Murray v Police

[2020] NZHC 3468

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000136

[2020] NZHC 3468

BETWEEN

DANIEL WAYNE MURRAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 December 2020 (Heard at Tauranga)
Appearances:	Gerard Walsh for the Appellant Oliver Salt for the Respondent
Judgment:	21 December 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 21 December 2020 at 12:30 pm.

Registrar/ Deputy Registrar Date:

MURRAY v NEW ZEALAND POLICE [2020] NZHC 3468 [21 December 2020]

Introduction

[1]    This is an appeal against sentence. On 13 November 2020, the appellant, Daniel Murray, and his co-offenders, appeared for sentence before Judge T R Ingram in the District Court at Tauranga. He was sentenced to 20 months’ imprisonment on one charge of burglary.1 He appeals against sentence as being manifestly excessive.

Factual background

[2]    Mr Murray and his co-offenders, Harley Morehu and Kane Phillips, are all members of the Hauraki Killer Beez gang. Mr Morehu is said to be the captain and Mr Murray is said to be second-in-command. It is claimed there is “bad blood” between Mr Morehu and the victim in this case, Glen Williams. The victim had apparently accused Mr Morehu of providing methamphetamine to his ex-partner.

[3]    On 31 October 2018, Mr Murray and his co-offenders travelled to an address in Paeroa seeking out Mr Williams. Mr Morehu travelled in his own car accompanied by members of the Killer Beez. Mr Murray, Mr Phillips and another man, Christopher Taukiri, drove there in Mr Murray’s car. Mr Phillips was in possession of a pump- action shotgun.

[4]    At the time, Mr Williams was in a shed at the back of his property. He saw Mr Murray and his co-offenders arrive. Mr Williams told one of his associates to get his .22 firearm for protection.

[5]    Mr Morehu, backed up by Mr Murray, Mr Phillips and Mr Taukiri, went into the property (but not the home) and confronted Mr Williams. He said he wanted to fight Mr Williams. The occupants of the address told the men to leave. The victim’s son, Kahn Williams, who was in the house at the time, saw what was going on. He armed himself with a .303 firearm. He went outside and fired a shot to scare the intruders off. Most of those present withdrew, but Mr Morehu and Mr Taukiri continued to threaten, taunt and intimidate Mr Williams.

1      R v Murray [2020] NZDC 23722

[6]    Then, Mr Phillips went back to the car to retrieve the pump-action shotgun from Mr Murray’s car. He then advanced carrying the gun. Kahn Williams fired a second warning shot. Mr Phillips continued to advance. An associate of Mr Williams took the .22 rifle and fired at the men. Mr Morehu was hit several times. He received non-life threatening injuries.   Mr  Morehu retreated back to his  vehicle and left.   Mr Murray entered his car with his co-offenders. Kahn fired a third shot, which hit the car.

PAC report

[7]The report writer notes that, since 2006, Mr Murray, aged 31, has accumulated

19 convictions for a variety of offences, including common assault, disorderly behaviour, burglary, threatening behaviour, shoplifting and various traffic infringements. Further, due to the number and nature of his convictions, his gang associations and history with drugs, Mr Murray is assessed as representing a high risk of re-offending. He is also assessed as posing a high risk of harm to others.

[8]    Additionally, the report writer observes that Mr Murray has active charges for alleged possession of methamphetamine for supply, conspiring to deal methamphetamine, two counts of supply/admin/dealing methamphetamine, and unlawfully possessing a restricting weapon/pistol. He has pleaded not guilty.

[9]    Notably, the  report  writer  recommends  a  sentence  of  home  detention.  Mr Murray has successfully completed community-based sentences in the past, including home detention and release conditions. He has also completed the Living Without Violence Programme and received alcohol and other drug treatment. His ability and motivation to comply is assessed as high.

[10]   Finally, the report writer recommends that given Mr Murray’s problematic substance use, a condition that he attend an alcohol and drug assessment be imposed. Such an assessment would help determine what further support and intervention may be helpful. The report writer  additionally  recommends  that,  to  further  mitigate Mr Murray’s current risk profile, a condition prohibiting the use or possession of alcohol or illicit drugs be imposed.

District Court decision

[11]   The Judge sentenced Mr Murray to 20 months’ imprisonment on the one charge of burglary; Mr Morehu to 14 months’ imprisonment for burglary; and Mr Phillips to two-and-a-half years’ imprisonment for burglary and unlawful possession of a firearm. Mr Taukiri appeared earlier, and pleaded guilty to and was sentenced on a charge of aggravated robbery.

[12]   The Judge described the offending as “an organised, premeditated effort to have gang members back up their leader in a personal confrontation in the knowledge that there was  a  serious  risk  of  firearms  becoming  involved”.2  He  noted  that  Mr Morehu was the driving force behind  the  offending,  and  acknowledged  that Mr Murray and Mr Phillips played a lesser role.3

[13]   The Judge also noted that while there were no victim impact statements before him, the occupants of the address “decided that for the sake of their health they should leave Paeroa and its environs, because clearly matters would only escalate if they remained”.4 The Judge had pre-sentence and cultural reports before him.5

[14]As to the cultural reports, the Judge said:

“[22] Each defendant has produced a s 27 report. All of those reveal there are indeed some factors which would go towards mitigating their membership of the gang and their behaviour on this particular occasion. However, none of them in my view amount to a great deal. Being a member of a gang by itself invariably involves support for other gang members, and those who join gangs do so in the knowledge that they will be required and they must willingly support other gang members if there is any challenge to that gang member or to the authority of the gang. Accordingly, it seems to me that the credit available for s 27 factors in this particular set of circumstances is relatively low.”

2 At [18].

3      At [20]–[21].

4 At [14].

5      I was advised at the hearing that Mr Williams and his son have been separately charged in relation to the use of the firearms.

[15]   In setting the starting point, his Honour rejected the Crown’s submission which relied on the sentencing guidance in Senior v Police.6    Instead, he considered that    R v Pairama7 was more apposite in the circumstances, noting that:

“[17] … The fundamental features of that case were that something in the order of seven associates turned up with Mr Pairama and the associates [were] wearing gang patches. The house was entered. There was a child present. There was a good deal of abuse and physical interaction. … Fogarty J entered into a thoughtful assessment of the circumstances, and the Judge took the view in the end that on that more serious case, which he found to be one involving retribution, and of course the patched gang member involvement, he reached the conclusion that it justified a starting point of four years. I accept that that is more serious. There was some significant violence meted out.”

[16]   Applying that case, the Judge set a starting point of three years and three months for Mr Morehu; and, applying a discount of three months to reflect their lesser roles, a starting point of three years for Mr Murray and Mr Phillips.8

[17]As to Mr Murray specifically, the Judge said:

“[37] I turn now to the matters involving you, Mr Murray. In your case you must be entitled to credit for your [guilty] plea of 25 per cent, and I have already indicated a reduction of 10% for your role.⁹ However, your [criminal] record requires me to impose a further three months uplift. … And I must give you some credit for the time that you spent on EM bail, some seventeen months without breach. In the circumstances, I am prepared to allow a three month credit for that.

[38] By my calculations, the cumulative effect of the percentage reductions that I have assessed would total 13 months, from 36 months.¹⁰ That would produce a sentence of 23 months and I need to reduce that by three months to account for your time on electronically monitored bail. In your case I have received a pre-sentence report which recommends a sentence of home detention. I do not regard this as an appropriate case for home detention for anybody. In my view, if gangsters are going to carry out the kind of activities that have been carried out here with a considerable threat to life when it is organised in advance, in my view home detention is not and can never be an adequate response to such lawless behaviour. The net result accordingly for you, Mr Murray, is a sentence of 20 months’ imprisonment. You will be convicted and sentenced to imprisonment for 20 months.”

6      Senior v Police (2000) 18 CRNZ 340 (HC).

7      R v Pairama [2015] NZHC 2994.

8 At [32].

9

10

[18]   These calculations have created some trouble on appeal. It is unclear what the “reduction of 10% for your role” means, as the Judge did not earlier mention such a discount. This cannot be a reference to the three months’ discount for the appellant’s lesser role, as that was applied at an earlier stage to reach a starting point of 36 months. Both the Crown and the appellant appear to read the 10 per cent discount to be for s 27 factors. I am satisfied with that interpretation, that would be consistent with the 10 per cent credit allowed to Mr Morehu and Mr Phillips in relation to their cultural reports, and a mistake in wording is more likely than framing the starting point incorrectly. Further, it appears the Judge made an arithmetical error, as he omitted to apply the three month uplift for the appellant’s criminal record.

Approach on appeal

[19]   Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow the appeal against sentence if it is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.

[20]   In determining whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.11 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.12 The focus is on the end sentence rather than the process by which it was reached.13

Discussion

[21]   The sole issue on this appeal is whether the sentence is manifestly excessive. Mr Walsh, for Mr Murray, submits that it is on the following grounds:

(a)the starting point of three years’ imprisonment was too high. Instead, a starting point in the range of 18 to 24 months was appropriate;

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

12     At [30]–[35]; and Te Aho v R [2013] NZCA 47 at [10].

13     Tutakangahau v R, above n 11, at [36].

(b)insufficient credit was given for the time the appellant had spent on EM bail. The appellant spent 17 months on EM bail without breach; however, the Judge only gave a discount of three months;

(c)insufficient credit was given for the matters outlined in the cultural report. The Judge gave a discount of 10 per cent. Counsel submits that a discount of 15 per cent was appropriate in the circumstances; and

(d)the Judge erred in declining to impose home detention despite the appellant being eligible and the PAC report recommending it. The Judge went so far as to say, “in my view home detention is not and can never be an adequate response to such lawless behaviour”.

[22]   I address each of those grounds in turn. I note that the uplift of three months for Mr Murray’s criminal history and the 25 per cent discount for guilty plea is not disputed.

Starting point

[23]   First, was the starting point of three years’ imprisonment too high? It is trite to comment that setting a starting point for burglary can be difficult due to the wide range of circumstances in which that crime can be committed.14

[24]   The Judge relied heavily on Pairama, given its similarities to the present case. Both cases involved a deliberate targeting of certain property with an intention to confront the occupants. However, Mr Walsh submits that the offending in Pairama was a good deal more serious than the present. I agree as did the sentencing Judge accepted it was “a more serious case.”15 He recognised that in the lesser starting point.

[25]   Pairama involved more serious offending. The premeditation and planning was more sophisticated. The degree of intrusion, particularly the entry of a home, was more intrusive. Property was stolen and actual physical violence was metered out. Additionally, the offending in Pairama was more protracted.

14     See Connell-McDowell v Police [2019] NZHC 3370 at [16]–[18].

15     R v Murray, above n 1, at [17], citing R v Pairama [2015] NZHC 2994.

[26]   Another point of difference is that Mr Pairama, with his co-defendants, faced not only a charge of burglary but also participation in an organised criminal group.

[27]   These differences were factored in the starting point adopted by Fogarty J; four years as compared to a three year starting point in the present case.

[28]   Despite counsels’ endeavours to locate a case which is factually more comparable, none has been found. Mr Walsh agreed that Pairama fits the facts of the present case more closely than any other, but his submission is that Judge Ingram’s adjustment was not sufficiently generous. Mr Salt, for the Crown, accepted that the starting point was a stern one but was, nonetheless, within range. I agree.

Discount for time spent on EM bail

[29]   It is this factor which Mr Walsh  placed greatest emphasis on, namely that  Mr Murray was on restrictive EM bail for a period of some 17 months during which there was no breach of any conditions. He submits that the Judge’s three month reduction on account of Mr Murray’s restrictive bail conditions was insufficient.

[30]   Section 9(2)(h) of the Sentencing Act 2002 provides that the time spent on EM bail is a relevant mitigating factor. There is no mathematical formula to determine how much of a discount is appropriate; it is an evaluative assessment having regard to all the circumstances, including the time spent on EM bail without breach and the restrictiveness of the particular EM bail conditions. A reduction in the sentence is not to be equivalent to the actual time spent on EM bail. Generally, a reduction less than half the time spent on EM bail has been held to be appropriate.

[31]   As noted Mr Murray received a discount of three months for the 17 months spent on EM bail without breach. By contrast, Mr Phillips received a discount of two months for the five months that he spent on EM bail without breach.

[32]   Mr Walsh submits that a discount of seven to eight months is justified. He relies on two Court of Appeal cases: Parata v R, where a discount of four months was

given to reflect the 10 months spent on EM bail;16 and R v R, where a discount of four to six months would potentially have been available for the 12 months spent on EM bail.17 Mr Salt submits that discounts for time spent on EM bail has been described as being no more than “modest”. He relies on Chea v R. However, even in that case, the Court of Appeal considered that a discount of four months was appropriate to reflect the 13 months spent on EM bail.18

[33]   On these authorities I consider that the three month discount for 17 months spent on EM bail without breach is insufficient. I am satisfied a six month discount would be appropriate.

Discount for s 27 cultural report

[34]   Thirdly, Mr Walsh submits insufficient credit was given for the matters set out in the cultural report. Again, discounts for such matters are not a precise science. Ultimately it requires an evaluative approach. A discount can only be given for "traceable linkages between that deprivation,  the  offender  and  the  offending".19 Mr Walsh submits that the 10 per cent discount was insufficient and that a 15 per cent per cent discount is more appropriate. I do not agree. The Judge properly considered the matters in the report when he said:

“[22] … All of those [reports] reveal there are indeed some factors which would go towards mitigating their membership of the gang and their behaviour on this particular occasion. However, none of them in my view amount to a great deal. Being a member of a gang by itself invariably involves support for other gang members, and those who join gangs do so in the knowledge that they will be required and they must willingly support other gang members if there is any challenge to that gang member or to the authority of the gang. Accordingly, it seems to be me that the credit available for s 27 factors in this particular set of circumstances is relatively low.”

[35]And that was a proper course open to the Judge.

16     Parata v R [2017] NZCA 48.

17     R v R [2017] NZCA 210.

18     Chea v R [2016] NZCA 207.

19     Arona v R [2018] NZCA 427 at [59].

[36]   The adversity and violence experienced by Mr Murray helps to explain his offending, but without a clear causal link I do not consider a discount exceeding 10 per cent is warranted.

Home detention

[37]   Although Mr Walsh’s written submissions focused on this issue, he did not press the point in the course of oral submissions. The reason for that is more practical than principled. Mr Murray is scheduled to be released on 11 February 2021. Given the proximity of that date and the intervention of the Christmas and New Year break, Mr Walsh advised me that it would not be practical to undertake the necessary enquiries and have that material before the Court in a timely way.

[38]   Despite the fact that this means that I am not required to determine this aspect of the appeal, it does seem to me that when offenders carry firearms in circumstances where an armed confrontation is plainly contemplated, a community-based sentence will usually not be appropriate. Imprisonment is likely to be the norm as the Judge, himself, observed.20

Conclusion

[39]   Thus, in conclusion, I am satisfied that the starting point of three years’ imprisonment, while stern, was within range.

[40]   Secondly, I am satisfied that the three month discount was insufficient in recognition for the time Mr Murray has spent on restrictive EM bail. In my view, a six month discount is appropriate.

[41]I am satisfied that the Judge’s discount for cultural matters was appropriate.

[42]There is no need to disturb the sentence of imprisonment.

[43]   However, there was no uplift (as the Judge had intended) factored into the District Court sentence. This was not ventilated with counsel at the time of the

20 At [41].

hearing, so I issued a Minute directing counsel to make further submissions on this issue. The Crown informed that it did not wish to make further submissions. Mr Walsh submitted that the Judge did in fact give the appellant a three month uplift, but this is incorrect. If that had occurred, the end sentence would have been 23 months. Resultantly, if a six month discount for time spent on EM bail is now applied, and the uplift is applied as it should have been, the net sentence is the same as that which was imposed by the Judge. Accordingly, no adjustment is warranted.

[44]   Thus, although I am satisfied there has been an error in the sentence imposed, a different sentence should not be substituted. It follows the appeal must be dismissed.

Result

[45]The appeal is dismissed.

Moore J

Solicitors:

Mr Walsh, Hamilton Crown Solicitor, Tauranga