Murray v The King

[2024] NZHC 818

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-22

[2024] NZHC 818

SHAUN WILLIAM FRANK MURRAY

Appellant

v

THE KING

Respondent

Hearing:

16 April 2024

Appearances:

D J Blaikie for the Appellant

A J Goodwin for the Respondent

Judgment:

16 April 2024

ORAL JUDGMENT OF WHATA J

MURRAY v THE KING [2024] NZHC 818 [16 April 2024]

[1]    Mr Murray finds it difficult to comply with the law and orders of the Court. On 23 November 2023, he was sentenced to 11 months’ imprisonment for multiple failures to answer District Court bail, multiple breaches of release conditions, operating a motor vehicle causing sustained loss of traction, receiving stolen property, unlawfully occupying an enclosed yard and for procuring cannabis. He was granted leave to apply for home detention, and did so successfully. His sentence was commuted to four and a half months’ home detention on 31 January 2024. He was placed with Waitomo Papakainga, a rehabilitation facility. It was due to expire on 13 June 2024.

[2]    However, one day into that commuted sentence he tested positive for methamphetamine. He was returned to custody on 2 February 2024, and then on 4 March 2024, was sentenced on this breach to nine months’ imprisonment. Mr Blaikie submits that the net effect of this is that Mr Murray’s effective sentence of imprisonment had been extended from 8 May 2024 to 18 July 2024, a period of two months and 10 days. So, in terms of a literal sentence, he has effectively been sentenced to a further four months and 20 days.

[3]    Mr Blaikie says this is manifestly excessive. The home detention sentence should have been cancelled and Mr Murray should have been resentenced on all charges he faced in November, with a result that he returns to the initial effective end date for sentence. This achieved the purposes and principles insofar as Mr Murray already forgoes the rehabilitation opportunity that home detention afforded. Moreover, Mr Blaikie says while it is a breach, it was an understandable breach given the context he went into, a residential facility for persons suffering with addiction. Mr Blaikie is also instructed that Mr Murray wishes to return to the rehabilitation facility and the facility is wanting him back.

[4]    Mr Goodwin for the Crown submits that meaningful uplift would be a proportionate response to what is a recidivist rule breaker. It is noted that Mr Murray has 16 convictions for breach of court orders.

[5]    It is further submitted that the four and a half months’ home detention would need to, in terms of calculating sentence, take into account time already served. That is a matter which is disputed by Mr Blaikie. In any event, it appears that the Judge effectively intended simply to return Mr Murray to a term of imprisonment.

[6]    Mr Goodwin accepts that the proper approach in such cases would have been to resentence Mr Murray on the original charges and then to sentence him separately on the breach of home detention.

[7]    In terms of the sentence for the breach, Mr Goodwin submits that a sentence of three to six months would be the appropriate sentence but reduced for totality reasons to about two months.

Assessment

[8]    I consider that the sentence imposed to be disproportionate if the result is to extend the period as Mr Blaikie says. I anticipate that the Judge did not intend to extend the sentence in this way. In any event, it is agreed Mr Murray should have been resentenced on the original charges and a separate sentence added for the home detention breach. That is an appealable error and on that basis, I allow the appeal and resentence Mr Murray as suggested.

[9]    Having regard to the peculiar features of this case, I proposed  to  sentence Mr Murray for one month on the breach. In this regard, I agree with Mr Blaikie that we need to look at the reality of what occurred. Mr Murray was offered methamphetamine and his addiction took control. It is both unfortunate and regrettable. As a consequence of this he has now lost the benefit of the rehabilitation programme, which I accept is punishment in itself. On that basis I am satisfied a further one month of imprisonment for the breach is sufficient to meet the purpose and principles of sentencing and including in that to deter future breaches.

Result

[10]   On that basis I resentence Mr Murray to 11 months on the original charges and I add to be served cumulatively a sentence of one month for the breach of home detention.

Whata J

Solicitors / Counsel:

D J Blaikie, Kaikohe

MWIS Crown Law Solicitors, Whangarei