McAlister v Police - [2017] NZHC 2881

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI 2017-485-50 [2017] NZHC 2881

BETWEEN
DANIEL MCALISTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 November 2017

Counsel:

S Thistoll and Z Meehan for Appellant
J M OʼSullivan and H Savage for Respondent

Judgment:

22 November 2017

JUDGMENT OF SIMON FRANCE J

[1] Mr McAlister was sentenced to 20 months’ imprisonment for a series of car related offences.1 He appeals the refusal to substitute a sentence of home detention.

Offending and sentence

[2] Mr McAlister committed a series of offences between May and September this year. In May, he unlawfully entered a vehicle and caused damage inside to the key ignition area. In June, he stole a mag wheel off a car so he could use it on his girlfriend’s car which had a flat tyre. In August, a car was taken from outside Hutt Hospital; it was found in the same suburb three days later. DNA from the many
cigarette butts left inside proved Mr McAlister had been in the car.

1 New Zealand Police v McAlister [2017] NZDC 22770.

MCALISTER v POLICE [2017] NZHC 2881 [22 November 2017]

[3] Finally, on 1 September a car was taken from a car park. Police observed

Mr McAlister driving it. He refused to pull over and a chase ensued. Mr McAlister drove at up to 100 kph in a 50 kph area, drove on the wrong side of the road and forced other motorists to take evasive action. It was discovered subsequently that prior to the chase the car had been in a collision. This was caused by Mr McAlister deliberately putting the car into a drift slide but losing control.

[4] Mr McAlister pleaded guilty to all offending. The end sentence was

20 months’ imprisonment, 18 months’ disqualification from driving and six months of post sentence release conditions.

Past offending and general circumstances

[5] Mr McAlister is 22 years of age. He was first sentenced to jail when 18 years of age in relation to a raft of offences commit over a two month period. The main offending appears to have been theft and then use of a credit card, but there were also two charges of assaulting police and a disqualified driving offence. The sentence was five months’ imprisonment.

[6] Four months later, obviously having been released, there was a further appearance for breach of release conditions and shop lifting, none of which resulted in a sanction. There was then a year before another appearance for theft from a car which resulted in community work.

[7] In January 2016, so nearly two years after his first jail sentences, Mr McAlister was sentenced to two months’ imprisonment for theft from a car. Then in July 2016, an eight month sentence was imposed for similar offending as well as taking cars, and receiving. A similar sentence for the same thing was imposed in February 2017, and then the current offending occurred shortly…

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 McAlister 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: [2017] NZHC 2881
Decision Date: 22 November 2017

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Daniel McAlister against his 20-month imprisonment sentence for multiple car-related offences. McAlister sought a substitution of his sentence to home detention instead of imprisonment. The court was tasked with determining whether the District Court's refusal to substitute the sentence was correct, and if not, whether home detention would be an appropriate alternative. The court also had to consider the broader legal and factual context, including McAlister's past offending history, his expressed desire for change, and the appropriateness of electronically monitored home detention.

The High Court examined the nature and seriousness of McAlister's current offending, which included unlawfully entering a vehicle, stealing a mag wheel, taking a car, and dangerous driving during a police chase. The court also took into account McAlister's extensive criminal history, which included multiple short prison sentences and a pattern of reoffending while on bail or release conditions. The sentencing judge had rejected home detention, considering it insufficient to deter McAlister from reoffending. The High Court, however, recognised the potential for home detention to provide an opportunity for McAlister to demonstrate a commitment to change and break the cycle of reoffending. The court acknowledged the flawed reasoning behind the postponement of McAlister's participation in a Limited Service Volunteer Course, which could have assisted in his rehabilitation.

The High Court found that the District Court's refusal to substitute the imprisonment sentence with home detention was in error. It allowed the appeal and imposed a sentence of home detention instead of imprisonment. The court imposed nine months of home detention for unlawful taking of a motor vehicle, four months for unlawfully interfering with a car, and one month for dangerous driving, theft from a car, and failing to stop. These sentences were to run concurrently. The court also imposed a special condition requiring McAlister to attend a psychological assessment and complete any recommended treatment or counselling. The non-imprisonment sentences remained unchanged.

The court's judgment took effect once electronic monitoring was organised, and the sentence of home detention could commence. Until then, McAlister remained detained under the existing warrant. This decision provided McAlister with an opportunity to demonstrate a commitment to change, potentially breaking the cycle of reoffending and addressing the underlying issues contributing to his criminal behaviour.

Orders