McCarthy v The Queen - [2017] NZHC 342

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-000042 [2017] NZHC 342

BETWEEN
CHRISTOPHER BRIAN MCCARTHY

Appellant

AND

THE QUEEN Respondent

Hearing: 2 February 2017

Appearances:

Matthew Phelps for the Appellant
Cameron Stuart for the Respondent

Judgment:

6 March 2017

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 6 March 2017 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

MCCARTHY v THE QUEEN [2017] NZHC 342 [6 March 2017]

Introduction

[1] Mr McCarthy was sentenced to 19 and a half months’ imprisonment after pleading guilty to one charge of having sexual connection with a dependent family member under the age of 18 years.1

[2] He appeals against the sentence. The central issue on appeal is whether the Judge should have substituted the sentence of imprisonment for one of home detention.

Factual background

[3] A summary of facts was prepared for sentencing purposes after Mr McCarthy pleaded guilty to the charge. It provides the following narrative. Mr McCarthy (who was 47 at the time) and his wife were approved by Turanga Social Services to be the caregiver of the victim, a 16 year old female. Soon after she moved in, Mr McCarthy and the victim began spending time alone together where they would hug and kiss each other.

[4] Two to three months after she had moved in, the victim and Mr McCarthy were home alone together. The victim was folding clothes in a spare room of the house when Mr McCarthy joined her. The victim says they lay down on the bed together, removed their clothing and had consensual sexual intercourse. She describes this as the first occasion of intercourse.

[5] Over the following weeks, on occasions when they were alone, Mr McCarthy and the victim would have consensual sexual intercourse. The victim suggests there were five or six occasions when intercourse took place.

[6] In explanation, Mr McCarthy said he had engaged in consensual sex with the victim on one occasion and only because she had threatened to allege rape against him if he did not. Mr McCarthy now accepts there could have been as many as four
separate instances of intercourse between himself and the victim.

1 Crimes Act 1961, s 131(1). The charge carries a maximum penalty of seven years’
imprisonment.

District Court decision

[7] Judge O’Driscoll, sitting in the District Court at Gisborne, recited the relevant facts before turning to the aggravating features of the offending. The Judge identified a clear breach of trust but tended to the view that this feature of the offending was inherent in the charge. The Judge emphasised the vulnerability of the victim, commenting that she had come from a broken family background. The Judge also considered that there was a degree of pre-meditation in the offending given the repeated acts of intercourse.

[8] Before constructing his sentence, the Judge turned to consider the relevant principles and purposes of sentencing. He specifically identified deterrence as relevant.…

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 McCarthy v The Queen

Details

AGLC: McCarthy v The Queen [2017] NZHC 342
Case: [2017] NZHC 342
Decision Date: 6 March 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of McCarthy v The Queen was heard, concerning an appeal against the sentence imposed on Mr McCarthy for having sexual connection with a dependent family member under the age of 18 years. The central issue was whether the Judge should have substituted the sentence of imprisonment for one of home detention. The District Court had sentenced Mr McCarthy to 19 and a half months’ imprisonment after he pleaded guilty to the charge. Mr McCarthy appealed, arguing that the Judge did not conduct the nuanced analysis required when considering home detention as an alternative to imprisonment.

The court examined whether the Judge erred in exercising his sentencing discretion, which is fettered by law. The appeal hinged on whether the Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was plainly wrong. The court noted that while the Judge emphasised deterrence, he also considered other sentencing purposes and principles, including denunciation and accountability. The Judge's reference to the lack of similar cases resulting in home detention was seen as emphasising the seriousness of the offending, rather than limiting his discretion.

The court found that the Judge had properly considered the full spectrum of sentencing purposes and principles. The Judge had acknowledged that home detention could achieve these purposes but formed the view that it would not in this case. The court concluded that the Judge did not err in attaching excessive weight to deterrence or insufficient weight to other counterveiling sentencing purposes. The appeal was dismissed, and the original sentence of 19 and a half months’ imprisonment was upheld.

Orders