MURRAY v NEW ZEALAND POLICE [2020] NZHC 3468

MURRAY v NEW ZEALAND POLICE [2020] NZHC 3468 [21 December 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-000136[2020] NZHC 3468BETWEEN DANIEL WAYNE MURRAYAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2020(Heard at Tauranga)Appearances: Gerard Walsh for the AppellantOliver Salt for the RespondentJudgment: 21 December 2020JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 21 December 2020 at 12:30 pm.Registrar/ Deputy RegistrarDate:Introduction[1] This is an appeal against sentence. On 13 November 2020, the appellant,Daniel Murray, and his co-offenders, appeared for sentence before Judge T R Ingramin the District Court at Tauranga. He was sentenced to 20 months' imprisonment onone charge of burglary.1 He appeals against sentence as being manifestly excessive.Factual background[2] Mr Murray and his co-offenders, Harley Morehu and Kane Phillips, are allmembers of the Hauraki Killer Beez gang. Mr Morehu is said to be the captain andMr Murray is said to be second-in-command. It is claimed there is "bad blood"between Mr Morehu and the victim in this case, Glen Williams. The victim hadapparently accused Mr Morehu of providing methamphetamine to his ex-partner.[3] On 31 October 2018, Mr Murray and his co-offenders travelled to an addressin Paeroa seeking out Mr Williams. Mr Morehu travelled in his own car accompaniedby members of the Killer Beez. Mr Murray, Mr Phillips and another man, ChristopherTaukiri, drove there in Mr Murray's car. Mr Phillips was in possession of a pump-action shotgun.[4] At the time, Mr Williams was in a shed at the back of his property. He sawMr Murray and his co-offenders arrive. Mr Williams told one of his associates to gethis .22 firearm for protection.[5] Mr Morehu, backed up by Mr Murray, Mr Phillips and Mr Taukiri, went intothe property (but not the home) and confronted Mr Williams. He said he wanted tofight Mr Williams. The occupants of the address told the men to leave. The victim'sson, Kahn Williams, who was in the house at the time, saw what was going on. Hearmed himself with a .303 firearm. He went outside and fired a shot to scare theintruders off. Most of those present withdrew, but Mr Morehu and Mr Taukiricontinued to threaten, taunt and intimidate Mr Williams.1 R v Murray [2020] NZDC 23722[6] Then, Mr Phillips went back to the car to retrieve the pump-action shotgunfrom Mr Murray's car. He then advanced carrying the gun. Kahn Williams fired asecond warning shot. Mr Phillips continued to advance. An associate of Mr Williamstook the .22 rifle and fired at the men. Mr Morehu was hit several times. He receivednon-life threatening injuries. Mr Morehu retreated back to his vehicle and left.Mr Murray entered his car with his co-offenders. Kahn fired a third shot, which hitthe car.PAC report[7] The report writer notes that, since 2006, Mr Murray, aged 31, has accumulated19 convictions for a variety of offences, including common assault, disorderlybehaviour, burglary, threatening behaviour, shoplifting and various trafficinfringements. Further, due to the number and nature of his convictions, his gangassociations and history with drugs, Mr Murray is assessed as representing a high riskof re-offending. He is also assessed as posing a high risk of harm to others.[8] Additionally, the report writer observes that Mr Murray has active charges foralleged possession of methamphetamine for supply, conspiring to dealmethamphetamine, two counts of supply/admin/dealing methamphetamine, andunlawfully possessing a restricting weapon/pistol. He has pleaded not guilty.[9] Notably, the report writer recommends a sentence of home detention.Mr Murray has successfully completed community-based sentences in the past,including home detention and release conditions. He has also completed the LivingWithout Violence Programme and received alcohol and other drug treatment. Hisability and motivation to comply is assessed as high.[10] Finally, the report writer recommends that given Mr Murray's problematicsubstance use, a condition that he attend an alcohol and drug assessment be imposed.Such an assessment would help determine what further support and intervention maybe helpful. The report writer additionally recommends that, to further mitigateMr Murray's current risk profile, a condition prohibiting the use or possession ofalcohol or illicit drugs be imposed.District Court decision[11] The Judge sentenced Mr Murray to 20 months' imprisonment on the one chargeof burglary; Mr Morehu to 14 months' imprisonment for burglary; and Mr Phillips totwo-and-a-half years' imprisonment for burglary and unlawful possession of a firearm.Mr Taukiri appeared earlier, and pleaded guilty to and was sentenced on a charge ofaggravated robbery.[12] The Judge described the offending as "an organised, premeditated effort tohave gang members back up their leader in a personal confrontation in the knowledgethat there was a serious risk of firearms becoming involved".2 He noted thatMr Morehu was the driving force behind the offending, and acknowledged thatMr Murray and Mr Phillips played a lesser role.3[13] The Judge also noted that while there were no victim impact statements beforehim, the occupants of the address "decided that for the sake of their health they shouldleave Paeroa and its environs, because clearly matters would only escalate if theyremained".4 The Judge had pre-sentence and cultural reports before him.5[14] As to the cultural reports, the Judge said:"[22] Each defendant has produced a s 27 report. All of those reveal thereare indeed some factors which would go towards mitigating their membershipof the gang and their behaviour on this particular occasion. However, none ofthem in my view amount to a great deal. Being a member of a gang by itselfinvariably involves support for other gang members, and those who join gangsdo so in the knowledge that they will be required and they must willinglysupport other gang members if there is any challenge to that gang member orto the authority of the gang. Accordingly, it seems to me that the creditavailable for s 27 factors in this particular set of circumstances is relativelylow."2 At [18].3 At [20]–[21].4 At [14].5 I was advised at the hearing that Mr Williams and his son have been separately charged in relationto the use of the firearms.[15] In setting the starting point, his Honour rejected the Crown's submission whichrelied on the sentencing guidance in Senior v Police.6 Instead, he considered thatR v Pairama7 was more apposite in the circumstances, noting that:"[17] The fundamental features of that case were that something in theorder of seven associates turned up with Mr Pairama and the associates [were]wearing gang patches. The house was entered. There was a child present.There was a good deal of abuse and physical interaction. Fogarty J enteredinto a thoughtful assessment of the circumstances, and the Judge took the viewin the end that on that more serious case, which he found to be one involvingretribution, and of course the patched gang member involvement, he reachedthe conclusion that it justified a starting point of four years. I accept that thatis more serious. There was some significant violence meted out."[16] Applying that case, the Judge set a starting point of three years and threemonths for Mr Morehu; and, applying a discount of three months to reflect their lesserroles, a starting point of three years for Mr Murray and Mr Phillips.8[17] As to Mr Murray specifically, the Judge said:"[37] I turn now to the matters involving you, Mr Murray. In your case youmust be entitled to credit for your [guilty] plea of 25 per cent, and I havealready indicated a reduction of 10% for your role.9 However, your [criminal]record requires me to impose a further three months uplift. And I must giveyou some credit for the time that you spent on EM bail, some seventeenmonths without breach. In the circumstances, I am prepared to allow a threemonth credit for that.[38] By my calculations, the cumulative effect of the percentage reductionsthat I have assessed would total 13 months, from 36 months.10 That wouldproduce a sentence of 23 months and I need to reduce that by three months toaccount for your time on electronically monitored bail. In your case I havereceived a pre-sentence report which recommends a sentence of homedetention. I do not regard this as an appropriate case for home detention foranybody. In my view, if gangsters are going to carry out the kind of activitiesthat have been carried out here with a considerable threat to life when it isorganised in advance, in my view home detention is not and can never be anadequate response to such lawless behaviour. The net result accordingly foryou, Mr Murray, is a sentence of 20 months' imprisonment. You will beconvicted and sentenced to imprisonment for 20 months."6 Senior v Police (2000) 18 CRNZ 340 (HC).7 R v Pairama [2015] NZHC 2994.8 At [32].910[18] These calculations have created some trouble on appeal. It is unclear what the"reduction of 10% for your role" means, as the Judge did not earlier mention such adiscount. This cannot be a reference to the three months' discount for the appellant'slesser role, as that was applied at an earlier stage to reach a starting point of 36 months.Both the Crown and the appellant appear to read the 10 per cent discount to be for s 27factors. I am satisfied with that interpretation, that would be consistent with the 10per cent credit allowed to Mr Morehu and Mr Phillips in relation to their culturalreports, and a mistake in wording is more likely than framing the starting pointincorrectly. Further, it appears the Judge made an arithmetical error, as he omitted toapply the three month uplift for the appellant's criminal record.Approach on appeal[19] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow theappeal against sentence if it is satisfied that there is an error in the sentence imposedon conviction and that a different sentence should be imposed.[20] In determining whether to impose a different sentence, the Court does notsimply substitute its own view for that of the original sentencing Judge.11 Rather, itmust be shown that the sentence is manifestly excessive or wrong in principle.12 Thefocus is on the end sentence rather than the process by which it was reached.13Discussion[21] The sole issue on this appeal is whether the sentence is manifestly excessive.Mr Walsh, for Mr Murray, submits that it is on the following grounds:(a) the starting point of three years' imprisonment was too high. Instead, astarting point in the range of 18 to 24 months was appropriate;11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].12 At [30]–[35]; and Te Aho v R [2013] NZCA 47 at [10].13 Tutakangahau v R, above n 11, at [36].(b) insufficient credit was given for the time the appellant had spent on EMbail. The appellant spent 17 months on EM bail without breach;however, the Judge only gave a discount of three months;(c) insufficient credit was given for the matters outlined in the culturalreport. The Judge gave a discount of 10 per cent. Counsel submits thata discount of 15 per cent was appropriate in the circumstances; and(d) the Judge erred in declining to impose home detention despite theappellant being eligible and the PAC report recommending it. TheJudge went so far as to say, "in my view home detention is not and cannever be an adequate response to such lawless behaviour".[22] I address each of those grounds in turn. I note that the uplift of three monthsfor Mr Murray's criminal history and the 25 per cent discount for guilty plea is notdisputed.Starting point[23] First, was the starting point of three years' imprisonment too high? It is triteto comment that setting a starting point for burglary can be difficult due to the widerange of circumstances in which that crime can be committed.14[24] The Judge relied heavily on Pairama, given its similarities to the present case.Both cases involved a deliberate targeting of certain property with an intention toconfront the occupants. However, Mr Walsh submits that the offending in Pairamawas a good deal more serious than the present. I agree as did the sentencing Judgeaccepted it was "a more serious case."15 He recognised that in the lesser starting point.[25] Pairama involved more serious offending. The premeditation and planningwas more sophisticated. The degree of intrusion, particularly the entry of a home, wasmore intrusive. Property was stolen and actual physical violence was metered out.Additionally, the offending in Pairama was more protracted.14 See Connell-McDowell v Police [2019] NZHC 3370 at [16]–[18].15 R v Murray, above n 1, at [17], citing R v Pairama [2015] NZHC 2994.[26] Another point of difference is that Mr Pairama, with his co-defendants, facednot only a charge of burglary but also participation in an organised criminal group.[27] These differences were factored in the starting point adopted by Fogarty J; fouryears as compared to a three year starting point in the present case.[28] Despite counsels' endeavours to locate a case which is factually morecomparable, none has been found. Mr Walsh agreed that Pairama fits the facts of thepresent case more closely than any other, but his submission is that Judge Ingram'sadjustment was not sufficiently generous. Mr Salt, for the Crown, accepted that thestarting point was a stern one but was, nonetheless, within range. I agree.Discount for time spent on EM bail[29] It is this factor which Mr Walsh placed greatest emphasis on, namely thatMr Murray was on restrictive EM bail for a period of some 17 months during whichthere was no breach of any conditions. He submits that the Judge's three monthreduction on account of Mr Murray's restrictive bail conditions was insufficient.[30] Section 9(2)(h) of the Sentencing Act 2002 provides that the time spent on EMbail is a relevant mitigating factor. There is no mathematical formula to determinehow much of a discount is appropriate; it is an evaluative assessment having regard toall the circumstances, including the time spent on EM bail without breach and therestrictiveness of the particular EM bail conditions. A reduction in the sentence is notto be equivalent to the actual time spent on EM bail. Generally, a reduction less thanhalf the time spent on EM bail has been held to be appropriate.[31] As noted Mr Murray received a discount of three months for the 17 monthsspent on EM bail without breach. By contrast, Mr Phillips received a discount of twomonths for the five months that he spent on EM bail without breach.[32] Mr Walsh submits that a discount of seven to eight months is justified. Herelies on two Court of Appeal cases: Parata v R, where a discount of four months wasgiven to reflect the 10 months spent on EM bail;16 and R v R, where a discount of fourto six months would potentially have been available for the 12 months spent on EMbail.17 Mr Salt submits that discounts for time spent on EM bail has been described asbeing no more than "modest". He relies on Chea v R. However, even in that case, theCourt of Appeal considered that a discount of four months was appropriate to reflectthe 13 months spent on EM bail.18[33] On these authorities I consider that the three month discount for 17 monthsspent on EM bail without breach is insufficient. I am satisfied a six month discountwould be appropriate.Discount for s 27 cultural report[34] Thirdly, Mr Walsh submits insufficient credit was given for the matters set outin the cultural report. Again, discounts for such matters are not a precise science.Ultimately it requires an evaluative approach. A discount can only be given for"traceable linkages between that deprivation, the offender and the offending".19Mr Walsh submits that the 10 per cent discount was insufficient and that a 15 per centper cent discount is more appropriate. I do not agree. The Judge properly consideredthe matters in the report when he said:"[22] All of those [reports] reveal there are indeed some factors whichwould go towards mitigating their membership of the gang and their behaviouron this particular occasion. However, none of them in my view amount to agreat deal. Being a member of a gang by itself invariably involves support forother gang members, and those who join gangs do so in the knowledge thatthey will be required and they must willingly support other gang members ifthere is any challenge to that gang member or to the authority of the gang.Accordingly, it seems to be me that the credit available for s 27 factors in thisparticular set of circumstances is relatively low."[35] And that was a proper course open to the Judge.16 Parata v R [2017] NZCA 48.17 R v R [2017] NZCA 210.18 Chea v R [2016] NZCA 207.19 Arona v R [2018] NZCA 427 at [59].[36] The adversity and violence experienced by Mr Murray helps to explain hisoffending, but without a clear causal link I do not consider a discount exceeding 10per cent is warranted.Home detention[37] Although Mr Walsh's written submissions focused on this issue, he did notpress the point in the course of oral submissions. The reason for that is more practicalthan principled. Mr Murray is scheduled to be released on 11 February 2021. Giventhe proximity of that date and the intervention of the Christmas and New Year break,Mr Walsh advised me that it would not be practical to undertake the necessaryenquiries and have that material before the Court in a timely way.[38] Despite the fact that this means that I am not required to determine this aspectof the appeal, it does seem to me that when offenders carry firearms in circumstanceswhere an armed confrontation is plainly contemplated, a community-based sentencewill usually not be appropriate. Imprisonment is likely to be the norm as the Judge,himself, observed.20Conclusion[39] Thus, in conclusion, I am satisfied that the starting point of three years'imprisonment, while stern, was within range.[40] Secondly, I am satisfied that the three month discount was insufficient inrecognition for the time Mr Murray has spent on restrictive EM bail. In my view, asix month discount is appropriate.[41] I am satisfied that the Judge's discount for cultural matters was appropriate.[42] There is no need to disturb the sentence of imprisonment.[43] However, there was no uplift (as the Judge had intended) factored into theDistrict Court sentence. This was not ventilated with counsel at the time of the20 At [41].hearing, so I issued a Minute directing counsel to make further submissions on thisissue. The Crown informed that it did not wish to make further submissions. MrWalsh submitted that the Judge did in fact give the appellant a three month uplift, butthis is incorrect. If that had occurred, the end sentence would have been 23 months.Resultantly, if a six month discount for time spent on EM bail is now applied, and theuplift is applied as it should have been, the net sentence is the same as that which wasimposed by the Judge. Accordingly, no adjustment is warranted.[44] Thus, although I am satisfied there has been an error in the sentence imposed,a different sentence should not be substituted. It follows the appeal must be dismissed.Result[45] The appeal is dismissed.Moore JSolicitors:Mr Walsh, HamiltonCrown Solicitor, Tauranga