Murdoch v Police - [2017] NZHC 801

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-9 [2017] NZHC 801

BETWEEN
ANDREW PAUL MURDOCH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 April 2017

Appearances:

T McCullum for the Appellant
R Donnelly for the Respondent

Judgment:

28 April 2017

JUDGMENT OF MANDER J

[1] The appellant, Mr Andrew Murdoch, was sentenced to 18 months imprisonment on two charges of theft. He was also ordered to pay two separate amounts of reparation in the sums of $14,439.74 and $607.83.

[2] Mr Murdoch appeals his sentence. He alleges the sentencing Judge erred in calculating the amount of reparation he was required to pay, and in failing to commute the sentence of imprisonment to one of home detention. Further, that he imposed a manifestly excessive sentence.

Background

[3] Mr Murdoch was hired as a relief driver for a courier company. On the day of the offending he was assisting the permanent driver to deliver goods. At the end of the run he drove the permanent driver home and then returned the van to the depot. Before locking the van, Mr Murdoch took a number of undelivered sealed
courier packs from the van.

MURDOCH v NEW ZEALAND POLICE [2017] NZHC 801 [28 April 2017]

[4] These packs contained foreign currency. One of the packs contained a Samsung mobile phone. Mr Murdoch exchanged some of the currency for New Zealand dollars and distributed the remainder among family members and associates. The phone was given to a family member who subsequently sold it.

[5] When confronted about the offending, Mr Murdoch sought to blame his brother who had helped him on previous days with the courier role, and ostensibly sought to assist a private investigator engaged by the courier company. The police executed a search warrant on the brother’s house and found some of the currency. When initially spoken to by the police, Mr Murdoch denied involvement, however, he later admitted it had been him who had taken the money and distributed it to others.

The District Court decision

[6] In sentencing Mr Murdoch, the District Court Judge noted his relatively mature age of 30 years, the premeditation involved in the offending, and Mr Murdoch’s initial attempt to blame his younger brother for the thefts. The Judge referred to the breach of trust inherent in a theft by a courier entrusted with the safe delivery of goods, and Mr Murdoch’s previous convictions.

[7] A starting point of 18 months imprisonment was uplifted by eight months for Mr Murdoch’s previous dishonesty offences, and a further one month to represent the theft of the phone. That starting point of 27 months was reduced to 24 months in recognition of the totality principle before Mr Murdoch was afforded maximum credit of 25 per cent for his guilty plea, arriving at a final sentence of 18 months imprisonment.

[8] The Judge declined to convert the sentence of imprisonment to one of home detention, noting that Mr Murdoch had previously served sentences of home detention and community detention…

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: [2017] NZHC 801
Decision Date: 28 April 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Andrew Paul Murdoch appealed against his conviction and sentence for theft and breach of trust. The appellant was sentenced to 18 months imprisonment and ordered to pay reparation in the sum of $14,439.74. He argued that the reparation was excessive and that the sentence should have been commuted to home detention. The appellant also contended that the sentence was manifestly excessive.

The appeal court was required to determine whether the appellant's sentence was manifestly excessive or inappropriate, and if the sentencing judge erred in the calculation of reparation and in declining to impose a sentence of home detention. The appeal court's focus was on the sentence imposed rather than the process by which the sentence was reached. The court considered whether the end sentence was wrong and required amendment.

The appeal court found that the appellant's submission that the reparation order was excessive was not supported by evidence. The court rejected the submission that the reparation should have been calculated based on the exchange rate at the time of theft. The court found that the sentencing judge was entitled to proceed on the basis of the information before him.

The appeal court found that the sentencing judge was entitled to reject a sentence of home detention as the appellant had not been deterred by electronically monitored sentences in the past. The court found that the sentence imposed was not manifestly excessive and was within the sentencing judge's available discretion. The appeal was allowed to the limited extent of reducing the reparation order from $14,439.74 to $12,801.94. The other orders of reparation and the sentence of imprisonment were upheld.

The court ordered that the reparation order be reduced from $14,439.74 to $12,801.94, and that the other orders of reparation and the sentence of imprisonment be upheld.

Orders