Murray v R
[2013] NZCA 177
•23 May 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA743/2012 [2013] NZCA 177 |
| BETWEEN KIT JOHN MURRAY |
| AND THE QUEEN |
| Hearing: 15 May 2013 |
| Court: Randerson, Rodney Hansen and Lang JJ |
| Counsel: A G Speed |
| Judgment: 23 May 2013 at 3:00pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
The appellant Mr Murray was convicted after trial before a High Court jury on one count of manslaughter.[1] The victim, Mr William Dawson, was punched by the appellant outside an Auckland bar and died in consequence.
[1] R v Murray CRI-2011-004-18901, 27 August 2012.
The presiding Judge at the appellant’s trial, Keane J, later sentenced Mr Murray to five years imprisonment.[2]
[2] R v Murray [2012] NZHC 2626.
Mr Murray appeals against his sentence on the ground that it was manifestly excessive. A central issue on the appeal relates to the Judge’s assessment of the degree of force involved in the punch which killed Mr Dawson.
Background facts
The incident occurred in the early hours of the morning in the Viaduct Harbour area in Auckland. The appellant was one of a group of four men. It appears Mr Dawson walked into the group and collided with one member of it. Some of the group, but not the appellant himself, assaulted Mr Dawson but the altercation was stopped after a doorman at a local bar intervened. Mr Dawson began to break away from those accompanying the appellant but was still very agitated and continued his verbal exchange with them. The appellant went up to Mr Dawson and pushed him away. Mr Dawson continued to break away but maintained his verbal abuse of the appellant’s companions.
The Judge described what happened next:
[6] Outside the entrance to Danny Doolan's Bar, Mr Dawson reached a point some 10 metres away from the entrance to the Spy Bar where those with you remained and that is where he stopped. He remained standing, but continued to upbraid those with you. They responded but remained where they were. Despite that, the Crown case at trial was, you suddenly punched Mr Dawson with considerable force with your right hand to the left side of his face. He fell straight backwards, striking the back of his head with a loud impact on the pavement. The Crown case was that in all likelihood you had rendered him immediately unconscious with your punch.
Mr Dawson lay, clearly unconscious, on the pavement, bleeding profusely from his nose and mouth. Others came to Mr Dawson’s assistance but the appellant did not attempt to do so and left immediately with his associates by taxi.
At trial, the appellant denied punching Mr Dawson. He accepted he had pushed his right forearm into Mr Dawson’s face but claimed he had done so in self defence. Mr Dawson was a much bigger man than he and, as a result of head injuries the appellant had suffered in the past, he considered himself to be especially vulnerable. Plainly, as the Judge said, the jury rejected the appellant’s account.
The Judge’s sentencing approach
Keane J began by acknowledging the extent to which Mr Dawson’s parents, his former fiancée, his wider family and his friends had suffered.
The Judge went on to note that, in many decisions of the High Court, a starting point in the range of three to four years imprisonment had been adopted in manslaughter cases where death had resulted from a single punch. However, as the Judge correctly observed, everything depended on the seriousness of the punch and the intent of the perpetrator. He noted that even a single blow can be extremely violent when it carries extreme force and serious injury is a foreseeable outcome even if it is not intended. In such cases, the Judge noted that higher starting points might be required.[3] It followed that if Mr Murray had punched Mr Dawson with extreme violence, the three year starting point urged by Mr Murray’s counsel “could not begin to apply”.
[3] Citing R v Tai [2010] NZCA 598 and Kepu v R [2011] NZCA 104.
Keane J then embarked on an analysis of the evidence to determine first the level of violence involved and secondly Mr Murray’s intentions when he punched the victim. On these issues, the Judge regarded the evidence as clear.
As to the force of the blow, the Judge said that eye witnesses had agreed that Mr Dawson had been punched with considerable force:
[23] ... More than one described you bringing up your right hand from your hip level, and twisting your torso to achieve greater momentum. Two said that you put everything you had into it. Another spoke of a lot of power, yet another of ‘one massive punch’. A number said that Mr Dawson appeared immediately to have been rendered unconscious.
The Judge accepted the evidence of a pathologist who described a complete split between Mr Dawson’s nose and top lip at the point of impact. Beneath that, there had been a fracture of the underlying bone. He also found very significant related bruising.
On the basis of all the evidence he had heard, Keane J concluded:
[25] This convergent evidence convinces me that when you punched Mr Dawson, you must have intended to do so with as much force as you could muster. I cannot exclude the possibility that you intended to knock him out. You must also have accepted the prospect, even if it was not to the forefront of your mind, that he would at least suffer serious injury to his face. You ought to have been alive to the fact that if you did knock him out he could suffer injury as a result of his fall; the injury he did suffer, in fact, proved to be fatal.
The Judge went on to consider the appellant’s intention in striking Mr Dawson and when that intention was formed. The Judge could not altogether exclude the possibility that the appellant’s intention to punch Mr Dawson was formed as he went up to him. That would be consistent, the Judge thought, with the evidence from one of the Crown’s propensity witnesses that the appellant had, on a previous occasion, admitted to the witness that he had just knocked out a bar patron. The witness said he found the man in question to be still unconscious. While the appellant had denied this in evidence, the Judge considered that the coincidence could not be ignored altogether.
The Judge concluded that he should accept the Crown’s submission to fix the starting point in the range of five to six years imprisonment. He decided to take a starting point of five years because his conclusion about the appellant’s intentions were necessarily based on inference and because the five to six year range was higher than usual for a single punch.
Keane J declined to increase the starting point on the basis of a Crown submission that Mr Murray committed the offence when charged with another serious violent offence.[4] A number of mitigating features were put forward but not accepted by the Judge. These included the absence of any previous convictions for violence, the serious head injuries suffered by Mr Murray on previous occasions and an assertion that Mr Murray was remorseful. In the latter respect, the Judge noted that Mr Murray continued to take the view that he acted in self defence and did not allow any discount on that account.
[4] We were told that Mr Murray was ultimately acquitted on the other offence referred to.
The Judge also considered whether a minimum term of imprisonment should be imposed but declined to do so.
The appellant’s submissions
The principal ground of appeal was that the starting point of five years imprisonment was manifestly excessive. Mr Speed submitted there was nothing on the facts of the case which should take it outside the usual starting point of three to four years imprisonment. It was not a case involving extreme violence that could have justified a higher starting point. The sentencing Judge had been wrong to take into account the guidelines laid down by this Court in R v Taueki in relation to offending under s 188(1) of the Crimes Act 1961.[5]
[5] R v Taueki [2005] 3 NZLR 372 (CA).
We were referred to a recent decision of the High Court in R v Larson in which Chisholm J took a starting point of three and a half years imprisonment.[6] There, as a result of a single punch to the head, the victim fell, struck his head on the floor and later died. Chisholm J did not categorise the case as one of serious violence and did not think it was appropriate in the circumstances to apply the guidelines in Taueki.
Discussion
[6] R v Larson HC Dunedin CRI-2011-012-1013, 6 July 2011.
As this Court has said on a number of occasions, there is no tariff for sentencing in manslaughter cases. That is because of the wide range of circumstances in which death can occur by a range of unlawful acts perpetrated without any intention to kill or other murderous intent. Generally, sentencing in manslaughter cases has proceeded on the basis of a comparison with other comparable cases. More recently, this Court has said that, in some situations, a reference to the guidelines in the R v Taueki may be justified.[7] However, Taueki will not always be relevant and a cautious approach is required.
[7] R v Tai [2010] NZCA 598 at [11] citing R v Jamieson [2009] NZCA 555.
We accept that a sentencing range of three to four years imprisonment has often been adopted as a starting point in cases where an offender causes the death of a victim by means of a single punch.[8] However, as this Court noted in R v Tai, the starting point for manslaughter may need to be increased in cases where, as the Crown submitted in that case, culpability was higher as a result of an intention to cause really serious harm to the victim, the nature of the serious violence actually used and the fact that death resulted.[9] This Court considered that the case fell within band 2 in Taueki terms and that the starting point should have reflected that. The Court considered that a starting point of seven to eight years could not have been challenged and adopted a starting point of seven years since it was a Solicitor‑General’s appeal.
[8] See the authorities referred to in Kepu v R [2011] NZCA 104 at [9].
[9] See the discussion at [14]–[23].
We accept immediately that the facts of the present case are not as a serious as those in R v Tai but we are not persuaded that the starting point or the ultimate sentence were manifestly excessive. The sentencing Judge in this case rightly took into account the following factors:
·There was no provocative conduct by the victim towards the appellant.
·Although there was a single punch, the sentencing Judge’s conclusion was that it was administered with as much force as the appellant could muster.
·It was clearly a very powerful blow (described by one witness as “one massive punch”), sufficient to render Mr Dawson unconscious before he hit the ground.
·It was a blow deliberately aimed at the head and was sufficiently forceful to result in a complete split of the skin between Mr Dawson’s nose and top lip with a fracture of the underlying bone.
·The appellant must at least have intended that Mr Dawson would suffer serious injury to his face.
·The appellant ought to have appreciated that if he knocked Mr Dawson out, he could suffer injury as a result of his fall. Mr Dawson did suffer an injury in that manner and it proved to be fatal.
The Judge’s conclusion about the appellant’s appreciation of the likely consequences of a heavy punch to the victim’s face was supported by the undisputed fact that the appellant had experience as a doorman in bars or nightclubs and would therefore have appreciated the probable consequences of his conduct.
We are satisfied that the circumstances of the Larson case relied upon by Mr Speed are not as serious as the present case. It was a single punch case but the sentencing Judge did not find that the single blow struck by the accused was unusually forceful. Nor did the Judge in Larson find, as Keane J did here, that the accused must have intended to cause serious injury to the victim and ought to have appreciated that further injury could result if the victim fell in an unconscious state as a result of the punch.
We also note that the accused in Larson pleaded guilty. In contrast, Keane J had the advantage in the present case of hearing all the evidence at trial and was best placed to assess the extent of force used and the appellant’s appreciation of the likely consequences. On appeal, this Court does not lightly depart from a trial judge’s findings on issues of this kind. We see no basis to do so in this case.
As to Mr Speed’s submission that the Judge was wrong to take the Taueki guidelines into account, it is not entirely clear that the Judge did so. He certainly referred to Taueki but he did not refer to the categories of violence in those cases nor to the relevant sentencing bands. The Judge said “extreme violence” was a basis for increasing the usual sentencing range for cases of this type. But we do not think he needed to assess the degree of violence at that level to justify the five year starting point. It was sufficient for the Judge to take into account the factors already identified as a basis for his assessment that an unusually forceful blow was struck. Added to that was the appellant’s intention to cause serious injury to the victim with an appreciation of the probable consequences.
We add, as this Court noted in Tai, that reference to the Taueki guidelines in manslaughter cases will not always be appropriate. Indeed, there can be some awkwardness in translating them to manslaughter cases. An analysis of comparable cases may often be the best guide, bearing in mind that there is no tariff in manslaughter cases.
Discount for remorse
It was also submitted that some allowance should have been made for remorse. However, this was very much a matter for the sentencing Judge and we see no ground to interfere with his assessment that no allowance should be made for this factor. We also note Mr Speed’s acceptance that an uplift of three to six months could have been justified on the basis that Mr Murray was on bail for other violent offending at the time of the subject incident.
Result
For the reasons given, the appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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