McAllister v Police - [2019] NZHC 828

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2019-483-2

[2019] NZHC 828

BETWEEN
BRUCE MCALLISTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (via AVL): 15 April 2019

Counsel:

No appearance for Appellant

M Wilkinson-Smith for Respondent

Judgment:

15 April 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] On 13 December 2018, Mr McAllister was sentenced by Judge Crayton in the Whanganui District Court to 23 months’ imprisonment in respect of the following charges:1

(a)arson;2

(b)common assault;3

(c)possession of cannabis;4

1      R v McCallister [2018] NZDC 26219.
2      Crimes Act 1961, s 267(2)(a); maximum penalty seven years’ imprisonment.
3      Section 196; maximum penalty one year’s imprisonment.
4      Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months’ imprisonment and a $500 fine.

MCALLISTER v NEW ZEALAND POLICE [2019] NZHC 828 [15 April 2019]

(d)possession of a pipe;5 and

(e)possession of methamphetamine.6

[2] He filed an application for leave to appeal out of time against the imposition of a release condition that he attend with and be assessed by a Department of Corrections psychologist on the basis that such an order was neither needed nor necessary.

[3] Arrangements were made for Mr McAllister’s attendance at the hearing this morning by way of an audio-visual link to Whanganui Prison where he is currently residing. I am advised that immediately prior to this matter being called, Mr McAllister was informed that it was about to proceed. He was invited to enter the room where the AVL facility was located so that he could participate. It appears that he has equivocated somewhat but ultimately informed the prison authorities that he did not wish to enter the room.

[4] As it appears that he has not formally abandoned either his application for leave to appeal or the appeal itself, the Court is therefore obliged to consider the issues and to deliver a decision. That is how we get to this situation of this matter proceeding without Mr McAllister being present in Court.

[5] One preliminary matter is that, in his notice of application for leave to appeal, Mr McAllister claimed that he was sentenced without entering guilty pleas. Having reviewed the documentation, I have come to the conclusion that Judge Crayton, in a detailed minute dated 19 October 2018, recorded that Mr McAllister had, that day, entered guilty pleas following a sentence indication.7 Mr McAllister was represented by Ms Goodlet on that occasion. She made submissions as to whether or not a s 38 report was required for the purposes of sentencing. She would only have done that if pleas of guilty had been entered.

5      Sections 13(1)(a) and (3); maximum penalty one year’s imprisonment and a $500 fine.
6      Sections 7(1)(a) and (2); maximum penalty six months’ imprisonment and a $1,000 fine.
7      R v McAllister DC Whanganui CRI-2018-083-000587, 19 October 2018 at [1].

[6] The matter was called again before Judge Crayton on 22 November 2018 and he issued another minute. The…

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 McAllister v Police

Details

AGLC: McAllister v Police [2019] NZHC 828
Case: [2019] NZHC 828
Decision Date: 15 April 2019

CaseChat Overview and Summary

Bruce McAllister appealed against the conditions imposed on his release from imprisonment, arguing that a condition requiring him to attend a psychological assessment and undertake any recommended treatment was unnecessary. The District Court had imposed the condition based on concerns about McAllister's mental health and his risk of reoffending. McAllister claimed that he was of sound mind and did not need such an assessment. The High Court considered the legal framework for imposing special conditions on release and the purpose of such conditions. It concluded that the condition was designed to reduce the risk of reoffending and to promote McAllister's rehabilitation, and was therefore appropriate. The appeal out of time was granted, but the appeal itself was dismissed.

The final orders were that leave to appeal out of time was granted, and the appeal was dismissed. The special condition requiring McAllister to attend a psychological assessment and undertake any recommended treatment remained in place.

Orders