MURDOCH v NEW ZEALAND POLICE [2019] NZCA 366

MURDOCH v NEW ZEALAND POLICE [2019] NZCA 366 [16 August 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA712/2018[2019] NZCA 366BETWEEN JOSHUA STEPHEN MURDOCHApplicantAND NEW ZEALAND POLICERespondentHearing: 1 August 2019Court: French, Mallon and Moore JJCounsel: Applicant in PersonA J Ewing for RespondentJudgment: 16 August 2019 at 10 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] On 21 August 2018 Mr Murdoch pleaded guilty in the Christchurch DistrictCourt to a charge of threatening to cause grievous bodily harm. He was convicted andsentenced to nine months' supervision.11 Police v Murdoch [2018] NZDC 19256.[2] He appealed that conviction and sentence to the High Court. The appeal wasdismissed by Gendall J on 2 November 2018.2[3] He now seeks leave to bring a second appeal against his conviction andsentence. The application is opposed.Factual and procedural background[4] The charge related to a threat Mr Murdoch made on 25 May 2018.The complainant was a woman who worked at the Ministry of Social Development(MSD). Mr Murdoch had telephoned the MSD to arrange emergency housing. In thecourse of his discussions with the complainant, Mr Murdoch became verballyaggressive. He shouted at the complainant and said "I'm gonna fucking come downthere and smash your face in! I'm gonna tear the place apart and rip your face off."[5] Upset by these threats the MSD worker complained to the Police andMr Murdoch was charged with threatening to cause grievous bodily harm.[6] On 21 August 2018 Mr Murdoch appeared before Judge T J Gilbert.A transcript of the exchange between Mr Murdoch and the bench has been obtained.This reveals that Mr Murdoch's counsel, Mr Dickson, sought leave to withdraw onthe basis that Mr Murdoch had made it plain he no longer wished Mr Dickson to actfor him. It is not clear from the transcript whether the Judge granted leave althoughnothing in this appeal turns on that.[7] There then followed a discussion between the Judge and Mr Murdoch aboutthe alleged offending and what the sentence might be if he pleaded guilty. Inthe course of those discussions Mr Murdoch described the circumstances surroundinghis call to MSD. At no time did he challenge the correctness of the allegations madeagainst him. Instead he requested regular counselling to assist him with his mentalhealth issues. The Judge carefully explained what a sentence of supervision wouldinvolve before asking Mr Murdoch whether he wished to plead guilty to the charge.Mr Murdoch said he did. The charge was then put to him by the Judge who asked him2 Murdoch v Police [2018] NZHC 2849.how he wished to plead. Mr Murdoch responded, "Guilty". The Judge then entereda conviction and sentenced Mr Murdoch to nine months' supervision.[8] Notwithstanding his plea of guilty Mr Murdoch appealed his conviction andsentence to the High Court. He said he did so on the basis that "he felt pressured toplead guilty by his lawyer and the Judge." 3[9] On appeal before Gendall J, Mr Murdoch apparently expressed uncertaintyaround his reasons for bringing the appeal. He observed he was trying to get his lifeback on track and had been in a "bad headspace".4 He explained that the offendingwas borne of frustration in his dealings with MSD.5 He made no endeavour to denyhe had made the threats in question, adding that he "did not know or understand100 per cent sure what was happening" during the District Court hearing.6[10] Gendall J, who had the benefit of the District Court transcript, determined therewas no merit in Mr Murdoch's claim he did not understand the significance of hisguilty plea or that it was entered as a consequence of improper pressure.7He concluded that Mr Murdoch had not satisfied him that any grounds existed tovacate his plea of guilty and dismissed the conviction appeal.8[11] On the sentence appeal Gendall J observed, after reviewing comparableauthority, that the sentence imposed was lenient.9 It focused very much onMr Murdoch's rehabilitative and reintegrative needs in terms of s 7(1)(h) of3 At [1].4 At [15(a) and (b)].5 At [15(d)].6 At [15(e) and (f)].7 At [25].8 At [23]–[26] and [34] citing R v Merrilees [2009] NZCA 59 at [35].9 At [29] and 31] citing Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011(22 months' imprisonment for threatening to kill his de facto partner, presenting a firearm at aperson in that same incident and being in possession of a firearm after the licence was revoked);Simon v R [2014] NZCA 207 (six years' imprisonment for threatening to kill, assault and drugrelated offences); Lawrence v Police [2015] NZHC 1122 (11 months' imprisonment for fourcharges of threatening to kill three politicians via email); and Annas v R [2011] NZCA 49(sentence of nine months' imprisonment on a charge of threatening to kill a WINZ manager bytelephone following hard on the heels of the appellant being trespassed from the branch premisesand while on bail for other charges).the Sentencing Act 2002. It could not be said to be manifestly excessive.He dismissed the sentence appeal.10Application for leave for second appeal[12] Section 237(2) of the Criminal Procedure Act 2011 (the CPA) provides thatthis Court must not grant leave unless it is satisfied the appeal involves a matter ofgeneral or public importance or that a miscarriage of justice may have occurred or mayoccur unless the appeal is heard. The statutory test sets a high threshold.11Has a miscarriage of justice occurred or may occur?[13] Mr Murdoch's application for leave to bring a second appeal is handwritten.It is very difficult to decipher but appears to request recordings not only of histelephone call to MSD on 25 May 2018, but also of the hearings in the District Courtand the High Court. Mr Murdoch provides his account of the background andcircumstances of the telephone call to MSD. Before us, Mr Murdoch essentiallyrepeated what is recorded in his leave application; he cannot remember what happenedor what he said to the complainant. He explained that his personal circumstances arevery difficult and at the present time he feels he is "going backwards".[14] However, it is clear from the transcript of Mr Murdoch's discussions withJudge Gilbert that on 21 August 2018 he fully understood the significance of his guiltyplea and the consequences of pleading guilty to the charge. It is also plain fromthe transcript that he was under no pressure, from any quarter, to plead guilty. He didso fully cognisant of the consequences.[15] Notably in neither his application for leave, nor in his submissions to us, doeshe deny making the telephone call or using the words complained of.10 At [34].11 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.[16] It is well settled that exceptional circumstances are necessary before an appealagainst conviction will be entertained after a guilty plea.12 There are no exceptionalcircumstances present here. No question of miscarriage of justice arises.Does the appeal involve a matter of general or public importance?[17] No matter of general or public importance is engaged in the proposed appeal.Result[18] For these reasons we are satisfied no grounds have been made out to grantleave to bring a second appeal.[19] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent12 R v Le Page [2005] 2 NZLR 845 (CA) at [16]; and Richmond v R [2016] NZCA 41 at [16]–[19].