McCleary v Police

[2014] NZHC 1581

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-441-000023 [2014] NZHC 1581

BETWEEN

JENNIFER FAYE SUSAN McCLEARY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 July 2014
Counsel:	NM Graham for Appellant MJM Mitchell for Respondent
Judgment:	7 July 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Monday, 7 July 2014 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

NM Graham, Napier.

Crown Solicitor, Napier.

McCLEARY v NZ POLICE [2014] NZHC 1581 [7 July 2014]

Introduction

[1]      This  is  an  appeal  against  the  decision  of  Judge  Adeane  sentencing  the appellant, Jennifer Faye Susan McCleary, to 12 months’ imprisonment, with release conditions for six months in relation to one charge of threatening to kill, one charge of unlawfully possessing a firearm and one charge of breaching a protection order.

Background

[2]      The appellant is a 34 year old single woman.  She has three children aged 11, six and four who are in the custody of her former partner who is the father of the two younger children.

[3]      On 24 February at about 9.45 am the appellant was in Rotorua and on a bus. She sent a text message to her Child Youth and Family (CYF) officer who had been liaising with her as follows:

I am going to catch a bus straight to Hastings today and kill that mother fucker [my former partner], the victim in this matter.

[4]      She continued to text and at about 12.52 pm she sent another text to the CYF

officer stating:

What further notice, fuck you, I’ll kill him.

[5]      The next day at 8.45 am the appellant waited outside the victim’s address for some hours.  The purpose of her waiting outside the address was apparently so that she could see her children.  She was located and arrested.  She had no weapons on her.

[6]      Following these incidents a temporary protection order was issued by the Hastings District Court against her on 28 February 2014 requiring Ms McCleary to hand into the Police any fire arm she possessed within 24 hours.

[7]      During 5 and 7 March 2014 she was staying at an address in Hastings.  She was found to have a Remington model 770 hunting rifle concealed in a blanket. When spoken to by the Police she initially denied having a firearm.  Eventually the

Police located the firearm on 11 March 2014 concealed in a cupboard. The appellant said that she had had the firearm for four to five months and was intending to sell it to someone with a firearms licence.  There was no ammunition or other equipment with the rifle which was unloaded.

[8]      Following a sentencing indication by Judge Adeane, the appellant pleaded guilty to one charge of threatening to kill, one charge of unlawfully possessing a firearm and one charge of breaching a protection order by failing to surrender a firearm.

[9]      In  the  earlier  sentencing  indication  the  starting  point  had  been  set  at

18 months’ imprisonment on the lead charge of threatening to kill with an anticipated discount of 20 per cent for guilty pleas.  At sentence the discount was increased to recognise the personal circumstances of Ms McCleary leading to the final sentence of 12 months’ imprisonment on each of the threatening to kill and unlawful possession of the firearm charges, and one months’ imprisonment for the failure to surrender charge (all to be served concurrently).

[10]     Ms Graham for Ms McCleary does not quarrel with the discounts.  However, she says that the starting points arrived on by the Judge were too high.

The starting points

Threatening to kill

[11]     Threatening to kill is a serious offence and carries a maximum sentence of

seven years’ imprisonment.

[12]     There is no tariff case relating to threatening to kill  sentencing, and the circumstances are always decisive.1   In Allan v Police White J identified a number of factors relevant to determining the seriousness of the threat.2     They included the

degree of premeditation, the apparent willingness of an offender to carry out the

1      Burchell v R [2010] NZCA 314 at [25].

2      Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011 as endorsed in Simon v R

[2014] NZCA 207 at [22]. .

threat, the use of a weapon, the level of harm or fear caused to the victim, and whether the threat was made directly to the victim.3

[13]     The following factors are present in this case:

(a)      The   threatening   to   kill   behaviour   arose   in   a   situation   where Ms McCleary was in a state of distress at being separated from her children.

(b)      The communication was not to her former partner who was being

threatened, but to Ms McCleary’s CYF officer.

(c)       The threat was imprecise and lacked specificity.

[14]     There is nothing to indicate that Ms McCleary’s partner was aware at the time of the threat, or that he had any awareness of the presence of the firearm at the address at which she was living.

[15]     These facts show offending at the lower end of the scale.  The fact that the threat was made to a person who was in a position of authority, and who was in a position to call the Police, indicates that it was not a threat intended to be taken seriously by the victim.  It was, it has to be said, little more than a wild statement (with a very serious message) being made to get the attention of the authorities who were not doing as she wished.   She was at the time very distressed and receiving psychiatric help.

[16]     Therefore,  the  starting  point  for  the  threatening  to  kill  count  should  be towards the bottom level in terms of seriousness.   I note that in Burchell v R the Court of Appeal quashed a sentence of eight months’ imprisonment for threatening to kill a police officer and replaced it with a sentence of four months.4     The Court considered that while the threat was made about a police officer and this was serious, the  scope  of  the  threat  was  limited  to  an  opportunistic  encounter  and  that

Mr Burchell had disclaimed any intention of seeking out the officer.   He had not

3      These were factors were endorsed in Simon v R [2014] NZCA 207 at [22].

4      Burchell v R, above n 1.

particularised the mode of carrying out the threat and it was a “spontaneous culmination of an apparently angry and irrational tirade”.

[17]     I consider the seriousness of this offending to be at a similar level to that displayed in Burchell.   I do not consider the fact that Ms McCleary went to the address afterwards as adding to culpability.  The original threat was not made to him. There was nothing threatening in what she did when she was at the address.

[18]     A starting point of four months was appropriate.

Unlawful possession of a firearm

[19]     It has been noted that the offence of possession of a firearm is one that contains great variations in gravity.5

[20]     In Beri v Police Mr Beri was found in unlawful possession of a firearm having been seen by neighbours wandering around his property with a loaded bolt action rifle.6    After his non-compliance with a sentence of 125 hours community work, the District Court Judge sentenced Mr Beri to four months’ imprisonment on the  unlawful  possession  of  a  firearm  charge.    On  appeal,  French  J  upheld  the sentence, although the appeal was largely directed to whether home detention should

be granted.

[21]     I also note Police v Goodwin where the High Court adopted a starting point of three months’ imprisonment for unlawful possession of a firearm that was paid as part of a debt.7

[22]     There is nothing to indicate any connection between the firearm and the threatening to kill count.  There is nothing to indicate that Ms McCleary intended to use the firearm.  There was no ammunition or any other equipment found with the firearm.  There was nothing to indicate that her claim that she was holding it to sell it

on to someone who had a licence was false.

5      R v Wright (1991) 7 CRNZ 624 (CA).

6      Beri v Police [2012] NZHC 1923.

7      R v Goodwin (1993) 10 CRNZ 681 (HC).

[23]     In all the circumstances I see this offending as at the lower end of the scale.  I

consider that a starting point of four months’ imprisonment is appropriate.

[24]     The offending was not being related to the threatening to kill count, that starting point should be treated cumulatively rather than being concurrent, but the totality principle will have to apply.

Breach of the protection order

[25]     In relation to this, and Ms McCleary’s failure to hand the weapon over to the Police, the Judge considered that a sentence of one months’ imprisonment should be imposed.  While breaches of protection orders are serious and must be sanctioned, the nature of the breach needs to be considered.  Ms McCleary failed to hand over a firearm that she had told her flatmate she intended to sell.  There was no threat or active use of the firearm.

[26]     Community-based  sentences  are  frequently  imposed  for  these  sorts  of breaches.8      Given  that  imprisonment  is  the  only  option  here,  I  consider  that  a sentence of one months’ imprisonment was appropriate for this offending.  Normally a community-based sentence of  around 60 hours of community work  would be adopted.

[27]     Thus, the total of the starting points of the three counts comes to nine months’ imprisonment.  Applying the totality principle to the starting points I would round that down to eight months’ imprisonment.

Personal factors relating to Ms McCleary

[28]     There is on the file a full psychiatrist’s report prepared to answer the question of whether Ms McCleary was able to plead.  The psychiatrist assessed her at being of a low-moderate risk of harming herself, and a low-moderate risk of harming others, and a high risk of similar offending.  He suggested that Ms McCleary be released from  custody,  but  that  she  should  receive  appropriate  necessary treatment  from Hastings Mental Services.  He made various suggestions in this regard.

[29]     It was his opinion that Ms McCleary exhibited disorder of mood and illusion, but that she did not suffer from disorder of the mind.  She may suffer from a mental illness.  The report shows her as traumatised by the loss of her children and lacking insight into her condition.  She appears to accept that she needs help.

[30]     Ms McCleary has a considerable record between 1999 and 2012 of relatively minor burglary, theft and driving offending, with there being one assault on 11 May

2001 of which she was convicted and discharged, and four convictions of wilful damage, all of which were dealt with by light non-custodial sentences.

[31]     Given  that  the  starting  point  was  18  months’ imprisonment  and  the  end sentence 12 months’ imprisonment, the Judge gave her an effective discount of approximately 35 per cent for her guilty plea and other personal factors.  This seems to me to have been a fair discount.  In addition to a discount of approximately 25 per cent  for  the  guilty  plea,  significant  discount  is  necessary  to  recognise  that  her

distressed psychiatric condition contributed to her offending was appropriate.9

The end sentence

[32]     Given that I have arrived at a starting point of eight months’ imprisonment, the end sentence in my view, taking into account a 35 per cent discount, should have been approximately five months and one week imprisonment.   Given that I have made a number of assumptions that have been generous to Ms McCleary I would round that up rather than down, to an end sentence of six months’ imprisonment.

[33]     Ms McCleary has been in custody since 11 March 2014.   Given that she would be released after serving half her sentence, she is now entitled to immediate release.

[34]     I consider that the conditions imposed by the Judge were entirely appropriate, and they will remain.

[35]     I would also add that it seems unlikely that home detention was an option that could  have  been  realistically  pursued  by  Ms  McCleary,  given  her  personal

circumstances, and semi-homeless state.   I am not prepared to find that the Judge was in error in not sentencing her to home detention, or some sentence that was less restrictive than imprisonment. Although the Judge did not refer to the alternatives to imprisonment in his sentence, I consider it likely that this was because he recognised that there were no practical options that were available.

[36]     I would observe that it is of great importance that every effort be made to supervise Ms McCleary in the six month period following release and to give her all possible treatment that is available.

Result

[37]     The appeal is allowed, the sentence of 12 months’ imprisonment is quashed and  substituted  by  a  sentence  of  six  months’ imprisonment.    Although  I  have assessed the starting points on the basis of concurrent sentences, I propose choosing the threatening to kill count as the lead charge for the purposes of setting the end sentences.

[38]     The sentence will be six months’ imprisonment on the threatening to kill count, three months’ imprisonment on the unlawful possession of a firearm count, and  one  months’ imprisonment  on  the  breach  of  a  protection  order  count,  all sentences to be concurrent.

[39]     The release conditions of six months following the sentence of counselling and education programmes as directed, as imposed by the Judge at [4] of the sentencing decision of 29 May 2014, remain in force and are not quashed by this appeal.

……………………………..

Asher J