MURRAY v POLICE [2019] NZHC 250

MURRAY v POLICE [2019] NZHC 250 [25 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-432[2019] NZHC 250BETWEEN RAYMOND MURRAYAppellantAND NEW ZEALAND POLICERespondentHearing: 25 February 2019Appearances: P T Eastwood for the AppellantH Watts for the RespondentJudgment: 25 February 2019ORAL JUDGMENT OF GAULT JSolicitors / Counsel:Mr P T Eastwood, Barrister, AucklandMs H Watts, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City[1] Mr Murray pleaded guilty in the District Court to two charges of burglary.On 31 July 2018, Judge C S Blackie sentenced Mr Murray to two years and fourmonths' imprisonment.1[2] Mr Murray seeks an extension of time to appeal on the basis of delay insecuring legal aid. The respondent is not prejudiced by the delay and does not opposean extension of time being granted. I make an order accordingly.[3] The grounds of appeal are that the sentence is manifestly excessive or wrongin principle in that the Judge precluded home detention.The facts[4] The summaries of facts in respect of the two charges of burglary record that on20 March 2018 Mr Murray entered an address by breaking glass at the rear of thehouse near the kitchen and rummaged through multiple rooms before leaving witha number of items belonging to the victim. The items taken were not described in thesummaries of facts but the victim impact statement refers to electronic items,jewellery, a hard drive and a chainsaw, with a combined cost of over $4,000. Some ofthe items were of sentimental value and irreplaceable.[5] Then, on 9 April 2018, Mr Murray, with an associate, entered another address,by cutting the padlock that secured the front gate. They disturbed the occupant, whowas terrified. Mr Murray attempted to enter the house but when challenged by thevictim apologised, saying he was looking for a friend and left in a car at speed.The sentence[6] The Judge's sentencing notes refer to a starting point in the vicinity of two-and-a-half years' imprisonment, an uplift to three years' imprisonment forMr Murray's previous offending, and a discount of 25 per cent for Mr Murray's guiltyplea at an early stage. The Judge imposed a sentence of two years and four months'imprisonment.1 Police v Murray [2018] NZDC 15759.[7] The Judge recorded that Mr Murray's counsel had submitted that the Courtshould adopt an entirely different approach and sentence Mr Murray to intensivesupervision, albeit for a long period. The Judge agreed that would be sensible if hefelt able to do so, but said that the law is framed in such a way that that sentence is notopen to the Court unless it is accompanied by something in the vicinity of communitydetention, community work or a lesser degree of penalty. The Judge said it can, ofcourse, be imposed as a stand-alone penalty but in the Judge's view if he were torelease Mr Murray, Mr Murray would pose an undue risk to the community –Mr Murray would continue to commit burglaries until free of addiction to alcohol anddrugs, more particularly drugs. Mr Murray had accepted that he commits these crimesin order to feed his drug habit.The argument on appeal[8] Mr Eastwood submitted there is an arithmetical error in the calculation of the25 per cent discount, which should have been nine months rather than eight months.[9] He also submitted the uplift of six months was stern. A lower uplift and a lowerstarting point, which could also have been arrived at, would have brought the sentencedown to two years or less where home detention would have been available unders 80I of the Sentencing Act 2002 (the Act). He submitted this was the expectation inthe pre-sentence report.[10] Finally, Mr Eastwood submitted there could be some discrete discount forremorse.Decision[11] I agree that the Judge intended to give a 25 per cent discount on 36 months,which should have been nine months. I consider it appropriate to give effect to theJudge's intention.[12] Otherwise, I consider that the Judge's assessment of the situation was correct,and the sentence is not manifestly excessive or wrong in principle, for the followingreasons.[13] As Mr Eastwood seems to accept, a starting point of two-and-a-half years'imprisonment may have been at the upper end of the range, but was not outside it.While there is no tariff for burglary sentences because the range of circumstances isso varied, burglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants, anddwelling house burglaries at the relatively minor end of the scale tend to attract astarting point of approximately 18 months to two-and-a-half years' imprisonment.2[14] Mr Murray must be regarded as a recidivist burglar with more than 10convictions for that offence alone over a period of more than 20 years. Even thoughthe last burglary conviction relates to an offence in 2013, an uplift of six months forhis previous convictions was justified.[15] In relation to remorse, this does not appear to have featured before the Judge.Mr Eastwood told me that Mr Murray was willing to participate in restorative justiceand met with restorative justice people but the meeting with victims never eventuated.He submitted that a willingness to participate in restorative justice should be givensome credit. It is clearly open to a sentencing Judge to apply a discount to reflectgenuine remorse because remorse is listed as a mitigating factor in s 9(2) of the Act.Whether or not the Judge does so, however, is very much a matter of discretion. Theexercise of the discretion will depend on the nature of the offending, the offender'sbackground and the nature of the remorse as determined by the Judge.3 It would havebeen open to the Judge not to give a discrete discount for remorse in this case givenMr Murray's background and repeat offending in order to feed his drug habit, andgiven the pre-sentence report records that Mr Murray did not express visible remorse.I consider that a further discount for remorse was not warranted.[16] I consider the Judge was entitled to take the view that a community-basedsentence was not appropriate given the risk of re-offending until Mr Murray is free ofaddiction, and that the appropriate place for Mr Murray to receive treatment is through2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189, (2012) 26 CRNZ 63 at [78]; Stepanicic vR [2015] NZCA 211 at [9].3 Renata v Police [2018] NZHC 2673 at [17].a full-time custodial sentence. Imprisonment is the least restrictive sentenceappropriate in the circumstances having regard to the needs of the community.[17] If the pre-sentence report had indicated otherwise, the position may have beendifferent. The pre-sentence report assessed Mr Murray's risk of harm and likelihoodof re-offending as high, and his ability to comply with community based sentences aslow given his history of non-compliances with community based sentences andelectronically monitored bail.[18] Mr Eastwood referred to a recent parole assessment report. While that is post-sentence, I note that the report indicated, and Mr Eastwood understands, that MrMurray has not yet been on a MIRP programme but that if he does not get on a coursethe Parole Board will look favourably on parole in a few months so Mr Murray can goon a Te Ara Hou programme.Result[19] An extension of time to appeal is granted.[20] The appeal against sentence is allowed. The sentence of two years and fourmonths' imprisonment is quashed and a sentence of two years and three months'imprisonment is imposed.________________________________Gault J