MURDOCH v NEW ZEALAND POLICE [2017] NZHC 801

MURDOCH v NEW ZEALAND POLICE [2017] NZHC 801 [28 April 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2017-425-9[2017] NZHC 801BETWEEN ANDREW PAUL MURDOCHAppellantAND NEW ZEALAND POLICERespondentHearing: 26 April 2017Appearances: T McCullum for the AppellantR Donnelly for the RespondentJudgment: 28 April 2017JUDGMENT OF MANDER J[1] The appellant, Mr Andrew Murdoch, was sentenced to 18 months imprisonment on two charges of theft. He was also ordered to pay two separate amounts of reparation in the sums of $14,439.74 and $607.83.[2] Mr Murdoch appeals his sentence. He alleges the sentencing Judge erred in calculating the amount of reparation he was required to pay, and in failing to commute the sentence of imprisonment to one of home detention. Further, that he imposed a manifestly excessive sentence.Background[3] Mr Murdoch was hired as a relief driver for a courier company. On the day of the offending he was assisting the permanent driver to deliver goods. At the end of the run he drove the permanent driver home and then returned the van to the depot. Before locking the van, Mr Murdoch took a number of undelivered sealed courier packs from the van.[4] These packs contained foreign currency. One of the packs contained a Samsung mobile phone. Mr Murdoch exchanged some of the currency for New Zealand dollars and distributed the remainder among family members and associates. The phone was given to a family member who subsequently sold it.[5] When confronted about the offending, Mr Murdoch sought to blame his brother who had helped him on previous days with the courier role, and ostensibly sought to assist a private investigator engaged by the courier company. The policeexecuted a search warrant on the brother's house and found some of the currency. When initially spoken to by the police, Mr Murdoch denied involvement, however, he later admitted it had been him who had taken the money and distributed it to others.The District Court decision[6] In sentencing Mr Murdoch, the District Court Judge noted his relatively mature age of 30 years, the premeditation involved in the offending, and Mr Murdoch's initial attempt to blame his younger brother for the thefts. The Judge referred to the breach of trust inherent in a theft by a courier entrusted with the safe delivery of goods, and Mr Murdoch's previous convictions.[7] A starting point of 18 months imprisonment was uplifted by eight months forMr Murdoch's previous dishonesty offences, and a further one month to representthe theft of the phone. That starting point of 27 months was reduced to 24 months in recognition of the totality principle before Mr Murdoch was afforded maximum credit of 25 per cent for his guilty plea, arriving at a final sentence of 18 months imprisonment.[8] The Judge declined to convert the sentence of imprisonment to one of home detention, noting that Mr Murdoch had previously served sentences of home detention and community detention which had not deterred him from reoffending. Reparation for the stolen phone and the currency was also imposed.Approach to appeal[9] An appeal against sentence can only be allowed if the appellate Court is satisfied there is an error in the sentence imposed and that an alternative sentence should be imposed.1 If the sentence under appeal can be properly justified having regard to relevant sentencing principles, the appeal Court may not substitute its own views for those of the sentencing Judge. The sentence must either be manifestly excessive or inappropriate.2[10] Importantly, on appeal the focus must be on the sentence imposed rather than the process by which the sentence has been reached. Whether a sentence is manifestly excessive is to be examined in terms of the sentence actually to be served.3 It follows therefore that for the appeal to be successful it must be demonstrated that the end sentence is wrong and requires amendment.The appeal[11] Mr Murdoch submitted the sentence imposed was manifestly excessive, and the Judge erred in principle when he declined to grant a sentence of home detention. In support of that contention four discrete points were relied upon:(a) A lack of parity between the sentence imposed on Mr Murdoch and his co-offenders who were charged with receiving in respect of the same stolen currency.(b) The imposition of an excessive amount of reparation.(c) A failure by the sentencing Judge to properly consider home detention.(d) That in the circumstances the length of the sentence was manifestly excessive.1 Criminal Procedure Act 2011, s 250.2 Ripia v R [2011] NZCA 101 at [15].3 Larkin v Ministry of Social Development [2015] NZHC 680; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].The question of parity[12] Police inquiries confirmed that four persons were identified as having received the stolen currency. Each were charged. Two offenders received diversion, and one other sentenced to community work. The fourth person, Mr Murdoch'sbrother, received a sentence of six months community detention, 250 hours community work and $1,000 reparation on a charge of receiving property over $1,000.[13] This ground of appeal focussed on the sentence imposed on Mr Murdoch'sbrother. Mr Murdoch submitted that both of them had faced offences which carriedthe same maximum penalty of seven years imprisonment, and that the appellant'sbrother, who is seven years his junior, has an extensive criminal history, although that was not made available to me. Mr Murdoch himself has a significant criminal record. It was acknowledged that different aggravating and mitigating features personal to Mr Murdoch and his brother apply but that those differences did not justify one offender receiving an electronically monitored sentence of community detention and the other imprisonment.[14] Section 8(e) of the Sentencing Act 2002 requires the Court to take into account the general desirability of consistency when dealing with similar offenders committing similar offences in similar circumstances. The need to recognise this principle is particularly acute when dealing with co-offenders. The Court of Appeal observed, in R v K:4Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender's culpability. Paritymeans treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.[15] The test as to whether an appellate Court should interfere with a sentence which is otherwise appropriate on the grounds of parity is well-established as whether a reasonably minded independent observer aware of all the circumstances of4 R v K (2003) 20 CRNZ 62 (CA) at [20].the offence and of the offenders would think that something has gone wrong with the administration of justice.5[16] This ground of Mr Murdoch's appeal was premised on the brother having been his co-offender. However, Mr Murdoch was the sole thief who breached both his employer's trust and the expectations of the courier company's client by stealingitems entrusted for delivery and in the employer's custody. The brother was one of a number of individuals to whom the stolen currency appears to have been distributed. Their respective criminal conduct and level of culpability are quite distinct.[17] It is unsurprising that Mr Murdoch's central role in the offending, which involved him abusing his position of trust, attracted a sterner sentence. Even if Mr Murdoch's brother can be considered as coming within the category of a co- offender, his criminal conduct is of a lesser dimension to that of Mr Murdoch. I do not consider an objective observer appraised of the circumstances would consider the sentence of imprisonment imposed on Mr Murdoch as the thief to be disproportionate to the electronically monitored sentence together with community work received by the brother as one of a number of receivers.Reparation[18] No issue arises in respect of the sum of $607.83 ordered to be paid in respect of the stolen phone. The Crown acknowledges the sentencing Judge erred in failing to take into account the sum of $1,637.80, representing the money that wasrecovered from Mr Murdoch's brother's address at the time of the execution of thesearch warrant. However, Mr Murdoch also disputes the way in which the value of the stolen currency was calculated. That calculation was not based on exchange rate information as at the time of theft but as at 7 November 2016. He argued the value of the currency should have been determined on the basis of what the victims paid for the currency at the time of its purchase in July 2016.[19] Mr Murdoch further submitted that he was aware that a number of offenders charged with receiving the stolen currency were also required to pay reparation. The5 R v Lawson [1982] 2 NZLR 219 (CA) at 223.original reparation amount sought was adjusted at the time of sentencing to take intoaccount the amount ordered to be paid by Mr Murdoch's brother, but no further information regarding any reparation paid by other receivers was made available to the District Court when Mr Murdoch was sentenced.[20] Finally, it was submitted the sentencing Judge failed to take into account MrMurdoch's ability to pay reparation. At the time of his sentencing he was a stay at home father caring for two children, aged seven years and 18 months respectively, with his partner being the sole income earner for the family.[21] I reject Mr Murdoch's submission that the sentencing Court erred by imposing reparation based upon an exchange rate as at 7 November 2016. I accept the merit of the submission that reparation should accurately reflect the value of the loss suffered by the victim as at the time of the commission of the offence when the loss was incurred. The Crown submitted that the assessment of loss is not so limited, and sought to draw an analogy with an appreciating asset such as a house whereby the value of the property may increase over time in comparison to its original purchase price. No doubt, there are various ways to approach the valuation of avictim's loss for the purpose of assessing the appropriate amount of reparation depending on the individual circumstances of the particular loss. However, in the present case, Mr Murdoch is not in a position to advance the point.[22] The way in which the reparation was calculated in this case was set out in some detail in the summary of facts. Appendices were attached setting out the various denominations stolen and their New Zealand dollar value based upon the exchange rate as at 7 November 2016. Mr Murdoch did not at the time of sentencing dispute the reparation sought, as set out in the summary of facts, nor, as I understand it, the specified date of the exchange rate. As matters presently stand, it remains unclear whether the seven different forms of currency would have had a greater or lesser value at the time they were stolen in terms of their New Zealand dollar worth as at 7 November, nor whether what the victim paid for the currency, which likely also included a commission, was greater or less than the 7 November calculation.[23] The sentencing Judge was entitled to proceed on the basis of the information before him. I was provided with no information which indicated the victim's losshad been inflated as a result of the approach taken at sentencing, in accordance with the details presented in the appendices to the summary of facts.[24] After the hearing of the appeal, the Crown made inquiries as to any other reparation orders or payments made by other offenders. Apart from the $1,000ordered to be paid by Mr Murdoch's brother, the police records show no other ordershad been made by the Court, nor any other payments made by other offenders. I was further advised that three other persons were charged, none of whom were required to pay reparation. Two were dealt with by way of diversion with no requirement to pay reparation, and another sentenced to community work, again, with no reparation being ordered. That information has not been contested by Mr Murdoch.[25] I do not accept Mr Murdoch's further submission that an order of reparationwould cause him and his partner undue hardship. Section 12(1) of the Sentencing Act requires a sentencing Court to impose reparation unless it is satisfied such an order would result in undue hardship for the offender or the dependants of the offender. If the offender has insufficient means to pay, a lesser amount may be imposed, or provision made for payment by instalment.6 However, there is an evidential onus on an offender to show that reparation would cause him or a dependant undue hardship.7 Apart from asserting, by way of submission, that Mr Murdoch's partner is the sole income earner in the household, no evidence was offered or information provided as to Mr Murdoch's financial position. The fact the household has one income does not of itself demonstrate undue hardship, and Mr Murdoch has failed to discharge the onus he carries.Home detention[26] Mr Murdoch submitted that while he has previously been subject to sentences of community and home detention in the past, he has not received such a sentence in relation to dishonesty offending. He submitted his past sentences have been completed without breaches and he is in a position to comply with an electronically6 Sentencing Act 2002, s 35(1).7 R v Thompson CA404/04, 19 October 2005.monitored sentence, having a suitable address available to him. Mr Murdoch submitted the sentence of home detention would represent the least restrictive outcome and would adequately meet the purposes of denunciation and deterrence. He submitted the sentencing Judge gave insufficient consideration to a sentence of home detention, and erred by not imposing that sentence in preference to a term of imprisonment.[27] The sentencing Judge did consider the option of home detention but rejected that course on the basis that previous sentences of home and community detention had not deterred Mr Murdoch from further offending. I consider the sentencing Judge was entitled to come to that conclusion in the exercise of his discretion. I do not consider the submission made by Mr Murdoch based on him not having previously received home detention for dishonesty offending carries much weight.[28] While it is correct that Mr Murdoch was sentenced to home detention for various driving offences in 2008, he has previous convictions between June 2012 and June 2015 for a range of offending, including burglary, threatening to kill, possession of an offensive weapon, and fraudulent use of a document, for which he was sentenced to community detention. The sentencing Judge's concern was thefailure of electronically monitored sentences to deter Mr Murdoch's continuedoffending. The Judge was entitled to have consideration to Mr Murdoch's generalrecidivism which has not been deterred despite a range of sentences being imposed in the past, including home detention.[29] Refusal to impose a sentence of home detention involves the exercise of discretion, and it is for Mr Murdoch to demonstrate the sentencing Judge erred in the way he exercised that discretion by failing to take into account relevant considerations, taking into account irrelevant considerations, or that he was plainly wrong.8 It is not enough simply for this Court to come to a different view as to the sentence to be imposed. It must be shown the sentencing Court exercised its discretion in an unjustified way.8 Gray v Serious Fraud Office HC Auckland CRI-2010-404-476, 31 March 2011 at [19].[30] Mr Murdoch's offending must be considered serious because of the circumstances in which it took place. Mr Murdoch has a background of previous offending, including for theft, burglary, and other dishonesty offending which has attracted periods of imprisonment. The large bulk of that offending was when Mr Murdoch was a young man, but he could have no expectation that the Court would look favourably on a sentence of home detention having regard to the nature of his offending on this occasion. I accept the Crown's submission that thesentencing Judge was entitled to take the view that after seven sentences of either community or home detention being imposed in the last eight years, imprisonment was a legitimate and appropriate response and, in particular, necessary to meet the sentencing purposes of deterrence and denunciation. This is confirmed when regard is had to sentencing decisions for similar offending.Was the sentence manifestly excessive?[31] Mr Murdoch sought to emphasise that the bulk of his offending occurred some 10 years ago when he was a young man or a youth. As noted, Mr Murdoch has more recent convictions for a range of offending which include burglary, threatening violence and fraud. However, I accept the uplift to the starting point of eight months to mark Mr Murdoch's previous convictions was excessive. Nevertheless the focusmust be on the ultimate sentence imposed and whether it was within the sentencingJudge's available discretion.[32] The Crown has referred to two cases in support of its submission that the end sentence was within range. In R v Duncan an associate of the appellant entered a café and noticed a key to a safe.9 The associate opened the safe, taking out $16,500 in cash which was placed in a rubbish basket because he was not dressed to conceal the money. The appellant, as part of a plan discussed with the associate and another person later went back to the café, took the money from the premises and divided it between himself and the two associates. The circumstances of the offending and the value of the theft have strong parallels with the present case. A starting point of two and a half years imprisonment was upheld by the Court of Appeal as being within the appropriate range.9 R v Duncan [2009] NZCA 408.[33] The other sentencing decision referred to by the Crown, Falaoa v Police, is a less similar case which involved the appellant snatching a woman's handbag in a bank with contents of a value of $3,532.41.10 The case was referred to by the Court of Appeal in Duncan and no comment made that an end sentence of 21 monthsimprisonment, taking into account the appellant's late guilty plea, was other than appropriate. Similarly, decisions of this Court indicate the final sentence of 18 months to be within range.11[34] Inevitably, sentencing in theft cases, as with all cases, turn on their own particular facts and the individual circumstances of the offender. Care is required before drawing too heavily on sentences imposed in different cases. In the present case it is not clear how much premeditation went into the theft, which is a feature upon which the sentencing Court placed some emphasis. Nor is it clear how much knowledge Mr Murdoch had about the content of the bags he stole although it appears these particular packages were identified and targeted by Mr Murdoch. There clearly was an element of premeditation and the breach of trust is indisputable. This was a feature that was not present in R v Duncan.[35] Taking all these matters into account, I do not consider the starting point of 18 months can be held to be manifestly excessive. The original starting point was modified by applying the totality principle and was appropriately calibrated to reflectthe seriousness of the offence and Mr Murdoch's culpability. While I have acceptedthe eight month uplift was excessive, Mr Murdoch did have recent previous convictions for burglary and fraud within the previous five years which could not be ignored, particularly when considered against the background of Mr Murdoch's moredistant offending. I do not consider any error by the sentencing Judge in the amount of the uplift rendered the ultimate sentence of 18 months imprisonment to be outside the available range.10 Falaoa v Police HC Napier AP54/98, 23 September 1998.11 Whakatau v Police HC Rotorua CRI-2004-463-078, 22 July 2004, where a sentence of 30 months imprisonment for four thefts of smaller amounts than in this case was upheld; Ropiha v Police HC Rotorua CRI-2004-463-074, 22 July 2004, where a single occasion of theft of cash and property worth some $2,500 was met with a reduced sentence of two years imprisonment on appeal.Result[36] The appeal is allowed to the limited extent of reducing the reparation order from $14,439.74 to $12,801.94. The other order for reparation in the sum of $607.83 remains intact. The other grounds of appeal are dismissed and the sentence of imprisonment of 18 months upheld.Solicitors:Southern Law, InvercargillPreston Russell Law, Invercargill