Murray v The Queen - [2015] NZCA 538

IN THE COURT OF APPEAL OF NEW ZEALAND

CA624/2014
[2015] NZCA 538

BETWEEN	SHANE DAVID MURRAY Appellant
AND	THE QUEEN Respondent

Hearing:	18 August 2015 (further submissions 27 October 2015)
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	A J McKenzie for Appellant M J Lillico for Respondent
Judgment:	13 November 2015 at 10:00 am

JUDGMENT OF THE COURT

ALeave to appeal is granted.
BThe appeal is allowed.
CMr Murray’s sentence of one month’s (cumulative) imprisonment for possession of cannabis is quashed. On that charge, Mr Murray is convicted and discharged.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

Shane Murray pleaded guilty in the Christchurch District Court to committing acts of domestic violence: one charge each of assault with intent to injure and being unlawfully on a property. Mr Murray also pleaded guilty to a distinct charge of possession of cannabis. Mr Murray was sentenced on 18 June 2014 by Judge O’Driscoll to two years’ imprisonment on the domestic violence charges, and one month’s imprisonment (cumulative) for possession of cannabis.[1]
[1]Police v Murray (AKA) McKenzie DC Christchurch CRI-2013-009-11070, 18 June 2014.
Mr Murray appealed to the High Court against that cumulative sentence of one month’s imprisonment for possession of cannabis.[2] He did so by reference to s 7(2)(b) of the Misuse of Drugs Act 1975.
[2]Mr Murray did not challenge his sentence for the domestic violence offending.
Section 7(2)(b) provides:
(2) Subject to subsection (3), but without prejudice to any liability under section 6, every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction—
…
(b) to imprisonment for a term not exceeding 3 months or to a fine not exceeding $500 or to both in any other case:
provided that, where any person is convicted of an offence against subsection (1) relating only to a Class C controlled drug and is liable to a penalty under paragraph (b), the Judge or District Court Judge shall not impose a custodial sentence (being a sentence under which a person is liable to be detained in a prison within the meaning of the Corrections Act 2004) unless, by reason of the offender's previous convictions or of any exceptional circumstances relating to the offence or the offender, the Judge or District Court Judge is of the opinion that such a sentence should be imposed.
Justice Gendall dismissed Mr Murray’s appeal on 2 October 2014.[3] In doing so, he said:
[28] I accept in this case that Mr Murray’s cannabis offending was low level offending. I also accept that there is this proviso in s 7(2)(b) against imprisonment for this type of offending, and Mr Murray’s offending would not normally have attracted a sentence of imprisonment. However, in this case, given the custodial sentence imposed for the more serious offending of assault with intent to injure and unlawfully being on the victim’s property, in my view Judge O’Driscoll cannot be criticised for imposing a cumulative one month’s sentence of imprisonment in this…

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 Queen

Details

AGLC: Murray v The Queen [2015] NZCA 538
Case: [2015] NZCA 538
Decision Date: 13 November 2015 at 10:00 am

CaseChat Overview and Summary

Shane David Murray appealed against his sentence of one month's imprisonment for possession of cannabis, contending that the sentence was excessive and not in line with the provisions of the Misuse of Drugs Act 1975. The case was heard in the Court of Appeal of New Zealand by Ellen France P, Courtney, and Clifford JJ. Mr Murray was represented by A J McKenzie, and the respondent by M J Lillico. The appeal was allowed and the sentence was quashed, resulting in Mr Murray being convicted and discharged for the cannabis possession charge.

The central legal issue in this appeal was the interpretation of section 7(2)(b) of the Misuse of Drugs Act 1975. This section mandates that a person convicted of possessing a Class C controlled drug, such as cannabis, is liable for a penalty not exceeding three months' imprisonment or a fine not exceeding $500 or both, but cannot be given a custodial sentence unless specific conditions are met. Mr Murray argued that the proviso in this section, which discourages imprisonment for simple cannabis possession, was misapplied by the High Court, and that he was entitled to a conviction and discharge rather than imprisonment. The Court of Appeal had to determine whether the proviso required consideration of the offender's previous convictions or exceptional circumstances, or if the concurrent custodial sentence for other offences justified the imprisonment for the cannabis charge.

The Court of Appeal found that the proviso in section 7(2)(b) of the Misuse of Drugs Act 1975 should be interpreted as requiring a sentencing judge to consider the significance of the offender's cannabis possession, including their previous convictions and any exceptional circumstances. The Court held that the proviso was not satisfied merely because the offender was to receive a custodial sentence for other charges. This interpretation aligned with the historical reluctance of courts to sentence offenders to prison for simple cannabis possession. Consequently, the Court concluded that the High Court had erred in upholding the one-month custodial sentence for the cannabis charge. Since Mr Murray had already served his term, the Court did not need to address the alternative reasoning regarding the totality principle.

The Court of Appeal granted Mr Murray's application for special leave to appeal and allowed the appeal. The one-month cumulative sentence for possession of cannabis was quashed, and Mr Murray was convicted and discharged for that charge.

Orders