Murray-MacGregor v R - [2011] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND

CA506/2010
[2011] NZCA 66

BETWEEN MALCOLM ALEXANDER MURRAY-MACGREGOR
Appellant

AND THE QUEEN
Respondent

Hearing: 28 February 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: R Vigor-Brown for Appellant
T Epati for Respondent

Judgment: 15 March 2011 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

This appeal against a sentence of three years imprisonment for drug offending is advanced on the sole ground that a discount should have been provided to reflect that Mr Murray-MacGregor was subject to restrictive bail conditions for approximately seven months prior to sentencing. It is contended that there should have been a reduction of six months.

Background

On 9 September 2009 the police executed a search warrant at Mr Murray‑MacGregor’s home in Tokoroa. They located .06 grams of methamphetamine and a methamphetamine pipe. They also located 33 grams of cannabis head, 14 cannabis tinnies, 840 grams of lower grade cannabis, cash and a “tick list”.
Subsequently, on 28 September 2009, Mr Murray-MacGregor pleaded guilty to possession of methamphetamine, possession of utensils and possession of cannabis for supply. He was then bailed to appear for sentence in December 2009.
During October 2009 the police conducted an undercover operation into the sale of illicit drugs from various addresses. On 21 October 2009 Mr Murray‑MacGregor sold a cannabis “tinnie” to an undercover officer. When the undercover officer returned the next day for a second purchase Mr Murray‑MacGregor said that he was “all out” and that she should come back.
The police visited Mr Murray-MacGregor’s property again on 27 October 2009 for the purpose of dropping off his son. On arrival they smelt cannabis smoke and the resulting search revealed small amounts of methamphetamine and cannabis, as well as a glass pipe. Of much greater significance were the cell phones seized by the police. These revealed that between 9 September and 27 October 2009 the appellant had sent text messages offering to supply methamphetamine and cannabis.
Mr Murray-MacGregor was arrested on 18 November 2009 and a further 10 charges were laid. On the morning of his trial (6 May 2010) he entered pleas of guilty to offering to supply methamphetamine, conspiring to supply methamphetamine, offering to sell cannabis and selling cannabis. The remaining charges were not pursued.
On 9 July 2010 Judge Cooper sentenced Mr Murray-MacGregor to a total of three years imprisonment and Mr Murray-MacGregor accepts that this overall sentence was, subject to the issue raised by this appeal, “unobjectionable”.[1] At that sentencing counsel then representing Mr Murray-MacGregor had presented written submissions asking the Court to bear in mind that the prisoner had been on a 24/7 curfew for in excess of seven months. The pre-sentence report also made reference to that matter. Although the Judge did not expressly mention the issue, we proceed on the basis that the possibility of a discount was considered and rejected.

Bail history

[1] R v Murray-MacGregor DC Rotorua CRI-2009-077-1881, 9…

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 Murray-MacGregor v R

Details

AGLC: Murray-MacGregor v R [2011] NZCA 66
Case: [2011] NZCA 66
Decision Date: 15 March 2011

CaseChat Overview and Summary

Malcolm Alexander Murray-MacGregor appealed against a three-year imprisonment sentence for drug offences, contending that a discount should have been provided to reflect that he was subject to restrictive bail conditions for approximately seven months prior to sentencing. The appeal was advanced on the sole ground that there should have been a reduction of six months. The Court of Appeal heard the appeal on 28 February 2011 and delivered its judgment on 15 March 2011.

The legal issue the court was required to decide was whether the appellant should receive a credit for the time spent on restrictive bail conditions. The court considered the principles relating to credits for compliance with a restrictive bail regime. The court noted that compliance with a restrictive bail regime can be taken into account in mitigation of sentence, but need not. The sentencing judge assesses whether and to what extent a discount is given in the circumstances of the case. When quantifying it the judge need not take an arithmetical approach by equating restrictive bail to some period of imprisonment. The court considered the extent to which the offender’s liberty had been curtailed by the bail conditions, the duration of the remand on bail, and whether the offender breached bail.

The court considered the appellant's adherence to the 24/7 bail condition and the breaches of bail. The court found that the appellant had breached bail on several occasions, which weighed heavily against the appeal succeeding. The court also considered that the period of bail was not particularly lengthy, and that the sentence of three years imprisonment imposed on the appellant was, in fact, lenient. The court was not persuaded that the judge erred by declining to allow a further discount for the time spent on bail.

The appeal against sentence was dismissed.

Orders