Murray v Police - [2022] NZHC 696

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…

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 [2022] NZHC 696
Case: [2022] NZHC 696
Decision Date: 6 April 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Gene Murray appealed his sentence of twelve months imprisonment for charges including strangulation, assault on a person in a family relationship (twice), and breach of supervision. The Crown opposed the appeal. Murray's sentence was imposed by Judge Tompkins in the District Court following his guilty plea. Murray argued that the sentence was manifestly excessive, contending that greater discounts for factors such as his remorse, efforts to access rehabilitation, and time spent on electronic monitoring (EM) bail were warranted. The respondent accepted the judge made an error in not considering whether the time spent on EM bail should have resulted in a discount but opposed the other grounds for the appeal.

The appeal hinged on the appropriate discount for the appellant's sentence. The court considered the appellant's cultural report, which detailed his exposure to alcohol and methamphetamine, and his history of family violence and criminal behavior. The judge applied a discount of four months, approximately 18%, based on the cultural report. The court found this discount appropriate and not inadequate. The court also considered additional discounts for the appellant's remorse and efforts to engage in rehabilitation, finding that while a small additional discount could have been possible, it would have had little impact on the overall sentence. The court concluded that the District Court judge should have considered a discount for time spent on EM bail but found that even with a possible one-month discount, the overall sentence was not manifestly excessive. The sentence appropriately denounced the appellant's conduct and held him accountable for his serious and flagrant offending. The appeal was dismissed.

Orders