Murray v Police - [2024] NZHC 2574

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…

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 v Police

Details

AGLC: Murray v Police [2024] NZHC 2574
Case: [2024] NZHC 2574
Decision Date: 6 September 2024

CaseChat Overview and Summary

In this case, Andrew Murray appeals against his sentence imposed by the District Court, which was six months’ community detention, 100 hours of community work, 12 months’ supervision, eight months’ disqualification, and eight months on an interlock licence. The appeal was heard and dismissed by Justice Eaton on 6 September 2024. The key issues for the court were whether the sentence imposed by the District Court was manifestly excessive and whether there were errors in the application of sentencing principles.

Murray pleaded guilty to charges of dangerous driving and driving with excess breath alcohol (third or subsequent). The sentencing judge, Judge Couch, noted Murray's previous convictions for similar offences and his high breath alcohol level of 1,014 micrograms of alcohol per litre of breath. The Judge determined that the gravity of the offending was very serious and imposed the sentence considering Murray's prompt guilty pleas. The court considered whether the sentence was manifestly excessive, especially given the absence of a clearly articulated starting point or quantified discounts for Murray's guilty pleas and personal circumstances.

Justice Eaton found that while the Judge did not explicitly articulate a starting point or quantify discounts, it was clear the Judge considered Murray's guilty pleas and personal factors, such as his acknowledgment of alcohol as a problem and his mental health issues. Eaton J concluded that the end sentence was not manifestly excessive and appropriately balanced punitive and rehabilitative elements. The appeal was dismissed, and the sentence imposed by the District Court was upheld.

The final orders were that the appeal against sentence is dismissed, and the original sentence remains in place.

Orders