Legal Research
Cases
MacDonald v Police

MacDonald v Police

Case [2020] NZHC 3217 7 December 2020

Sentencing

Breach of Release Conditions

Remorse

Sentencing Indication

Manifestly Excessive Sentence

Criminal Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-375

[2020] NZHC 3217

BETWEEN ANTONY JONATHAN DONNY MACDONALD
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 December 2020

Appearances:

M Pitch for the appellant

R M Thompson for the respondent

Judgment:

7 December 2020

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
M Pitch, Lawyer, Auckland Meredith Connell, Auckland

MACDONALD v NEW ZEALAND POLICE [2020] NZHC 3217 [7 December 2020]

[1] Antony MacDonald appeals his sentence of 24-and-a-half months’ imprisonment, imposed by Judge P J B Winter in the District Court at Auckland on 14 August 2020,1

Background

[2] Mr MacDonald was sentenced on a raft of predominantly burglary and dishonesty offending on dates between 23 January 2018 and 3 September 2019 at various central Auckland backpacker accommodation.2 He has an extensive history of comparable offending during and preceding that period, more or less continuously since attaining adulthood in 2006. Mr MacDonald now is 32 years old.

[3] Mr MacDonald pleaded guilty to that offending after accepting the Judge’s sentencing indication of a 15 per cent discount from an end starting point of 30 months’ imprisonment, with the possibility of further discounts for any additional mitigating factors accepted at sentencing.3

[4] The Judge’s sentencing indication was structured from 15 months’ imprisonment for the lead burglary charge, uplifted by 10 months for the other burglaries, a further month for the dishonesty offending, and four months for his prior offending. He declined to impose any uplift for offending while on bail.4

Decision under appeal

[5] On sentencing Mr MacDonald, the Judge had regard for “very helpful” PAC and s 27 reports, which noted Mr MacDonald as being “a recidivist offender”,

1      Police v MacDonald [2020] NZDC 18270.
2      Burglary x 6, Crimes Act 1961, s 231(1)(a) (maximum penalty 10 years’ imprisonment); loss by deception (over $1,000), Crimes Act 1961, ss 240(1)(d) and 241(a) (maximum penalty 7 years’ imprisonment); loss by deception (less than $500) x 2, Crimes Act 1961, ss 240(1)(d) and 241(b) (maximum penalty 3 years’ imprisonment); use document for advantage x 2, Crimes Act 1961,   s 228(1)(b) (maximum penalty 7 years’ imprisonment); possession of utensils, Misuse of Drugs Act 1975, s 13(3) (maximum penalty 1 years’ imprisonment and/or $500 fine); wilful damage, Summary Offences Act 1981, s 11(1)(a) (maximum penalty 3 months’ imprisonment and/or
$2,000 fine); breach of release conditions, Parole Act 2002, s 71(1) (maximum penalty 10 years’ imprisonment and/or $2,000 fine).
3      Police v MacDonald CRI 2019-004-0284, 17 June 2020 at [4]–[5]. The Judge calculated the discount as leading to an end sentence of 26-and-a-half months’ imprisonment. A 15 per cent discount from 30 months’ imprisonment is 25-and-a-half months’ imprisonment.
4      At [2]–[3].

characterised by alcohol and substance abuse and an unstructured lifestyle, but recorded positive aspects of his life, including children, modest work history, some musical talent, and pro-social friends.5

[6] Having regard also for legislative sentencing factors, the Judge restated his indication’s 15 months’ imprisonment on the lead burglary…

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.

Continue reading MacDonald v Police

Details

AGLC: MacDonald v Police [2020] NZHC 3217
Case: [2020] NZHC 3217
Decision Date: 7 December 2020

CaseChat Overview and Summary

Antony MacDonald appeals his sentence of 24-and-a-half months' imprisonment, imposed by Judge P J B Winter in the Auckland District Court on 14 August 2020. Mr MacDonald was sentenced for a series of burglaries and dishonesty offences committed at various backpacker accommodations in central Auckland between January 2018 and September 2019. The offences were part of an extensive history of similar crimes dating back to 2006. Mr MacDonald pleaded guilty and accepted the Judge's sentencing indication of a 15 per cent discount from an end starting point of 30 months’ imprisonment. The appeal centres on whether the Judge correctly applied the sentencing indication and whether the sentence imposed was manifestly excessive.

The court was required to decide whether the Judge erred in diverging from his sentencing indication and whether the sentence was manifestly excessive. The appeal hinged on whether the Judge's divergence from his sentencing indication constituted error and, if so, whether a different sentence should be imposed. The court considered the Judge's sentencing indication, the application of uplifts and discounts, and whether the sentence was within a properly justified range.

The court held that the Judge diverged from his sentencing indication by using a 30-month starting point instead of the indicated 31 months, which would have resulted in a lesser sentence. The court also noted ambiguity regarding the Judge's imposition of a four-month uplift for breach of release conditions, which may not have been justified. The court found that the Judge's divergence from his sentencing indication constituted error. However, the court did not consider the Judge's burglary sentence and uplifts for other offences to be erroneous. The court held that the Judge's sentence was manifestly excessive because it failed to meet the statutory definition of a "short-term" sentence, thus rendering the consequences unavailable solely due to its duration.

The appeal was upheld, and the sentence was set aside and substituted with a sentence of 23-and-a-half months’ imprisonment, with leave to apply for home detention if a suitable address is located.

Orders