Gunbie v Police - [2019] NZHC 250

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-432

[2019] NZHC 250

BETWEEN
RAYMOND MURRAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 February 2019

Appearances:

P T Eastwood for the Appellant H Watts for the Respondent

Judgment:

25 February 2019

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:
Mr P T Eastwood, Barrister, Auckland
Ms H Watts, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City

MURRAY v POLICE [2019] NZHC 250 [25 February 2019]

[1] Mr Murray pleaded guilty in the District Court to two charges of burglary. On 31 July 2018, Judge C S Blackie sentenced Mr Murray to two years and four months’ imprisonment.1

[2] Mr Murray seeks an extension of time to appeal on the basis of delay in securing legal aid. The respondent is not prejudiced by the delay and does not oppose an extension of time being granted. I make an order accordingly.

[3] The grounds of appeal are that the sentence is manifestly excessive or wrong in principle in that the Judge precluded home detention.

The facts

[4] The summaries of facts in respect of the two charges of burglary record that on 20 March 2018 Mr Murray entered an address by breaking glass at the rear of the house near the kitchen and rummaged through multiple rooms before leaving with a number of items belonging to the victim. The items taken were not described in the summaries of facts but the victim impact statement refers to electronic items, jewellery, a hard drive and a chainsaw, with a combined cost of over $4,000. Some of the items were of sentimental value and irreplaceable.

[5] Then, on 9 April 2018, Mr Murray, with an associate, entered another address, by cutting the padlock that secured the front gate. They disturbed the occupant, who was terrified. Mr Murray attempted to enter the house but when challenged by the victim apologised, saying he was looking for a friend and left in a car at speed.

The sentence

[6] The Judge’s sentencing notes refer to a starting point in the vicinity of two- and-a-half years’ imprisonment, an uplift to three years’ imprisonment for Mr Murray’s previous offending, and a discount of 25 per cent for Mr Murray’s guilty plea at an early stage. The Judge imposed a sentence of two years and four months’ imprisonment.

1 Police v Murray [2018] NZDC 15759.

[7] The Judge recorded that Mr Murray’s counsel had submitted that the Court should adopt an entirely different approach and sentence Mr Murray to intensive supervision, albeit for a long period. The Judge agreed that would be sensible if he felt able to do so, but said that the law is framed in such a way that that sentence is not open to the Court unless it is accompanied by something in the vicinity of community detention, community work or a lesser degree of penalty. The Judge said it can, of course, be imposed…

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

Case: [2019] NZHC 250
Decision Date: 25 February 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Raymond Murray appealed against his sentence for two charges of burglary. The District Court sentenced Murray to two years and four months' imprisonment, which he considered excessive. Murray sought an extension of time to appeal due to delays in securing legal aid, which the police did not oppose. The primary issue was whether the sentence imposed by the District Court was manifestly excessive or wrong in principle. Murray argued that the sentence was excessive because the Judge had precluded home detention. The court examined the facts of the burglaries, including the significant property stolen and the impact on the victims. The sentencing judge considered Murray's extensive criminal history, his addiction issues, and the risk he posed to the community. The High Court found that the judge had appropriately calculated the sentence, but there was an arithmetical error in the discount for Murray's guilty plea. The court corrected the sentence to two years and three months' imprisonment, acknowledging the judge's intention but rectifying the calculation error. The court ultimately found that the sentence was not manifestly excessive and affirmed the original sentence with the corrected calculation.

The High Court granted Murray an extension of time to appeal and allowed the appeal against the sentence. The sentence of two years and four months' imprisonment was quashed, and a sentence of two years and three months' imprisonment was imposed, reflecting the corrected calculation. The court emphasized that the original sentence was appropriate given Murray's criminal history and the risk he posed to the community. The decision underscores the importance of accurate sentencing calculations and the discretion of the sentencing judge in balancing various factors, including the offender's background and the nature of the crime.

Orders