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…
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- Case
- [2012] NZHC 1767
- Decision Date
CaseChat Overview and Summary
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.
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Background
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