[1] Mr Christopher Muir was charged with, and pleaded guilty to, four offences arising out of four discrete situations. The offences were (a) operating a vehicle in a manner causing sustained loss of traction;1 (b) conversion of a motor vehicle valued at $15,995;2 (c) common assault;3 and (d) breach of release conditions.4

[2] On these charges, Mr Muir was sentenced to two years, three months’ imprisonment.5 He now appeals the sentence on the basis that it was manifestly excessive and that mitigating factors were not taken into account (some of which may not have been known to the Judge in the District Court).

[3] In a more detailed notice of appeal, Mr Muir refers to the fact that this was his first ever charge of assault, he pleaded guilty at the first opportunity, he paid
$500 in reparation to one of the victims, and he was, and remains, willing to attend restorative justice. In addition, he refers to mental health difficulties he says he suffers from: Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder. Finally, Mr Muir contends that the starting point here of two years, six months imprisonment adopted by the District Court on the conversion charge was too high, particularly when the uplift of eight months for previous offending is considered.

[4] I turn now to consider the events giving rise to the four offences.

The assault charge

[5] First the assault charge. On 8 February Mr Muir was at a residential address with his then partner and her 15 year old daughter. Mr Muir got into an argument with his partner. As the argument was ongoing, Mr Muir snatched a phone from his
partner’s daughter, which was a gift he had given to the daughter for her birthday.

1      Land Transport Act 1998, s 36A(1)(c).
2      Crimes Act 1961, s 226(1).
3      Summary Offences Act 1981, s 9.
4      Parole Act 2002, s 71(1).
5      Police v Muir [2015] NZDC 7353.

When the daughter tried to get the phone back, Mr Muir punched her once to the side of the head, in the jaw area.

The sustained loss of traction charge

[6] Secondly, the sustained loss of traction charge. At around 10.40 pm on Friday, 13 February 2015, Mr Muir was driving a Mazda motor vehicle in an industrial area in Christchurch. The road had a 50 kph speed restriction. At the time of the incident there were 20 – 30 ‘boy racers’ on the street.

[7] Mr Muir stopped his vehicle in the middle of an intersection, where he began revving his engine. He then accelerated heavily while performing a right hand turn.…

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.

Continue reading Muir v Police

Details

AGLC: Muir v Police [2015] NZHC 1425
Case: [2015] NZHC 1425
Decision Date: 23 June 2015

CaseChat Overview and Summary

The appellant, Mr Christopher Muir, appeals against his sentence for four offences, namely operating a vehicle in a manner causing sustained loss of traction, conversion of a motor vehicle, common assault, and breach of release conditions. The appeal was heard in the High Court of New Zealand, Christchurch Registry. The primary legal issue in this case was whether the sentence imposed by the District Court was manifestly excessive and whether mitigating factors were appropriately taken into account. Mr Muir argued that the starting point for his sentence was too high, and that mitigating factors were not sufficiently considered.

The Court began by examining the starting point for the sentence, which the District Court had set at two years, six months’ imprisonment for the conversion charge. The Court considered various precedents and concluded that a starting point of 15 months would have been more appropriate. The Court also reviewed the uplift of eight months for previous convictions and Mr Muir’s status on bail, finding that the uplift was proportionate and not disproportionate. The Court then undertook a hypothetical sentencing exercise, adopting a starting point of 15 months, adjusting it upwards by three months for the fact that the offence occurred while on bail, and then uplifting by a further four months for Mr Muir's substantial history of dishonesty offending. The Court also allowed an uplift of two months for the other charges. A discount of 20 per cent was afforded for Mr Muir’s early guilty plea. The Court found that the overall sentence imposed was outside the range available and that a sentence of 19 months’ imprisonment was more appropriate.

The Court allowed the appeal, quashed the original sentence of 27 months’ imprisonment, and substituted it with a total sentence of 19 months’ imprisonment for all the offences. The Court emphasised that while it was commendable that Mr Muir had taken steps to turn his life around, reoffending was not conducive to this goal. The Court encouraged Mr Muir to rectify the new life he had sought to begin upon his release.

Orders