Mackie v Police
[2025] NZHC 514
•14 March 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2025-483-1
CRI-2025-483-2 [2025] NZHC 514
BETWEEN STEVEN MACKIE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 March 2025 Appearances:
M McGhie for Appellant
A N Kearney for Respondent
Judgment:
14 March 2025
JUDGMENT OF McQUEEN J
[1] Mr Mackie was sentenced in relation to three charges on 16 December 2024 by Judge Marinovich at the Whanganui District Court, following the entry of guilty pleas.1
[2] The charges were assault on a person in a family relationship,2 breach of a protection order,3 and burglary.4 Mr Mackie was sentenced to a period of 20 and a half months’ imprisonment.
[3] He now appeals against the sentence on the grounds that the starting point for the burglary was too high, a full discount of 25 per cent for the guilty pleas should
1 Police v Mackie [2024] NZDC 30987.
2 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
3 Family Violence Act 2018, ss 90(b) and 112(1)(a); maximum penalty three years’ imprisonment.
4 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
MACKIE v NZ POLICE [2025] NZHC 514 [14 March 2025]
have been given and that the Provision of Advice to Courts (PAC) report prepared for sentencing should not have been relied upon by the Judge.
[4] The Police oppose the appeal, submitting that the starting point for the burglary charge was within range and the end sentence was not manifestly excessive. The Police further say that the Judge was entitled to rely on the PAC report.
[5]For the reasons that follow, the appeal is dismissed.
The offending
Assault on person in a family relationship
[6] At approximately 9.15 pm on 21 May 2024, Mr Mackie was at an address in Whanganui. He was asleep in bed while the complainant sat beside him watching television. Mr Mackie woke up and asked the complainant for a cigarette.
[7] A verbal argument ensued about previous things that had been building up. The complainant told Mr Mackie that one of them would have to leave and the arguing had to end before one of them gets hurt. Mr Mackie became angry and aggressive.
[8] As Mr Mackie straddled the complainant, he struck her to the left side of her face with his right hand. The complainant got her mobile phone and ran outside and across the street to phone the Police for help. Mr Mackie followed the complainant across the road and began to push her back towards their house.
[9] It appears from the charging documents that Mr Mackie was on bail awaiting sentence for this offending when the following offending occurred.
Breach of protection order
[10] A final protection order was issued in the Whanganui District Court on 30 July 2024, with Mr Mackie as the respondent and the protected person being the complainant.
[11] On 18 October 2024 at 7.45 am Mr Mackie arrived at the complainant’s address. Mr Mackie was banging on the windows asking to be let inside the address for five minutes to get medication. The complainant told Mr Mackie to leave as she had tasks to do and that if he was still there when she returned, she would call the Police.
[12] The complainant saw Mr Mackie in his parked car outside the address when she left at about 7.50 am. When she returned at about 8.20 am Mr Mackie was still in his parked car outside her house.
Burglary
[13] At approximately 12.00 am on 25 October 2024, Mr Mackie collected his associate from an address in Whanganui. He then drove them to another address in Whanganui. On arrival, Mr Mackie reversed the vehicle towards the front doorway. Mr Mackie’s associate entered the address and began placing items into a large plastic bag.
[14] Mr Mackie followed his associate into the address and began loading items into the vehicle. He took a coffee table, a book, a child’s bed safety netting and a sealed item from the bathroom.
[15] Mr Mackie and his associate left the address with stolen property. The estimated value of the property taken was around $5000.
[16] The property was unoccupied. The complainant was alerted to a security camera disconnection and immediately made her way home and discovered it had been burgled.
Decision under appeal
[17]The District Court Judge set out the charges and summaries of facts.
[18] The Judge then considered the PAC report. The Judge noted that Mr McGhie, counsel for Mr Mackie, provided him with an email from Corrections suggesting the
report should be disregarded. The Judge made an inquiry of Corrections as to whether they had any information on record which would indicate why that email was sent or why the PAC report should be disregarded but none was available.
[19] The Judge recorded that the PAC report states that Mr Mackie minimised the severity of the offences, displayed minimal remorse towards the complainants and a lack of insight into the offending. The Judge noted that the report indicates Mr Mackie’s previous compliance with electronic monitoring sentences or community-based sentences has been at best questionable and ultimately the recommendation was for imprisonment with release conditions.
[20] The Judge then considered the submissions made by counsel. His Honour did not accept the submission from counsel that Mr Mackie’s role in the burglary was limited and his culpability less because he only took certain items. The Judge noted that Mr Mackie was the driver of the car and reversed it up to the front door which made loading the car easier. The Judge could see no difference in Mr Mackie’s culpability for burglary with that of his co-offender.
[21] The Judge considered the cases provided by counsel and considered Arahanga v R to be important.5 By reference to that case, the Judge noted that burglary of a domestic residence is a significant aggravating factor and that a straightforward burglary should attract a starting point of between 18 months and two and a half years’ imprisonment. The Judge also considered R v Nguyen as to aggravating factors to be taken into account.6
[22]The Judge took the following into account in terms of aggravating factors:
(a)planning and sophistication: the offending was not overly sophisticated but there was forethought. Mr Mackie became aware that the property was a target, went there for a specific purpose in his vehicle and ultimately burgled the address;
5 Arahanga v R [2012] NZCA 480.
6 R v Nguyen CA110/01, 2 July 2001.
(b)nature of the premises entered: the offending involved Mr Mackie entering a dwelling house;
(c)value of the property taken: the summary of facts records that the value of property was around $5000, however by reference to the victim impact statement, the total value recorded is just over $9000; and
(d)victim impact: the complainant talked about the emotional harm knowing that someone had been in her house and rummaging through her property. She does not feel safe at work, is worried about the gang affiliations of the burglars and has had to take sleeping pills.
[23] In relation to the assault on a person in a family relationship charge, the Judge noted that the violence was directed to the complainant’s head and that the breach of the protection order charge relates to the same complainant.
[24] The Judge took the burglary as the lead charge, adopting a start point of 18 months’ imprisonment. An uplift of three months’ imprisonment was given for the assault on a person in a family relationship and a further uplift of three months for the breach of protection order. The Judge adopted those uplifts having regard to totality.
[25] Personal aggravating factors of previous convictions for family harm and offending while on bail resulted in a further uplift of one month’s imprisonment.
[26] The Judge concluded that there were no personal mitigating factors noting in particular that no remorse was expressed in the PAC report.
[27] In terms of Mr Mackie’s guilty plea, the Judge allowed 20 per cent credit which he calculated as being four and a half months. The Judge indicated that this brought the end sentence down to one of 20 and a half months’ imprisonment. His Honour considered, given this is a short-term sentence of imprisonment, whether it should be commuted to home detention or another community-based sentence. The Judge assessed that Mr Mackie’s offending in relation to family harm is relatively persistent
and the burglary involved a relatively significant amount taken from a domestic dwelling where the impact on the complainant has been significant.
[28] Ultimately, the Judge concluded that sentencing purposes and principles could only be met by a term of imprisonment, and he therefore imposed a sentence of 20 and a half months’ imprisonment on the burglary with four months’ imprisonment to be served concurrently for each of the assault on a person in a family relationship and breach of the protection order. The Judge also imposed post-release conditions for six months pursuant to the PAC report.
Approach on appeal against sentence
[29] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.7 The focus is on the final sentence reached, rather than the process by which it is reached.8
[30] The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court’s approach to determining the extent of the error in sentencing appeals.9
Discussion
Should the PAC report be relied on?
[31] Mr McGhie argues that the sentencing Judge should not have relied on the PAC report as it was recalled immediately by Corrections. Mr McGhie says that given these events, defence counsel disregarded the PAC report and only a brief reference was made to it in submissions in the District Court. He says that the report does not read well for Mr Mackie and if counsel had been aware some reliance would be placed on it at sentencing, submissions could have been made to counter the negative
7 Section 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
8 Ripia v R [2011] NZCA 101 at [15].
9 Tutakangahau v R, above n 7, at [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]– [140].
assertions by the report-writer. Mr McGhie says that sometimes interviews for pre-sentence reports do not go well and counsel could have relayed the views of Mr Mackie more accurately.
[32] Counsel for Police, Ms Kearney, advises that inquiries with Corrections have revealed the email was sent to counsel as Corrections believed they had sent the PAC report to the wrong counsel. There is no record by Corrections that the report in respect of Mr Mackie should be recalled. This is consistent with the observations made by the Judge.
[33] I am satisfied in the circumstances that the Judge could properly rely on the PAC report. I note that the written submissions for Mr Mackie in the District Court include brief reference to the PAC report (noting the very historical nature of Mr Mackie’s previous dishonesty offending). Mr McGhie did not identify before me any other points in response to the PAC report.
Was the starting point too high?
[34] I turn now to assess the starting point. Mr McGhie submits that the starting point of 18 months’ imprisonment was too high and that the Judge failed to take sufficient account of the fact that the premises burgled was unoccupied and therefore without the risk of confrontation with residents.
[35] Mr McGhie also submits that the planning for this unsophisticated burglary was done by Mr Mackie’s co-offender. Mr McGhie submits that Mr Mackie was “roped in” by the co-offender because he owned a suitable vehicle and that Mr Mackie, while taking an active part in the burglary, had a lesser role in the planning and the division of the proceeds. Mr McGhie argues that just as role has been considered important in drug offending, by reference to Zhang v R, so too it should be considered in burglary.10
[36]Mr McGhie also submits that the approach to a starting point set out in
Arahanga should be understood in light of subsequent decisions, including
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Nelson vPolice and Nikora v Police.11 Mr McGhie contends that therefore a starting point of around 12 to 14 months’ imprisonment is appropriate.
[37] I acknowledge the comments of Hinton J in Nelson that the Court of Appeal’s guidance in Arahanga is not strictly accurate or has not strictly been applied, and that “a more realistic range [of starting point] might be one year to two-and-a-half years’ imprisonment”.12 However, such an updated range does not necessarily mean the starting point adopted by the Judge was out of range. I consider the cases referred to by counsel.
[38] The offending in Nikora involved a burglary at the mail room of a residential apartment block. While Jagose J acknowledged differences between offending in a communal area of a residential complex and residential dwellings, he concluded there was premeditation, and even though there was low risk of confrontation, concluded that the offending was not at the lowest end, finding a starting point of 18 months’ imprisonment, while at the higher end, was not outside the available range. Nikora may be distinguished on the basis that it does not involve the same kind of premises as here. However, I accept Ms Kearney’s submission that it demonstrates that even when the offending does not involve a residential dwelling, a starting point of 18 months’ imprisonment is within range.
[39] Nelson involved a situation where it was unclear if the appellant had actually entered the building or taken any property. The Court nonetheless concluded that a starting point of 14 months’ imprisonment was appropriate.13
[40] Ms Kearney relied on Peita v Police, where the appellant faced several charges including two charges of burglary.14 The buildings entered were in one case a garage and in the other a building located on a residential property, both characterised as burglaries of residential properties. A starting point of 18 months for the second burglary (as the lead offence) was upheld on appeal, where premeditation was found,
11 Arahanga v R, above n 5; Nikora v Police [2020] NZHC 2013; and Nelson v Police [2019] NZHC 2434.
12 At [33].
13 At [34]
14 Peita v Police [2020] NZHC 2098.
and property taken to the value of $22,357. A starting point of 12 months for the burglary of the garage (with property taken to the value of $5,309) was held to be entirely within range and demonstrated totality had been taken into account.
[41] On the present facts, irrespective of whether Mr Mackie was aware the address was unoccupied, the premises was a residential dwelling. The burglary was premeditated. It is apparent from the victim impact statement that the offending significantly undermined the complainant’s sense of privacy and security in her home.
[42] I can see no error in the sentencing Judge’s conclusion that there is no basis for considering Mr Mackie’s role in burglary to be less than that of his co-offender. I am not persuaded that Mr Mackie’s receipt of less of the stolen property can be used to justify a claim that he played a lesser role. Nor am I persuaded that even if it was Mr Mackie’s co-offender who suggested the burglary, this can properly be seen to reduce Mr Mackie’s role. Mr Mackie collected his co-offender before they made their way to the address, where they took part in the burglary together. They left the address together and Mr Mackie drove to his co-offender’s address and helped unload the stolen items out of the vehicle. There is no basis to find Mr Mackie has lesser culpability for the offending in these circumstances.
[43] I conclude that the starting point of 18 months’ imprisonment for the burglary was open to the Judge.
[44] Although no issue was taken with the uplifts to the starting point on appeal, I am satisfied that the three-month uplift for the assault on a person in a family relationship and the further uplift of three months for the breach of protection order were within range and appropriate in the circumstances having regard to totality.
Should a full credit be given for guilty pleas?
[45] Mr Mackie also appeals his sentence on the basis he should have been allowed the full 25 per cent for his guilty pleas.
[46] One preliminary matter is whether the Judge correctly applied the guilty plea credit. Ms Kearney refers to the two-step sentencing process discussed by the
Court of Appeal in Moses v R.15 The sentencing Judge was required to first fix the starting point and then apply the appropriate uplifts and discounts to that starting point, including the guilty plea discount, to arrive at the final sentence.
[47] The Judge stated that he would afford Mr Mackie “20 per cent or four and a half months” credit for his guilty pleas. I note that four and a half months of the 24 months’ starting point equates to just under 19 per cent. It appears that the sentencing Judge used four and a half months credit for the guilty plea, rather than 20 per cent, to calculate the sentence. Viewing the Judge’s calculations in this way accords with the approach in Moses. From the 24 months’ imprisonment starting point, the Judge subtracted four and a half months for Mr Mackie’s guilty pleas and applied the uplift of one month for previous convictions and offending while on bail, bringing the end sentence to 20 and a half months’ imprisonment. This approach follows Moses and is therefore correct.
[48] The remaining question is whether Mr Mackie should have been given the full 25 per cent credit for his guilty pleas.
[49] The value to be attributed to a guilty plea is to be assessed having regard to all the circumstances of the case.16 There has been some lack of clarity about Mr Mackie’s response to each charge. Ms Kearney records the following:
(a)assault on person in a family relationship: Mr Mackie was due to appear in the Whanganui District Court on 28 May 2024. His attendance was excused on that date. He appeared on 29 May 2024 and was remanded on bail without plea. On 30 July 2024 Mr Mackie pleaded guilty and sentencing was set down for 16 December 2024.
(b)breach of a protection order: Mr Mackie’s first appearance was on 30 October 2024. He appeared again on 12 November 2024 where not guilty pleas were maintained. The matter was adjourned to a case review hearing on 16 December 2024. If there was going to be a change
15 Moses v R [2020] NZCA 296 at [46]–[47].
16 Hessell v R [2010] NZSC 135.
to plea, counsel was to advise the Court as a matter of urgency so the pre-sentence report could be updated in time for sentencing. Mr Mackie pleaded guilty at sentencing on 16 December 2024.
(c)burglary: Mr Mackie’s first appearance was on 30 October 2024. He appeared again on 12 November 2024 and pleaded guilty.
[50] Ms Kearney submits that the pleas for the family violence offending were delayed and says that ultimately it is a matter for the Judge’s discretion as to whether the full allowance is available.
[51] Mr McGhie sought to explain the reason for the delay. He emphasises that while there were three summaries of fact relating to breach of a protection order, two are the same and not the summary of facts on which Mr Mackie was sentenced. Mr McGhie says that when Police later took a statement from a witness to the events, which was entirely at odds with the statement of the complainant, two of the charges were dropped and on the day of sentencing a guilty plea was entered to the third. Mr McGhie also says that the plea to the assault on a person in a family relationship charge was entered following the amendment of the summary of facts and that the plea to the burglary charge was entered two weeks after the first appearance. He therefore submits that the full credit of 25 per cent is available for Mr Mackie’s guilty pleas.
[52] Although the Judge did not provide reasons for not granting the full guilty plea credit, he deliberately chose to apply a 20 per cent credit (albeit as already mentioned he actually applied a credit just under 19 per cent). If a 20 per cent discount was applied in accordance with Moses, and as indicated at sentencing, the end sentence (including the one-month uplift for previous offending and offending whilst on bail) would be approximately 20 months and one week’s imprisonment. As mentioned, the Judge had calculated an overall sentence of 20 and a half month’s imprisonment. The result is a one-week difference in the overall sentence. That discrepancy cannot be regarded as material. Even if a 25 per cent allowance was adopted, following the same approach as above, it would bring the sentence to 19 months’ imprisonment.
[53] This emphasises the importance of the requirement that I step back and consider the sentence as a whole. The Judge, after assessing an appropriate starting point for the burglary, then applied uplifts for the family violence offending and breach of a protection order having regard to totality. I accept Ms Kearney’s submission that the Judge, in assessing aggravating factors, applied a modest uplift of one month to account for both the previous family harm offending and that the breach of the protection order and burglary were committed while on bail. Taken as a whole, I conclude that the sentence is within range and cannot be considered manifestly excessive.
[54] While I accept there is a discrepancy as to how the guilty plea credit was explained at sentencing, I am not satisfied this was a material error that resulted in a sentence which is manifestly excessive, nor am I satisfied that a different sentence should be imposed.
Result
[55]The appeal is dismissed.
McQueen J
Solicitors:
Ruapehu Legal, Whanganui for Appellant
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