Murphy v Police
[2020] NZHC 3261
•9 December 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-488-000052
CRI-2020-488-000053 [2020] NZHC 3261
BETWEEN MANA HONE MOSES MURPHY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 December 2020 Appearances:
S Thode for the Appellant
C Taylor for the Respondent
Judgment:
9 December 2020
JUDGMENT OF WOOLFORD J
Solicitors: Thode Utting, Barristers and Solicitors, Albany, Auckland
Marsden Woods Inskip & Smith (Office of the Crown Solicitor), Whangarei
MURPHY v NEW ZEALAND POLICE [2020] NZHC 3261 [9 December 2020]
[1] On 30 October 2020, Mana Hone Moses Murphy was sentenced on two charges of offering to supply methamphetamine and two charges of breach of home detention.1 He was also resentenced on the charges to which he had been sentenced to home detention. A total sentence of 26 months’ imprisonment was imposed. He now appeals against sentence as being manifestly excessive.
Factual background
[2] The two charges of offering to supply methamphetamine arose out of text messages on 31 July 2019 and 4 August 2019. The amounts involved were one gram (valued at $400) and $50 worth, a total of 1.05 grams.
[3] In the first text message an associate sought a “shocky” or one gram of methamphetamine, for a “punter”, which is a common slang term for someone looking to buy methamphetamine. In the second text message, the same associate sought “a little 50 smidge or half a point”, costing $50 to give to unknown male so he could put petrol in their car.
[4] Mr Murphy had been sentenced to 10 months’ home detention on unrelated offending on 30 January 2020. On 12 June 2020, he breached a condition of his home detention by consuming drugs, disclosed by a failed drug test. Then on 17 June 2020, he cut off his electronic bracelet and absconded from his home detention address.
District Court sentence
[5] In the District Court, after noting the charges to which Mr Murphy pleaded guilty, Judge DJ Orchard told him that if he had “stepped up last time,” that is, by supporting his father and helping him support his mother who was very ill, then almost certainly he would have been given an electronically monitored sentence on this occasion.
1 R v Murphy [2020] NZDC 22367.
[6] In response to Mr Murphy’s request for an adjournment of sentence and electronically monitored (EM) bail so he could attend a rehabilitation programme, the Judge said:2
[6] … The Court has to be realistic in the end, Mr Murphy, and people like you who continually waste the chances you are given in your selfish quest for using this drug, even at a time when you know how desperately your parents could do with your help and support, just have to face the consequences of their actions in the end, and that is what is going to happen today to you. A community-based sentence for any reason is just completely off the table. You cannot be trusted to comply and frankly I would feel myself very foolish if I acceded to the submission that I should impose such a sentence.
[7] In reaching an end point of 26 months’ imprisonment, the Judge, first of all, adopted a starting point for the two drug-related charges of 16 months’ imprisonment as being “adequate to deal with the offending”. The Judge then added two months for Mr Murphy’s previous drug offending before deducting four months to arrive at an end point of 12 months’ imprisonment for that offending.
[8] The Judge then adopted a starting point of nine months’ imprisonment for the two breaches of home detention before deducting three months to arrive at an end point of six months’ imprisonment for that offending, which was to be cumulative on the 12 months’ imprisonment for offering to supply methamphetamine.
[9] As to the resentence on the charges to which Mr Murphy had earlier been sentenced to 10 months’ home detention, the Judge noted that he had completed six months of that sentence. There were four months remaining, which was convertible to eight months’ imprisonment, which was again to be cumulative on the two earlier sentences.
[10] The Judge had before her a cultural report under s 27 of the Sentencing Act 2002, but did not grant any discount for personal factors disclosed in that report. The Judge said:3
[11] … It is time past, Mr Murphy, for you to move on from that, tragic as it is, and to move away from your offending and I am simply not prepared to
2 At [6].
3 At [11].
give you any discount for s 27 factors at this late stage of what is your criminal career, Mr Murphy.
[11]The Judge concluded:4
[12] I am afraid, apart from your pleas of guilty, I really cannot see any other discounts that are appropriate as far as you are concerned. I have already said that my impression is that you have thrown away chances in the past to rehabilitate. I note that the letter from your mother indicates that you have expressed a desire to rehabilitate before, but not followed through. I really sincerely hope that this time when you are released from prison, you will actually follow through, because you are not just wasting your own life, and you are still a young man, you are causing huge hardship and distress to your whanau by your selfish behaviour, and at the end of the day, Mr Murphy, that is what it is, impulsive and selfish, because you have not, up until now, ever seriously tried to engage with this addiction and to beat it.
Discussion
[12] In terms of s 250 of the Criminal Procedure Act 2011, an appellate court must allow an appeal against sentence if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. In the present case, I am satisfied that there is an error in the sentence imposed and a different sentence should be imposed.
[13] First, the starting point on the two charges of offering to supply methamphetamine of 16 months’ imprisonment is too high. In Zhang v R, the Court of Appeal revised the approach courts should take in the sentencing of offenders on methamphetamine charges.5 The Court was particularly concerned at the need to consider more flexible sentences in band one (into which Mr Murphy’s offending falls) where community-based sentences needed to be a starting point open to the Court. Band one encompasses quantities up to five grams. The amount that Mr Murphy offered to supply was 1.05 grams, which places the quantity at the lower end of band one.
[14] Furthermore, there was no proven financial gain. Mr Murphy says he was going to give a gram to his whāngai sister. She says she needed it. He had heaps at the time, so could afford to give some to her. The offers to supply were made by way
4 At [12].
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
of text message. Mr Murphy also says he did not know it was an offence to give methamphetamine away for free. If this is all true, this substantially lessens the seriousness of the offending.
[15] Without the other offending and the resentencing, it would have been open to the Court to deal with Mr Murphy by way of a community-based sentence. As it was, however, the Judge had little option but to cancel the sentence of home detention and resentence Mr Murphy to a term of imprisonment. That meant that the methamphetamine charges had to be dealt with by way of imprisonment too.
[16] There is a paucity of reported cases dealing with offering to supply a gram of methamphetamine, perhaps because such charges can be dealt with by sentences other than imprisonment. But in the circumstances of this case, I am of the view that a starting point of no more than six months’ imprisonment was warranted, which can be uplifted by two months for previous methamphetamine offending to reach a starting point of eight months’ imprisonment.
[17] The second reason why there is an error in the sentence imposed is that there was no discount given by the Judge for personal factors, either in terms of Zhang or the s 27 report.
[18] In Zhang, the Court said that addiction shown to be causative of offending is a mitigating consideration. It may, on its own terms, justify a sentence discount of up to 30 per cent. Addiction also calls for consideration of a rehabilitative response as part of sentencing.
[19] The Court also said that poverty and deprivation (potentially, but not necessarily resulting from loss of land, language, culture, rangatiratanga, mana and dignity) are matters that may be regarded in a proper case to have impaired choice and diminished moral culpabilities. Such vulnerabilities (where established and whether associated with addiction or not) require consideration at sentence. This type of material is usually introduced by way of a s 27 report, as was done in this case.
[20] Mr Murphy is undoubtedly addicted to methamphetamine. The Judge accepted as much but declined to consider a rehabilitative approach. The Judge also dismissed the s 27 report, although there are matters contained in it which, in some way, explain Mr Murphy’s continued offending.
[21] The report reveals Mr Murphy’s exposure to gangs, alcohol, violence and drugs during his early life in Otangarei and his later addiction to both cannabis and methamphetamine. The report also points to the traumatic death of his three year old daughter and what has followed — worsening drug use and addiction, incarceration, unemployment and grief, trauma and loss that has never been addressed. Mr Murphy’s explanation is inherently plausible and provides a wealth of information that assists in addressing the purposes and principles of sentencing. The report clearly shows impaired choice and diminished moral culpability. The Judge was wrong to dismiss it out of hand.
[22] Thirdly, the Judge has not had regard to the principle of totality. Section 85 of the Sentencing Act 2002 provides:
85 Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed,—
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[23] The Judge did not refer to the totality principle when setting the starting point for offering to supply methamphetamine and breaching home detention. Nor did she
refer to it when she arrived at a final sentence of 26 months’ imprisonment. The Judge should have then stepped back and considered whether the sentence was wholly out of proportion to the gravity of the offending.
[24] I am of the view that 26 months’ imprisonment is wholly out of proportion to the gravity of the offending. The offering to supply methamphetamine fell within the lower end of band one of Zhang, where a starting point of a community-based sentence was available. The maximum sentence for breach of home detention is one year’s imprisonment. These were to be in addition to the sentence of eight months’ imprisonment imposed on the resentence.
[25] The appeal is therefore allowed and the sentences of 12 months’ imprisonment on the two charges of offering to supply methamphetamine and six months’ imprisonment on the two charges of breach of home detention are both quashed.
[26] As noted above, an adjusted starting point for the charges of offering to supply methamphetamine is appropriately a sentence of eight months’ imprisonment. From the adjusted starting point, just over a 35 per cent discount is appropriate, being a 25 per cent discount for the pleas of guilty and 10 per cent for the factors set out in the s 27 report.6 This results in a sentence of five months’ imprisonment on the two charges of offering to supply methamphetamine.
[27] As to the charges of breaching home detention, the starting point adopted by the Judge was nine months’ imprisonment, which is 75 per cent of the maximum sentence. Bearing in mind the totality principle, if this sentence is to be cumulative on the sentence imposed on the charges of offering to supply methamphetamine, the starting point is too high. A more appropriate starting point would be five months’ imprisonment from which just over a 35 per cent discount is again appropriate, being a 25 per cent discount for the pleas of guilty and 10 per cent for the factors set out in the s 27 report.7 This results in a sentence of three months’ imprisonment on the two charges of breaching home detention.
6 In reducing the starting point from 18 months’ imprisonment to 12 months’ imprisonment, the Judge, in effect, granted a 33.3 per cent discount for the guilty pleas.
7 The Judge again, in effect, granted a 33.3 per cent discount for the guilty plea in reducing the starting point from nine months’ imprisonment to six months’ imprisonment.
[28] No adjustments or discounts are necessary to the sentence of eight months’ imprisonment imposed on the resentence. The original sentence of 10 months’ home detention included all relevant adjustments and discounts.
[29] Mr Murphy is therefore now sentenced to five months’ imprisonment on the two charges of offering to supply methamphetamine and three months’ imprisonment on the two charges of breaching home detention. Both sentences are cumulative on each other and on the resentence of eight months’ imprisonment. This leads to a total sentence of 16 months’ imprisonment.
[30] Given Mr Murphy’s wish to enter a drug rehabilitation programme, leave is also granted in terms of s 80I of the Sentencing Act for him to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if he is accepted for a residential drug rehabilitation programme at a later date.
Woolford J