Murphy v Police - [2018] NZHC 251

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000155

[2018] NZHC 251

BETWEEN
CRAIG LEONARD MURPHY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 February 2018

Appearances:

N R Rout for the Appellant

C Bernhardt for the Respondent

Judgment:

27 February 2018

JUDGMENT OF DUNNINGHAM J

[1] Mr Murphy was sentenced by Judge Couch to 16 months’ imprisonment after pleading guilty to charges of receiving (over $1000), unlawful possession of a firearm, possession of cannabis, possession of utensils, and breach of parole.1

[2] He now appeals that sentence saying it is manifestly excessive and that it should have been imposed concurrently with a sentence he was already serving on other charges.

The offending

[3] In March 2016 Mr Murphy was released on parole in relation to a sentence of four years, nine months for receiving, drugs, weapons, and driving charges imposed in 2014.2 One of the conditions of parole was not to possess illegal drugs.

1 Police v Murphy [2017] NZDC 25758.
2 R v Murphy DC Christchurch CRI-2013-009-005552, 29 August 2014.

MURPHY v NEW ZEALAND POLICE [2018] NZHC 251 [27 February 2018]

[4] In July 2017 Police executed a search warrant of Mr Murphy’s home. They found two chainsaws and a weed cutter, with a combined value of nearly $3000, that had been stolen in a burglary two months earlier. A semi-automatic .22 gauge rifle, two grams of cannabis, and a methamphetamine pipe were also located at the property.

Sentencing

[5] Judge Couch identified the lead charge as receiving. He said the gravity of that offending was “significant”, and took a starting point of 12 months’ imprisonment. He then applied uplifts of four months for the firearm charge, and two months for the cannabis and utensils charges. He also applied a further three month uplift for the fact the offending occurred while on parole, and three months for Mr Murphy’s previous offending. The Judge noted Mr Murphy’s criminal record includes 21 previous convictions for dishonesty offending, including three of receiving, and a previous firearms conviction.

[6] From this overall starting point of 24 months, the Judge applied the full 25 per cent discount for guilty pleas to reach a sentence of 18 months.

[7] The Judge then turned his attention to whether the sentence should be imposed concurrently with, or cumulatively on, the sentences which Mr Murphy was already serving of parole. At the time of sentencing Mr Murphy had six months left on that sentence. While his Honour said he saw “the rationale” in the submission that he should impose it concurrently, with release conditions to take effect upon completion of both sentences, he decided that the Parole Board were best placed to impose conditions. Thus he imposed the sentence cumulatively on the existing sentence. The end sentence was 16 months, which appears to reflect a further reduction of two months to acknowledge the fact that as a result of his offending the appellant was recalled to serve the…

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 [2018] NZHC 251
Case: [2018] NZHC 251
Decision Date: 27 February 2018

CaseChat Overview and Summary

Craig Leonard Murphy appeals the 16 months’ imprisonment sentence imposed on him by Judge Couch after he pleaded guilty to receiving (over $1000), unlawful possession of a firearm, possession of cannabis, possession of utensils, and breach of parole. Murphy argues the sentence is manifestly excessive and should have been imposed concurrently with a sentence he was already serving on other charges. The New Zealand Police opposes the appeal. The High Court of New Zealand is required to decide whether there was an error in the sentence imposed and whether an alternative sentence should be imposed. The Court can only allow the appeal if the sentence is manifestly excessive or inappropriate.

The Court found that the starting point and the uplifts for the firearm and drug charges were within the available range indicated by case law. The Court also found that the Judge was entitled to uplift the sentence for the offence of being on parole, as the purpose of such an uplift is to reflect the added gravity of the offending arising out of the flagrant disregard for Court sanctions. The Court did not accept that the uplift for previous convictions constituted double counting, as this uplift recognises Mr Murphy’s extensive criminal history, and not just the most recent offending in respect of which he was on parole. The Court concluded that the Judge’s approach to imposing a discount to acknowledge the defendant had spent time in custody after being recalled from parole, was in line with the Court of Appeal’s approach in Vernon v R. The Court found that the reduction of two months in light of the nine extra months served seemed ungenerous when compared with the other cases discussed above. However, the Court found that this was an issue best addressed when considering the totality of the penalty imposed for the offending. The Court considered that a reduction of a further three months would be sufficient to achieve the overall sentence reflecting the gravity of the offending. The Court quashed the sentence of 16 months’ imprisonment on the charge of receiving and substituted a sentence of 13 months’ imprisonment, to be cumulative on the current sentence imposed in 2014. The sentence on all other charges remains unaltered.

Orders