Murray-MacGregor v R
[2011] NZCA 66
•15 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA506/2010 [2011] NZCA 66 |
| BETWEEN MALCOLM ALEXANDER MURRAY-MACGREGOR |
| AND THE QUEEN |
| Hearing: 28 February 2011 |
| Court: Chambers, Chisholm and Venning JJ |
| Counsel: R Vigor-Brown for Appellant |
| Judgment: 15 March 2011 at 11 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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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 July 2010.
Following his arrest in November 2009 Mr Murray-MacGregor was remanded in custody. Given that he had been involved in serious offending while on bail, this was hardly surprising.
On 2 December 2009 he was bailed to his parents’ address where he was subject to a 24 hour curfew except for the purpose of attending appointments with legal counsel or attending court. It was a condition of bail that he was not to be in possession of a cell phone. These bail conditions were later varied to enable Mr Murray-MacGregor to attend drug and alcohol counselling and he completed this course while on bail.
When the police carried out a curfew check on 31 January 2010 Mr Murray‑MacGregor was not at his parents’ home. Family members advised that he had gone to hospital with back pain and subsequent enquiries revealed that this was correct. No breach of bail was recorded. For the purposes of this appeal we will disregard this absence from the curfew address.
A further curfew check on 18 February 2010 revealed that Mr Murray‑MacGregor was not present. Later he claimed that he was on his way to the police station to arrange transport for a forthcoming court appearance. He instructed Mr Vigor-Brown that he was doing so on the recommendation of his lawyer. However, Mr Vigor-Brown told us that he had made contact with the lawyer who was representing Mr Murray-MacGregor at the time and the lawyer had no recollection of such a discussion. In any event, Mr Murray-MacGregor was breached but readmitted to bail.
On 10 March 2010 Mr Murray-MacGregor’s bail was varied to enable him to return to his home address. From that time he resided at that address with his partner and children, subject to the 24 hour curfew described earlier.
Another breach occurred on 7 April 2010 when he was found to be absent from his home. His explanation for this breach was that he had gone to see a person about getting help for intimidation of his partner by local gang members. He was readmitted to bail.
The final breach occurred on 26 April 2010. He was not present when the police conducted a curfew check and was subsequently located driving a vehicle. He was a forbidden driver. His explanation was that he was going to get another vehicle for an upcoming court appearance. He was re-admitted to bail and remained on bail until he was sentenced on 9 July 2010.
The appellant’s argument
Mr Vigor-Brown argued that the appellant’s adherence to the 24/7 bail condition should have been taken into account by the District Court Judge when determining the term of imprisonment. He submitted that a 24 hour curfew whilst on bail is equivalent to a sentence of home detention and that the Court had failed to recognise the period that had been spent on restrictive bail. He noted that during the period that the appellant was on bail he had successfully completed the counselling and therapy course.
With reference to the breaches of bail, Mr Vigor-Brown claimed that the appellant had:
... dealt with the various issues that gave rise to the breaches of bail in an unsophisticated and impetuous manner, but one must have regard to his socio-economic position, and the very real difficulties of residing in Tokoroa, when Rotorua Court appearances were required.
He contended that if the District Court had considered that the appellant’s explanations for his breaches of bail were unreasonable then his bail would have been revoked. Significantly, this had not occurred.
In his initial submissions Mr Vigor-Brown contended for a nine month discount. However, in his submissions in reply to the Crown’s submissions this discount was reduced to six months.
Relevant principles
A convenient summary of the principles relating to credits for compliance with a restrictive bail regime can be found in the decision of this Court in Filoa v R[2].
[9] 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. In particular, a 24 hour curfew or EM bail need not be treated as the equivalent of home detention. Relevant considerations are the extent to which the offender’s liberty has been curtailed by the bail conditions, the duration of the remand on bail, and whether the offender breached bail. (Footnotes omitted)
To a large extent those principles draw on the earlier decisions of this Court in R v Nepe[3], R v Bidois[4] and R v Faisandier[5].
[2] Filoa v R [2010] NZCA 588 at [9].
[3] R v Nepe [2008] NZCA 98 at [32]-[33].
[4] R v Bidois [2009] NZCA 426 at [11].
[5] R v Faisandier CA185/00, 12 October 2000 at [28]-[31].
An evaluative exercise of all the circumstances is necessary to determine whether or not there should be a credit and, if so, the extent. These are discretionary considerations. Given the underlying premise of compliance with the restrictive bail regime, breaches of bail will usually be a highly relevant consideration.
Our evaluation
The appellant’s argument that he should receive a credit does not get off to a very promising start when the lead up to the 24 hour curfew is taken into account. Having pleaded guilty to drug dealing on 28 September 2009 Mr Murray-MacGregor continued to offend while he was on bail. This offending included conspiring to supply and offering to supply a class A drug. Given that situation he was fortunate to obtain bail on 2 December 2009.
While, as already indicated, we are prepared to ignore his absence on 31 January 2010 when a curfew check was undertaken, we are disinclined to take a charitable view of the subsequent breaches. Whatever the reason, he was in breach of the 24 hour curfew on several occasions and this weighs heavily against this appeal succeeding.
Our evaluation also takes into account several other factors: first, the period of bail was not particularly lengthy (around seven months); secondly, for almost three months he was at home with his partner and children; thirdly, given the nature and duration of the offending and the fact that there was significant offending while on bail, we have reached the conclusion that the sentence of three years imprisonment imposed on Mr Murray-MacGregor was in fact lenient.
In the end result we have not been persuaded that the Judge erred by declining to allow a further discount for the time spent on bail.
Result
The appeal against sentence is dismissed.
Solicitors:
Moana Law, Rotorua, for Appellant
Crown Law Office, Wellington, for Respondent
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