McAllister v The King - [2023] NZHC 3705

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-221

CRI-2023-409-222 [2023] NZHC 3705

BETWEEN
CRAIG MCALLISTER

Appellant

AND

THE KING

Respondent

Hearing: 13 December 2023

Appearances:

R J T George for Appellant

W J S Mohammed for Respondent

Judgment:

14 December 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 14 December 2023 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

MCALLISTER v R [2023] NZHC 3705 [14 December 2023]

Introduction

[1] Craig McAllister was sentenced to two years and nine months’ imprisonment by Judge J A Farish1 on one charge of recklessly discharging a firearm2, two charges of possession of an offensive weapon3 and one charge of unlawful interference with a motor vehicle.4 He appeals that sentence solely on the ground that the starting point adopted was too high.

Facts

Possession of an offensive weapon (x2)

[2] Around 6:40 am on 10 February 2023, Mr McAllister walked down the driveway of a Tuam Street multi-flat complex. He was carrying a knife, metal baseball bat, vice grips, wrench and a crowbar. He knocked on the windows and door of one unit and shouted “I have something I owe you”. The victim saw Mr McAllister holding a knife and called the police who arrived shortly afterwards.

Unlawful interference with a motor vehicle

[3] Mr McAllister was walking down the drive toward the road when police arrived. Police discovered that Mr McAllister had broken into the victim’s vehicle. He had ripped off the ignition housing and attempted to remove the ignition barrel out of the socket. The victim’s driver’s licence, USB drive and eftpos card were found in Mr McAllister’s pockets.

Discharging a firearm with reckless disregard

[4] On 12 May 2023, another victim arranged the purchase of $50 worth of cannabis from Mr McAllister. That evening, the victim gave Mr McAllister two legitimate $5 notes and a counterfeit $20 note in exchange for the cannabis. The notes were rolled up in a manner that meant Mr McAllister was not aware of the counterfeit $20, or that the amount paid was not $50.

1      R v McAllister [2023] NZDC 21540.
2      Crimes Act 1961, s 198(2); maximum penalty seven years’ imprisonment.
3      Section 202A(4)(a); maximum penalty three years’ imprisonment.
4      Section 226(2); maximum penalty two years’ imprisonment.

[5] Around 7:30 pm the next evening, Mr McAllister was driven to the victim’s address by his daughter’s associate, with his daughter also being present. The victim was at home with his partner, her three children and a friend of her daughter who was visiting.

[6] The victim’s property is fully enclosed by a 1.8 m fence, including a locked gate and doorbell. Mr McAllister rang the doorbell of the property when he arrived, carrying with him a sawn-off shotgun concealed in a bag. The victim came outside while Mr McAllister yelled at him. When he inquired “who’s that?”, Mr McAllister replied “you’ll know me” before…

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 The King

Details

AGLC: McAllister v The King [2023] NZHC 3705
Case: [2023] NZHC 3705
Decision Date: 14 December 2023

CaseChat Overview and Summary

Craig McAllister appeals his sentence for multiple charges, including recklessly discharging a firearm, possession of offensive weapons, and unlawful interference with a motor vehicle. The appeal focuses on whether the starting point for his sentence was appropriately set at four years by the District Court Judge. McAllister's counsel argues that a three-year starting point would have been more appropriate, while the Crown contends that the original starting point was justified given the nature and severity of the crimes.

The court considered the arguments presented by both parties, comparing the current case to precedents where similar or varying degrees of offending were addressed. The court recognised the serious nature of McAllister's crimes, including the use of an unlawful weapon, the premeditated nature of the offending, and the significant impact on the victims. The court also noted that McAllister had a considerable criminal history and had failed to benefit from previous opportunities for rehabilitation.

After reviewing the relevant case law and considering the specific circumstances of McAllister's offending, the court concluded that the starting point of four years was within the appropriate range. The court further noted that the District Court Judge had applied significant discounts to the starting point, resulting in an overall sentence that was deemed appropriate. Therefore, the appeal was dismissed.

The court did not alter the sentence imposed by the District Court, affirming that the overall sentence was not manifestly excessive and was justified by the relevant sentencing principles. McAllister remains sentenced to two years and nine months’ imprisonment for the lead charge, with concurrent sentences for the other charges.

Orders