Murray v The King - [2023] NZCA 126

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA499/2022
[2023] NZCA 126

BETWEEN	RUBY ALEATHEA MURRAY Appellant
AND	THE KING Respondent

Hearing:	28 March 2023
Court:	Collins, Venning and Gendall JJ
Counsel:	R J T George and A J Bailey for the Appellant M G McClenaghan and C M Hallaway for the Respondent
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…

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 The King

Details

AGLC: Murray v The King [2023] NZCA 126
Case: [2023] NZCA 126
Decision Date: 24 April 2023 at 9.30 am

CaseChat Overview and Summary

Ruby Aleathea Murray appealed against the refusal to grant her a discharge without conviction following her guilty plea to charges of aggravated burglary, assault, and possession of a Class C controlled drug (cannabis plant). Murray argued that Judge Farish was incorrect in declining her application for a discharge without conviction, claiming that the consequences of a conviction would be out of proportion to the gravity of her offending. The central legal issue was whether Judge Farish erred in assessing the gravity of Murray’s offending and the consequences of convictions on her.

The Court of Appeal, considering the three-step process outlined in the Sentencing Act 2002, found that Judge Farish correctly assessed the gravity of Murray’s offending as moderate, taking into account factors such as Murray’s age, lack of criminal history, and vulnerabilities. The Court held that the offending involved considerable violence and breach of trust, justifying the moderate assessment. Regarding the consequences of conviction, the Court determined that the potential impact on Murray’s mental health and employment prospects, while significant, were not out of proportion to the gravity of the offending. The Court concluded that Murray had not demonstrated exceptional repercussions from the convictions that would warrant a discharge without conviction. Therefore, the Court upheld Judge Farish’s decision to decline the application for a discharge without conviction.

The appeal against the refusal to grant a discharge without conviction is dismissed.

Orders