R v Murray

[2015] NZHC 2179

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-029-000756 [2015] NZHC 2179

THE QUEEN

v

MICHAEL THRIFT MURRAY

Hearing:	11 September 2015
Counsel:	D G Johnstone and S McMullan for the Crown M Dyhrberg QC and K Maxwell for the Defendant
Judgment:	11 September 2015

SENTENCING NOTES OF WYLIE J

R v MURRAY [2015] NZHC 2179 [11 September 2015]

[1]      Mr Murray you may remain seated until I ask you to stand.  You appear for sentence  today,  having  been  found  guilty,  following  a  trial  by  jury,  of  murder pursuant to s 167 of the Crimes Act 1961.

[2]      Section 172 of the Crimes Act provides that everyone who commits murder is liable to imprisonment for life.  This provision however is subject to s 102 of the Sentencing Act 2002.   That section provides that an offender who is convicted of murder must be sentenced to imprisonment for life, unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.

[3]      If I sentence you to imprisonment for life, I am also required to impose a minimum period of imprisonment.  Any minimum period of imprisonment may not be  less  than  10  years,  and  must  be  the  minimum  term  of  imprisonment  that  I consider  necessary  to  satisfy  a  number  of  specified  purposes  set  out  in  the Sentencing Act.   If I am satisfied that no minimum term of imprisonment will be sufficient to satisfy the statutory purposes, then I may order that you serve your sentence without parole.

Relevant facts

[4]      On the evening of 2 August 2014, you were at home on Don Buck Road in Massey, Waitakere City.  You met up with a group of associates, some of whom you were related to, who had been at a 21st party at a nearby house.  Most, if not all of them, were grossly intoxicated.  You had a few drinks and smoked some cannabis with them.

[5]      There was a house warming party at another house a short distance away, also on Don Buck Road.   Shortly after midnight three males left that house and walked along Don Buck Road.  They were going to a service station to buy some pineapple juice because they had run out of mixers at the house warming party.

[6]      You and your associates were standing outside your house.  The three males were walking past.   Greetings were exchanged.   One of your associates went out, ostensibly to shake the hand of one of the males.  In a moment of drunken madness,

he kicked out at the man.  The kick hit the man in the face.   It was a completely unprovoked attack.

[7]      The male who had been attacked and his colleagues backed a short distance down Don Buck Road.   One of them then ran back to the house that the three of them had just left to get assistance.  Apologies were offered in an attempt to diffuse the situation, but you were told in no uncertain terms that you and your friends had messed with the wrong people.  There was a reference to the “88’s” – or Head Hunters.

[8]      A number of people then came running up Don Buck Road from the house warming party.  Some of your associates ran down the road towards the oncoming group. A fight ensued.  It quickly escalated into a full on brawl.

[9]      One of the males that had come up Don Buck Road from the house warming party to the aid of his friends was Connor Morris.  Mr Morris became involved in a series of fist fights with some of the members of your group.

[10]     At an early stage you ran back into your property.   You picked up a long handled sickle that you had earlier used to clear some vegetation for a dog kennel. The sickle had a curved metal blade with a pointed end.

[11]     You told the jury that it was your intention to use the sickle to try and scare the males who had come up from the other property.  The evidence suggested that initially you stood to one side on a grass verge, but that Mr Morris attacked your younger brother Stanley.  When this happened you moved forward, raised the sickle and swung it at Mr Morris’ head.  You hit him just behind his left ear.  You swung it with sufficient force that it penetrated Mr Morris’ skull and killed him.

[12]     You then ran from the scene.  You disposed of the sickle by throwing it into some bushes on your property.   You then remained on your property inside your room.   When the police arrived a short time later, you initially denied any involvement in the altercation.  You continued to deny any involvement when you were interviewed by the police a few days later.

[13]     You gave evidence at your trial.   You accepted that you had assaulted Mr Morris with the sickle, but you said that you had done so to try and protect your younger brother, Stanley.  You said that you asked Mr Morris to stop but that he did not do so.  You said that at that point you shut your eyes and swung the sickle.  The evidence suggested that the nature and force of the blow was such as to almost immediately kill Mr Morris.   He fell directly to the ground and did not move thereafter.

Pre-sentence report

[14]     You are 34 years of age. You have a number of prior convictions, but none of any significance for present purposes.  I do note that you were convicted of common assault in 2007, and of possession of an offensive weapon in 2008.  In both cases, however, sentences of community work were imposed at relatively low levels.  Your previous offending has not been serious, and you have not previously been sentenced to a term of imprisonment.

[15]     You are of Maori and Pakeha descent.  You left school at the age of 16, and initially obtained employment with family members building retaining walls and trenches.  In 2010, you undertook a course of study at Unitec. You received a level 3 certificate in automotive and mechanical engineering. You attempted to enter into an apprenticeship, but were unsuccessful in that regard.  You then engaged in further study, in an attempt to obtain a certificate in applied trades to further your interest in fabrication and mechanical engineering.   However when your mother became terminally ill, you put your studies on hold.

[16]     You were raised by your mother and you were close to her.  She passed away from cancer in 2013.  You told the jury and probation officer who interviewed you that you spent the last six months of her life supporting her.

[17]     You have two brothers and one sister.  You describe your relationship with your younger brother Stanley as being very strong and positive.  You are 12 years older than him and to an extent you were a father figure for him.

[18]     Prior to being remanded in custody in August 2014, you lived in Massey with your partner and your one year old daughter.  You  also have two children from a previous relationship.  You advised the report writer that you have an amicable relationship with your ex-partner.  You have been involved in rugby league and kick boxing, and you endeavoured to spend as much time as possible with your children and family members.

[19]     You told the report writer that you do not drink alcohol regularly, but that you do consume cannabis on a daily basis.  You said that you were first introduced to cannabis at the age of 13.  You advised the report writer that you have no gang affiliations or associations.

[20]     You have expressed remorse for your offending.  You told the report writer that you are sorry for the emotional harm that you have caused to the Morris family, and also for the impact on your own family.  You stated that you were trying to save your younger brother, and that you understand that you cannot turn back time.

[21]     The report writer identified two factors as contributing to your offending – namely your use of cannabis and your propensity for violence.  You did not agree with  this  assessment,  and  stated  that  your  use  of  cannabis  did  not  affect  your decision making on the night in question.  You did however agree that your daily use of cannabis is of concern, and you have indicated that you are open to engaging in a rehabilitative programme for drug abuse while in custody.  You also told the report writer that you do not see yourself as a violent person, and that you were simply defending your brother.  You are however open to undertaking an assessment with a departmental psychologist, who should be able to recommend an appropriate rehabilitative programme for you.

[22]     Your great aunt has confirmed that you still enjoy strong family support, and that you are not somebody who “looks for trouble”.

[23]     While  you  were  on  remand  in  custody,  you  were  compliant  with  the directions of the corrections staff, and you demonstrated an appropriate attitude. You

have been drug free in prison, and you appear to be motivated to improve your wellbeing, education and self understanding while you are in custody.

[24]     You  are  nevertheless  assessed  as  presenting  a  medium  likelihood  of reoffending due to the frequency of your offending, albeit at a relatively minor level, since 1999.  Your risk of harm to others is assessed as very high due to the violent nature of your attack on Mr Morris.

Victim impact statements

[25]     I have received four victim impact statements.  One from Mr Morris’ father, another from Mr Morris’ mother, a third from Mr Morris’ sister and a fourth from his partner.  I have read all of those victim impact statements.  Your counsel has told me that you have also read them and that you accept and appreciate the appalling consequences of your offending.  I do not intend to set out in detail the content of the victim impact statements.  It is clear that your offending has had a profound and devastating effect on the Morris family and on Mr Morris’ partner.

Submissions

[26]     Mr Johnstone, for the Crown, submitted that a sentence of life imprisonment should be imposed and that the appropriate minimum period of imprisonment is one of 10 years.  He argued that a sentence of life imprisonment would not be manifestly unjust.  He pointed to your use of a weapon, and suggested that it was an aggravating feature.  He noted that you went to get the sickle and suggested that there was an element of premeditation, albeit relatively minimal, in your actions.   He accepted that your offending may have been mitigated by your recklessness as to whether or not death would ensue, and he noted your assertion that you were acting in defence of  your  brother.    He  submitted  however  that  you  used  more  force  than  was reasonably necessary.  He also accepted that your criminal history does not aggravate the sentence, but went on to argue that you cannot rely on an unblemished past as a personal mitigating factor.

[27]     Ms Dyhrberg, on your behalf, submitted that it would be manifestly unjust to impose a sentence of life imprisonment on you.  She argued that you spent the day

avoiding trouble, and that you did not participate in any of the initial fighting.  She argued that you got the sickle to try and scare away the attackers, and that when you went to get it, you did not intend to use it against anybody.  She said that you asked Mr Morris to stop assaulting your brother, and submitted that it was only in the final moments, when you struck Mr Morris, that it could be said that you were intending to cause an injury which you knew was likely to cause death and were reckless as to whether death ensued.  She noted that you regret your actions, and are remorseful for what has happened.  She also submitted that any term of imprisonment will be disproportionately more difficult for you, because of concerns for your personal safety.   She noted that you have voluntarily spent the last year in isolation at Paremoremo.  In the alternative, Ms Dyhrberg submitted that if I consider that a sentence of life imprisonment is not manifestly unjust, a minimum term of 10 years imprisonment would be appropriate.

Purposes and principles of sentencing

[28]     In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act.  In particular I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment  of  that  offending,  and  importantly  the  need  to  denounce  the conduct in which you were involved.  I have also been mindful of the need to deter others from committing the same or similar offences.  I have taken into account the gravity of the offending which you were involved, including your culpability.  I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences.   I have also been mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.

[29]     I have also had regard to s 9, and in particular to the fact that your offending involved the use of a weapon.

Analysis

[30]     As I have noted, where an offender is convicted of murder, both the Crimes

Act  and  the  Sentencing  Act  require  that  the  offender  be  sentenced  to  life

would be manifestly unjust.1

[31]     The threshold to displace the presumptive sentence of life imprisonment is high.  In R v Rapira the Court of Appeal noted as follows:2

We are of the view that the Judge was correct to conclude that the presumption of life imprisonment for murder was not displaced for Peihopa or Rawiri in the circumstances of the case. The test is that the sentence of life imprisonment is manifestly unjust. That conclusion has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the use of “manifestly” requires. The  assessment  of  manifest  injustice  falls  to  be  undertaken  against  the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss 7 , 8  and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s

102 suggests was the expectation. Thus, on introduction of the Sentencing and  Parole  Reform  Bill,  the  Minister  of  Justice  (at  594  NZPD  10910)

referred  to  its  retention  of  “a  strong  presumption  in  favour  of  life

imprisonment for murder”:

[32]     In R v O’Brien, the Court of Appeal further commented as follows:3

There may be cases where the circumstances of a murder may not be so warranting denunciation and the mental or intellectual impairment of the offender may be so mitigating of moral culpability that, absent issues of future  risk  to  public  safety,  it  would  be  manifestly  unjust  to  impose  a sentence of life imprisonment.

[33]     Excessive self defence can constitute a situation where life imprisonment may be manifestly unjust.   In Daken v R, the Court of Appeal recognised this.   It stated as follows:4

We accept the appellant's basic thesis, consistent with or supported by these and other law reform materials, that excessive self-defence may fall within the second limb of s 102 so that a sentence of life imprisonment would be manifestly unjust. But the question for us is one of fact and judgment — whether in this case it does so fall. We have concluded it does not.

[34]     Despite these various observations, the threshold of manifest injustice has been met in very few cases.  In Te Wini v R,5 in 2013, the Court of Appeal observed

1      Crimes Act, s 172 and Sentencing Act, s 102.

2      R v Rapira [2003] 3 NZLR 794 (CA) at [121].

3      R v O’Brien (2003) 20 CRNZ 572 (CA) at [36].

4      Daken v R [2010] NZCA 212 at [68]; see also Law Commission Partial defence of provocation

(NZLC R 98, 2007) at [203].

that the threshold has been met in only four cases.   Insofar as I am aware that remains the position.  One case involved a mercy killing where an elderly man killed his wife who was suffering from dementia;6 another involved a man suffering from a major psychiatric illness accompanied by psychotic delusions who killed his elderly neighbour who he believed was spying on him;7  the third case involved a mentally impaired woman who had been abused by the deceased and others,8 and the fourth, a

secondary party with a peripheral role in the killing.9    As can be seen, all of these

cases differ markedly from your situation.

[35]     I do not consider that it would be manifestly unjust to impose a sentence of life imprisonment in your case.  I have reached this conclusion for the following reasons:

(a)      Your case has all the characteristics that are frequently associated with serious assaults and killings – young men who have been drinking too much, and who have become involved in provocative and threatening conduct which has quickly escalated into physical violence and on occasion, death;

(b)While I accept that you were trying to assist your younger brother, the force you used was clearly excessive.  That was the jury’s view.  It is also my view;

(c)      When you went back to your property to get the sickle, you could have simply rung the police.  The evidence established that you had a cellphone.  You could have simply stayed on your property.  At that stage your brother was not to your knowledge being attacked;

(d)There was premeditation, albeit relatively limited.   You went to get the sickle.  You brought it back to what was at that stage a fist fight.

5      Te Wini v R [2013] NZCA 201 at [16].

6      R v Law (2002) 19 CRNZ 500 (HC).

7      R v Reid HC Auckland CRI 2008-090-2203, 4 February 2011.

8      R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.

9      R v McNaughton [2012] NZHC 815; Upheld in R v Cunnard [2014] NZCA 138.

either group using weapons;

(e)       You introduced the sickle into the confrontation;

(f)       You were not a callow intoxicated youth.  You were 34 years old and unlike others involved, you were not grossly intoxicated;

(g)While  there  was  clearly  evidence  that  your  brother  was  being attacked, I suspect that your description of the attack on him was significantly overstated.   The evidence led at trial suggested that he only suffered relatively minor injuries;

(h)The evidence of an eye witness, who had not been drinking and who had no relationship with any of the parties involved, was that you did not pause, that you did not do anything to indicate that you were first trying to get Mr Morris’ attention, and that it looked like you “knew what [you] were going in there to do”.

In my view, a sentence short of life imprisonment would undermine the purposes of denunciation and deterrence, and fail to recognise the seriousness of your offending, and the degree of your culpability.10   It would also fail to acknowledge that a society governed by the rule of law cannot let its citizens take the law into their own hands, except in very limited circumstances. This was not one of those exceptional cases.

[36]     I now turn to consider the minimum period of imprisonment.   As I have already noted, the minimum period of imprisonment cannot be less than 10 years, and must be the minimum term of imprisonment that I consider is reasonably necessary to satisfy all or any one of the following purposes – namely to hold you accountable for the harm done to the victim and the community by your offending, to denounce the conduct in which you were involved, to deter you and others from

committing the same or a similar offence, and to protect the community from you.

10     And see Dakin v R, above n 4; Gempton v R [2011] NZCA 349 where the Court held that life imprisonment would not be manifestly unjust where excessive self-defence (and provocation) was argued.

[37]     I have considered your personal circumstances. As I have noted, you are a 34 year old.  You were, putting it bluntly, old enough to know better.  You told the jury that you immediately regretted your actions.  Nevertheless, you lied to the police on two separate occasions.  You have expressed remorse, and I accept that that remorse is  genuine.    I also  accept  Ms  Dyhrberg’s  submission  that  there  is  no  need  for personal deterrence in your case.  Nevertheless, I must hold you accountable for the seriousness of your offending, and the degree of your culpability.

[38]     I accept that imprisonment will be hard for you.  Threats have been made to your safety.  The Department of Corrections is aware of those threats and it is likely that you will be kept apart from many other prisoners.  This is unfortunate, but it is not unique.

[39]     I have considered the various cases referred to me by counsel.11    Most have some similarities to your offending.  In each a minimum period of imprisonment of

10 years was imposed.

[40]     I have also considered the various purposes which I am required to consider by s 103 of the Sentencing Act.  In my view a minimum term of imprisonment of 10 years is necessary to hold you accountable, to denounce your conduct, to deter, importantly in this case, others from committing the same or a similar offence, and given the pre-sentence report, to protect the community from you.

Sentence

[41]     Mr  Murray,  will  you  please  stand.    You  are  sentenced  to  a  term  of imprisonment for life for the murder of Connor Morris.  I impose a minimum term of imprisonment of 10 years.

[42]     Mr Murray, you have expressed a willingness to improve yourself while you are in custody.   You have said that you will take advantage of the rehabilitative

programmes that will be offered to you.  I trust that you will make good on this and

11     R v Harrison HC Auckland CRI-2003-092-36746, 10 February 2005; R v MacDonald HC Nelson CRI-2007-642-1025, 13 February 2009; R v Ati HC Auckland CRI-2006-092-16228, 24

April 2008; Gempton v R, above n 10; R v Heenan HC Rotorua CRI-2009-063-3966, 3 March
2011; R v Langley [2014] NZHC 3230.

that  ultimately  you  will  be  able  to  make  amends  to  the  community  for  your offending.

[43]     Please take Mr Murray down.

Wylie J