Murray v Police
[2024] NZHC 2574
•6 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-182 [2024] NZHC 2574
BETWEEN ANDREW HUGH MURRAY
Appellant
AND
POLICE
Respondent
Hearing: 6 September 2024 Appearances:
M Starling for Appellant
G L Collett for Respondent
Judgment:
6 September 2024
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
MURRAY v POLICE [2024] NZHC 2574 [6 September 2024]
Introduction
[1] Andrew Murray pleaded guilty to charges of dangerous driving;1 and driving with excess breath alcohol (third or subsequent) (aggravated EBA).2 He was sentenced on 24 July 2024 by Judge Couch to six months’ community detention, 100 hours’ community work, 12 months’ supervision, eight months’ disqualification and eight months’ on an interlock licence.3 Mr Murray appeals against sentence.
Facts
[2] Late evening on 16 February 2024, Mr Murray drove at 167 km/hr on a 100 km/hr main state highway. He overtook vehicles against a solid yellow centreline into oncoming traffic. When stopped by police, Mr Murray’s breath alcohol was recorded as 1,014 micrograms of alcohol per litre of breath.
District Court Decision
[3] Judge Couch observed that Mr Murray was appearing on his third dangerous driving and fourth EBA charge, acknowledging his previous similar convictions were “distinctly dated” having been committed between 2001 and 2006. The Judge referred to Mr Murray’s 10 prior infringements for speeding. The Judge considered that the present offending showed Mr Murray had “not changed [his] ways”.4
[4] The gravity of the offending was assessed by the Judge to be very serious, emphasising what was described as a “ridiculous speed” and a breath alcohol level over four times the legal limit.5
[5] The Judge did not articulate a sentence starting point or quantify any credits allowed but took into account Mr Murray’s prompt guilty pleas in imposing the sentence on both charges, the community detention being a daily curfew of 7 pm to 7 am.
1 Land Transport Act 1998, s 35(1)(b) — maximum penalty three months’ imprisonment or $4,500 fine.
2 Section 56(1) and (4) — maximum penalty two years’ imprisonment or $6,000 fine.
3 Police v Murray [2024] NZDC 18072.
4 At [4].
5 At [6].
Principles on appeal
[6] An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
Submissions
Appellant’s submissions
[7] In his written submissions, Mr Starling submitted, noting the absence of an identified starting point, that the end sentence was manifestly excessive and a sentence of supervision with community detention or community work was the least restrictive sentence to satisfy the purposes and principles of sentencing.8 Mr Starling acknowledged the very high alcohol reading and high speed as aggravating factors but highlighted the historic nature of the prior offending.
[8] Further, Mr Starling submitted the Judge erred in not applying discounts first, for the appellant’s guilty pleas, and secondly, his upbringing and personal circumstances including mental health issues described as a bipolar condition and recent Attention Deficit Hyperactivity Disorder (ADHD) diagnosis.
[9] This morning, in his oral submissions, and having reflected on the written submissions of Ms Collett for the police, Mr Starling acknowledges there is strength in the respondent’s argument that the end sentences imposed by the Judge was not manifestly excessive.
Respondent’s submissions
[10] Ms Collett, in opposing the appeal, has referred to a number of recent authorities. Having regard to those authorities and the aggravating factors present in
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15].
8 Sentencing Act 2002, ss 7 and 8.
this offending, she submits a starting point of 14-16 months’ imprisonment was justified before any uplifts for prior offending.9 Taking that starting point and applying what Ms Collett said would be a “generous” combined discount of 50 per cent for first reasonable opportunity guilty pleas and personal circumstances, a sentence of three to four months’ home detention, assuming a commuting of a sentence of imprisonment to home detention, would have been available. She submits that a short sentence of home detention would not have been manifestly excessive and neither is a lesser sentence in the hierarchy of sentencing.
Analysis
[11] The Judge did not articulate a starting point nor quantify any discrete discounts. It is generally important for Judges to provide reasons for their decisions and to set out the process by which a sentence has been reached.10 I, of course, acknowledge that in a busy list Court and having determined the appropriate end sentence to be one short of home detention, the Judge might be less likely to be in a position to refer to relevant case law. Nevertheless, some indication as to how a sentence is constructed will always benefit an appellate Court. A failure to do so will more likely encourage an appeal. However, a failure to give reasons or articulate a starting point will not necessarily result in a successful appeal.11 The focus on the appeal is the end sentence and whether it is manifestly excessive.
[12] Clotworthy v Police continues to provide the framework for sentencing repeat drink driving offenders. In Clotworthy, Wild J identified the relevant aggravating and mitigating factors for sentencing aggravated EBA offending, including the alcohol level, length of time since the last relevant conviction, manner of driving, whether and when guilty pleas had been entered, compliance with sentences previously imposed and whether genuine remorse has been demonstrated.12 In Samson v Police, Whata J, having reviewed relevant authorities, made some broad generalisations as to starting
9 Gemmell v Police [2021] NZHC 3018; Hayde v Police [2021] NZHC 3218; Jennison v Police
[2022] NZHC 2070; and Sands v Police [2018] NZHC 3048.
10 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) and Ekeroma v R [2021] NZCA 250 at [16].
11 See, for example, R v Jeffries [1993] 3 NZLR 211 (CA) at [16].
12 Clotworthy v Police HC Wanganui CRI-2003-483-13 at [20]; cited with approval more recently in Samson v Police, above n 9, at [13].
points in relation to aggravated drink driving offending.13 Whata J observed that generally the Court can adopt a starting point of nine to 12 months’ imprisonment where there are no seriously or only moderately aggravating factors, or 12 to 18 months’ imprisonment where there is one or more seriously aggravating factors.14
[13] The cases cited by Ms Collett and which led to a reconsideration by Mr Starling, I find to be of assistance. In Gemmell v Police, the appellant was reported for driving erratically and returned a breath test result of 1,301 μg/L.15 She was driving on a zero-alcohol licence and had two prior EBA convictions from five and six years prior. Palmer J found a starting point of between nine to 12 months’ imprisonment was warranted and a sentence of imprisonment could have been the outcome.16 The sentence of nine months’ supervision, six months’ community detention and an interlock order was upheld.17 In Hayde v Police, this Court dismissed an appeal against a sentence of nine months’ imprisonment and one-year disqualification for one aggravated EBA charge, the appellant’s fourth EBA conviction.18 That appellant had driven dangerously in a residential area, crashed into a parked vehicle and mounted the kerb. He returned a breath test result of 556 μg/L. Robinson J found a starting point of 12 months’ imprisonment was “well within the range available”.19
[14] Higher starting points of 16 months’ imprisonment and 18 months’ imprisonment were considered appropriate in Jennison v Police and Sands v Police, respectively.20 In Jennison, the appellant, while under the influence of Lorazepam and Tramadol, had driven erratically, crossed a centreline and crashed into a fence. He had five previous EBA convictions. Dunningham J upheld the 16-month starting point and found the sentencing Judge was entitled to decline home detention.21 Sands v Police involved an appeal against a sentence for one EBA charge of 17 months’ imprisonment and two years’ disqualification from driving with leave to apply for home detention if
13 Samson v Police, above n 9.
14 At [15].
15 Gemmell v Police, above n 9.
16 At [19].
17 At [20].
18 Hayde v Police, above n 9.
19 At [32].
20 Jennison v Police, above n 9; and Sands v R, above n 9.
21 Jennison v Police, above n 9, at [17] and [26].
served at a residential treatment facility.22 The appellant was found near midnight in the driver’s seat of his vehicle, having been revving his engine for five minutes which awoke residents. He returned a breath alcohol test of 1,025 μg/L. Mr Sands had accumulated 12 EBA convictions over a 14-year period, the most recent being six years earlier. The appeal was allowed in part by Gendall J. The starting point was adjusted from 20 months to 18 months’ imprisonment but not commuted to home detention.23
[15] The aggravating factors of Mr Murray’s offending are his very high alcohol level, the dangerously high speed of 167 km/h, and the dangerous manner of his driving which involved overtaking a yellow centreline into oncoming traffic. The sentencing Judge was quite right to observe that it was only a matter of good fortune that no one was injured or killed.
[16] I acknowledge that Mr Murray’s relevant prior convictions are now historic but it is worrying that after nearly 17 years absent convictions for driving offences, he has committed, in the same incident, two very serious driving offences, which could mark a return to his old ways. There are no mitigating factors of the offending itself; indeed Mr Murray’s explanation to the police was that he decided to drive home after watching a game of rugby at the pub and as recorded in the pre-sentence report, he “wanted to see how fast he could get there”.
[17] I acknowledge it is a positive sign Mr Murray recognises his alcohol use is at the root of this offending and regrets his actions, but accountability, deterrence and protection of the community remain dominant considerations.24 I agree with Ms Collett that a starting point of between 14 and 16 months’ imprisonment was within the available range having regard to both offences. Although not articulating the credit allowed for guilty pleas, it is clear the Judge did take those pleas into account.25 I assume a 25 per cent deduction was intended to be allowed.
22 Sands v R, above n 9.
23 At [22] and [30].
24 Sentencing Act, s 7(1)(a), (f) and (g). See also, Wilson v Police [2006] DCR 655 (HC) at [52]; and Sands v Police, above n 9, at [30], where deterrence and denunciation were held to be important factors when sentencing offending of this type.
25 Police v Murray, above n 3, at [7].
[18] Mr Starling is correct to submit the Judge did not address the mental health issues that were discussed in a pre-sentence report and advanced in the written submissions in support of the appeal. The reference to Mr Murray’s bipolar condition relied on an observation made by Mr Murray’s brother and reported in the pre-sentence report. The only reference to his ADHD was an informal diagnosis by a counsellor. There was no material before the Court addressing those conditions or how they might relate to the offending.
[19] From a starting point of imprisonment acknowledging credits for guilty pleas and for personal factors, the Judge must have taken the view that the length of time since Mr Murray’s previous driving offending, his guilty pleas, his acknowledgement that alcohol remained a problem, and his mental health challenges were all factors that justified commuting that sentence to one short of imprisonment. The Judge did not undertake that analysis and rather than referring to home detention at all, the Judge imposed a sentence below home detention in the hierarchy of sentencing.
[20] The end sentence had both punitive (community detention and community work) and rehabilitative elements (supervision). Mr Starling’s central argument was that the Judge was wrong to impose both community detention and community work. But in my view the Judge was quite entitled to impose those punitive sentences to reflect the distinct offences of dangerous driving and aggravated EBA.
Result
[21] I do not consider there to be any error in the approach adopted by the Judge. I am satisfied the end sentence imposed was not manifestly excessive. The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
M Starling, Barrister, Christchurch
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