Murray v The King
[2023] NZCA 126
•24 April 2023 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA499/2022 [2023] NZCA 126 |
| BETWEEN | RUBY ALEATHEA MURRAY |
| AND | THE KING |
| Hearing: | 28 March 2023 |
Court: | Collins, Venning and Gendall JJ |
Counsel: | R J T George and A J Bailey for the Appellant |
Judgment: | 24 April 2023 at 9.30 am |
JUDGMENT OF THE COURT
The appeal against the refusal to grant a discharge without conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gendall J)
Ms Ruby Murray pleaded guilty in the District Court to charges of aggravated burglary,[1] assault,[2] and possession of a Class C controlled drug (cannabis plant).[3] At sentencing, Ms Murray applied to be discharged without conviction with respect to those charges.[4] Judge Farish declined Ms Murray’s application and imposed a sentence of 12 months’ intensive supervision.[5]
[1]Crimes Act 1961, ss 232(1)(a) and 66 – maximum penalty 14 years’ imprisonment.
[2]Section 196 – maximum penalty one year imprisonment.
[3]Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b) – maximum penalty three months’ imprisonment and/or $500 fine.
[4]Sentencing Act 2002, s 106.
[5]R v Murray [2022] NZDC 16214 [Sentencing notes].
Ms Murray now appeals her conviction and sentence and says Judge Farish was wrong to decline her application for a discharge without conviction.
On appeal against the refusal to discharge her without conviction, Ms Murray contends that a miscarriage of justice has occurred because Judge Farish overstated the seriousness of her offending and understated the consequences of conviction.
The facts
At approximately midnight on Friday 13 November 2020, Ms Murray went to the home address of the victims, Ms Goodman (her good friend) and Mr Falcone and demanded cannabis from them. However, Ms Goodman told Ms Murray that she did not have any to give to her. Ms Murray left the address but returned approximately 10 minutes later with two associates, Mr Van Turnhout and Mr Wells. Ms Murray had in her hand a black metal pole from a scooter.
Aggravated burglary
Ms Murray and her associates gained entry to the victims’ house by smashing and forcing open the locked front door, causing considerable damage. Ms Murray again demanded cannabis and she then began to swing the metal pole in an attempt to strike the victim, Ms Goodman, with the pole. Mr Falcone intervened, trying to stop Ms Murray from striking Ms Goodman and was himself struck on the hand by the metal pole, leaving him with a fracture to his left hand.
Common assault
Mr Van Turnhout and Mr Wells then set upon Mr Falcone, punching him repeatedly and forcing his head into a television set. Mr Falcone fell to the floor and Ms Murray and her associates all set about him, punching him repeatedly. Ms Goodman then rang for police assistance and Ms Murray and her associates fled the address.
Mr Falcone was taken to Christchurch Hospital. He suffered a fracture to his left hand and a dislocated shoulder as a result of the assault.
Possession of a Class C controlled drug
On 20 November 2020, the police executed a search warrant at Ms Murray’s address. During this search, police located eight small cannabis plants, three grams of dried cannabis heads, four bongs, and paraphernalia associated with cannabis cultivation.
Procedural background
As we have noted, Ms Murray pleaded guilty to all charges and unsuccessfully sought a discharge without conviction. At sentencing, the Judge adopted a starting point of 39 months’ imprisonment for the totality of the offending.[6] Once discounts for matters of personal mitigation were applied, including the fact that Ms Murray was young, somewhat vulnerable, had no previous convictions, and had entered guilty pleas, Judge Farish reached an end sentence of around 15 or 16 months’ imprisonment. Ultimately, she imposed a sentence of 12 months’ intensive supervision. In doing so the Judge said:
[28] … That means that I do not need to[,] and I would not be sending you to jail because you are a first offender, and you are someone who is more than capable of making good on the bad choices that you have made. I am not even sentencing you to an electronically monitored sentence because I do not think that is in your best interests given your fragility.
…
[29] I will sentence you, though, to intensive supervision which means you will have the oversight of Probation.
…
Relevant Principles
[6]Sentencing notes, above n 5, at [27]. Judge Farish indicated she would have taken a starting point of 36 months’ imprisonment for the aggravated burglary, uplifted by three months, in relation to the possession of cannabis charges.
It is settled that a court considering a discharge without conviction under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. The steps to be considered are:[7]
(a)An examination of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)Identification of the direct and indirect consequences of convictions being entered; and
(c)A determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only then, if that threshold is met, does the court move to considering the residual discretion under s 106.[8] There must be a “real and appreciable” risk that any given consequence will happen.[9] The standard recognises that the court is assessing the likelihood that something may happen in the future.
[7]A v R [2011] NZCA 328 at [22].
[8]Z (CA 447/2012) v R [2012] NZCA 599 at [27].
[9] DC v R [2013] NZCA 255 at [43].
An appellate court is required to reach its own view as to whether the direct and indirect consequences of convictions are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the court at first instance erred in principle when exercising its discretion to grant or refuse to grant a discharge.[10]
The gravity of Ms Murray’s offending
[10]Edwards v R [2015] NZCA 583 at [6].
The expression “the gravity of the offence” means the gravity of the actual offence committed and not the gravity of the type of offence,[11] nor offending compared with other cases involving the same offence.[12] It is informed by the culpability of the offender’s conduct, determined on an assessment of the facts rather than the nature of the charge.[13] All the aggravating and mitigating features of the offence and the offender are to be taken into account.[14]
[11] Taylor v R [2018] NZHC 688 at [46].
[12] Z (CA447/12) v R, above n 8, at [31].
[13] J (CA32/21) v R [2021] NZCA 690 at [36].
[14]Mathieson v Police [2019] NZCA 406 at [16]-[17].
Here, Judge Farish assessed the gravity of Ms Murray’s offending as moderate. Mr George for Ms Murray disputes this and suggests the offending here is properly characterised as a “high-emotion spur of the moment decision” committed by a young person who did not think of the consequences of her actions. This ignores however the features that made this offending more serious. These included the fact that Ms Murray had made two late night excursions to the victims’ home, it is said on a planned basis to seek drugs, and on the second of which she was armed with a weapon; she had two male accomplices as “enforcers” with her; and violence occurred. We repeat this second intrusion involved forced and damaging entry to the victims’ home in the early hours of the morning by Ms Murray and the associates, with Ms Murray armed with a weapon, actual violence ensuing, significant injuries being suffered by one of the victims, and arguably a breach of trust. Although Mr George endeavoured to suggest that the gravity of Ms Murray’s offending actually sat in the low range, we disagree and hold the view that it might even have been considered as being moderate to high. Judge Farish’s sentencing starting point of 36 months’ imprisonment for the charge of aggravated burglary as we see it is indicative of the seriousness of that offending.
Mr George also contended that Judge Farish erred by placing emphasis on the seriousness of the nature of the charge rather than the gravity of the actual offending itself. We do not accept this and note the Judge in her decision expressly stated:[15]
[3] … The first step is to consider the gravity of the offending, and at that point what I need to consider is not just how serious the offence was in itself, but I also consider what mitigating features are available. For you there is quite significant mitigation …
Judge Farish also acknowledged in her decision that this significant personal mitigation included Ms Murray’s youth, her lack of criminal history, and her vulnerability given her issues with alcohol and mental health.
[15]Sentencing notes, above n 5.
Overall, we are satisfied that Ms Murray’s offending here was correctly, if not perhaps leniently, characterised as moderate when all factors of aggravation and mitigation in respect of the offence and the offender are considered. For these reasons, we do not accept that Judge Farish erred in any way in her assessment of the gravity of Ms Murray’s offending. She assessed it as serious, with Ms Murray’s personal factors reducing the overall seriousness to moderate. We agree. No error occurred here.
The seriousness of the consequences of convictions on Ms Murray
The second stage requires the Court to assess the consequences of a conviction.
The requirements of s 107 of the Sentencing Act relating to direct and indirect consequences of conviction were recently reviewed by this Court in R v Taulapapa.[16] This decision confirms that there must be a real and appreciable risk that consequences will eventuate in order for them to be considered. Evidence is normally required but it is a matter for a Court as to whether what is available is sufficient. The difficulties of obtaining evidence from, for example, a current employer, may mean judicial notice of facts may be appropriate.[17]
[16] R v Taulapapa [2018] NZCA 414.
[17]At [41]-[46].
While the courts have tended to more readily accept the existence of general negative consequences of a conviction where young people are involved, it is necessary for every case to be considered on its own facts and circumstances.
Noting that there must be a “real and appreciable” risk that any given consequence pleaded will occur, this Court in determining the impact of the convictions on Ms Murray “must identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen to the particular applicant, and form an overall assessment of seriousness”.[18]
[18] Doyle v R [2022] NZCA 307 at [39].
At this point it is useful to reflect on Ms Murray’s general arguments on the consequences of conviction and the impact of those consequences for her. Before us she contended that, when all the consequences of her convictions are considered together, their impact must be seen as serious. She maintains the balancing test carried out by Judge Farish did not reconcile with the Judge’s acceptance that the consequences of the convictions to Ms Murray were indeed significant. It is argued Judge Farish erred in failing to give enough weight to the severity of those identified consequences, finding they were “even” with the gravity of her offending, both effectively being regarded as “moderate”.
Ms Murray says there are two main respects in which the consequences of convictions to her are significant. These are, first, the exacerbation of her fragile mental health and, second, the general barriers to her achieving her full potential on account of having convictions, particularly relating to the likelihood that those convictions may impede her future employment prospects.
Mental health
With regard to the effects on Ms Murray’s mental health, Mr George said there were a number of separate sources of evidence before the District Court (the evidence of Ms Murray herself, her mother, some health records and reports from a clinical psychologist, Mr Prince), detailing Ms Murray’s significant mental vulnerability. He maintained the worsening of Ms Murray’s already fragile mental state to the point of self-harm and an attempted suicide on her part were on their own consequences out of all proportion to the gravity of the offending in this case.
So far as Ms Murray’s existing mental health state is concerned, we accept that some detrimental impact of this kind can be the case for many convicted offenders. And, as Lang J noted in Dewdney v NZ Police, consequences of a conviction on an offender’s mental health must be exceptional, especially in cases like the present where the gravity of the offending is assessed as moderate.[19]
[19] Dewdney v Police [2020] NZHC 954.
In our view the present case is one that can be distinguished from the situation in Prasad v R,[20] upon which Mr George before us has placed some reliance. The situation in Prasad meant that case has been described as an “exceptional case” in which there was a direct link between the conviction and a risk of suicide. The fact, too, that “credible evidence that the [conviction] has and continues to adversely affect [Mr Prasad’s] mental health” clearly existed.[21] The consequences of conviction in Prasad were a potential loss of employment and a promising career and significant mental health issues. The case before us, however, in our view is different. The offences of which Ms Murray has been convicted are not ones of low gravity as opposed to those in Prasad. Further, the fragile mental health position argued for Ms Murray on the evidence here might be seen as ongoing, commencing long before her present convictions. It could be said too it was something not necessarily triggered by those convictions but emanating originally from the loss of Ms Murray’s father at a relatively young age, her difficulties and lack of interest at school and other factors unrelated to the present convictions. As well in Prasad, unlike the present case, the offender had long-term existing employment which was at real risk, he had attended a restorative justice course, paid reparation and undertaken significant rehabilitative steps, and had a victim/partner who supported a discharge without conviction.
[20] Prasad v R [2018] NZCA 537 at [26].
[21]At [26].
And, turning finally to the reports of the clinical psychologist, Mr Craig Prince, before the Court, as we see it these do not to any significant extent make particular comments about any exceptional consequences which may follow from the entry of convictions here. Many of Mr Prince’s remarks stem from Ms Murray’s self-reporting. Notable comments he makes include:[22]
33. Since being charged, Ms [Murray] reported that she has been unable to secure employment, she has been selling some of her possessions, and she worries about the future. Given her poor coping strategies, I have some concern about her continued or worsening mental health, should she not establish positive supports or gain employment because of a conviction.
34. With respects to treatment, in short, Ms Murray should learn to develop better coping strategies to deal with general and acute periods of stress, without resorting to substance use. More intense treatment could focus on issues like her dependency, despondency, and self-sabotaging beliefs.
[22]Craig Prince “Psychological Report on [Ms Murray]” (17 August 2022).
On the point of Ms Murray’s suicide attempt, it seems Ms Murray has since obtained assistance and support from her mother, her uncle and others.
Overall, with respect to Ms Murray’s existing state of mental health, we accept that the consequences of her convictions on this were at most moderate and that in any event, to a certain extent any such detrimental impact is the case for many offenders.
Employment prospects
So far as Ms Murray’s future employment prospects are concerned, we do acknowledge that although her convictions might well affect those prospects, ordinarily this would be viewed as a usual consequence of committing serious criminal offences.
Ms Murray’s position on this aspect, however, is that the general consequences for her of a conviction must be apparent, given her relative youth and the fact that she is not yet established in any career path. She says too convictions for the offences at issue here will present a “black mark” against her name when pursuing employment opportunities.[23] Ms Murray is currently unemployed. We do accept, however, that these convictions may well require Ms Murray to traverse a somewhat stressful period of job-seeking as a young woman, even assuming she is first given the opportunity to explain to a potential employer the circumstances of those convictions.
[23]This is in line with the remarks of this Court in Gaunt v Police [2017] NZCA 590 at [15]: “It is well-recognised that the black mark of a conviction alone is a significant consequence on an otherwise clean record, especially for a young person who does not yet have a foothold in a career.” Footnotes omitted.
Ms Murray has also filed material to indicate she would like to seek employment with the Department of Corrections but has a concern that criminal convictions on her record would disqualify her. However, we consider that argument to be speculative. No material on this aspect from Corrections has been placed before us. Additionally, given the wide nature of work which the Department of Corrections undertakes, as we see it they might well overlook negative aspects of convictions in a case like the present.
In summary, Ms Murray has not been able to show any exceptional repercussions from the convictions she faces here. Her submissions in this respect are essentially speculative and, as the Crown says, may well indicate a lack of insight on her part into her offending.
We repeat that the real focus on this aspect of the appeal must be on Ms Murray’s ability to find employment and progress a career. Experiencing some degree of difficulty in obtaining employment and advancing a career with a record of recent convictions is not uncommon following entry of a conviction.
As we have noted, this is not a case like Prasad where this Court found the consequences of a conviction to Mr Prasad, in light of his severe depression, suicide risk and, particularly, the very real threats to his direct career prospects, were serious. Further, this case differs in that, unlike Prasad, it is not a case involving offending of a low gravity.
Were the consequences of Ms Murray’s convictions out of all proportion to the gravity of the offending?
In terms of the balancing act required here, we are unable to identify any error in the Judge’s assessment. We agree with her findings, first, that the offending here was at least of a moderate gravity and second, that the consequences of conviction for Ms Murray were, at most, moderate.
It follows that we consider Judge Farish was correct to decline Ms Murray’s application for a discharge without conviction given that the Judge did not err in holding the consequences of conviction for Ms Murray were not out of all proportion to the gravity of the offending.
We note, too, that Ms Murray on this appeal does not otherwise challenge her sentence of 12 months’ intensive supervision.
Result
The appeal against the refusal to grant a discharge without conviction is dismissed.
Solicitors:
Crown Solicitor | Te Tari o Te Rōia Matua a Te Karauna, Christchurch for the Respondent
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