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BETWEEN DANIEL ROSS MURCHAppellantANDCROWNRespondent

BETWEEN DANIEL ROSS MURCHAppellantANDCROWNRespondent

Case [2024] NZHC 1283 22 May 2024

Sentencing

Totality Principle

Discounts for Guilty Pleas

Concurrent Sentences

Mens Rea & Intention

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BETWEEN DANIEL ROSS MURCHAppellantANDCROWNRespondent [2024] NZHC 1283
Case: [2024] NZHC 1283
Decision Date: 22 May 2024

CaseChat Overview and Summary

Daniel Murch appeals his sentence in the High Court at Invercargill, arguing it was manifestly excessive. The original sentence imposed by the District Court at Invercargill on 2 February 2024 was three years and one month’s imprisonment for various charges including injuring with intent to injure, male assaults female, threatening to kill, unlawful taking of a motor vehicle, and driving while disqualified. The High Court was required to determine whether there was an error in the sentence and if a different sentence should be imposed. The key legal issue was whether the sentence was manifestly excessive, which involves assessing the end result rather than the process of sentencing.

The High Court found that the District Court erred in applying the principle of totality. The Judge had imposed two separate starting points without adequately adjusting for the principle of totality, leading to a total period of imprisonment that was out of proportion to the gravity of the overall offending. The Judge had considered the threats to kill and the other violent offences separately rather than as part of a connected series of events. The High Court determined that concurrent sentencing was appropriate, and a starting point of three years’ imprisonment for the full sum of the family violence offending was suitable for the totality of the offending. The High Court substituted the original sentence with two years and seven months’ imprisonment to be served concurrently, while maintaining all other aspects of the District Court’s sentencing decision.

Orders