MURPHY v NEW ZEALAND POLICE [2018] NZHC 251

MURPHY v NEW ZEALAND POLICE [2018] NZHC 251 [27 February 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-000155[2018] NZHC 251BETWEEN CRAIG LEONARD MURPHYAppellantAND NEW ZEALAND POLICERespondentHearing: 22 February 2018Appearances: N R Rout for the AppellantC Bernhardt for the RespondentJudgment: 27 February 2018JUDGMENT OF DUNNINGHAM J[1] Mr Murphy was sentenced by Judge Couch to 16 months' imprisonment afterpleading guilty to charges of receiving (over $1000), unlawful possession of a firearm,possession of cannabis, possession of utensils, and breach of parole.1[2] He now appeals that sentence saying it is manifestly excessive and that itshould have been imposed concurrently with a sentence he was already serving onother charges.The offending[3] In March 2016 Mr Murphy was released on parole in relation to a sentence offour years, nine months for receiving, drugs, weapons, and driving charges imposedin 2014.2 One of the conditions of parole was not to possess illegal drugs.1 Police v Murphy [2017] NZDC 25758.2 R v Murphy DC Christchurch CRI-2013-009-005552, 29 August 2014.[4] In July 2017 Police executed a search warrant of Mr Murphy's home. Theyfound two chainsaws and a weed cutter, with a combined value of nearly $3000, thathad been stolen in a burglary two months earlier. A semi-automatic .22 gauge rifle,two grams of cannabis, and a methamphetamine pipe were also located at the property.Sentencing[5] Judge Couch identified the lead charge as receiving. He said the gravity of thatoffending was "significant", and took a starting point of 12 months' imprisonment. Hethen applied uplifts of four months for the firearm charge, and two months for thecannabis and utensils charges. He also applied a further three month uplift for the factthe offending occurred while on parole, and three months for Mr Murphy's previousoffending. The Judge noted Mr Murphy's criminal record includes 21 previousconvictions for dishonesty offending, including three of receiving, and a previousfirearms conviction.[6] From this overall starting point of 24 months, the Judge applied the full25 per cent discount for guilty pleas to reach a sentence of 18 months.[7] The Judge then turned his attention to whether the sentence should be imposedconcurrently with, or cumulatively on, the sentences which Mr Murphy was alreadyserving of parole. At the time of sentencing Mr Murphy had six months left on thatsentence. While his Honour said he saw "the rationale" in the submission that heshould impose it concurrently, with release conditions to take effect upon completionof both sentences, he decided that the Parole Board were best placed to imposeconditions. Thus he imposed the sentence cumulatively on the existing sentence. Theend sentence was 16 months, which appears to reflect a further reduction oftwo months to acknowledge the fact that as a result of his offending the appellant wasrecalled to serve the balance of his 2014 sentence.Jurisdiction and approach to appeal[8] Mr Murphy appeals as of right.3 This Court can only allow the appeal if it issatisfied that there is an error in the sentence imposed and that an alternative sentenceshould be imposed.4 If the sentence under appeal can be properly justified havingregard to relevant sentencing principles, this Court cannot substitute its own views forthose of the sentencing Judge. The sentence must be either manifestly excessive orinappropriate if the sentencing Judge's discretion is to be interfered with.[9] It is not enough that the Judge made an error in his reasoning: the focus is onthe sentence imposed rather than the process by which the sentence was reached.5SubmissionsAppellant[10] Mr Rout, for Mr Murphy, takes no issue with the starting point for the receivingcharge, but says the uplifts adopted were too high "when the case is considered as awhole".[11] The four month uplift for the firearm charge was excessive, he says, in light ofMr Murphy's explanation of that offending. Mr Murphy explained at sentencing thatthe firearm had been left in the shed at the property by previous tenants, along withconsiderable amounts of other property. He said he had been given credit on his rentfor clearing the property, and he was still in the process of doing so when the propertywas searched. Mr Rout notes the Judge did not comment on that explanation, and inthe absence of its rejection, four months was excessive. He also notes there was nolink between the firearm offending, and the (minor) drug offending and there was nosuggestion the firearm would or could be used as there was no ammunition found onthe property.[12] Regarding the two month uplift for the drug offending, he notes that themaximum penalty for cannabis possession is three months, and this was very low level3 Criminal Procedure Act 2011, s 244.4 Criminal Procedure Act, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].offending. He says possession of pipes is "generally a 'washing up' charge" and rarelyattracts a significant penalty. Mr Rout says the appellant was in a "difficult position"on parole because he had slipped back into methamphetamine use but did not seekassistance because of fear of recall.[13] As to the three month uplift for offending while on parole, Mr Rout says theJudge was wrong to say that the previous offending was similar in nature. There, hesays, the lead charges were Class A drug supply charges, and the receiving andfirearms charges were given concurrent sentences. Both this uplift and the three monthuplift for previous convictions, he says, are disproportionate to the starting point, andconstitute double counting.[14] Mr Rout also challenges the Judge's decision to impose cumulative sentences.The effect of s 91(5) Parole Act 2002 is that none of the time between recall andsentence would be taken into account as pre-sentence detention in determining hissentence end date. The result, he says, is that "the appellant has lost 9 months ofparole, in addition to the 16 months' imprisonment".Respondent[15] Mr Bernhardt for the respondent submits that the starting point and uplifts werewithin range. Given that the offending was "entirely independent from the 2014offending and in no way a connected series of offences", Mr Bernhardt submits theJudge was also correct to adopt a cumulative approach.[16] Regarding totality, Mr Bernhardt accepts that the totality principle is notlimited to sentencing on a single occasion for multiple offences, and thus Mr Murphy'sprevious sentence was relevant. However, he says here the sentences were not forconnected events, nor particularly proximate, nor has only a small portion of thatprevious sentence been served. The effective two month discount, he says, wassufficient to reflect totality in light of the six months remaining on that sentence.AnalysisUplifts[17] The firearms charge carries a maximum penalty of four years' imprisonmentand as such is not an insignificant charge. Although Mr Rout emphasised that noammunition was found in the search, and so there was no evidence it would be used,I still consider a four month uplift is within the available range indicated by case law.[18] For example, in R v Smith, the defendant was being sentenced on charges ofmanufacturing methamphetamine and being in possession of certain associatedequipment as well as a charge of being in unlawful possession of a firearm, namely a.22 rifle.6 In that case, the Judge accepted that there was no evidence that the weaponhad been used in recent times, nor was ammunition found in the defendant'spossession. Lang J accepted the firearm was not, in reality, related in any way to hisdrug offending. Had it been he would have imposed a sentence of approximately12 months' imprisonment but, in the circumstances, he uplifted the starting point byfour months. Similarly, in McCleary v Police, where again there was nothing toindicate that the defendant intended to use the firearm as there was no ammunition orany other equipment found with it, a starting point of four months was applied.7 InR v Sisson, the defendant faced a range of methamphetamine charges, and was chargedwith unlawful possession of a .22 calibre rifle with no ammunition close to the riflenor did the rifle have a magazine.8 A term of three months' imprisonment wasimposed, although it was to be served concurrently and was not reflected in an uplift.[19] Mr Murphy's explanation of how the firearm came into his possession does notassist him. Mr Rout expressly explained this was not in effect a denial of the charge,but rather an explanation which went to the level of culpability involved.9 I considerthe sentence imposed reflects the relatively low level of culpability. The offence6 R v Smith HC Auckland CRI-2006-090-9488, 13 March 2008.7 McCleary v Police [2014] NZHC 1581.8 R v Sisson HC Auckland CRI-2006-090-1151, 25 May 2007.9 Section 66 Arms Act 1983 provides that an occupier of property on which a firearm is found,avoids possession being deemed if he can prove it was not his property and it was in the possessionof some other person.carries a maximum penalty of four years' imprisonment so the four months uplift wasat the very low end of the scale.[20] The Judge was also entitled to uplift the sentence for the drug offending.Again, the seriousness of the offending is low, and it would have been open to theJudge not to impose an uplift. However, the real issue is whether the uplift imposedwas excessive and that can only be assessed when looking at the appropriateness ofthe overall sentence in light of the totality of the offending as I discuss below.[21] I do not accept the submission in relation to the uplift for offending on parolethat the Judge was wrong to see this as similar offending to the offending he had beensentenced for. Mr Murphy was on parole in relation to receiving and firearms charges,which are the same charges he faces again. The fact that he was also on parole on amore serious drug dealing charge does not detract from this. Regardless, there is noneed for the offending on parole to be similar in nature to previous offending – thepurpose of such an uplift is to reflect the added gravity of the offending arising out ofthe flagrant disregard for Court sanctions. In this case, the uplift also recognises thediscrete charge of breach of parole conditions.[22] Nor was it unreasonable, on its own, to impose an uplift for previousconvictions. Mr Murphy has a long history of dishonesty offending, and it is routinefor a sentencing Judge to recognise recidivist offending with an uplift. There is nodouble counting, as this uplift recognises Mr Murphy's extensive criminal history, andnot just the most recent offending in respect of which he was on parole.Should the Judge have imposed a concurrent sentence?[23] As Mr Bernhardt submitted, concurrent sentences are generally appropriatewhen the offending is similar in kind and part of a connected series of events. Thatwas not the case here. However, as Judge Couch recognised, when sentencingsomeone recalled from parole, care needs to be taken that requiring an offender toserve the remainder of their first sentence as well as the fresh sentence does notconstitute double-punishment. The approach the Judge took here, in allowing adiscount to acknowledge the defendant had spent time in custody after being recalledfrom parole, is in line with the Court of Appeal's approach in Vernon v R.10[24] In Vernon, the Judge indicated that an uplift of 18 months would have beenappropriate for the fact the offending occurred while on parole and in the broadercontext of the offender's previous convictions. However, to take account of the factthe offender had been recalled and would serve 14 months of the previous sentencebefore the fresh sentence, that uplift was reduced to 12 months. Similarly, in Jardenv Police, the appeal was successful where the sentencing Judge had uplifted thesentence by six months for prior offending and for the fact the offending wascommitted on parole, but had not accounted for the time spent recalled.11 On appealthe Court quashed the uplift of six months to account for the 10 months to be servedon the recalled sentence. In Tukuafu v R the sentencing Judge had taken into accountthe fact the offending was while on parole in fixing the starting point.12 On appeal,the sentence was reduced by five months to account for the seven months remainingon the recalled sentence.[25] The principle to be distilled from those cases is that the Court should be waryof punishing the offender twice by applying a discrete uplift for offending while onparole when there is already a degree of punishment in the offender having to spendthe rest of the would-be parole time in custody. While the length of the lost paroletime will be relevant in determining how much the uplift for offending on paroleshould be tempered, the cases do not stand for the proposition that a discrete discountshould be applied proportionate to the amount of lost parole. It is the uplift that bringsthe risk of double punishment, not the recall itself.[26] While in the cases cited above the discount has been applied to uplifts foroffending on parole and criminal record together, I see no principled reason why thatshould be so. Subject to overall totality, there is no risk of double-punishment for adiscrete uplift for previous convictions unrelated to those on which the offender wason parole.10 Vernon v R [2010] NZCA 308.11 Jarden v Police [2017] NZHC 2539.12 Tukuafu v R [2015] NZCA 251.[27] Here, the Judge uplifted the sentence three months to reflect that the offendingwas on parole. He decreased it by two months (although, oddly, after guilty pleadiscount) in acknowledgement that Mr Murphy would, as a consequence of hisoffending, also serve nine months on a recalled sentence. While I accept in theorythere was nothing wrong in this approach, the reduction of two months in light of thenine extra months served seems ungenerous when compared with the other casesdiscussed above where the reductions were; six months to reflect an extra 14 monthsserved in Vernon, six months to reflect an extra 10 months served in Jarden, and fivemonths to reflect the extra seven months served on the existing sentence in Tukuafu.However, in my view, this is an issue best addressed when considering the totality ofthe penalty imposed for the offending.Totality[28] When a number charges are sentenced at once, and especially when a numberof uplifts are imposed, each of them justifiable on their own, it is well established thata sentencing Judge needs to take a step back and ask whether the overall sentenceaccurately reflects the gravity of the offending.[29] In this case, while the Judge said he needed to consider whether the sentencehe imposed should be concurrent or cumulative with the existing sentence, he onlyaddressed that issue in terms of imposing conditions relating to alcohol and drugtreatment which would then take effect upon the completion of both sentences. Hedid not address the issue of whether, to reflect the totality of the offending, there shouldbe some overlap on the sentences or some other way of recognising that, as aconsequence of some of the current offending, he was serving a further nine monthsof his original sentence.[30] In my view, although the current offending was separate from the original forwhich he was sentenced in 2014 (and as such a cumulative sentence was appropriate),it was artificial to ignore that a further nine months would be served for the breach ofparole independently from the other matters he was being sentenced for. Taking thatinto account, I consider there should have been some further discount for totality. Inmy view, a reduction of a further three months would be sufficient to achieve this,taking the sentence to one of 13 months.Conclusion[31] The appeal is allowed. The sentence of 16 months' imprisonment on the chargeof receiving is quashed and substituted with a sentence of 13 months' imprisonment,to be cumulative on the current sentence imposed in 2014. The sentence on all othercharges remains unaltered.Solicitors:Better Lawyers Limited, ChristchurchRaymond Donnelly & Co., Christchurch