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…

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 1581
Decision Date: 7 July 2014

CaseChat Overview and Summary

In McCleary v Police, Jennifer Faye Susan McCleary appealed against her sentencing by Judge Adeane, who sentenced her to 12 months' imprisonment for threatening to kill, unlawfully possessing a firearm, and breaching a protection order. The appeal focused on the starting points for sentencing, which McCleary's counsel argued were too high. The High Court was tasked with determining whether the starting points for the charges of threatening to kill and unlawful possession of a firearm were appropriately set and whether the total sentence was justified.

The Court found that the starting point for the threatening to kill charge should be lower, given the imprecise and non-specific nature of the threat, which was made to a CYF officer rather than directly to the intended victim. The Court compared the circumstances to those in Burchell v R, where a lower sentence was deemed appropriate due to the limited scope of the threat. For the unlawful possession of a firearm, the Court considered that McCleary's possession of the firearm was at the lower end of the scale, as there was no evidence of intent to use it or any connection to the threatening to kill charge. The Court also found the sentence for breaching the protection order appropriate, given the nature of the breach.

Ultimately, the Court concluded that the appropriate starting point for the charges was eight months' imprisonment, taking into account the totality principle. Given a 35% discount for McCleary's guilty plea and personal circumstances, the Court determined that the appropriate end sentence should be six months' imprisonment, with immediate release due to the time already served. The Court allowed the appeal, substituting the sentence of 12 months' imprisonment with six months', to be served concurrently. The release conditions and counselling and education programmes as directed were to remain in force.

Orders