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 as a stand-alone penalty but in the Judge’s view if he were to release Mr Murray, Mr Murray would  pose  an  undue  risk  to  the  community  – Mr Murray would continue to commit burglaries until free of addiction to alcohol and drugs, more particularly drugs. Mr Murray had accepted that he commits these crimes in order to feed his drug habit.

The argument on appeal

[8]    Mr Eastwood submitted there is an arithmetical error in the calculation of the 25 per cent discount, which should have been nine months rather than eight months.

[9]    He also submitted the uplift of six months was stern. A lower uplift and a lower starting point, which could also have been arrived at, would have brought the sentence down to two years or less where home detention would have been available under     s 80I of the Sentencing Act 2002 (the Act). He submitted this was the expectation in the pre-sentence report.

[10]   Finally, Mr Eastwood submitted there could be some discrete discount for remorse.

Decision

[11]   I agree that the Judge intended to give a 25 per cent discount on 36 months, which should have been nine months. I consider it appropriate to give effect to the Judge’s intention.

[12]   Otherwise, I consider that the Judge’s assessment of the situation was correct, and the sentence is not manifestly excessive or wrong in principle, for the following reasons.

[13]   As Mr Eastwood seems to accept, a starting point of two-and-a-half years’ imprisonment may have been at the upper end of the range, but was not outside it. While there is no tariff for burglary sentences because the range of circumstances is so varied, burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants, and dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two-and-a-half years’ imprisonment.2

[14]   Mr Murray must be regarded as a recidivist burglar with more than 10 convictions for that offence alone over a period of more than 20 years. Even though the last burglary conviction relates to an offence in 2013, an uplift of six months for his previous convictions was justified.

[15]   In relation to remorse, this does not appear to have featured before the Judge. Mr Eastwood told me that Mr Murray was willing to participate in restorative justice and met with restorative justice people but the meeting with victims never eventuated. He submitted that a willingness to participate in restorative justice should be given some credit. It is clearly open to a sentencing Judge to apply a discount to reflect genuine remorse because remorse is listed as a mitigating factor in s 9(2) of the Act. Whether or not the Judge does so, however, is very much a matter of discretion. The exercise of the discretion will depend on the nature of the offending, the offender's background and the nature of the remorse as determined by the Judge.3 It would have been open to the Judge not to give a discrete discount for remorse in this case given Mr Murray’s background and repeat offending in order to feed his drug habit, and given the pre-sentence report records that Mr Murray did not express visible remorse. I consider that a further discount for remorse was not warranted.

[16]   I consider the Judge was entitled to take the view that a community-based sentence was not appropriate given the risk of re-offending until Mr Murray is free of addiction, and that the appropriate place for Mr Murray to receive treatment is through

2      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189, (2012) 26 CRNZ 63 at [78]; Stepanicic v

R [2015] NZCA 211 at [9].

3      Renata v Police [2018] NZHC 2673 at [17].

a full-time custodial sentence. Imprisonment is the least restrictive sentence appropriate in the circumstances having regard to the needs of the community.

[17]   If the pre-sentence report had indicated otherwise, the position may have been different. The pre-sentence report assessed Mr Murray’s risk of harm and likelihood of re-offending as high, and his ability to comply with community based sentences as low given his history of non-compliances with community based sentences and electronically monitored bail.

[18]   Mr Eastwood referred to a recent parole assessment report. While that is post- sentence, I note that the report indicated, and Mr Eastwood understands, that Mr Murray has not yet been on a MIRP programme but that if he does not get on a course the Parole Board will look favourably on parole in a few months so Mr Murray can go on a Te Ara Hou programme.

Result

[19]An extension of time to appeal is granted.

[20]   The appeal against sentence is allowed. The sentence of two years and four months’ imprisonment is quashed and a sentence of two years and three months’ imprisonment is imposed.

Gault J