] All other aspects of the District Court’s sentencing decision remain undisturbed.
McHerron J
Solicitors:
Hewart Galt, Invercargill
MJ Thomas, Crown Solicitor, Invercargill
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