MacDonald v Police - [2012] NZHC 1767

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-12 [2012] NZHC 1767

BETWEEN CASEY DAWSON MACDONALD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 July 2012

Appearances: K L McHugh for the Appellant
R W Donnelly for the Respondent

Judgment: 17 July 2012

ORALJUDGMENT OF PRIESTLEY J (Appeal against sentence)

Counsel:
K L McHugh, AWS Legal, Invercargill. Email: Kate.McHugh@awslegal.com
R W Donnelly, Crown Solicitor, Invercargill. Email: riki.donnelly@prlaw.co.nz

MACDONALD V NEW ZEALAND POLICE HC INV CRI-2012-425-12 [17 July 2012]

[1] The appellant faced one charge of wounding with reckless disregard, laid under s 188(2) of the Crimes Act 1961. The maximum penalty for that offence is 7 years imprisonment.

[2] To his credit the appellant pleaded guilty at an early stage. On 31 January

2012, in the Invercargill District Court, Judge K J Phillips sentenced the appellant to a term of 2 years and 2 months imprisonment. That sentence, in the circumstances (it being common ground it was appropriate so to do), was made cumulative on a sentence of 5 years imprisonment imposed in August 2008 for serious drug related offending.

[3] The appeal challenges the end sentence of 2 years and 2 months imprisonment. Ms McHugh accepts that she must establish that the sentence was manifestly excessive.

[4] The offending took place some 15 months after the appellant had been released on parole. In the early hours of the morning in October 2011 the appellant punched the victim, in the vicinity of a bar in Tay Street. The incident appears (on the basis of the summary of facts) to have been unprovoked. The appellant ran from the scene but was found shortly afterwards hiding in the ceiling of a bowling club.

[5] The blow was potentially serious. The victim was unconscious for a period of time. A very brief medical report before the Judge, from Kew Hospital, refers to a fractured skull, a burst ear drum and a left frontal lobe brain haemorrhage. The blow clearly could have had lethal consequences.

[6] The Judge took great care with his sentencing methodology and factored in in some detail all the required R v Taueki[1] categories. It is not necessary to set out that methodology.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[7] The respective stances of counsel at sentencing were unremarkable. Their submissions were not far apart. The Crown for its part suggested a start point of 2 to

2½ years. Ms McHugh for the prisoner urged a 2 year start point and with aggravating features submitted that 2½ years was the appropriate figure from which mitigating credits should be deducted.

[8] The Judge adopted the higher start point of 2½ years. He incorrectly suggested that this was a submission of defence counsel but he is mistaken in that regard. Nothing hangs on that mistake, however.

[9] I am satisfied the Judge correctly (even generously) seized on this start point to reflect overall culpability. He observed that the appellant was drunk; was in breach of a parole condition which…

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.

Keep reading for free

Create a free CaseChat account to read MacDonald v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 1767
Decision Date: 17 July 2012

CaseChat Overview and Summary

The appellant in this case, Casey Dawson MacDonald, was convicted of wounding with reckless disregard under section 188(2) of the Crimes Act 1961, and was sentenced to 2 years and 2 months imprisonment. The appellant appealed against the sentence, arguing that it was manifestly excessive. The appeal was heard in the High Court of New Zealand, Invercargill Registry. The appellant was represented by K L McHugh of AWS Legal, and the respondent, New Zealand Police, was represented by R W Donnelly of the Crown Solicitor.

The legal issues before the court were whether the sentence was manifestly excessive, and if so, whether it was appropriate to allow the appeal on that basis. The court considered the sentencing methodology used by the District Court Judge, and whether the start point and mitigating factors applied were appropriate. The court also considered whether the cumulative sentence imposed was appropriate, given the appellant's previous criminal history.

The court found that the sentence, although not perfectly arrived at, did not cross the threshold of being manifestly excessive. The court noted that the Judge had taken into account all the required factors in arriving at the sentence, and that the appellant's criminal history did not include serious violent offending. The court also noted that the appellant had shown remorse and had carried out valuable work in the community while on parole. The court concluded that the sentence was appropriate, and dismissed the appeal.

The final orders of the court were that the appeal against sentence was dismissed. The appellant's conviction and sentence remained in place.

Orders