McCormack-Cameron v Police - [2012] NZHC 3586

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-51 [2012] NZHC 3586

BETWEEN SHAUN TERRY MCCORMACK- CAMERON
Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 December 2012

Appearances: R Smith for the appellant
R W Donnelly for the respondent

Judgment: 21 December 2012

JUDGMENT OF CLIFFORD J

[1] The appellant, Mr McCormack-Cameron, having earlier pleaded guilty, was sentenced by Judge O’Driscoll in the District Court at Invercargill to a total of 23 months’ imprisonment, on the following charges:

(a) theft of a motor vehicle (s 227(1) of the Crimes Act 1961 – maximum

sentence seven years’ imprisonment);

(b) unlawfully taking a vehicle (s 226(1) of the Crimes Act 1961 –

maximum sentence seven years’ imprisonment) x 2;

(c) failing to comply with a prohibition (s 52(1)(c) of the Land Transport

Act 1998 – maximum sentence $10,000 fine);

(d) cultivation of cannabis (s 9(1) of the Misuse of Drugs Act 1975 –

maximum sentence two years’ imprisonment/$2,000 fine);

MCCORMACK-CAMERON v POLICE HC INV CRI-2012-425-51 [21 December 2012]

(e) possession of cannabis plant (ss 7(1)(a) and (2) of the Misuse of Drugs Act 1975 – maximum sentence three months’ imprisonment/$500 fine); and

(f) possession of utensils for the purpose of committing an offence (s 13(1) of the Misuse of Drugs Act 1975 – maximum sentence one year’s imprisonment/$500 fine).

[2] Mr McCormack-Cameron was also ordered to pay reparation of $3,750 in total, and made subject to standard and special release conditions for six months after his sentence expiry date.

[3] Mr McCormack-Cameron says that that sentence of imprisonment was manifestly excessive.

Facts

[4] The charges Mr McCormack-Cameron faced arose out of three separate incidents of offending.

[5] In the last week of June 2012 Mr McCormack-Cameron was walking down Salford Street in Invercargill. He noticed that the keys were in the ignition of a Subaru Impreza parked on a front lawn. He got into the car and drove it to an associate’s address on Miller Street, and hid the car in a garage. His intention was, apparently, to use the engine from that car to replace the engine in his car which had recently blown out. By the time he realised that the engine from the Subaru would not fit his car, the Subaru had been completely dismantled and had been cut in half. Those circumstances gave rise to the charge of theft of a motor vehicle.

[6] Towards the end of July Mr McCormack-Cameron needed to remove the dismantled Subaru from the Miller Street address. He converted a Nissan Serena on Jack Street in the early hours of Monday 23 June, and in nearby Ash Street took a trailer from a driveway, hooked it to the Nissan Serena and drove to the Miller Street garage. There, with the help of his associates, he loaded the back half of the stolen and dismantled Subaru onto the trailer and drove away. He was driving the Nissan

towing the trailer with half of the Subaru on it when he was stopped by police on…

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 McCormack-Cameron v Police

Details

AGLC: McCormack-Cameron v Police [2012] NZHC 3586
Case: [2012] NZHC 3586
Decision Date: 21 December 2012

CaseChat Overview and Summary

The appeal was heard in the High Court of New Zealand, Invercargill Registry, by Clifford J. The appellant, Mr McCormack-Cameron, challenged the sentence imposed by Judge O’Driscoll in the District Court at Invercargill, which was a total of 23 months' imprisonment for various charges, including theft of a motor vehicle, unlawfully taking a vehicle, failing to comply with a prohibition, cultivation of cannabis, possession of cannabis plant, and possession of utensils for the purpose of committing an offence. Mr McCormack-Cameron argued that the sentence was manifestly excessive, particularly the starting point of 26 months for the motor vehicle offending and the four months for the cannabis offending.

The court examined the legal issues regarding the appropriateness of the starting point sentences and whether they were manifestly excessive. Clifford J concluded that the starting point of 26 months for the motor vehicle offending was not excessive, as it was similar but less serious than the offending in comparable cases. However, the court found that the cumulative four-month sentence for the cannabis offending was excessive, given the minimal amount of cannabis and the lack of any level of commerciality. The court substituted a sentence of two months' imprisonment for the cannabis offending.

The appeal was allowed to the extent that the four-month sentence for the cannabis offending was excessive. The total sentence was reduced to 21 months' imprisonment.

Orders