Kerr-McCreath v The King - [2024] NZHC 367

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2023-442-16

[2024] NZHC 367

BETWEEN
LOGAN KERR-MCCREATH

Appellant

AND

THE KING

Respondent

Hearing: 20 February 2024 (via VMR)

Appearances:

T D A Harrē for Appellant A J Ewing for Respondent

Judgment:

28 February 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 13 January 2023, Logan Kerr-McCreath pleaded guilty to a charge of doing an indecent act on a young person.1 On 24 August 2023, he was sentenced2 to a term of ten months’ imprisonment, with leave granted to apply for substitution of his sentence to one of home detention.

[2] Mr Kerr-McCreath now appeals his conviction. He submits that the failure of trial counsel to follow instructions to advance an application for discharge without conviction led to a miscarriage of justice. He seeks the conviction to be quashed, and for the matter to be remitted back to the District Court for re-pleading and trial.

1 Crimes Act 1961, s 134(3) — maximum penalty seven years’ imprisonment.
2 R v Kerr-McCreath [2023] NZDC 18282.

KERR-MCCREATH v R [2024] NZHC 367 [28 February 2024]

Background to the offending

[3] In September 2020 the victim was staying with her father. Mr Kerr-McCreath, who was an extended family member, was visiting for the evening. Mr Kerr-McCreath had been drinking, and as the victim left a bedroom after setting up for Mr Kerr-McCreath, he asked her for a hug. When she complied, he pulled her hips towards him and touched her breasts and bottom over her clothing. She then pulled away and locked herself in her room.

District Court decision

[4] In her notes on sentencing, Judge Rielly noted that Mr Kerr-McCreath entered his guilty plea for pragmatic reasons on the belief he would receive a discharge without conviction, but no such assurances were given during discussions in court.3

[5] She also referred to the fact Mr Kerr-McCreath sought to adjourn sentencing proceedings to seek independent legal advice on applying to vacate his guilty plea. The Judge stated the threshold for doing so was very high, and that on the information available it was unlikely he would succeed.4 She also found there had already been significant delays in the proceeding, and so an adjournment was not granted.5

[6] The Judge found that Mr Kerr-McCreath’s focus since entering his guilty plea had been solely on himself, with “a complete absence of remorse” for his offending.6

[7] Taking into account the fact that Mr Kerr-McCreath had one previous unrelated conviction, had a job, and had alcohol abuse issues, the Judge found that a sentence starting point of 12 months’ imprisonment was appropriate, with a two-month credit for his guilty plea, which brought it down to 10 months.7

[8] Judge Rielly granted leave to apply for an alternative sentence of home detention pursuant to s 80I of the Sentencing Act 2002 and set six month’s standard

3 At [3].
4 At [5].
5 At [6].
6 At [9].
7 At [10]–[12].

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 367
Decision Date: 28 February 2024

CaseChat Overview and Summary

The case of Kerr-McCreath v The King involves Logan Kerr-McCreath appealing his conviction for committing an indecent act on a young person. Kerr-McCreath was sentenced to ten months' imprisonment but was granted leave to apply for substitution of his sentence to home detention. The appeal centres on the alleged failure of trial counsel to follow instructions to advance an application for discharge without conviction, which Kerr-McCreath claims led to a miscarriage of justice. Kerr-McCreath seeks the conviction to be quashed and the matter remitted back to the District Court for re-pleading and trial.

The primary legal issue before the court was whether the failure of trial counsel to follow instructions to advance an application for discharge without conviction amounted to a miscarriage of justice. This required the court to determine if there was a real risk that the outcome of the trial was affected, rendering it unfair or a nullity. The court had to assess whether the appellant's failure to receive a discharge without conviction was due to the counsel's non-compliance with instructions or if it was a result of the unlikelihood of success of such an application.

The court found that trial counsel had properly withdrawn the application for discharge without conviction after advising Kerr-McCreath of its unlikelihood of success, and that Kerr-McCreath had instructed them to do so. The court held that the appellant's guilty plea was made with full awareness of the consequences and proper legal advice, and therefore, there was no miscarriage of justice. The court noted that the appellant's failure to secure evidence of the impact of a conviction on his employment prospects, combined with the gravity of the offending, justified the counsel's decision not to pursue the application. The court also concluded that adjourning the proceedings would not have changed the outcome, as there was no prospect of a successful application to vacate the plea of guilty or a discharge without conviction.

The appeal was dismissed, and the conviction stood. The court found no evidence of an error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected or resulted in an unfair trial. The court upheld the conviction and sentence as it was satisfied that the appellant had received competent legal advice and the guilty plea was made freely and with full understanding of its implications.

Orders