McMurtrie v Police - [2015] NZHC 1031

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-18 [2015] NZHC 1031

BETWEEN
SCOTT PETER MCMURTRIE

Appellant

AND

THE NEW ZEALAND POLICE Respondent

Hearing: 12 May 2015

Counsel:

P Ross for Appellant
A R Garrick for Respondent

Judgment:

18 May 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Scott Peter McMurtrie, pleaded guilty to six charges of theft (shoplifting)1 and one of possession of cannabis. Mr McMurtrie was sentenced by Judge Strettell in the District Court at Porirua on 23 March 2015 to 12 months imprisonment, with special release conditions to apply for a period of six months.2

[2] Mr McMurtrie now appeals that sentence as being manifestly excessive.

Facts

[3] Mr McMurtrie’s offending occurred between 3 December 2014 and 3 January
2015. Mr McMurtrie – and his partner, a Ms Smith – stole groceries from five supermarkets and shoplifted a bottle of perfume from a department store.

1 Five of goods valued under $500 (Crimes Act 1961, ss 219 and 223(d)); one of goods valued
$500–$1,000 (Crimes Act 1961 ss 219 and 223(c)).
2 Police v McMurtrie [2015] NZDC 4697.

MCMURTRIE v THE NEW ZEALAND POLICE [2015] NZHC 1031 [18 May 2015]

[4] The grocery thefts were all carried out in a similar way. Mr McMurtrie and Ms Smith, or one or other of them, would enter a supermarket, and fill a trolley with groceries. They would then go to the checkout, tell the operator they had already paid for goods in the trolley and purchase one or two small items which they said they had forgotten to buy. They sometimes provided receipts relating to different purchases as proof of purchase.

[5] On three of those occasions, they were stopped by the supermarket staff at the checkout or shortly after they went through the checkout. The stolen goods were recovered on those occasions. On one occasion they drove away with goods in their possession but were arrested shortly thereafter on another matter. On that occasion the stolen groceries were found when their car was searched, as was the cannabis tinnie on which the charge of possession of cannabis was based. On one further occasion they successfully left the supermarket with stolen goods valued at some
$500 in their possession which were not recovered. The Judge ordered reparation of

$250 with respect to those goods.

[6] Some of the offending occurred while Mr McMurtrie was on bail. On

9 December 2014 Mr McMurtrie was charged with one of the theft under $500 charges, and was on bail from that point onwards. He was further remanded on bail on 12 December for one more of the theft charges, and on 20 December 2014, for two of the theft charges and the possession of cannabis charge.

[7] Mr McMurtrie has eight previous convictions for shoplifting (under $500). He has one other dishonesty conviction, theft of a motor vehicle. He also has a 2014 conviction for possessing cannabis seed. That offending has all occurred since December 2012. Mr McMurtrie does have…

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: [2015] NZHC 1031
Decision Date: 18 May 2015

CaseChat Overview and Summary

In McMurtrie v Police, Scott Peter McMurtrie appealed against a 12-month imprisonment sentence imposed by Judge Strettell in the District Court at Porirua, for six charges of theft (shoplifting) and one charge of possession of cannabis. McMurtrie argued that the sentence was manifestly excessive. The key legal issues were whether the starting point, uplifts for previous offending and bail remission, and the discount for a guilty plea were appropriate. The High Court found that a starting point of six months imprisonment would have been more appropriate, given the nature and premeditation of McMurtrie's offending. The Court also found that an uplift of one month for offending while on bail was appropriate. The Court substituted the original sentence with one of six months imprisonment, with post-release conditions for three months.

The Court considered relevant authorities and noted that McMurtrie's criminal history, while significant, was not as severe as in other cases where higher starting points were upheld. The Court found that a starting point of six months would have been more appropriate, given the circumstances of McMurtrie's offending. The Court also found that an uplift of one month for offending while on bail was appropriate. Finally, the Court found that a 25% discount for the guilty plea was appropriate. The Court substituted the original sentence with one of six months imprisonment, with post-release conditions for three months.

Orders