Murdoch v Police
[2013] NZHC 1203
•24 May 2013
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2013-425-22 [2013] NZHC 1203
BETWEEN NIGEL JAMES MURDOCH Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 24 May 2013
(Heard at Christchurch)
Counsel: B Dawkins for Appellant
R Donnelly for Respondent
Judgment: 24 May 2013
JUDGMENT OF MILLER J
[1] Mr Murdoch appeals an effective sentence of four months imprisonment on charges of threatening to kill and possessing an offensive weapon in circumstances prima facie showing an intention to use it to commit a violent offence. The sentence for the latter offence was two months imprisonment, to be served concurrently. Mr Murdoch was also required to complete domestic violence and parenting programmes and to undertake and complete other appropriate treatment and counselling to the satisfaction of his probation officer.
[2] On appeal, Mr Murdoch complains that he ought to have been sentenced to home detention.
[3] The charge of threatening to kill arose out of text messages sent by
Mr Murdoch to his then 14-year-old son in October 2012. The texts referred to the
MURDOCH v N Z POLICE HC INV CRI-2013-425-22 [24 May 2013]
boy’s mother, who was the former partner of Mr Murdoch, and a Mr P, who is her present partner. I will call her Ms A.[1] As the District Court Judge noted, all the texts formed part of a conversation between Mr Murdoch and his son. I adopt the Judge’s narrative:[2]
They start with a text message on 23 October saying, “You okay with that schizo cunt being there mate, fuck them both eh.” Your [now] 15 year old son replied, “Yeah, I suppose.” You said, “He’s still a fuckwit, I say don’t take any notice of the fuckhead.” Your son said, “I wasn’t planning on it, ha, ha, cue hungry today,” that apparently being reference to a pool cue that was found in your car. You replied to that text message, “Good, ‘cos I want to kill them both slowly with my cue.” Your son responded, “Ha, ha, lol.” You text back, “Nah, just gonna kill that fat piece of shit one day and then the schizo gonna get the cue whamo, whamo, schizo gone, ha, ha, wah, wah.” Your 15 year old replied, “Ha, ha.” He texted back to you, “We on way.” You text, “Not a joke my friend.” The text messages continue in a derogatory manner n respect of your children’s mother.
[1] I use initials in the interests of privacy only. No suppression orders have been sought or made.
[2] N Z Police v Murdoch DC Gore CRI-2012-017-000686, 8 May 2013.
[4] The “fat” person referred to was Mr P. The text messages were reported to the police, who later stopped Mr Murdoch’s vehicle, on 29 November 2012, when his son was driving it. They found a pool cue in it. Mr Murdoch pleaded guilty to both charges, and thereby admitted that he had the pool cue with a prima facie intention to use it for an offence of violence or involving the threat of it. Of course a pool cue need not be used as a weapon, but the guilty plea was hardly surprising because the charge, as the Judge noted, was unambiguously consistent with the text messages.
[5] Most unhelpfully for Mr Murdoch, he has some very relevant prior convictions. Most of the offences pre-date the present offending but most of the convictions were entered after it. In 2010 his relationship with Ms A broke down. He assaulted her and trespassed on 19 June 2010, and was ordered to come up for sentence if called upon. He also trespassed on her property on 25 August 2012, 27
October 2012 (two days after threatening to kill) and 16 November 2012 (13 days before being found in possession of the cue). When he trespassed on 25 August he also wilfully damaged a garden statue. The police charged him with the 16
November trespass on 28 November, and the other informations were not laid until
17 December, two days before he was convicted and fined on all of these matters.
[6] Mr P evidently was not asked to provide a victim impact statement. However, Ms A filed a victim impact statement which indicated that only with great difficulty was she able to end her relationship with Mr Murdoch, who would not accept her decision. She moved from Gore to Invercargill to feel safe, is now on antidepressants, and has had to deal with “hatred” from her children; they now live with Mr Murdoch, and she feels he has turned them against her. She claimed that Mr Murdoch has told the couple’s children that Mr P is a child molester and called Mr P’s work in an attempt to get him sacked.
[7] The Judge accepted her victim impact statement without hesitation, relying on the content of the admitted text messages, which he characterised as the clearest case of emotional and psychological abuse of children that he had seen in over 30 years of practice.
[8] Also unhappily for Mr Murdoch, the pre-sentence report demonstrated that he lacks remorse. He was described as a narcissist, and he was quick to shift the blame for his offending to her or Mr P. He showed limited insight into the offending; he laughed when the text messages were read aloud to him and claimed they were not meant seriously. Bizarrely, given the tenor of the texts to his son, he claimed that his main concern was for the children, for whom his Ms A had allegedly ceased to care once she entered into a new relationship with Mr P. Like the Judge, I am not prepared to accept this claim.
[9] A home detention assessment was carried out. The address is technically suitable. The others who live there are Mr Murdoch’s new partner and his three children; none of them were concerned about him being there on home detention. However, the Child Youth and Family Service is concerned. The two youngest children have been truant and badly behaved at school, there are concerns about his parenting, and a family group conference has been scheduled. The probation officer recommended imprisonment.
[10] Sentencing Mr Murdoch on 8 May 2013, the Judge adopted a starting point of five months imprisonment for the threatening to kill charge, and one month was added for the previous relevant convictions. Two months were deducted for
Mr Murdoch’s guilty plea to reach the final sentence. No extra allowance was made for remorse, the Judge finding that there was none.
[11] The grounds of appeal are that:
1) The Judge attached too much weight to the effects of Mr Murdoch’s behaviour on Ms A, who was not the direct victim of the threatening to kill charge;
2) Mr Murdoch was not in fact likely to use or threaten anyone with the pool cue, which he had borrowed to participate in a pool tournament;
3) The Judge was wrong to criticise Mr Murdoch for failing to express remorse directly to Ms A, or to the probation officer, or through counsel;
4) Mr Murdoch had only been fined for all his previous offending, but the Court did not appear to consider a sentence of community work or even community detention;
5) It was wrong to take into account the CYFS investigation into the family, and in any event a sentence of four months imprisonment would result in Mr Murdoch serving only two months away from home;
6) Mr Murdoch was and remains very likely to lose his job as a dispatch co- ordinator.
[12] In conclusion, counsel submitted that while the Judge was properly concerned for the impact of Mr Murdoch’s offending upon his children, the family will be subjected to further stress if he is removed and then returned, unemployed, to live them after a relatively short period i.e. at the beginning of July.
[13] As the Judge noted, threatening to kill is a serious offence, carrying a maximum sentence of seven years imprisonment. There is no tariff case. It cannot be said that a short term of imprisonment is manifestly excessive or even out of the
ordinary. The question is whether the form of the sentence warrants appellate intervention.
[14] That being so, I make two points immediately. The first is that appellate courts are slow to interfere with a sentencing Judge’s decision to prefer imprisonment over home detention when a case is on the cusp, as this one was. The second is that having regard to the involvement of Mr Murdoch’s son and the content of the text messages, I agree with the Judge that he cannot possibly expect to serve a community-based sentence at the same address as the children. The texts strongly suggest that he has no idea of appropriate parent-child boundaries and is actively damaging an important relationship between the children and their mother to serve his own purposes. Separated or not, his responsibility as a parent is to sustain that relationship. I recognise that he considers her an unsatisfactory parent and some of the children were living with her at the time, but any genuine concerns about her care or contact should be managed between adults. The CYFS investigation is unsurprising in these circumstances, and it suggests an instability about the family circumstances that the Judge was not required to ignore.
[15] It is true that Mr Murdoch may soon return to live with the children in any event, but that does not lead me to accept the submission that he might as well serve home detention with them. Implicit in that submission is the unattractive, indeed unwise, proposition that nothing much will change on his release. I prefer to give him the benefit of the doubt by admitting the possibility that the sentence, in conjunction with the courses he has been ordered to undertake and perhaps the risk of CYFS intervention, will lead him to modify his behaviour.
[16] Of course these conclusions do not preclude a community-based sentence at another address, or at the nominated address if the children move out. Accordingly, I turn to the question whether home detention is appropriate having regard to the aggravating and mitigating features of the offences.
[17] Having regard to the previous convictions and the serious nature of the offending, particularly the threat to kill, denunciation and deterrence must be the dominant sentencing considerations. Mr Murdoch has been very persistent, although
he seems not to have reoffended since his last set of convictions. The Court must also bear in mind the need to protect Ms A. She may be a strictly indirect victim of these offences, but she is nonetheless a victim as defined and the real target of his behaviour, and his history indicates that he poses a genuine risk to her. I do not accept that the Judge was wrong to attach significance to the effects upon her, including the cumulative effect of the past offending. He was careful not to attach weight to what she said about the effect on Mr P.
[18] Nor do I accept that the Judge was wrong to discount any claim to remorse. In any event he gave a one-third discount for the guilty plea, compared to the maximum
25% normally available.
[19] It is a relevant consideration that Mr Murdoch may not have been likely to use the pool cue, but the starting point, as the Judge observed, is that he admitted having it in circumstances prima facie indicating an intention to use it, and the texts indicate that Mr P and Ms A were the targets he had in mind. The Judge found that the threats were to be taken seriously, but Mr Murdoch can scarcely complain about that; it is merely to accept what he himself had said. He was trespassing on her property in the same period.
[20] It is true too that Mr Murdoch had not previously served a community-based sentence. But as Mr Dawkins correctly recognised, the Judge need not choose a community-based sentence merely because he had not previously experienced one. Personal deterrence is not the only relevant sentencing consideration, and in this case Mr Murdoch had offended persistently against her despite his first conviction. I agree with the Judge that a short sentence of imprisonment may be an appropriate, even necessary, response in such a case.
[21] The principal consideration weighing against imprisonment is the risk that Mr Murdoch will lose his well-paid career position. The family depends upon his income, which he supplements with evening work at a tavern. The Judge did not expressly refer to this important consideration. I accept that Mr Murdoch may be dismissed. The employer’s human resources manager advises that a conviction breaches his employment agreement and his inability to work entitles the employer
to dismiss him. The role cannot be left vacant. A decision about his future is pending; it has been deferred pending this appeal. He has been suspended without pay in the meantime.
[22] However, the employer has not said that that he will be dismissed, and I am not prepared to dismiss that as mere procedural caution. The employer has said that he is a key, productive member of a two-man team responsible for the dispatch of products to overseas and domestic markets. Apparently two workers must do the work for safety reasons. Mr Murdoch has worked for the firm for eight years, and the role is described as crucial. Presumably he would not be easy to replace in the time before he is released, so cover must be arranged in any event. He has now been in custody since 8 May and will gain automatic release on 7 July. He also had 63 hours leave accrued, which he has now taken. Given that the conviction apparently does not affect his fitness to work and his behaviour at work is entirely appropriate, there is no particular reason to believe that the employer will dismiss him in the circumstances.
[23] In any event, the risk of dismissal is not enough to persuade me that the sentence is manifestly excessive. Loss of employment is a routine consequence of imprisonment, and Mr Murdoch courted imprisonment by persistently offending against Ms A.
[24] The appeal is dismissed.
Miller J
Solicitors:
Dawkins Law, Invercargill for Appellant
Crown Solicitor’s Office, Invercargill for Respondent
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