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Murray v R

Murray v R

Case [2014] NZCA 189 20 May 2014

Criminal Liability

Sentencing

Mental Health

Disputed Aggravating Facts

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA430/2013
[2014] NZCA 189

BETWEEN	SEAN CHRISTIAAN MURRAY Appellant
AND	THE QUEEN Respondent

CA432/2013
AND BETWEEN	JOLENE ROSE Appellant
AND	THE QUEEN Respondent

Hearing:	25 March 2014 (further submissions received 16 April 2014)
Court:	Stevens, Keane and Andrews JJ
Counsel:	P H Surridge for Appellant Murray D L Stevens QC for Appellant Rose P D Marshall for Respondent
Judgment:	20 May 2014 at 2.30 pm

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

Table of Contents

Para No

Introduction  [1]
Issues on appeal  [11]
Offending  [12]
Sentencing submissions  [29]
Minutes of Goddard J  [40]
Scale of methamphetamine supply  [46]
Lack of disputed fact hearing  [58]
Span of Rose offending  [64]
Alternative calculation concerning Rose offending  [70]
Starting point for Rose  [78]
Sentence for Murray  [87]
Starting point for Murray  [91]
Mental health discount for Murray  [94]
Conclusion for both appeals  [102]

Introduction

At trial in the High Court on 18 April 2013, Jolene Rose was convicted of 23 charges, comprising: one representative count of selling methamphetamine for a period between 6 August 2008 and 20 March 2012; one count of possession of methamphetamine for the purpose of supply on or before 20 March 2012; one count of the possession of cannabis for the purpose of supply on or before 20 March 2012; and 20 counts of unlawful possession of firearms, restricted weapons and ammunition.[1]
[1]R v Rose HC Palmerston North CRI-2012-054-860, 18 April 2013.
At sentencing, Goddard J noted that Ms Rose had, within the four year span of her lead offence, supplied at least 8.44 kilograms of methamphetamine.[2] She sentenced Ms Rose to 20 years’ imprisonment, with a minimum term of 10 years.[3] Ms Rose also received lesser concurrent terms for her other offences.[4]
[2]R v Rose [2013] NZHC 1380 at [10] [Sentencing Notes for Appellant Rose], determined in a previous minute during trial: R v Rose HC Palmerston North CRI-2012-054-860, 6 June 2013 (Minute (No 6) of Goddard J) at [37].
[3]Sentencing Notes for Appellant Rose, above n 2, at [52].
[4]At [53]–[55].
Sean Murray, who was charged jointly with the same 23 offences above, pleaded guilty to the firearms offences in December 2013 and to the remaining offences on 8 April 2013, being the first day of trial. At sentencing Goddard J held that he had played a lesser part in the methamphetamine supply than Ms Rose.[5] He was involved for a shorter time and was Ms Rose’s ‘enabler’.[6] From a starting point of 12 years’ imprisonment,[7] Goddard J sentenced Mr Murray to eight years, six months’ imprisonment, and to lesser concurrent terms for his remaining offences.[8]
[5]R v Murray [2013] NZHC 1383 at [6]–[7] [Sentencing Notes for Appellant Murray].
[6]At [6].
[7]At [23].
[8]At [34] and [35]–[37].
In imposing the lead sentences on Ms Rose and Mr Murray, the Judge accepted largely, if not completely, the Crown’s estimate of the scale on which Ms Rose had…

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 R

Details

AGLC: Murray v R [2014] NZCA 189
Case: [2014] NZCA 189
Decision Date: 20 May 2014 at 2.30 pm

CaseChat Overview and Summary

This case concerned two appeals against sentence. Jolene Rose and Sean Murray were convicted in the High Court of multiple drug related charges. At sentencing, Goddard J held that Rose had supplied at least 8.44 kilograms of methamphetamine over a four-year period, and sentenced her to 20 years imprisonment with a minimum term of 10 years. Murray was held to have played a lesser part in the methamphetamine supply than Rose, and was sentenced to eight years and six months imprisonment. Both Rose and Murray appealed their sentences, arguing that the Judge should not have been satisfied beyond reasonable doubt that they had offended on the scale she identified, based on the evidence at trial. They also argued that Goddard J was wrong to decide this disputed issue by minute, without convening a hearing. Murray further argued that the Judge overstated his role in Rose's offending and also sentenced him from too high a starting point. The appeals were dismissed. The Court held that the Judge was entitled to make her findings by inference beyond reasonable doubt as to the scale on which Rose and Murray offended. It was also held that the Judge's decision not to hold a disputed facts hearing did not result in the sentencing process miscarrying. The starting point for Murray's sentence was held to be correct in principle, and the discount for his mental and cognitive problems was not manifestly negligible.

Orders