Murrell v Police

[2024] NZHC 300

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-42

[2024] NZHC 300

BETWEEN

JARRAD JOHN BARRIE MURRELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 February 2024 (via VMR)

Appearances:

Appellant in Person

G L Duncan for Respondent

Judgment:

23 February 2024

JUDGMENT OF CHURCHMAN J

[1]    On 1 November 2023 Jarrad John Barrie Murrell was sentenced by Judge Edwards in the Palmerston North District Court on two charges of driving while disqualified1 and one charge of shoplifting (under $500) of scissors and a cable valued at $59.00.2

[2]    Mr Murrell is self-represented. He drafted and filed the notice of appeal himself and also represented himself at the hearing of this appeal.

Background to offending

[3]    Mr Murrell was disqualified from driving on 23 June 2023. He had driven while suspended on 5 October 2022.

1      Land Transport Act 1998, s 32(1)(a) and (3).

2      Crimes Act 1961 s 219 and 223(d).

MURRELL v NEW ZEALAND POLICE [2024] NZHC 300 [23 February 2024]

[4]    On 24 June 2023, shortly after he had been disqualified from driving, he drove a vehicle which contained other family members including an infant. When stopped his explanation was that he had to drive to a nearby motel.

[5]    In late June 2023, the appellant entered The Warehouse with two female associates. The appellant was handed two packs of scissors and a coaxial cable (collectively valued $59) and concealed these down the front of his pants. He then left the store without making any attempt at paying.

[6]    On 9 October 2023, he drove a van early in the morning at a time he was disqualified. His explanation was he had been living in the van, which had been stolen. He had located it and had to move it. In addition to being disqualified from driving at this time, Mr Murrell was also subject to a bail condition prohibiting him from driving.

The District Court decision

[7]    The sentencing notes are brief. The Judge canvassed the facts of the offences and then determined the appropriate sentence. She noted that the disqualification period could be cumulative on the disqualification that the appellant was already serving. She determined that the disqualification period for each of the driving sentences could run concurrently. She imposed a total period of disqualification of six months to commence on 20 December 2023, which was the date the existing period of disqualification expired.

[8]    She imposed 80 hours  of community service for each driving offence and   40 hours for the theft. However, she determined the community service hours could all be served concurrently. The final sentence was therefore a total of 80 hours community work together with disqualification from driving for a period of six months and an order to pay reparation in the sum of $59.00 to The Warehouse.

[9]    In determining what the Judge concluded was the appropriate sentence of “a relatively limited number of community work hours” the Judge took into account  Mr Murrell’s limited criminal history and the fact that he had entered guilty pleas at a relatively early stage.

Approach to appeal

[10]   Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011 (the CPA). A first appeal court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[11]   Where these conditions are not made out, the Court does not retain any discretion and must dismiss the appeal.

[12]   When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.3 It must be shown that there has been an error made by the sentencing Judge.4 The Court cannot ‘tinker’ with a sentence imposed where that sentence is nevertheless in range.5 No reduction is required if the end sentence is not wholly out of proportion to the gravity of the overall offending.6

[13]If the Court allows an appeal under s 250, it must:7

(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or

(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or

(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.

3      Tutakangahau v R [2014] NZCA 279 at [32]–[35].

4      Tutakangahau v R, above n 3, at [27].

5      R v Boyd (2004) 21 CRNZ 169 at [38].

6      Ascroft v R [2014] NZCA 551 at [32].

7      Criminal Procedure Act 2011, s 251.

Submissions

[14]   Mr Murrell failed to comply with the direction to file written submissions. From reading his notice on appeal it was difficult to understand exactly what it was he was concerned about. However during the course of the hearing he was able to clarify what his concerns were.

Double jeopardy

[15]   It appears that Mr Murrell thought he had been punished twice for driving while disqualified. I explained to him that there were two separate charges of driving while disqualified which the Judge was obliged to sentence him on but, in any event, because the sentences were to run concurrently and the period of disqualification imposed was the minimum period of six months, the net effect was that he had not received any greater sentence than would have been the case had he been sentenced on only one driving charge. Therefore no issue of double jeopardy arises.

Summary of facts

[16]   It seemed from the notice of appeal that Mr Murrell disputed some of the facts upon which the sentencing Judge relied. However, he accepted that the facts set out in the Judge’s decision were accurate. There is nothing in the summary of facts, or the Judge’s assessment of this that gives rise to any error.

Lawyers conduct

[17]   The notice of appeal implies negligence on the part of Mr Murrell’s counsel at the time of sentencing. At the hearing of the appeal he explained that he believed his lawyer did not know of the second driving while disqualified charge.

[18]   Mr Murrell was unable to point to any evidence which would support a contention that the lawyer who appeared for him at sentence was not aware there were two charges of driving  while  disqualified.  There  were  separate  police  Summaries of Fact in relation to each of the driving while disqualified charges as well as a Summary of Fact in respect of the theft charge. His lawyer would have had those documents. In her sentencing notes the Judge also makes it clear that Mr Murrell was

being sentenced on three charges, two of driving while disqualified and one of theft. There is no evidence that this was queried by either Mr Murrell or his lawyer. I am satisfied that Mr Murrell’s lawyer was  aware  of  the  nature  of  the  charges  that Mr Murrell had entered guilty pleas to.

Punishment excessive

[19]   Mr Murrell submitted that the overall penalties imposed were excessive. He pointed to the fact that the loss of his licence meant that he was unable to take up employment opportunities and remained unemployed. During the course of his oral submissions he conceded that the total community service sentence of 80 hours was fair. That is undoubtedly correct. A similar period of community work was imposed in the case of Maeva v Police.8 In that case, there was no aggravating factors. There were also a number of mitigating factors. In the present case the fact that only a matter of days had passed between the disqualification period commencing and the commission of one of the offences was an aggravating factor that could have justified a higher number of hours of community work.9

[20]   In his oral submissions, Mr Murrell raised the possibility of an order under s 94 of the Land Transport Act 1988 (LTA) substituting a community based sentence in respect of disqualification. Mr Murrell suggested that, if that had happened, he may have been able to obtain employment. However, he acknowledged that, at the time he was sentenced, he was on ACC and did not have a clearance to undertake work. Had an application under s 94 of the LTA been made in the District Court there would have been no basis for it to have been granted. In any event, given that no such application was made there was no error in the judgment in not considering this issue.

Bail breach

[21]   Mr Murrell submitted that he did not know that his bail conditions prohibited him from driving. However that is irrelevant. In addition to a prohibition on driving being part of his bail conditions, he was also disqualified at the time for the offence on 24 June 2023.

8      Maeva v Police HC Auckland CRI-2010-404-402.

9      See Maney v Police [2013] NZHC 3205.

Reduction of disqualification

[22]   At the end of his oral submissions it emerged that Mr Murrell’s real concern was that he had now been given a medical clearance to work but not having his licence stopped him from obtaining employment. There is nothing that this Court on appeal or indeed the District Court can do about this. Section 99 of the LTA provides that a person who is disqualified from holding or obtaining a licence may apply to a Court to reduce the disqualification. However that section is only applicable if that person has more than one year of an existing disqualification left to serve and has not been convicted in the previous two years of offences including offences against s 32(1)(a) and (3). Mr Murrell is ineligible on both of these grounds.

Conclusion

[23]   There were no errors in the Judge’s sentencing decision and there is no basis for a different sentence to be imposed.

Outcome

[24]The appeal is dismissed.

Churchman J

Solicitors:

Crown Solicitor, Palmerston North for Respondent