Murphy v Police - [2020] NZHC 3261

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…

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 Murphy v Police

Details

AGLC: Murphy v Police [2020] NZHC 3261
Case: [2020] NZHC 3261
Decision Date: 9 December 2020

CaseChat Overview and Summary

Mana Hone Moses Murphy appealed against his sentence in the High Court, which had imposed 26 months’ imprisonment for offering to supply methamphetamine and breaching home detention. Murphy contended that the sentence was manifestly excessive. The High Court considered the District Court's sentence, which had adopted a starting point of 16 months' imprisonment for the drug-related charges and nine months' for the breaches of home detention. The District Court had imposed a total sentence of 26 months' imprisonment, which Murphy argued was manifestly excessive. The High Court noted that the starting point of 16 months’ for the drug charges was too high, particularly considering the lower quantity of methamphetamine involved and the absence of a financial gain motive. Additionally, the High Court observed that the District Court had not properly considered the totality principle or the mitigating factors in the s 27 report, which highlighted Murphy's addiction, traumatic experiences, and socio-economic background. The High Court concluded that the 26-month sentence was disproportionate to the gravity of the offending and reduced the sentences accordingly. The High Court quashed the sentences of 12 months' imprisonment for the drug charges and six months' for the breaches of home detention. It imposed a sentence of five months' imprisonment for the drug charges and three months' for the breaches of home detention, cumulative on each other and on the resentence of eight months' imprisonment. The High Court also granted leave for Murphy to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if accepted for a residential drug rehabilitation programme.

The High Court found that the District Court had erred in setting an excessively high starting point for the methamphetamine charges, not considering the totality principle, and dismissing the s 27 report. The High Court reduced the sentences, considering Murphy’s addiction, background, and wish to enter a rehabilitation programme. The final sentence totalled 16 months’ imprisonment, with leave granted for a potential application to the District Court for a sentence of home detention if Murphy was accepted for a rehabilitation programme.

Orders