Murray aka McKenzie v Police - [2014] NZHC 2439

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000052 [2014] NZHC 2439

BETWEEN
SHANE DAVID MURRAY AKA

MCKENZIE Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 October 2014

Appearances:

M Starling for Appellant
M A Elliott for Respondent

Judgment:

2 October 2014

ORAL JUDGMENT OF GENDALL J

The appeal

[1] The appellant Mr Murray appeals against a sentence of 25 months’

imprisonment imposed by Judge O’Driscoll in the Christchurch District Court on

18 June 2014. Judge O’Driscoll sentenced Mr Murray to:

(a) twenty-four months’ imprisonment for a charge of assault with intent to injure;1

(b) two months’ imprisonment to be served concurrently with the assault

charge for being unlawfully on property;2 and

(c) one month’s imprisonment, a cumulative sentence on a charge of possession of cannabis.3

1      Crimes Act 1961, s 193. Maximum penalty of three years’ imprisonment.
2      Summary Offences Act, 29(1)(a). Maximum penalty of three months’ imprisonment or fine of
$2,000.
3      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b).

MURRAY AKA MCKENZIE v NEW ZEALAND POLICE [2014] NZHC 2439 [2 October 2014]

[2]

Judg

Mr

e O’Dr

Murray bring a rather limited appeal here on the basis that

iscoll erred only by:

(a)

imposing a sentence of imprisonment for Mr Murray’s cannabis

offending; and

(b)

overlooking s 7(2)(b) of the Misuse of Drugs Act 1975.

Background Facts

Assault with intent to injure; unlawfully on property

[3] Turning to the background facts, first with regard to the assault with intent to injure and being unlawfully on a property, Mr Murray and the victim were in a relationship for about a year that ended several months ago. The victim lived with her two children in a rented home in Christchurch.

[4] On 16 November 2013 before midnight, the victim arrived home early, closed the doors to the house and went to bed.

[5] On 17 November 2013 at about 12:30 a.m. Mr Murray went to the victim’s address. He entered the house through a closed unlocked door. He went to her bedroom and woke the victim as he sat on her bed and started verbally abusing her.

[6] He grabbed at her and punched her repeatedly in the face, then grabbed at her mouth causing his fingers to push against her gums inside her mouth. He told her “you’re fucking lucky I don’t kill you” and told her that she was a bitch. Mr Murray grabbed the victim’s head and pulled her by the hair. She got up and walked in the direction he was pulling her. He spat in her face.

[7] Once in the lounge Mr Murray shoved the victim down onto the couch into a sitting position. He covered her mouth with the palm of his hand and squeezed her throat while having his fingers on one side of her windpipe and his thumb on the other. The victim struggled to breathe while he did this.

[8] After letting the victim get up, Mr Murray forced her onto the floor and put his foot…

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.

Keep reading for free

Create a free CaseChat account to read Murray aka McKenzie v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 2439
Decision Date: 2 October 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Murray aka McKenzie appealed against a sentence of 25 months’ imprisonment imposed by Judge O’Driscoll in the Christchurch District Court. The appellant, Mr Murray, argued that the sentence was excessive and that Judge O’Driscoll erred by imposing a sentence of imprisonment for his cannabis offending and by overlooking the proviso in s 7(2)(b) of the Misuse of Drugs Act 1975. The court had to determine whether the sentence was manifestly excessive or wrong in principle and whether the proviso in s 7(2)(b) of the Misuse of Drugs Act 1975 had been overlooked.

The court held that the appeal was not successful as the sentence was not manifestly excessive or wrong in principle. The court held that Judge O’Driscoll was entitled to impose a cumulative sentence of imprisonment for the cannabis offending, given the custodial sentence imposed for the more serious offences of assault with intent to injure and unlawfully being on the victim’s property. The court held that the end sentence did not result in an aggregate term wholly out of proportion to the gravity of the offences when viewed as a whole. The appeal was dismissed.

This case highlights the importance of considering the totality principle when imposing a sentence, and that an appellate court should not interfere with a sentence imposed by a District Court Judge unless the sentence is manifestly excessive or wrong in principle. It also highlights the importance of considering the proviso in s 7(2)(b) of the Misuse of Drugs Act 1975 when imposing a sentence for cannabis offending.

Orders