McCausland v The Queen - [2017] NZHC 2380

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-89

CRI-2017-409-90 [2017] NZHC 2380

BETWEEN
NIKITA CHELA MCCAUSLAND

Appellant

AND

THE QUEEN

Respondent

Hearing: 21 September 2017

Appearances:

S Teki-Clark for Appellant C White for Respondent

Judgment:

29 September 2017

JUDGMENT OF MANDER J

[1] Ms Nikita McCausland was sentenced to an effective sentence of 25 months imprisonment on two charges of receiving, and one each of perverting the course of justice, unlawful possession of ammunition, possession of utensils, and dangerous driving. She now appeals that sentence. She maintains it was manifestly excessive and that a sentence of home detention should have been imposed.

Factual background

[2] In late October 2015, Ms McCausland was sentenced to 100 hours community work on a charge of driving whilst suspended. She breached her community work the following month, and was charged with that breach in January 2016.

MCCAUSLAND v R [2017] NZHC 2380 [29 September 2017]

[3] In July 2016, Ms McCausland, in breach of a bail condition, visited her partner in prison. She advised him that she had arranged for another person to complete her community work. Notwithstanding his warnings she could face jail if caught, Ms McCausland on two separate occasions arranged for a friend to complete her day’s community work. She drove the friend to Community Probation, where the friend signed in on the daily worksheet as Ms McCausland and completed the community work.

[4] In August, Ms McCausland appeared for sentence on the earlier charge of breaching her community work. A letter was provided by a probation officer which advised that Ms McCausland had made a better effort with her community work. As a result, Ms McCausland pleaded guilty and was convicted and discharged. It is these events which give rise to the charge of perverting the course of justice.

[5] The charges of receiving and possession of ammunition and utensils arise out of the execution of a search warrant at Ms McCausland’s home in June 2016. Police found two stolen laptops, various amounts of ammunition, and a glass pipe used to smoke methamphetamine.

[6] In August 2016, Ms McCausland was driving on a busy residential road with her cell phone out in front of her. She was observed passing two vehicles on the left hand side of the carriageway, using the bicycle lane, before crashing into another vehicle which had stopped at an intersection. The impact pushed the other car forward, where it narrowly missed being hit by an ambulance passing through the intersection.

District Court sentencing

[7] In sentencing Ms McCausland on the charge of attempting to pervert the course of justice, Judge MacAskill, noted the strong element of premeditation present in the offending. His Honour observed and that Ms McCausland appeared to have actually succeeded in perverting the justice process by successfully achieving a conviction and discharge on the strength of the community work that she had arranged her associate to complete.

[8] Notwithstanding Judge MacAskill’s acknowledgement of…

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 McCausland v The Queen

Details

AGLC: McCausland v The Queen [2017] NZHC 2380
Case: [2017] NZHC 2380
Decision Date: 29 September 2017

CaseChat Overview and Summary

Nikita Chela McCausland appeals against her sentence of 25 months imprisonment, arguing it was manifestly excessive and that a sentence of home detention should have been imposed. The appeal hinges on four grounds: the starting point for the charge of attempting to pervert the course of justice was too high, insufficient credit was given for the time spent on electronically monitored bail, insufficient weight was given to relevant mitigating features personal to Ms McCausland, and the resulting sentence should have been two years or less. The Court considered the starting point of 20 months for the charge of attempting to pervert the course of justice was excessive, as the focus when imposing a penalty for such an offence must be on the intention behind the attempt and its potential effect. The Court found that a starting point of 15 months was at most available, and applying a full discount for Ms McCausland's guilty plea resulted in a sentence of 11 months imprisonment. The Court also found that the sentencing judge was entitled to determine the suitable discount for the time spent on electronically monitored bail and that some discount should have been provided to acknowledge Ms McCausland's motivation to rehabilitate herself. However, the Court was not brought to a position where it could conclude that the sentencing judge was in error when considering the appropriateness of home detention as a sentence.

The appeal against sentence is allowed. The sentence of 15 months imprisonment on the charge of attempting to pervert the course of justice is quashed and substituted with a sentence of 11 months imprisonment. The sentence of 10 months imprisonment imposed on the receiving charge is quashed and substituted with a sentence of eight months imprisonment. That sentence is cumulative on the adjusted sentence of 11 months for the charge of attempting to pervert the course of justice. The concurrent sentences of imprisonment imposed on the balance of the charges remain unchanged. Accordingly, the net effect of the appeal against sentence is the substitution of an effective sentence of 19 months imprisonment.

Orders