Murray v Police
[2022] NZHC 696
•6 April 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-485-000009
[2022] NZHC 696
BETWEEN GENE MURRAY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 05 April 2022 Appearances:
C Sheat for the Appellant
M L Paish for the Respondent
Judgment:
6 April 2022
JUDGMENT OF GENDALL J
GENE MURRAY v NEW ZEALAND POLICE [2022] NZHC 696 [6 April 2022]
Introduction
[1] The appellant Mr Murray appeals against his sentence of twelve months imprisonment following a guilty plea on charges he faced of strangulation, assault on a person in a family relationship (x2), and breach of supervision.1 The Crown opposes this appeal.
Factual background
[2] I approach the factual background in order of Mr Murray’s most recent offending.
[3] On 27 May 2021 the appellant was residing with his partner of some seven years, the victim of his current offending and their two children. At the time of the offending the victim was pregnant with the appellant’s child.
[4] The appellant at that time was also subject to bail conditions requiring him to reside at an address in Porirua and not to enter the Hutt Valley unless attending the Court or to see counsel. In addition, he was not to associate or have contact with the victim. Nevertheless, at the operative time here he was at the victim’s home in Lower Hutt.
[5] At approximately 1.42 am on the evening in question, the appellant was heavily intoxicated after having consumed two boxes of vodka cruisers. The victim was with her children sleeping at that time, in the living room of her home. The appellant woke her up and she told him to be quiet.
[6] The appellant had pushed the victim and she fell from the bed onto the floor. He proceeded then to climb on top of her and he placed his hands around her neck. He then used his body weight to press down on the victim’s neck putting his knee on her stomach in doing so. He put both hands around her neck and applied pressure as he
1 The breach of supervision charge was subsequently abandoned.
was on top of her, rendering her unable to breathe. These actions gave rise to a charge of assault on a person in a family relationship and a charge of strangulation.
[7] Sometime earlier, on 28 April 2021, the appellant had failed to report to a probation office as he was required to do under a sentence of supervision previously imposed. This gave rise to the charge of breach of supervision.
[8]On 19 April 2021, the appellant was at a property in He was arguing
with the victim, and the appellant punched her on the right side of her face. An explanation the appellant stated he had slapped her out of anger, at how she was behaving in front of him, after being unfaithful. This gave rise to the other charge of assault on a person in a family relationship.
[9] On 23 November 2021, the appellant was given a sentence indication in the District Court by Judge Tompkins on the charges in question here. He accepted the indication, pleaded guilty to these charges, and was subsequently sentenced to 12 months imprisonment. He now appeals that sentence.
Sentencing in the District Court
[10] As I note, after accepting the initial sentencing indication and pleading guilty to the charges in question, the appellant appeared in the District Court on 21 February 2022 for sentencing.2 Judge Tompkins in the District Courts sentenced the appellant on the two charges of family assault and one charge of strangulation as well as the charge for breach of supervision.
[11] In his sentencing exercise, the Judge began with the indicated 22 month starting point from the earlier sentencing indication. His Honour took into account “ the nature of the strangulation, the addition of violence, the presence of young children and the offending whilst on bail”.3 The Judge then accepted that deductions should be made for the appellant’s guilty plea and matters noted in his cultural report. He accordingly deducted the full 25 per cent six-month period for the guilty plea and
2 New Zealand Police v G Murray [2022] NZDC 2962 (District Court decision)
3 At [3].
an additional 4 months for the matters traversed in the s 27 cultural report.4 That brought the end sentence down to the 12 months’ imprisonment he imposed.
Appeal
[12] The appellant appeals the sentence imposed on the basis that it is said to be manifestly excessive. It is argued that greater discounts for factors included in the cultural report were warranted, and that discounts should have been applied to reflect:
(a)the appellant’s genuine remorse and willingness to participate in restorative justice;
(b)the appellant’s efforts to access rehabilitative options and his prospects for rehabilitation;
(c)time spent on electronic monitoring (EM) bail.
[13] The appellant further submits that if the judge had decided not to apply these discounts he should have included, in his reasoning, why they were not applied, yet he did not do so.
[14] The respondent accepts here the Judge did make an error in not considering whether the time the appellant spent on EM bail should have resulted in a small discount. However, the other grounds for this appeal are opposed and the overall sentence in any event the respondent argues, is not manifestly excessive.
Approach on appeal
[15] An appeal against sentence must be allowed if the appeal court is satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.5 In any other case, the appeal must be dismissed.6 An appeal court will generally only intervene where the sentence is manifestly excessive. In determining whether a sentence is manifestly excessive, the authorities have
4 At [6].
5 Criminal Procedure Act 2011, s 250 (2)
6 Section 250(3).
confirmed that the focus is on the end sentence imposed rather than the process by which it is reached.7 It is therefore the overall sentence, including the starting point and total discounts for mitigating features, which needs to be considered on appeal. The issue, however, is always whether the overall sentence is manifestly excessive.
Discussion
[16] This appeal turns on the question on what appropriate discounts are to be allowed on the appellants sentence here. No issue was taken with the starting point adopted by the Judge in the District Court. I will address each ground of the appellant’s challenge in turn.
Inadequate discount for factors included in his cultural report
[17] The appellant is a 30 year old male of Maori and Chinese descent who was whāngai to his paternal grandparents until eight years old. That portion of his upbringing with his grandparents, it seems, was a good one. Upon the death of his grandmother, he and his brothers were returned to their mother. The appellants father was absent for the majority of his childhood and was affiliated with the Mongrel Mob. Also, the appellant has described his mother as a “Mobster”. At the age of 11, the appellant said he witnessed the killing of a family member over a cannabis deal. His early teenage years were marred with truancy, substance abuse and criminal behaviour. He was expelled from all schools he attended. At one point, he was placed in a boys’ home where he says he had bad memories from his time there. Later he was picked up by his father and soon he began prospecting for the Mongrel Mob. However, the appellant contends, for the most part, he does maintain good relationships with his whānau.
[18] The cultural report before the District Court pointed to early exposure to alcohol as a factor in the appellant’s serious offending. The appellant says he used alcohol regularly as a teenager and continued “binge-drinking” as he entered adulthood. He was also introduced to methamphetamine when he was 15 years old, although he says he no longer has an addiction to methamphetamine and that alcohol
7 Tutakangahau v R [2014] NZCA 279 at [36].
is his main problem. His offending here occurred under the influence of alcohol. It was also suggested the appellant suffers from PTSD due to his life experiences and that this has created traumatic bonding, which is depicted in his insecurity, impulsiveness and the violence in his relationship with the victim.
[19] On all these aspects, it seems the sentencing judge applied a discount of four months to the overall starting point or approximately 18 per cent. He did not explore the factors that he took into account from the cultural report in his reasoning.
But I am satisfied, however, that it is clear, he had regard to them.8
[20] Ms Sheat for the appellant submits that the appellant’s offending is substantially less serious than other cases where greater discounts were applied. She maintains that in the context of family violence, where an offender has been subjected to extensive family violence as a child such as here, a greater discount should be available.
[21] In response, Ms Paish for the respondent contends that recent cases of violent offending have resulted in discounts of 10-15 per cent for cultural report matters where the nexus between offending and deprivation has been established. I also note, the appellant’s cultural report does not point to an upbringing especially marred with family violence directed to the appellant, aside from his witnessing the death of his uncle and a general implication associated with gang affiliations.
[22] It is always difficult to ascertain the “correct” range for discounts resulting from s 27 report aspects. They are personal and circumstantial and may or may not establish a nexus to the offending. There is also no fixed limit to such s 27 report discounts.
[23] In Tamakaha v Police, 9 the appellant was granted a 12 per cent discount on a charge of assault with intent to injure. His cultural report depicted an upbringing in a violent household. By the time of the report however, he had good networks and supports. In Ashby v Police10, where the appellant faced a number of charges,
8 District Court decision, above n 2, At [3] and [6].
9 Tamakaha v Police[2019] NZHC 2838
10 Ashby v Police [2021] NZHC 1306 at [52]
including assaulting his partner on two occasions, Gault J in this Court, considered that a 10 to 15 percent discount would have been appropriate. His Honour found there was a demonstrable nexus between the appellant’s offending and the fact that he had undertaken anger management courses, as well as noting that the victim of his offending was supportive of him when he would be released from prison. In Stansbury v Police,11 the appellant breached a final protection order issued against him in relation to the victim with whom he had been in a relationship for four years and shared two children. After a session of drinking he began to verbally abuse the victim and pursued her into her house, engaged in further verbal abuse and also pushed her before she managed to escape. A second assault commenced against another former partner whereby again he verbally abused her. Paul Davison J in this Court took into account the fact that the report referred to the appellant as being “truly remorseful” and noted his commitment to rehabilitation.12 In light of that, the Judge considered a discount of five per cent was applicable to the different charges, although ultimately the appeal was dismissed.
[24] In the present case, the overall discount for these matters reached in the District Court, as I understand it was for a period of four months or approximately 18 percent. I am satisfied it was an appropriate discount here. Certainly, it cannot be said to be so inadequate as to have caused the end sentence to be manifestly excessive.
Other discounts for personal factors
[25] Ms Sheat for the appellant goes on to argue that discounts should have been available for the appellant’s willingness to engage in rehabilitation. She says he had already taken active steps to address the matters raised in his cultural report by accessing AOD services whilst in custody. Also, it seems he has referred himself to the Kōkiri Marae for a non-violence programme. In addition, she notes, he has expressed a desire to complete PACT’s residential rehabilitation programme.
[26] Further it is argued here that the appellant has displayed genuine remorse for his actions and was willing throughout to undertake a restorative justice process.
11 Stansbury v Police [2021]NZHC 346 at[32]
12 At [34]
Ms Sheat maintains that he regrets everything he has done and blames himself rather than the victim for his actions.
[27] In response, Ms Paish for the Crown contends that the Judge in the District Court clearly had in mind remorse and rehabilitative prospects when he applied the overall four month discount. This it has said, is because the cultural report itself had regard to these factors In my view, that may have well been the case. Judge Tompkins did refer to “additional matters traversed in a s 27 cultural report” in his decision.13 It is clear however that, a cultural report traverses many factors personal to an offender. It attempts also to provide the court with an understanding of his/her background which in many cases includes significant deprivation. All this does not mean, however that a discount for cultural report factors should be taken to mean the court has factored in other personal matters that may themselves be worthy of discounts. As Gault J observed in Ashby v Police a “cultural report is inherently looking at background factors. It is not a forward-looking report. Nor is it a psychological report.”14
[28] As I see the position in this case, a possible argument does exist that some further notion of discount might be available for these other factors. Alternatively, if no such additional discount were to be entertained, then it would have been desirable for the District Court Judge to identify in his reasoning the apportioned discount he gave for cultural report matters and also any further discounts he gave for additional matters. It seems he did not do this.
[29] On these aspects, in theory a discount here of no more than about five per cent could be seen as a possibility, for genuine remorse on the part of the appellant and his actively pursuing rehabilitative options. On its own however, such an additional five per cent discount, in my view, is of little moment in this case.
13 District Court decision, above n2, at [6]
14 Ashby v Police above n 10 at [40]
Discount for time spent on EM bail
[30] The appellant here spent approximately six months on EM bail from June to December 2021. In that time, he breached his bail conditions 13 times. Before me the respondent accepts that the Judge in the District Court did err in not considering whether the time the appellant had spent on EM bail should have resorted in a discrete sentencing discount.
[31] In endeavouring to explain why the appellant breached his bail conditions on the number of occasions he did, before me Ms Sheat suggested that when he was not held to account for minor bail breaches he experimented with, the appellant had developed a false sense of security about what he could “get away with”. This argument does not greatly assist the appellant however as I see it. If anything, it points to his disregard for conditions put in place upon him by the Court. Indeed, the appellant was only readmitted to bail by “a very fine margin”.15 I do accept however, that the Judge in the District Court, at the very least, should have considered the time the appellant had spent on EM bail. Section 9(2)(h) of the Sentencing Act 2002 requires the court to take into account the fact that an offender has spent time on EM bail as a mitigating factor. Had the Judge done so, he would have needed to balance the six months the appellant had spent on EM bail against the effect breaches of bail would have had on that consideration. And I note too, that the imposition of a discount here is not itself mandatory.
[32] In Ware v Police,16 Ellis J in this Court, considered that, whereas pre-custodial remand had a 1:1 ratio in terms of time deducted from the sentence, EM bail involved a 2:1 ratio subject to competing considerations such as non-compliance. So, here the appellant might have received a maximum three month discount, substantially reduced due to his numerous instances of noncompliance. On this I consider that a maximum discount of no more than one month might possibly have been available to the sentencing Judge.
15 NZ Police v Murray [2021] NZDC 35 at [17].
16 Ware v Police [2021] NZHC 3320 at [11]
[33] It is always a matter for judicial determination as to whether a discount should be given for time spent on EM bail. While the consideration of a discount for time spent on EM bail is mandatory, the imposition of a discount is not. At most here, Ms Paish for the respondent suggests the appellant might receive a small discount of, not more than a month, because of a range of factors including his repeated non- compliance.
[34] I turn now to consider whether the end sentence imposed here of 12 months imprisonment was within an acceptable range and thus whether or not it could be considered manifestly excessive. On this aspect in R v Monkman,17the Court of Appeal considered the factors that would make a sentence ‘manifestly excessive’ - at [6] the Court stated”
Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).
[35]As Kos J commented, at [17] and [18], in Rikihana v Police:18
When considering whether the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached.
The High Court on appeal from the District Court will not lightly alter a sentence imposed by an experienced sentencing judge. It is not the function of this Court to tinker with sentences, or alter them at all unless it feels that the sentence imposed is contrary to both principle and conscience
[36] The present case involved two serious incidents of family violence offending perpetuated against the appellant’s partner, with the second involving strangulation perpetrated in front of the parties’ two young children, who attempted to intervene ultimately leading to the appellant stopping his assault.
[37] The summary of facts for the May 2021 offending noted that the appellant has an extensive family harm history with this victim involving violence, and in some
17 R v Monkman CA 445/02, 3 March 2003
18 Rikihana v Police [2013]NZHC 711
episodes, firearms. The appellant was on bail at the time of the May 2021 offending. This bail included conditions not to associate or have contact with the victim or the children at her address, not to threaten or use violence against any person or property, and not to enter the Hutt Valley unless attending court to see counsel by pre-arranged appointment. Overall, the appellant’s offending was serious and flagrant and as I see it, he needed to be held accountable for it.
Conclusion
[38] For all the reasons I have outlined above, I am satisfied the sentence imposed in the District Court was clearly within range here and not contrary to principle when considering the ‘manifestly excessive’ sentence factors identified in R v Monkman19
[39] Notwithstanding here that the Judge in the District Court did make an error, properly acknowledged by the respondent, with respect to the issue of a discrete discount for the time spent on EM bail, I am satisfied the end sentence he imposed was not manifestly excessive.
[40] That end sentence in my view appropriately denounces the appellant’s serious conduct here and holds him accountable for his offending.
[41]This appeal is dismissed.
Gendall J
Solicitors: Cathie Sheat Barrister & Solicitor, Wellington Luke Cunningham & Clere, Wellington
19 Above n 17
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