MacKay v Police - [2024] NZHC 334

NOTE: NAMES OF APPELLANT’S CO-DEFENDANT AND ASSOCIATES AND HOME DETENTION ADDRESS ARE REDACTED

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-003

[2024] NZHC 334

BETWEEN
EDEN MAREE MACKAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 February 2024

Counsel:

M J Utting for Appellant

J E Bourke for Respondent

Judgment:

27 February 2024

ORAL JUDGMENT OF RADICH J

[1] On 22 January 2024, Ms MacKay was sentenced to 12 months’ imprisonment and ordered to pay $3,500 in reparation for one charge of receiving stolen property over $1,000, by Judge Greig in the District Court at Hāwera.1 Ms MacKay brings this appeal on the basis that the Judge took into account irrelevant considerations when determining whether to impose a sentence of home detention, and that the Judge erred in not granting leave for Ms MacKay to apply for home detention at an alternative address. Later on 22 January 2024, she was granted bail with an overnight curfew to an address, pending the outcome of this appeal.

1 Police v MacKay [2024] NZDC 1122 [Sentencing Decision]; and Crimes Act 1961, ss 246 and 247(a).

MACKAY v NEW ZEALAND POLICE [2024] NZHC 334 [27 February 2024]

Background

[2] On 26 November 2023, Ms MacKay and her friend, [ ], had spent the night with the complainant at her house in Whanganui. The next day, Ms MacKay met [ ] after he had stolen the complainant’s car and her cellphone within it. Either [ ] or another associate accessed the complainant’s bank account from her phone and transferred $20,300 in six separate transactions to four different accounts. $1,500 was transferred straight into Ms MacKay’s account. $1,000 was then transferred to Ms MacKay by another defendant and a further $1,000 was given to her by that other defendant in cash.2 The money stolen was part of an ACC payment the complainant had received due to a serious head injury.3 Mr Bourke makes the point that Ms MacKay was closely associated with the primary offending. Mr Utting acknowledges that but refers to it, fairly, as opportunistic. Judge Greig described the offending, quite rightly in my view, as “particularly pernicious”.4

Other background

[3] Ms MacKay has a history of offending going back to 2018. The history involves, mostly, shoplifting. Sentences of reparation, supervision and community detention have been imposed. Ms MacKay was sentenced to home detention of six months for a charge of theft and has convictions for possession or use of methamphetamine.

[4] In a report from the Department of Corrections, the report writer recommended a sentence of home detention with conditions relating to attendance at gambling, alcohol and drug programmes and requiring her not to associate with certain people. The report writer assessed Ms MacKay as being at a medium likelihood of reoffending and a medium risk of harm to others, noting an increase in offending frequency and severity. The address suggested by Ms MacKay for electronic monitoring while on home detention ([ ])…

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 MacKay v Police

Details

AGLC: MacKay v Police [2024] NZHC 334
Case: [2024] NZHC 334
Decision Date: 27 February 2024

CaseChat Overview and Summary

The case of MacKay v Police involved Ms Eden Maree MacKay appealing her 12-month imprisonment sentence and the order to pay $3,500 in reparation for receiving stolen property over $1,000. Ms MacKay argued that the sentencing judge, Judge Greig, had taken into account irrelevant considerations when determining whether to impose a sentence of home detention, and that the judge erred in not granting leave for Ms MacKay to apply for home detention at an alternative address. The appeal was heard in the High Court of New Zealand, New Plymouth Registry. Ms MacKay was represented by counsel M J Utting, and the Crown was represented by J E Bourke.

The primary legal issue before the court was whether the sentencing judge had erred in imposing a sentence of imprisonment instead of home detention. The court had to determine whether the judge's reasons for declining home detention were relevant to the assessment under the Sentencing Act 2002. The court also had to consider whether the sentence imposed was manifestly excessive and whether the judge had appropriately exercised his discretion in sentencing.

The court found that the sentencing judge had erred in concluding that a sentence of imprisonment was the only way to meet the purposes and principles of the Sentencing Act. The judge's reasons for declining home detention were not adequately supported by the evidence. The court found that Ms MacKay's living arrangements were plausible and that there was no evidence to support the assumption that she was committing benefit fraud. Furthermore, the court found that reparation could be made immediately, contrary to the judge's view. The court concluded that a sentence of 12 months’ home detention, with strict conditions, was a significant sentence that adequately promoted the sentencing principles of denunciation and deterrence and enabled Ms MacKay's potential rehabilitation. Therefore, the sentence imposed was manifestly excessive.

The appeal was allowed, and the sentence of 12 months’ imprisonment was set aside and replaced with a 12-month sentence of home detention. The sentence is to be served on the basis of conditions including attending assessments and completing any recommended counselling, treatment, or programme; refraining from communicating or associating with certain individuals; and not possessing, consuming, or using any alcohol or drugs that are not prescribed to her. Ms MacKay is also to pay reparation of $3,500 to the Hāwera District Court.

Orders