Murphy v The Queen - [2010] NZCA 567

IN THE COURT OF APPEAL OF NEW ZEALAND
CA630/2010
[2010] NZCA 567
BETWEENBLAIR ANTHONY MURPHY

Appellant

ANDTHE QUEEN

Respondent

Hearing:23 November 2010

Court:Harrison, Ronald Young and Keane JJ
Counsel:A J Logan for Appellant

T Epati for Respondent

Judgment:23 November 2010

ORAL JUDGMENT OF THE COURT

A.          The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        The appellant pleaded guilty to a representative charge of selling cannabis over five months in late 2009 and early 2010. He was sentenced to 18 months’ imprisonment and refused leave to apply for home detention by Justice French in the High Court.[1]
[1]      R v Murphy HC Dunedin CRI-2010-012-2036, 2 September 2010.
[2]        This appeal asserts the Judge wrongly refused to give such leave. No point of principle arises in this appeal and so we are able to give an oral judgment.
Facts
[3]        As a result of an undercover operation the police discovered the appellant was purchasing small amounts of cannabis, repackaging it and on selling it for a profit. The estimate of profit was $100 per week over 15 to 20 weeks totalling $1,500 to $2,000. The appellant admitted this offending to the police and pleaded guilty straight away.
Sentencing decision
[4]        The Judge at sentencing identified a start sentence of two years’ imprisonment, which she increased by three months to reflect the appellant’s past offending. The Judge deducted a full one third for the early guilty plea resulting in a final sentence of 18 months’ imprisonment.
[5]        As to home detention the Judge firstly considered whether there was suitable accommodation available. She said:
[31]       In turn, that renders you eligible to be considered for home detention. Or at least it would do, if there was a suitable address. I am satisfied that the address proposed is not suitable, because of recent police interest in the house and the drug‑related conviction of one occupant.

[6]        She then turned to s 80I of the Sentencing Act 2002 which permits leave to be given to apply for home detention should a suitable residence subsequently become available.
[7]        As to this she said:
[32]       There is a provision in the Sentencing Act which enables the Court to grant leave to apply for home detention should a suitable address become available later. I have therefore considered it appropriate that I should turn my mind to that provision.
[33]       It is not unknown for home detention to be granted in drug dealing cases. In R v Hill [2008] NZCA 41, the Court of Appeal said that where an offender is motivated to change and there is the realistic prospect he or she would be able to change, there are obvious benefits in a sentence of home detention both from the offender’s perspective and from society’s perspective.
[34]       In your favour, in terms of home detention, there is your stable work record, your apparent insight into your offending and the fact that your previous history is not as extensive as is…

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 The Queen

Details

AGLC: Murphy v The Queen [2010] NZCA 567
Case: [2010] NZCA 567
Decision Date: 23 November 2010

CaseChat Overview and Summary

The case of Murphy v The Queen involves the appellant, Blair Anthony Murphy, appealing against a decision made by Justice French in the High Court, which refused him leave to apply for home detention instead of imprisonment. The appellant pleaded guilty to selling cannabis over a period of five months and was sentenced to 18 months imprisonment. The Court of Appeal of New Zealand heard the appeal and provided an oral judgment dismissing the appeal. The primary legal issue before the court was whether the trial judge had erred in refusing the appellant leave to apply for home detention, and whether the judge had given appropriate consideration to the relevant factors when making this decision. The court found that the trial judge had considered all relevant factors and that her conclusion to impose a sentence of imprisonment was clearly open to her. The Court of Appeal held that the primary sentencing principles in this case were denunciation and deterrence, and that the appellant's past conduct and the nature of his offending meant that a sentence of imprisonment was appropriate. The appeal was dismissed, and the sentence of imprisonment remained in place.

Orders