Murray v Police - [2015] NZHC 1771

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-419-15 [2015] NZHC 1771

BETWEEN
LANCE GRAY MURRAY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 July 2015

Appearances:

S Cameron for Appellant
T Needham for Respondent

Judgment:

29 July 2015

(ORAL) JUDGMENT OF WOODHOUSE J [on appeal against sentence]

MURRAY v NEW ZEALAND POLICE [2015] NZHC 1771 [29 July 2015]

[1] This is an appeal against a sentence of 23 months imprisonment imposed by Judge D M Wilson QC.1 Mr Murray was convicted of five representative charges of using a document for dishonest purposes, each carrying a maximum term of imprisonment of seven years, and one charge of carrying on a business fraudulently, with a maximum term of five years imprisonment. The offending occurred over a period of approximately 12 months.

Background

[2] Mr Murray obtained $174,633.00 by fraud. This involved processing unauthorised transactions using client credit cards, offering promotions for subscriptions to his magazine but not delivering the promised goods and services, not paying invoices, not paying charities after charity auctions, and dishonouring cheques.

[3] It is relevant to note that the offending can be divided into two broad categories. One concerned the fraudulent use of credit cards. This involved approximately $100,000. This offending occurred over a period of one month in August 2011 and over a period of four months between April and July 2012. The other types of offending occurred over a 12 month period between August 2011 and September 2012.

[4] Approximately $59,000 of the total was recovered. Part of that was repaid by the appellant when confronted by some of his victims. The sum involved was approximately $33,000. The balance was reimbursed by the credit card companies. The shortfall was therefore approximately $116,000. On the question of reparation the Judge concluded that it was unrealistic to expect that the appellant had any
means of repaying any further money.

1 New Zealand Police v Murray [2015] NZDC 8864.

The issue

[5] The single central issue on this appeal is whether the Judge was in error in exercising his discretion on sentence not to impose home detention. The Judge focussed on deterrence. He adopted a starting point of two and a half years imprisonment, referred to remorse and the effect on Mr Murray’s life, but did not provide a reduction in that regard, and then reduced the starting point by 25 per cent to reflect early guilty pleas.

The arguments

[6] The appellant, through Ms Cameron, argues that the Judge erred in not imposing home detention. She submitted, amongst other submissions, that the Judge erred by not considering the least restrictive outcome, the desirability of keeping offenders in the community where possible, that home detention was more suitable having regard to the purposes and principles of sentencing, and the appellant’s previous good character. Ms Cameron also referred to the fact that, although the total taken was close to $175,000, the amount not recovered by victims was the sum of approximately $116,000. Ms Cameron submitted that the…

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 [2015] NZHC 1771
Case: [2015] NZHC 1771
Decision Date: 29 July 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Murray v Police [2015] NZHC 1771, concerns an appeal against a sentence of 23 months imprisonment imposed on Lance Gray Murray, who was convicted of multiple counts of using a document for dishonest purposes and one count of carrying on a business fraudulently. The appellant, Lance Murray, was convicted of using a document for dishonest purposes and carrying on a business fraudulently. The court had to determine whether the Judge was in error in exercising his discretion on sentence by not imposing home detention. The appellant argued that the Judge erred in not considering the least restrictive outcome and the desirability of keeping offenders in the community where possible. The respondent argued that the Judge was exercising a discretion and an appeal directed to that part of the decision is subject to the well-known limits on an appeal against exercise of a discretion. The court found that the Judge did err in his approach. The court noted that the appellant was 63 to 64 years old when these offences occurred and 66 at the time of sentencing. The offences were totally out of character. Apart from some historic driving offences, which the Judge and counsel accepted had no relevance of any sort, there were no previous convictions. The court considered that the personal mitigating factors were reasonably significant and that the Judge did not make any allowance for these factors. The court also considered that the Judge overstated the gravity of the offence and that deterrence was given impermissible emphasis. The court quashed the sentence of imprisonment and directed that Murray be released on bail pending imposition of a new sentence. The court also directed that Murray is to remain at the specified address in Hamilton on a 24-hour curfew pending completion of a home detention report for that address and, assuming it is a positive report, formal imposition of a sentence of home detention.

Orders