MURPHY v NEW ZEALAND POLICE [2020] NZHC 3261

MURPHY v NEW ZEALAND POLICE [2020] NZHC 3261 [9 December 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2020-488-000052CRI-2020-488-000053[2020] NZHC 3261BETWEEN MANA HONE MOSES MURPHYAppellantAND NEW ZEALAND POLICERespondentHearing: 9 December 2020Appearances: S Thode for the AppellantC Taylor for the RespondentJudgment: 9 December 2020JUDGMENT OF WOOLFORD JSolicitors: Thode Utting, Barristers and Solicitors, Albany, AucklandMarsden Woods Inskip & Smith (Office of the Crown Solicitor), Whangarei[1] On 30 October 2020, Mana Hone Moses Murphy was sentenced on twocharges of offering to supply methamphetamine and two charges of breach of homedetention.1 He was also resentenced on the charges to which he had been sentencedto home detention. A total sentence of 26 months' imprisonment was imposed. Henow appeals against sentence as being manifestly excessive.Factual background[2] The two charges of offering to supply methamphetamine arose out of textmessages on 31 July 2019 and 4 August 2019. The amounts involved were one gram(valued at $400) and $50 worth, a total of 1.05 grams.[3] In the first text message an associate sought a "shocky" or one gram ofmethamphetamine, for a "punter", which is a common slang term for someone lookingto buy methamphetamine. In the second text message, the same associate sought "alittle 50 smidge or half a point", costing $50 to give to unknown male so he could putpetrol in their car.[4] Mr Murphy had been sentenced to 10 months' home detention on unrelatedoffending on 30 January 2020. On 12 June 2020, he breached a condition of his homedetention by consuming drugs, disclosed by a failed drug test. Then on 17 June 2020,he cut off his electronic bracelet and absconded from his home detention address.District Court sentence[5] In the District Court, after noting the charges to which Mr Murphy pleadedguilty, Judge DJ Orchard told him that if he had "stepped up last time," that is, bysupporting his father and helping him support his mother who was very ill, then almostcertainly he would have been given an electronically monitored sentence on thisoccasion.1 R v Murphy [2020] NZDC 22367.[6] In response to Mr Murphy's request for an adjournment of sentence andelectronically monitored (EM) bail so he could attend a rehabilitation programme, theJudge said:2[6] The Court has to be realistic in the end, Mr Murphy, and peoplelike you who continually waste the chances you are given in your selfish questfor using this drug, even at a time when you know how desperately yourparents could do with your help and support, just have to face theconsequences of their actions in the end, and that is what is going to happentoday to you. A community-based sentence for any reason is just completelyoff the table. You cannot be trusted to comply and frankly I would feel myselfvery foolish if I acceded to the submission that I should impose such asentence.[7] In reaching an end point of 26 months' imprisonment, the Judge, first of all,adopted a starting point for the two drug-related charges of 16 months' imprisonmentas being "adequate to deal with the offending". The Judge then added two months forMr Murphy's previous drug offending before deducting four months to arrive at anend point of 12 months' imprisonment for that offending.[8] The Judge then adopted a starting point of nine months' imprisonment for thetwo breaches of home detention before deducting three months to arrive at an endpoint of six months' imprisonment for that offending, which was to be cumulative onthe 12 months' imprisonment for offering to supply methamphetamine.[9] As to the resentence on the charges to which Mr Murphy had earlier beensentenced to 10 months' home detention, the Judge noted that he had completed sixmonths of that sentence. There were four months remaining, which was convertibleto eight months' imprisonment, which was again to be cumulative on the two earliersentences.[10] The Judge had before her a cultural report under s 27 of the Sentencing Act2002, but did not grant any discount for personal factors disclosed in that report. TheJudge said:3[11] It is time past, Mr Murphy, for you to move on from that, tragic asit is, and to move away from your offending and I am simply not prepared to2 At [6].3 At [11].give you any discount for s 27 factors at this late stage of what is your criminalcareer, Mr Murphy.[11] The Judge concluded:4[12] I am afraid, apart from your pleas of guilty, I really cannot see anyother discounts that are appropriate as far as you are concerned. I have alreadysaid that my impression is that you have thrown away chances in the past torehabilitate. I note that the letter from your mother indicates that you haveexpressed a desire to rehabilitate before, but not followed through. I reallysincerely hope that this time when you are released from prison, you willactually follow through, because you are not just wasting your own life, andyou are still a young man, you are causing huge hardship and distress to yourwhanau by your selfish behaviour, and at the end of the day, Mr Murphy, thatis what it is, impulsive and selfish, because you have not, up until now, everseriously tried to engage with this addiction and to beat it.Discussion[12] In terms of s 250 of the Criminal Procedure Act 2011, an appellate court mustallow an appeal against sentence if satisfied that for any reason there is an error in thesentence imposed on conviction and a different sentence should be imposed. In thepresent case, I am satisfied that there is an error in the sentence imposed and a differentsentence should be imposed.[13] First, the starting point on the two charges of offering to supplymethamphetamine of 16 months' imprisonment is too high. In Zhang v R, the Courtof Appeal revised the approach courts should take in the sentencing of offenders onmethamphetamine charges.5 The Court was particularly concerned at the need toconsider more flexible sentences in band one (into which Mr Murphy's offending falls)where community-based sentences needed to be a starting point open to the Court.Band one encompasses quantities up to five grams. The amount that Mr Murphyoffered to supply was 1.05 grams, which places the quantity at the lower end of bandone.[14] Furthermore, there was no proven financial gain. Mr Murphy says he wasgoing to give a gram to his whāngai sister. She says she needed it. He had heaps atthe time, so could afford to give some to her. The offers to supply were made by way4 At [12].5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.of text message. Mr Murphy also says he did not know it was an offence to givemethamphetamine away for free. If this is all true, this substantially lessens theseriousness of the offending.[15] Without the other offending and the resentencing, it would have been open tothe Court to deal with Mr Murphy by way of a community-based sentence. As it was,however, the Judge had little option but to cancel the sentence of home detention andresentence Mr Murphy to a term of imprisonment. That meant that themethamphetamine charges had to be dealt with by way of imprisonment too.[16] There is a paucity of reported cases dealing with offering to supply a gram ofmethamphetamine, perhaps because such charges can be dealt with by sentences otherthan imprisonment. But in the circumstances of this case, I am of the view that astarting point of no more than six months' imprisonment was warranted, which can beuplifted by two months for previous methamphetamine offending to reach a startingpoint of eight months' imprisonment.[17] The second reason why there is an error in the sentence imposed is that therewas no discount given by the Judge for personal factors, either in terms of Zhang orthe s 27 report.[18] In Zhang, the Court said that addiction shown to be causative of offending is amitigating consideration. It may, on its own terms, justify a sentence discount of upto 30 per cent. Addiction also calls for consideration of a rehabilitative response aspart of sentencing.[19] The Court also said that poverty and deprivation (potentially, but notnecessarily resulting from loss of land, language, culture, rangatiratanga, mana anddignity) are matters that may be regarded in a proper case to have impaired choice anddiminished moral culpabilities. Such vulnerabilities (where established and whetherassociated with addiction or not) require consideration at sentence. This type ofmaterial is usually introduced by way of a s 27 report, as was done in this case.[20] Mr Murphy is undoubtedly addicted to methamphetamine. The Judge acceptedas much but declined to consider a rehabilitative approach. The Judge also dismissedthe s 27 report, although there are matters contained in it which, in some way, explainMr Murphy's continued offending.[21] The report reveals Mr Murphy's exposure to gangs, alcohol, violence and drugsduring his early life in Otangarei and his later addiction to both cannabis andmethamphetamine. The report also points to the traumatic death of his three year olddaughter and what has followed — worsening drug use and addiction, incarceration,unemployment and grief, trauma and loss that has never been addressed. Mr Murphy'sexplanation is inherently plausible and provides a wealth of information that assists inaddressing the purposes and principles of sentencing. The report clearly showsimpaired choice and diminished moral culpability. The Judge was wrong to dismiss itout of hand.[22] Thirdly, the Judge has not had regard to the principle of totality. Section 85 ofthe Sentencing Act 2002 provides:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences ofimprisonment for 2 or more offences, the individual sentences mustreflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulativesentences is not disproportionately long, the imposition of cumulativesentences would result in a series of short sentences that individuallyfail to reflect the seriousness of each offence, then longer concurrentsentences, or a combination of concurrent and cumulative sentences,must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximumpenalty provided for that offence, receive the penalty that isappropriate for the totality of the offending; and(b) each of the lesser offences must receive the penaltyappropriate to that offence.[23] The Judge did not refer to the totality principle when setting the starting pointfor offering to supply methamphetamine and breaching home detention. Nor did sherefer to it when she arrived at a final sentence of 26 months' imprisonment. The Judgeshould have then stepped back and considered whether the sentence was wholly outof proportion to the gravity of the offending.[24] I am of the view that 26 months' imprisonment is wholly out of proportion tothe gravity of the offending. The offering to supply methamphetamine fell within thelower end of band one of Zhang, where a starting point of a community-based sentencewas available. The maximum sentence for breach of home detention is one year'simprisonment. These were to be in addition to the sentence of eight months'imprisonment imposed on the resentence.[25] The appeal is therefore allowed and the sentences of 12 months' imprisonmenton the two charges of offering to supply methamphetamine and six months'imprisonment on the two charges of breach of home detention are both quashed.[26] As noted above, an adjusted starting point for the charges of offering to supplymethamphetamine is appropriately a sentence of eight months' imprisonment. Fromthe adjusted starting point, just over a 35 per cent discount is appropriate, being a25 per cent discount for the pleas of guilty and 10 per cent for the factors set out in thes 27 report.6 This results in a sentence of five months' imprisonment on the twocharges of offering to supply methamphetamine.[27] As to the charges of breaching home detention, the starting point adopted bythe Judge was nine months' imprisonment, which is 75 per cent of the maximumsentence. Bearing in mind the totality principle, if this sentence is to be cumulativeon the sentence imposed on the charges of offering to supply methamphetamine, thestarting point is too high. A more appropriate starting point would be five months'imprisonment from which just over a 35 per cent discount is again appropriate, beinga 25 per cent discount for the pleas of guilty and 10 per cent for the factors set out inthe s 27 report.7 This results in a sentence of three months' imprisonment on the twocharges of breaching home detention.6 In reducing the starting point from 18 months' imprisonment to 12 months' imprisonment, theJudge, in effect, granted a 33.3 per cent discount for the guilty pleas.7 The Judge again, in effect, granted a 33.3 per cent discount for the guilty plea in reducing thestarting point from nine months' imprisonment to six months' imprisonment.[28] No adjustments or discounts are necessary to the sentence of eight months'imprisonment imposed on the resentence. The original sentence of 10 months' homedetention included all relevant adjustments and discounts.[29] Mr Murphy is therefore now sentenced to five months' imprisonment on thetwo charges of offering to supply methamphetamine and three months' imprisonmenton the two charges of breaching home detention. Both sentences are cumulative oneach other and on the resentence of eight months' imprisonment. This leads to a totalsentence of 16 months' imprisonment.[30] Given Mr Murphy's wish to enter a drug rehabilitation programme, leave isalso granted in terms of s 80I of the Sentencing Act for him to apply to the DistrictCourt for cancellation of the sentence of imprisonment and substitution of a sentenceof home detention if he is accepted for a residential drug rehabilitation programme ata later date.________________________________Woolford J