R v Murray

[2015] NZHC 2524

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-091-096 [2015] NZHC 2524

THE QUEEN

v

CRUZ MASON MURRAY

Counsel:

T J Gilbert for Crown

E A Hall and C J Stevenson for Prisoner

Sentencing:

13 October 2015

SENTENCING NOTES OF WILLIAMS J

[1]      Cruz Murray you appear for sentence having been found guilty by a jury on

4 September 2015 of the charge of manslaughter against Bruce Coker.

[2]      The events occurred on the night of 20 December last year.  You were at a whanau Christmas celebration at 9 Rossiter St in Tawa.   The evidence was that everyone was having a good time and there was no particular trouble.

[3]      Some time after 11pm you were out in front of the property at 9 Rossiter St. You thought that you were probably there to go to the toilet because all the men were going to the toilet outside but you couldn’t specifically remember.   You had been drinking at the address since arriving from work later in the afternoon.  By your own admission  you  were  very drunk.    It  was  dark  and  raining  but  there  was  latest technology street lighting in front of No. 9 Rossiter St.

[4]      Meanwhile, Bruce Coker had been drinking also since the afternoon at the home of his friends at 3 Rossiter St – just down the road. With Bruce Coker were his

partner, Pania Warahi, the residents at 3 Rossiter: Kim and Piri Matenga.

R v MURRAY (SENTENCING) [2015] NZHC 2524 [13 October 2015]

[5]      Now it seems that at No. 3 Rossiter St, Mr Coker had a disagreement with Pania  Warahi  over  a  matter  relating  to  his  daughter  in  Christchurch  and  his daughter’s mother.   The details around that are somewhat hazy but it seems that Mr Coker became angry and left the address heading out onto the footpath and towards you at No. 9 Rossiter St, where you were.   He too was drunk and had spotted cannabis oil.  You didn’t know one another and you had not met prior to that fateful meeting on the street that night.

[6]      The  evidence suggests  that  you  met  outside 7  Rossiter St.   Words  were exchanged.  You punched Mr Coker to the head striking the right-side of his face. The strike was properly described as carrying moderate force.  Mr Coker fell back onto the road surface without breaking his fall.  He suffered serious injuries to the back of his head and brain trauma.  He was rendered unconscious – probably by the fall rather than the punch – but it’s impossible to know.  You made no immediate attempt to help Mr Coker after the punch and fall – rather, you went back into the party.

[7]      There was some evidence that you told someone back at the party to call an ambulance but as far as I can tell by that time Mr Coker had been found on the road and an ambulance already called.

[8]      Ms Hall pressed on me a scenario whereby it was your raising the alarm that lead to the ambulance being called but my recollection of the evidence is that that connection is too hazy to be drawn with real clarity.

[9]      Mr  Coker  never  regained  consciousness  and  he  died  three  days  later  in hospital.

[10]     The only independent witness to these events was Leiken Walker who was at the Christmas party at No. 9 Rossiter St with you.  He was outside by a white van, in his words “having a pee” at the very time.  He said he heard an exchange of words and saw you throw the punch that felled Mr Coker.  He said Mr Coker’s hands were low at the time, holding or reaching for his phone or tobacco, or perhaps, the defence

suggested, the bottle of Stella Artois that he was probably carrying as he walked along the street.

[11]     But Mr Walker accepted that for a number of reasons the visibility wasn’t great and that he was pre-occupied with what he was doing.   So he couldn’t say, hand on heart, he saw everything that happened.  He accepted it was possible that Mr Coker threw the first punch and he couldn’t say one way or the other – just that it was possible.

[12]     You  say Mr Coker did  throw the first  punch  and  you  retaliated  in  self- defence.  Your case was that the punch was a fair and proportionate response to the attack. The jury rejected that scenario.

[13]     The  Crown  pitched  its  case  on  alternative  bases  –  either  the  punch  to Mr Coker’s head was completely unprovoked – the option Mr Gilbert described as the Crown’s primary option; or your punch was a completely disproportionate response to whatever provocation Mr Coker had offered.

[14]     The Crown’s case was accepted but we do not know upon which of the two bases, and of course the law is clear I must not speculate, at least not speculate where there is a dispute as there is here about the proper factual basis for sentence.

[15]     Mr Gilbert pressed upon me the fact that if Mr Walker had seen your punch thrown he must also have seen the punch that preceded it from Mr Coker.  And in fact Mr Walker had seen Mr Coker’s hands down low and not in any attacking stance, as it were.  But as I discussed with Mr Gilbert, the evidence isn’t all one way. In light of the fact that the evidence was clear that Mr Coker was agitated at the time he left 3 Rossiter St, and there appear to be no narrative of an aggressive state of mind on the part of you Mr Murray in the period leading up to the meeting on the street, I do not feel able to discount, as a reasonable possibility at least, that there was some element of provocation and an excessive response, in the guilty verdict.

[16]     You referred to Mr Coker swearing at you at least, and then of course to him throwing a punch.

[17]     Now it’s unnecessary for me to go further than accepting the reasonable

possibility of these elements in assessing your culpability.

[18]     I do not say that’s what did happen.  I simply say that there is a reasonable possibility that that may have happened, and you are entitled to the benefit of that doubt.  Although I might say its significance in the overall context of the facts, must not be overstated.

[19]     I’ve  received  three  victim  impact  statements.    The  first  from  Shariah McDonald, Mr Coker’s daughter.  Also from Tama Coker, his brother.  And from Pania Warahi, his partner.  They speak to the terrible impact of Bruce Coker’s death on that whanau.

[20]     Pania said Bruce didn’t deserve this, and she’s right.  She said she was angry at Bruce for leaving her – that she loves him and misses him and she blames herself a little for what happened.  Tama said that there was a sense of unbelievable loss and grief to the whanau and as the Kaumatua of the whanau he has had to bear that on behalf of all.  He points to the fact that Bruce was working, was getting his life back on track, had a new partner and was on the path to being a better man and father when this terrible event happened – a path not unlike yours Mr Murray.

[21]     Shariah’s statement was a tough read.   There’s one paragraph that really struck me.  She said:  “He was our captain, our backbone, the chief of our tribe – he has been taken.   Dad’s death has created a realm of hurt, pain and loss beyond words.”  One wife, she says, seven children, 14 grandchildren left in turmoil. All we can do is extend the hand of sympathy to that whanau at that loss, as you to your credit have done, and acknowledge their pain in this process today.

[22]     Now you received a sentence indication prior to trial.  Justice Dobson set a starting point at four years on the basis of the summary of facts which treated the attack as unprovoked, the punch as moderately serious, and that there was no assistance provided by you.   He then deducted a year for what would’ve been an early guilty plea at that point.

[23]     Now I say I largely agree with that starting point – the punch was moderately serious and such assistance as you offered was minor, in my view, and too late.  The connection between the calling of the ambulance and whatever you said back at the party is too hazy.  And Mr Murray being drunk didn’t help in your response to what you must’ve known was a serious injury in the moment.

[24]    But some discount should be available for the disproportionate response alternative basis upon which the Crown pitched its case.  Not a significant deduction but some deduction for that reasonable possibility.   I would deduct three months from the four year starting point for that purpose.  So I set the starting point at three years nine months.

[25]     The Crown presses for an uplift for previous convictions – 29 in all – that’s a lot.  But reflecting on that list I do not think that an uplift can be justified.  As the Probation Report suggests this offending is a significant step up on your previous offending, a pattern of largely driving offences, two domestic violent offences that seem, looking at the penalties, to be at a relatively low level.

[26]     In my view no valid sentencing purpose would be served by uplifting on that starting point.

[27]     Now personal factors.  The Probation Report suggests that you maintain the stance that this was self-defence.  The report suggests that this is you trying to justify and make sense in your mind of the terrible and intended consequence of your actions that night. And all are agreed that what happened was not intended by you.

[28]     The stance you take is a difficult one to weave into the narrative here.  It is not necessarily inconsistent with the reasonable possibility of the excessive force scenario.  But it does suggest that your remorse is not complete, not unconditional yet, not wholehearted yet.

[29]     I have copies of the two letters you have written – one to me and one to the family of Bruce Coker.  Written in beautiful script in which you try to explain to me what your perspective is on what you did that night.  You point to the need to be

better,  to  make  yourself  better,  you  promised  that  nothing like this  would  ever happen again.   You talk of the distance that you’ve put between yourself and the Mob; and in the letter to Bruce Coker, you say how these events have changed your whole life, and that you struggled to find words that might amount to an apology for the grief and pain that you’ve caused to Bruce Coker’s whanau and his friends.  You say you wish you never done it and you should’ve just walked away.

[30]     You say you know, nothing you can say can change what happened; that you don’t expect the Coker whanau and friends to forgive you but that you hope that they can find it in their hearts at some point to accept your heartfelt apology.  And of course you have offered restorative justice and the whanau have said we’re not ready for that yet, which we must respect.

[31]     You have a partner, Chardai, and two children and the evidence is Mr Murray, that you’ve been trying to straighten your life.  I know the scenario in the holding cells  is  inconsistent  with  what  you’ve  said,  and  I know  that  your  whanau  has Mongrel Mob connections – that’s a reality.  But I believe you when you say you are trying to put distance between yourself and that lifestyle.  I saw that you had done the family violence retreat last year, Ngatahi Kaha, with Chardai as a couple.  That takes courage for a patched member to do that.

[32]     I know your behaviour at the Probation Service interview showed you still showing some of your old traits.  I’m told that you banged on the window to yell out to an inmate friend in the middle of what could’ve been a very important interview in your life and in your sentencing.  It shows perhaps you still have a long way to go.

[33]     The report says you will benefit from rehabilitation programmes, particularly the Te Whare Whakaahuru Programme and Te Ao Māori based programmes.  I very much endorse that sentiment.

[34]     Bearing all these matters in mind, the attempts at change that you are making, your acknowledgement of fault in your letters, your limited acceptance (but acceptance nonetheless) of responsibility that is not necessarily inconsistent with the

scenario of sentencing, a small discount is justifiable.  I would discount two further months for that.

[35]     Now,  your  whanau  have  been  beside  you  and  with  you  throughout  this process.  I know I’ve watched it. And they are with you now to support you as I hold you accountable for what you did Mr Murray.  So you will understand that by your act a life was taken needlessly by your hands.  And that the heart of another whanau was needlessly broken – a whanau that held Bruce Coker in high regard just as your whanau supports you.

[36]     You can’t bring that life back and you can’t mend those broken hearts.  But you can decide today that the terrible price Bruce Coker paid, and that his whanau must still pay for your act of stupidity, will not be wasted. You can decide today that you will respect Bruce Coker’s memory in the decisions you now make about your life and the life of your family. You can decide today that you will do your time well

– do the courses, learn skills for life and leave prison a better man, a better husband, a better father, and a better member of your whanau.  You can decide today that this terrible tragedy is the turning point in your life.  In these ways Cruz Murray, you can honour Bruce Coker’s memory.  I challenge you to do that.

[37]     Please stand.

[38]     On the count of manslaughter of Bruce Coker, I sentence you to three years

seven months’ imprisonment.

[39]     Stand down please.

Williams J