Murray v The King
[2024] NZHC 3237
•4 November 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-27
CRI-2024-443-28 [2024] NZHC 3237
BETWEEN SETH MICHAEL MURRAY
Appellant
AND
THE KING
Respondent
Hearing: 26 September 2024 Appearances:
N P Bourke for Appellant R Hicklin for Respondent
Judgment:
4 November 2024
JUDGMENT OF GRICE J
(Appeal against sentence)
Introduction
[1] Seth Murray was convicted after pleading guilty to one charge of aggravated burglary,1 and one charge of assault on a person in a family relationship.2 On 26 July 2024 he was sentenced on both charges to three years and nine months’ imprisonment. His co-offenders on the aggravated burglary charge were sentenced at the same time.3
[2] Mr Murray appeals against his sentence on the grounds that the starting point adopted for the charge of aggravated burglary was too high, and the uplift applied for the assault charge was excessive.
1 Crimes Act 1961, ss 232(1)(a) and 66(2) — maximum penalty 14 years’ imprisonment.
2 Crimes Act, s 194A — maximum penalty two years’ imprisonment.
3 R v Chapman-Stone [2024] NZDC 18387 [Sentencing notes].
MURRAY v R [2024] NZHC 3237 [4 November 2024]
Background
Aggravated burglary
[3] On 16 November 2023, a Facebook group chat between Mr Murray and two of his co-offenders was created for the purpose of organising an armed burglary of the victim’s home. One of the co-offenders advised who they would target, and the group chat was used to discuss what should be taken, if Mr Murray should wear a gang vest, what weapons to bring, who would be the driver and who should wait in the car.
[4] In the early hours of 19 November 2023, Mr Murray and two co-offenders from the Facebook group, along with a fourth co-offender, met at one of their addresses. Mr Murray armed himself with a hatchet axe, and wore his gang vest. He also provided another co-offender with a sweatshirt with a gang emblem to wear. That co-offender armed himself with two wooden chair legs.
[5] The fourth co-offender drove the group to the victim’s address. On their way, they were stopped by a police officer who had observed the gang clothing. The driver told the police officer that she was sober driving everyone home. The police officer told her to drop them off and go straight home.
[6] The group arrived at the victim’s address at about 1.30 am. Mr Murray and another co-offender walked up to the house, while the other two co-offenders waited in the car. They approached the free-standing garage and removed five glass louvres from a window, through which they entered. They took cannabis and a money box belonging to the victim.
[7] The victim was at home with his partner. He went outside to get a water bottle from the garage. He saw the window louvres were pulled out, and heard twigs snapping in the area where the offenders were hiding outside. The victim told them to leave before going inside and informing his partner that there were people outside the house.
[8] The victim went back outside and saw the two co-offenders standing in front of him, one of whom yelled “there’s only one of them bro”. Realising that the
offenders were armed and fearing for his safety, the victim ran back inside, and he and his partner went to hide in the backyard.
[9] Mr Murray and one co-offender then approached the house, shouting “if you don’t come out, I’m gonna come through that back door”. Mr Murray then used his hatchet axe to smash two holes in the front door, allowing both to enter. They ransacked the house, tipped out drawers and knocked over furniture, and took property including a television, soundbar, three gaming consoles, several pairs of sneakers, and cannabis material. While his co-offender was taking items to the car outside, Mr Murray used his hatchet axe to smash items including television screens, speakers, drawer sets, a mirror, and two windowpanes.
[10] As they were leaving the address at approximately 3.05 am, Mr Murray struck the windows of a Holden Commodore vehicle seven times using his hatchet axe, yelling “that’s what you get you little f…”. He also smashed the driver’s window and both wing mirrors of a Mazda Atenza parked further up the driveway.
[11] The four co-offenders drove back to one of their addresses where they divided up the stolen items. Mr Murray filmed a video of himself with the stolen items, saying “that’s what happens when you fuck the boys over”. The co-offenders continued talking about the burglary in the Facebook group chat the following day.
Assault on a person in a family relationship
[12] Mr Murray and the victim had been in a relationship for four years and were living together at the time of the offending.
[13] On 3 October 2023, Mr Murray and the victim were at Mr Murray’s father’s house. Mr Murray had been drinking alcohol and was intoxicated. At about 11.30 pm, the victim told Mr Murray they should go home.
[14] While travelling home together in an Uber, Mr Murray starting yelling at the victim, infuriated that she had wanted to leave. He began calling her offensive names such as “slut” and accused her of sleeping with his friends.
[15] Once they arrived home, Mr Murray continued insulting the victim. He then picked her up by her clothes and slammed her body to the ground. The victim attempted to escape the attack and began screaming for help. Mr Murray punched the victim in the face, head, and rib area with a closed fist. The attack continued for at least seven minutes.
[16] The victim pleaded with Mr Murray to let her go and stop beating her, but he refused, holding her down with his arms and legs. As a result of the attack, the victim had difficulty breathing and suffered a panic attack. She eventually managed to break free and escape, fleeing to her parent’s house.
[17] The victim suffered bruises to the back of her left shoulder, cuts to her face, swollen and bruised eyes, a cut bottom lip, sensitive teeth, a cut ear where her earring was broken from her ear, and a bruised rib cage.
The sentencing decision
[18] The Judge noted that Mr Murray was 23 years old, and had no previous convictions.4 He had been on bail at the time of the aggravated burglary offending for assaulting his partner.5 It was noted that Mr Murray was epileptic and had required assistance with his anger.6 His upbringing had been characterised by gang involvement, drugs, and violence.7
[19] The Judge imposed a starting point of six and a half years’ imprisonment for the charge of aggravated burglary, identifying the following aggravating factors:
[77] The aggravating features of this are the high level of premeditation. The two of you entered a residential dwelling. …You were carrying weapons, the two that went in, but the use of those weapons, so the carriage of the weapons and the entry into the dwelling should not be regarded as aggravating features because they are ingredients of the charge, but the use of those weapons, particularly in the way you used them to smash your way into the property is an aggravating feature and the significant damage that you caused, which was utterly gratuitous, unnecessary, unprovoked and the valuable items that you took make this worse. The harm caused to the two young people in this house who must have been terrified and feared for their lives and they will
4 At [38].
5 At [59].
6 At [42].
7 At [43].
remain traumatised for some time, all lead me to agree that the starting point is six and a half years.
[20] The Judge applied an uplift of 12 months for the charge of assault on a person in a family relationship, indicating it was appropriate to add the uplift to his starting point of six and a half years.8 No uplift was applied for the fact the aggravated burglary offending occurred while Mr Murray was on bail for the assault charge, given his age and in order to maintain parity with his co-offender.9
[21] In terms of personal mitigating factors, the Judge deducted 25 per cent for guilty pleas, and 10 per cent for neurodivergence and mental health issues.10 A further discount of 15 per cent was applied in recognition of Mr Murray’s youth and lack of previous convictions.11 This amounted to a total discount of 50 per cent.
[22] While acknowledging that a credit would have been appropriate for the time Mr Murray had spent on electronically monitored (EM) bail, the Judge did not ultimately apply that to the final sentence.12
[23] An overall sentence of three years and nine months’ imprisonment was imposed.13 A final protection order was also imposed in respect of Mr Murray’s partner.
Approach on appeal and relevant law
[24] Appeals against sentence are governed by s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence and that a different sentence should be imposed.14 Generally the court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.15 In most cases, a sentence appeal will “turn on a
8 At [78].
9 At [79].
10 At [80].
11 At [81].
12 At [82].
13 At [84].
14 Criminal Procedure Act 2011, s 250(2).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
consideration of whether the final outcome is manifestly excessive”, rather than the “route by which the judge reached that outcome”.16
[25] R v Mako is the guideline judgment for aggravated robbery,17 however it is also applicable to sentencing for aggravated burglary.18 Mako identifies a number of aggravating features to consider, and provides several factual examples with indications of the likely range within which the starting point is to be set in similar circumstances.
The appeal
[26] Mr Bourke, for the appellant, submits that the six and a half year starting point was excessive, and should have been in the vicinity of three and a half to four years’ imprisonment. He further contends that, properly accounting for totality considerations, an uplift of no more than six-months was warranted for the charge of assault on a person in a family relationship. No challenge is brought against the discounts awarded for personal mitigating factors. Mr Bourke says if the appeal is successful and reduces the sentence to two years’ imprisonment or less, a sentence of home detention would be appropriate, particularly given Mr Murray’s neurodiversity and lack of previous offending.
[27] The Crown opposes the appeal, contending that the starting point was within the available range, a cumulative sentence was appropriate for the assault on a person in a family relationship, and that the end sentence is not manifestly excessive.
Starting point
[28] There is no dispute that the offending was premeditated, given the record of the planning between the co-offenders on their Facebook group chat. That said, Mr Bourke notes that the use of Facebook does not indicate any special premeditation, as the use of social media is merely a form of communication now routinely used by
16 Ripia v R [2011] NZCA 101 at [15].
17 R v Mako [2000] 2 NZLR 170 (CA).
18 R v Watson CA224/03, 24 October 2003 at [27] and [28]; and Pohutuhutu v R [2017] NZCA 501 at [61].
young people, in a way that they might previously have had a discussion in a pub or on the phone.
[29] The offending also involved unlawful entry into the victims’ home in the middle of the night by two co-offenders, both of whom were wearing gang insignia and armed with weapons. The hatchet axe wielded by Mr Murray can be characterised as inherently dangerous. There were also threats to the victims, significant damage to property, and valuable property taken.
[30] Mr Bourke suggests that the circumstances of Mr Murray’s offending do not neatly fit into any of the examples provided by the Court of Appeal in Mako, and therefore refers to several other cases which he says are broadly comparable. He submits that a starting point of between three and a half and four years’ imprisonment would have been appropriate, bearing in mind the desirability of consistency in sentencing.19
[31] First, he cites the recent Court of Appeal decision McRae v R, in which the appellant was convicted following a jury trial of aggravated burglary, theft, and conversion of a vehicle.20 The circumstances of the case were that the appellant had driven to the victims’ address with four associates just before midnight. She was armed with a small axe or hatchet, and one of her co-offenders had a metal or wooden pipe or pole. The co-offenders went into the house, where the four victims, two of whom were half-sisters of the appellant, were asleep. The offenders confronted the victims and yelled in a threatening manner while holding the weapons. A phone was taken from one of the victims. As they were leaving, one of the co-offenders smashed a tail light of a vehicle parked outside, and another stole a quad bike from the address.
[32] A starting point of two years and three months was adopted. The sentencing Judge noted that the aggravating factors included that the offending involved “some planning”, the incident occurred at night, five participants were involved and that the
19 Sentencing Act 2002, s 8(e) provides that sentencing must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.
20 McRae v R [2024] NZCA 324.
appellant was likely to know there would be others at the address.21 Also relevant aggravating factors were the associated offending of conversion and theft, and the impact on the victims. The Court of Appeal noted that the associated offending should have been treated as an uplift rather than as an aggravating factor, but considered the starting point was nevertheless “well within range”.22 While there was no actual violence done to the victims, they still endured a “frightening ordeal”, having been woken up by aggressive yelling and to a person wielding a tomahawk or an axe.23
[33] Mr Bourke also refers to Masina v R that concerned an appellant who pleaded guilty to charges of aggravated burglary, wilful damage, possession of a firearm (representative), possession of synthetic cannabis for sale or supply, and possession of methamphetamine.24 The appellant entered the victim’s home armed with a steel scaffolding pipe, which he used to threaten the victim and smash the windows of her car parked outside. A starting point of three and a half years was taken on the aggravated burglary and the wilful damage charges, and was upheld on appeal. The Judge on appeal noted that comparable cases were consistent in upholding starting points of between three and a half to four years’ imprisonment for aggravated burglaries of that kind.25
[34] In Aramiz v R, the appellant pleaded guilty to several charges, including one of aggravated burglary.26 The appellant went to the victim’s house in the early hours of the morning and knocked on the door. When the victim refused to open it, the appellant smashed the outer pane of the glass door with a hammer. The victim tried to escape outside, but the appellant pushed him to the floor saying he was going to kill him, before attempting to drag the victim back inside. The victim managed to run to a neighbouring address and call the police, and suffered minor scratches to his arms. The 15-month starting point taken by the Judge was upheld on appeal.27
21 At [14].
22 At [20].
23 At [19].
24 Masina v R [2022] NZHC 3280.
25 At [8].
26 Aramiz v R [2020] NZHC 78.
27 At [27].
[35] Marsh v R involved two appellants who were convicted following a jury trial for aggravated robbery.28 They had gone to the home of the victim, who was a drug dealer, and refused to leave once inside. One of the appellants stood over the victim with a clenched fist and threatened him. They stole half a gram of methamphetamine,
$50 in cash, a sports bag, and a cell phone. The sentencing Judge took a starting point of four years and nine months’ imprisonment, accounting for factors including the element of home invasion, but also the relatively low-level of violence used.29 However, this was overturned on appeal, with the Court of Appeal making the following observations:
[16] Inevitably, no two cases are the same and each must turn on its own facts. Difficulties can arise in applying a guideline decision like Mako where there are aggravating features present to varying degrees which do not fit squarely within the recognised categories of offending that attract particular bands of imprisonment. We accept the Judge was entitled to take into account that the robbery occurred in a private dwelling place, and that there was premeditation with entry to the building having been gained on the pretext of Mr Armstrong wishing to purchase drugs from the victim.
[17] However, having regard to the approach taken in other cases, but moreover, because of the particular circumstances of the present offending, including the limited value of the property taken, we consider the starting point adopted was excessive. A starting point of three and a half years’ imprisonment would have more accurately reflected the seriousness of the offending.
[36] In Reid v R, the appellant was found guilty at trial on charges of aggravated robbery and demanding with menaces.30 The offending involved a series of threats and attacks on a vulnerable victim, who had cerebral palsy, in order to extract money from him after the appellant had lost money gambling. The appellant and his stepdaughter went to the victim’s address and knocked on the door. The appellant was let inside, produced a knife from his pocket and demanded money from the victim, threatening to hurt him and burn down his family’s businesses and houses if he did not pay $2,000. The appellant then held the knife to the victim’s throat, cutting it sufficiently to leave a long mark. The victim told the appellant he had $200 in his wallet, which the appellant took, and threatened to take the victim’s motorbike if he did not produce $2,000. The appellant then forced the victim to drive to an ATM and
28 Marsh v R [2019] NZCA 220.
29 At [8].
30 R v Reid [2017] NZCA 451.
withdraw money, however the victim only had $8 in his account. They then went to the victim’s business premises, where the victim’s mother was. The appellant told her that the victim owed him $2,000 and, fearing for her son’s safety, she withdrew $2,000 from the bank and gave it to the appellant. On appeal, the Court of Appeal held that the starting point of four years adopted for the aggravated robbery charge was not excessive.31 It noted that the aggravating features of the offending included violence and use of a weapon, entry into the victim’s home to physically enforce his demands, threats of violence to family and property, and the vulnerability of the victim. The Court, in dismissing the appeal, described the starting point as “lenient”.32
[37] The final case Mr Bourke refers to is Peke-Meihana v R.33 In that case the appellant pleaded guilty to a charge of aggravated robbery targeting a student flat. He and two other co-offenders knocked on the door of the flat and then forced their way in, threatening three of the occupants and telling them to lie on the floor, not look up, and give the offenders their unlocked cell phones. One of the occupants looked up and was kicked in the head. A fourth occupant was pushed up against the wall and threatened with a metal bar, before being told to lie on the floor with his flatmates. A co-offender took a knife from the kitchen and directed one of the flatmates to go to his room and retrieve property, while the other co-offenders searched the house. Two gaming consoles, three cell phones, two televisions, a laptop, and a gold watch were stolen. As the offenders left, one of them told the victims they were going to return with a gun. The sentencing Judge took a starting point of seven years’ imprisonment, referring to the scenario involving forced entry to premises at night set out in Mako.34 On appeal, the High Court found the starting point was too high,35 and made the following observation:
[36] The error in the approach taken by the District Court Judge was to consider she could not take a starting point of less than seven years imprisonment because she was bound by Mako. In fact, consistent with Mako, an assessment of the features of this offending enabled her to do so. A starting point of five to six years would have been well within the range available to the Judge if that assessment had been made.
31 At [14].
32 At [15]
33 Peke-Meihana v R [2019] NZHC 642.
34 At [30], citing Mako, above n 17, at [60].
35 At [35].
[38] Mr Bourke submits that Mr Murray’s offending is comparable to that in McRae, as multiple offenders went to the victim’s home late at night, with similar weapons, and although it was a frightening incident for the victims, no actual violence was inflicted. He suggests that it is also comparable to Marsh, and that although the present offending involves the additional aggravating feature of destruction of property, this ought to be balanced against the absence of actual violence, that was also present in Reid and Peke-Meihana.
[39] Mr Bourke also suggests that personal characteristics must have at least some indirect bearing when considering the seriousness of the offending. In this case, Mr Murray was a young, neurodiverse, first-time offender, who had a background of exposure to drugs and time in state care. Mr Bourke submits that those circumstances should affect the starting point to some extent when it comes to assessing where it sat within the range. He also points to the recent decision in M (CA102/2024) v R, which, although relating to sexual offending, points out that the Court must take care to avoid the “sentencing creep” which might result if insufficient attention is paid to the actual offending and a mechanistic approach of tallying up aggravating factors is taken.36
[40] Ms Hicklin, for the Crown, suggests that the present offending is more serious than that in the cases Mr Bourke refers to, due variously to a lower level of premeditation, the time of day, a lower value of property taken or damaged, or an absence of some aggravating factors that were present in this case such as gang insignia and forced entry.
[41] The sentencing Judge referred to this case as being more serious than Dey v R,37 R v Kapene,38 and less serious than Paraha v R.39 In Dey v R, the Court of Appeal confirmed as appropriate a starting point of between three years and six months’ and four years’ imprisonment on a charge of aggravated burglary.40 The appellant had entered the victim’s flat and knocked on his bedroom door, before trying to push his way inside while the victim resisted. The appellant then raised a knife
36 M (CA102/2024) v R [2024] NZCA 441.
37 Dey v R [2021] NZCA 342.
38 R v Kapene [2023] NZHC 1854.
39 Paraha v R [2022] NZCA 646.
40 Dey, above n 37, at [47].
above his shoulder and tried unsuccessfully to strike the victim with it. The victim managed to close the door and hold it shut. In Kapene, the High Court took a starting point of four years’ imprisonment on a charge of aggravated robbery.41 No actual violence was used, but the offender forcibly entered the property wielding a 40 cm metal pole and yelled at the victims. There was also damage done to the property, and cash and other items were taken. In Paraha v R,42 the appellant and his two co-offenders, one of whom was armed with a rifle, kicked in the door of a house and confronted one occupant, before corralling the other occupants into the garage. The rifle was pointed at the occupants in an effort to subdue them, but after failing to find cannabis the offenders returned to their vehicle. The appellant then returned alone and took two guitars valued at $2,000. On a charge of aggravated robbery, the Court of Appeal considered the starting point of six years and six months’ imprisonment adopted by the sentencing Judge was “generous”, and a starting point of between seven years’ to seven years and six months’ imprisonment would have been more appropriate.43
[42] The sentencing Judge also commented that the offending here was “slightly less serious” than in Stratton-Pineaha v R.44 In that case the appellant and an associate, dressed in gang regalia, went to the victim’s address in the evening and entered without invitation. The appellant produced a 15 cm knife and brandished it at the victim, telling him he would cut him with it if he went to the police or tried to stop the appellant. He then took the victim’s laptop and cell phone, and his associate took the victim’s car keys and wallet. The Court of Appeal held that a starting point of at least seven years’ imprisonment was required on the charge of aggravated robbery.45
[43] The Judge identified R v Tamiefuna as being “about as serious as” the present offending.46 In that case, a starting point of six years’ imprisonment was adopted for a charge of aggravated robbery.47 The appellant and a co-offender entered the victim’s house through a kitchen window while the victim was asleep. The victim awoke to
41 Kapene, above n 38, at [19].
42 Paraha, above n 39.
43 At [29].
44 Stratton-Pineaha v R [2020] NZCA 50.
45 At [14].
46 Sentencing notes, above n 3, at [55].
47 R v Tamiefuna [2021] NZHC 2880 at [42].
the appellant demanding the keys to his car, along with various other items including cash and a mobile phone. One of the offenders struck the victim on his shoulder with an open hand to hurry him up. The victim’s car, mobile phone and digital camera were taken. The following aggravating factors were identified: premeditation; forced entry into a private dwelling; the involvement of two male offenders; violence, albeit not to a high degree; the significant value of the items taken; and the effect on the victim.48
[44] I consider that the Judge made no error, and of the comparators used, this case was broadly similar to Paraha and Stratton-Pineaha. However, here the Judge acknowledged that a lower starting point was warranted due to the absence of direct confrontation and the presence of a rifle in Paraha. In that case, the Court of Appeal noted that the offending could warrant a starting point of seven to seven and a half years’ imprisonment. I also note that, unlike Stratton-Pineaha, this case did not involve actual confrontation with the occupants of the house.
[45] As in Paraha,49 the most broadly comparable scenario to the present case described in Mako is:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.
[46] Given that the home invasion provisions introduced under the Crimes (Home Invasion) Amendment Act 1999 no longer apply, the reference to the 10-year starting point must be read in that context.50 However, unlawful entry into a dwelling house remains an aggravating factor for sentencing purposes.51 While there was no violence directly against the victims in this case, there was entry into their house causing the victims to retreat into the backyard, as well as considerable damage inflicted on the property inside. In addition, the offenders were wearing gang clothing, and the victims were traumatised. They were suffering ongoing mental health consequences from the
48 At [40].
49 Paraha v R, above n 39, at [24] and [25]. The Court noted that the home invasions provisions referred to in Mako have since been repealed.
50 See Tiori v R [2011] NZCA 355 at [11]–[16].
51 Sentencing Act, s 9(1)(b).
incident.52 On the basis of house entry, property damage and victim traumatisation and the cases discussed above, I consider that the sentencing Judge’s starting point of six and a half years’ imprisonment for the aggravated burglary charge was within the available range and appropriate.
[47] The ground of appeal in relation to starting point for the aggravated burglary charge fails.
Uplift for totality
[48] While accepting that on a stand-alone basis, assault on a person in a family relationship could warrant a 12-month starting point, Mr Bourke contends that insufficient regard was paid to totality in uplifting the overall starting point to seven and a half years. He submits that, given Mr Murray’s lack of previous convictions for family violence or history of family violence callouts during his relationship with the victim, no more than six months was justified as an uplift for the assault charge for totality.
[49] Ms Hicklin submits that the cumulative starting point of 12 months for the assault charge was within range, noting that it was serious family violence offending against the victim in her own home. She suggests the case of Goodman v R is comparable here, where a combined starting point of 28 months’ imprisonment was upheld by the Court of Appeal for one charge of assault with intent to injure and one charge of male assaults female.53 The assault in that case involved a sustained attack and the appellant there faced the more serious charge of assault with intent to injure, which was taken as the lead offence. It carries a maximum penalty of imprisonment of three years’ imprisonment,54 compared to the charge Mr Murray faced, which has a maximum penalty of two years’ imprisonment.
[50] A better comparator cited by Ms Hicklin is that of Hiroki-Kaka v Police.55 In that case, the appellant yelled abuse at the victim, before grabbing her left arm and
52 Sentencing notes, above n 3, at [23] and [24].
53 Goodman v R [2016] NZCA 64.
54 Crimes Act, s 193.
55 Hiroki-Kaka v Police [2023] NZHC 3774.
punched her five times to the head, and once in her face, leg and rib area. When the victim broke free, the appellant snatched her phone away from her. The victim suffered a split lip and bruising. A starting point of 12 months’ imprisonment was taken for the charge of male assaults female arising from that offending, with an uplift of one month for the theft of the victim’s phone.56 Just over a month later, while on bail for the first set of offending, the appellant met up with a second victim to buy cannabis from her. While she was still leaning through the front passenger window, he drove off, dragging her for 100 to 200 metres. A starting point of 21 months’ imprisonment was taken for the second set of offending.57
[51] Section 85 of the Sentencing Act 2002 addresses totality when sentencing for multiple offences, and provides:
85 Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed,—
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[52] I do not consider that the amount of uplift is inconsistent with appropriate sentencing levels in comparative cases. The present offending is more serious than
56 At [9].
57 At [8].
the first set of offending in Hiroki-Kaka, for which the 12-month starting point was applied, and comes close to the seriousness of the offending in Goodman. I note specifically, the sustained nature of the attack (lasting for around seven minutes), and the fact that Mr Murray pinned the victim down on the ground, causing her to suffer a panic attack.
[53] In my view, the 12-month starting point applied for the charge of assault on a person in a family relationship was within the appropriate range, and no error was made in relation to totality. I accept the Crown’s submission that a cumulative sentence was appropriate, as the offending was different in kind and involved different victims.
[54] Therefore, I consider the adjusted starting point of seven and a half years’ imprisonment adequately reflected the individual seriousness of each set of offending and did not result in an end sentence that was manifestly excessive. The total period of imprisonment for both charges, including the uplift of 12 months for the assault charge, was not wholly out of proportion to the overall gravity of the offending.
Other matters
[55] The appellant takes no issue with the discounts applied by the Judge for personal mitigating factors, which amounted to 50 per cent. In my view, the discounts for youth and personal factors gave ample weight to the personal factors which Mr Bourke suggests ought to have affected the starting point in sentencing. While the courts have recognised that personal characteristics may reduce an offender’s culpability, particularly in relation to drug offending and addiction,58 no such situation arises here.
[56] Also relevant is the fact that the Judge did not impose an uplift to account for the fact that the aggravated burglary was committed while the appellant was on bail and, additionally, Mr Murray was not living in the city in which he should have been.
58 See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
The Judge noted that he would not increase the sentence on that basis due to the appellant’s age.
[57] The Judge had indicated that he intended to grant an additional credit to Mr Murray of two months for time spent on EM bail, however the appellant would not receive credit for the time spent on ordinary bail, as he was in breach of that bail when he committed the aggravated robbery.59 The credit for EM bail was not applied by the Judge to the end sentence of 45 months, or three years and nine months’ imprisonment.60 It is well-established that where an arithmetical correction is required, albeit the sentence imposed is within range, the correction should be made. If this oversight had been drawn to the attention of the sentencing Judge at the time, he would have corrected it. In those circumstances it is appropriate to impose the corrected sentence to give effect to the sentencing Judge’s intentions.61 Accordingly the credit of two months for time spent on EM bail is allowed and the sentence of three years and nine months’ imprisonment is substituted for three years and seven months’ imprisonment.
Conclusion
[58] Apart from failing to allow for the credit indicated for time spent on EM bail, the Judge made no errors. For the reasons set out above, the starting point for aggravated burglary and the cumulative uplift for the assault charge was appropriate. The end sentence is not manifestly excessive.
Result
[59] The appeal against sentence is allowed to correct an error. The sentence of three years and nine months’ imprisonment (45 months) is substituted for a sentence of three years and seven months’ imprisonment.
[60]The sentence appeal is otherwise dismissed.
59 Sentencing notes, above n 3, at [82].
60 At [84].
61 Tutakangahau, above n 15, at [36].
Grice J
Solicitors:
C & M Legal, New Plymouth
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