MacDonald v Police - [2020] NZHC 2742

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000135

[2020] NZHC 2742

BETWEEN
ANAHERA PONO MACDONALD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 October 2020

Appearances:

M Starling for the Appellant P Norman for the Respondent

Judgment:

16 October 2020

JUDGMENT OF NATION J

[1] Anahera MacDonald pleaded guilty to one charge of making a false statement and two charges of wilful damage. On 24 July 2020, she was sentenced to 13 months’ imprisonment.1 On 9 September 2020, Judge Couch declined Ms MacDonald’s application to substitute a sentence of home detention.2 On 11 September 2020, Ms MacDonald lodged an appeal against that refusal.

[2] On the hearing of the appeal, it became apparent Ms MacDonald needed to appeal against the sentence imposed on 24 July 2020.

1 Police v MacDonald [2020] NZDC 14545 [24 July decision].
2 Police v MacDonald DC Christchurch CRI-2019-042-391, 8 September 2020 (8 September decision).

MACDONALD v POLICE [2020] NZHC 2742 [16 October 2020]

Facts

[3] On 21 October 2018, Ms MacDonald made a statement to the Police that her partner, Mr Metuamate, had assaulted her earlier that day. He was arrested and remanded in custody. On 8 December 2018, Ms MacDonald made a second statement in which she said the first statement was incorrect. Mr Metuamate was released.

[4] On 12 April 2020, Ms MacDonald entered into a verbal argument with Mr Metuamate while on a city street. She threw a handful of stones at him. The stones missed Mr Metuamate but shattered a store window.

[5] On 16 April 2020, following another verbal argument, Ms MacDonald chased Mr Metuamate down the road and, again, threw rocks at him. One of the rocks smashed the rear window of a parked car.

Procedural history

[6] On 25 February 2019, Ms MacDonald was charged with making a false statement.

[7] On 1 July 2019, Judge Cameron gave a sentence indication of a starting point of 12 to 15 months’ imprisonment, with an end sentence of four months’ home detention, on the false statement charge and another charge of breaching community work. On 8 July 2019, Ms MacDonald accepted that sentence indication, pleaded guilty and the sentencing was set down for 4 October 2019. Ms MacDonald was pregnant, with her child due in September 2019, hence the delay.

[8] Ms MacDonald’s sentencing was rescheduled on multiple occasions either to allow a suitable home detention address to be found or because she was too late for court for the sentencing to proceed on the day.

[9] On 6 March 2020, Judge Couch permitted Ms MacDonald to vacate her plea of guilty to the false statement charge. She was remanded on bail to 20 March 2020. It appears the remand to 20 March 2020 was to give her the opportunity to find an address for a sentence of home detention.

[10] On 20 March 2020, Ms MacDonald appeared before Judge Couch and re- entered a guilty plea on the false…

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 2742
Case: [2020] NZHC 2742
Decision Date: 16 October 2020

CaseChat Overview and Summary

In MacDonald v Police, Anahera MacDonald appealed against her sentence of 13 months' imprisonment, imposed on 24 July 2020, for making a false statement and two charges of wilful damage. The appeal was initially against the refusal to substitute a sentence of home detention. However, during the hearing, it became clear that the appeal should also address the sentence's length. The key legal issue was whether the original sentence of 13 months' imprisonment was manifestly excessive and whether the court erred in not granting leave to apply for home detention.

The court considered the Sentencing Act 2002 and previous case law, which emphasised the principles of denunciation and deterrence. It noted that the original sentence indication was for a starting point of 12 to 15 months' imprisonment, with an end sentence of four months' home detention. The court found that the original sentence was manifestly excessive and that an appropriate sentence would have been eight months' imprisonment, accounting for discounts for youth, background, and guilty pleas. The court also considered Ms MacDonald's troubled upbringing, substance abuse, and propensity for violence but acknowledged her low risk of reoffending.

The High Court allowed the appeal, quashed the original sentence of 13 months' imprisonment, and sentenced MacDonald to eight months' imprisonment for making a false statement and one month imprisonment for the two charges of wilful damage, concurrent with each other and with the eight months' sentence. The court also imposed special release conditions to address Ms MacDonald's alcohol and drug issues and require her to attend any directed treatment or counselling.

Orders