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 sometimes the case in other decisions.

[35]       However, after very careful reflection I have come to the view that home detention would, regardless of the availability of a suitable address, be an inappropriate response anyway due to the seriousness of the offending, involving as it did drug dealing while you were supposed to be serving a sentence of community work for similar offending.

[36]       Deterrence is the primary consideration in sentencing for drug dealing.  In my view, the interests of specific and general deterrence would not be sufficiently met in a sentence of home detention.  I have therefore come, regrettably, to the conclusion that the sentence must be one of imprisonment.

Appellant’s submissions

[8]        The appellant’s case is that the Judge erred in the emphasis given to deterrence.  The Judge did not, the appellant says, give sufficient consideration to the fact that home detention is the second most restrictive form of sentence and had elements of deterrence and denunciation itself.

[9]        Further, the appellant says the Judge did not weigh in her exercise of the discretion the following factors:

(a)The comparatively low level of offending by the appellant.

(b)The appellant’s cooperation with the Police, his immediate admissions and his prompt guilty plea.

(c)His otherwise satisfactory response to earlier sentences.

(d)The assessment in the pre‑sentence report that the appellant was suitable, not only for home detention, but other forms of sentence short of imprisonment.

[10]       Finally the appellant submits the refusal to grant leave neither recognised nor gave effect to the principle that an offender should be subject to the least restrictive sentence.[2]

Discussion

[2]      See Sentencing Act 2002, s 8(g).

[11]       Section 15A of the Sentencing Act 2002 provides as follows:

15A       Sentence of home detention 

(1)If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—

(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b)the court would otherwise sentence the offender to a short-term sentence of imprisonment.

[12]       Section 80I provides as follows:

80I         Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases 

(1)         This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[13]       As French J recognised, the first consideration (once a short term of imprisonment was to be imposed) was whether there was a suitable residence for home detention.  Here, there was none.  The second consideration was whether, in any event, home detention was appropriate in the circumstances and if it was, to grant leave pursuant to s 801.

[14]       On 26 November 2009 the appellant was sentenced to 75 hours community work having pleaded guilty to a charge of possession of cannabis for supply committed a month earlier on 22 October 2009.  Given this offending involved at least an intention to deal in drugs the sentence was merciful.  Within days of that sentence the appellant began selling cannabis.  He was also then serving a sentence imposed by the Court on the cannabis supply charge.

[15]       We agree with the Judge, given the background circumstances to this offending, that the primary sentencing principles were denunciation and deterrence.  The appellant had offended immediately after sentencing for the same type of offending.  A stern warning was therefore required.  He had treated the community based sentence imposed on the earlier offending with contempt.  There was no error in the Judge’s focus on denunciation and deterrence therefore.

[16] The Judge did take into account the appellant’s personal circumstances (at, for example, [7] and [34]) but came to the view that the appellant’s past conduct together with this offending meant prison was the appropriate sentence. The appellant’s co‑operation with the police and his early guilty plea were reflected in the discounts given from his start sentence of two years’ imprisonment.

[17]       We see no error in the Judge’s approach.  All relevant factors were considered and weighed.  In the circumstances the Judge had little choice but to impose a sentence of imprisonment.  No irrelevant matters were considered and the conclusion reached by the Judge was clearly open to her.

[18]       For the reasons given, therefore, the appeal will be dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent