McArthur v Police - [2014] NZHC 201

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-000033 [2014] NZHC 201

BETWEEN MICHAEL TERRENCE MCARTHUR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 18 February 2014

Appearances: J Mooney for Appellant
AWM Britton for Respondent

Judgment: 18 February 2014

ORALJUDGMENT OF TOOGOOD J [Appeal against Sentence]

MCARTHUR v NEW ZEALAND POLICE [2014] NZHC 201 [18 February 2014]

[1] Michael Terrence McArthur has appealed against a sentence of 15 months’ imprisonment imposed on him by Judge Roberts in the District Court at New Plymouth in respect of two charges of burglary. He says, first, that the Judge adopted a starting point which was too high having regard to the nature of the burglaries and his role in them; and also he appeals on the grounds of disparity of sentence as between him and a co-offender.

Facts

[2] The brief facts of the case are that on 7 June 2013, in the early hours of the morning, the appellant and three co-offenders left a party and began walking home. It appears they were affected by alcohol. They approached a residential property where two of the co-offenders gained entry to a closed shed and took food from the freezer. The appellant and one other remained on the road as look-outs and sounded a warning that they had been seen. All four left the property. The group then stopped outside a second property where the appellant again acted as one of the look-outs while the other two entered a shed and removed some tools and a baseball bat. A short time later all four were apprehended.

Personal circumstances

[3] The appellant was aged nearly 23 at the time of his offending. He has a short list of previous convictions but they include a conviction for burglary in 2010 (although it does appear that the offence had been committed some three-and-a-half years earlier) and another in 2011. For the latter offending, he received a sentence of six-and-a-half months’ home detention and was ordered to undertake 200 hours’ community work as well as making a reparation payment. In May 2012, he was convicted of theft from a dwelling and given a further sentence of community work which he was serving at the time of the latest offending. The probation officer noted that the appellant acknowledged he had a drinking problem and was assessed as having a medium risk of reoffending. Imprisonment was recommended, however. The appellant was unemployed at the time.

[4] Burglaries of domestic dwellings are regarded by the courts as serious not only because of the risk of confrontation with occupants but also because of the sense of violation which victims suffer. It does not much help the appellant that the dwelling itself was not entered. The Judge addressed the circumstances of the offending, but noted particularly that one of the victims was a 61-year-old woman who reported that she was now more nervous as a result of this offending, and is afraid to go about her backyard in the dark; she regularly…

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.

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Details

Case: [2014] NZHC 201
Decision Date: 18 February 2014

CaseChat Overview and Summary

The High Court of New Zealand dealt with an appeal brought by Michael Terrence McArthur against his 15-month imprisonment sentence, imposed by Judge Roberts in the District Court at New Plymouth for two charges of burglary. McArthur argued that the starting point for his sentence was too high, considering his role and the nature of the burglaries, and that there was a disparity in sentencing between him and his co-offender. The appeal hinged on whether the Judge correctly assessed the starting point and whether the disparity in sentencing was justified.

The court had to decide if the starting point of 16 months for McArthur's sentence was appropriate, given his role as a look-out and the relatively low value of the stolen property. Additionally, the court needed to evaluate if the Judge was justified in distinguishing between McArthur's and his co-offender's criminal histories, which resulted in a harsher sentence for McArthur. The court examined whether the Judge correctly applied the principles set out in the Court of Appeal's judgment in Arahanga v R and whether the discount for McArthur's guilty plea was appropriate.

The court found that while it might have been open to the Judge to adopt a slightly lower starting point, the 16-month starting point was within the acceptable range and reflected the modest value of the stolen property. The court agreed with the Crown that a two-month uplift for previous convictions and a further two months for the offence committed while serving a community-based sentence could have been appropriate. However, the court held that the end sentence of 15 months was not clearly excessive or inappropriate. The court also found that the Judge was entitled to distinguish between the criminal histories of the co-offenders and that a sentence of imprisonment was the least restrictive outcome appropriate in the circumstances. Therefore, the appeal was dismissed.

The court did not consider it necessary to re-sentence McArthur, concluding that the Judge did not err in imposing the sentence and that a different sentence should not have been imposed. The appeal was dismissed, and the original sentence stood.

Orders