McCormick v Police

[2021] NZHC 1299

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000032

[2021] NZHC 1299

BETWEEN

ALISTAIR MCCORMICK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

3 June 2021

Appearances:

T Aickin for Appellant

C E Martyn for Respondent

Judgment:

3 June 2021

ORAL JUDGMENT OF VENNING J

Solicitors:           Raymond Donnelly & Co, Christchurch Counsel:        T Aickin, Christchurch

MCCORMICK v NEW ZEALAND POLICE [2021] NZHC 1299 [3 June 2021]

[1]    Alistair McCormick was sentenced by Judge A A Couch to 30 months’ imprisonment.1 The Judge constructed the sentence by imposing one year, three months on three charges of burglary, and one year, three months cumulative on a charge of breach of a protection order. The Judge imposed concurrent sentences on an earlier breach of protection order charge and on charges of receiving and breach of intensive supervision.

[2]    Mr McCormick appeals against the sentence. He says the Judge should have imposed a sentence of home detention.

Background

[3]    The burglary charges arose out of three incidents on 27 May 2020, 1 June 2020 and 30 July 2020. The burglaries were committed at a Christchurch school, a builder’s yard, and an apartment complex that Mr McCormick had previously worked at. The property at the school and the builder’s yard were damaged by Mr McCormick in forcing his entry. From those properties he stole keys to a vehicle and a petrol charge card and goods of more than $3,000. In relation to the burglary of the apartment complex he stole pails of paint.

[4]    In June 2020 Mr McCormick had been served with a protection order. On 15 July he breached that protection order by making numerous phone calls and texts to his former partner. He also attended her home and tried to get inside.

[5]    The second breach of the protection order was more serious. On 19 October 2020 Mr McCormick accosted his former partner outside her home and refused to leave for an hour or so. He then returned half an hour later telling her by text he was outside her door. Concerningly, at 3.30 am the next morning Mr McCormick climbed up the outside of the victim’s apartment building and broke into her apartment. The victim awoke to find Mr McCormick standing at the end of her bed. She repeatedly asked him to leave but he only did so after quite some time. Early in the morning Mr McCormick sent a series of what the Judge described as lengthy and unwelcome text messages to the victim.

1      New Zealand Police v McCormick [2021] NZDC 3011.

[6]    At 10.00 am that day Mr McCormick approached the victim again when she was getting into her car. He got into the passenger’s side of the car. He refused to get out. He remained in the car while the victim drove to the city and back again. She  ran to her apartment and locked the door. Mr McCormick then climbed up the outside of the building again to her balcony, broke in and confronted her. After the victim had left for work he telephoned her and verbally abused her. When she returned home from work Mr McCormick’s scooter was parked in her parking place.

[7]    In addition to the charges of burglary, when the Police executed a search warrant at Mr McCormick’s home on 10 July they found property that had been stolen at a burglary in May which led to a charge of receiving.

[8]    In June 2020 Mr McCormick had been sentenced to intensive supervision on an earlier charge of burglary. He repeatedly failed to report which led to the charge of breach of supervision.

District Court judgment

[9]    The District Court Judge took a starting point of two years’ imprisonment for the three burglaries. He considered the breaches of the protection order, particularly the second charge, as serious and said he would apply an uplift of one year, nine months for that. The Judge considered an uplift of six months to be appropriate for the receiving charge and two months for the intensive supervision charge.

[10]   The Judge then said that arithmetically that led to a total of three years, five months’ imprisonment. Actually, on the basis that the sentences were calculated as uplifts as the Judge had expressed, that led to a total of four years, five months’ imprisonment. The Judge then said he reduced the sentence “a little” to take account of totality, reducing it to three years, two months before uplifting that for 10 per cent to reflect the aggravating feature that the breaches of the protection order were committed while Mr McCormick was on bail and subject to the sentence of supervision.

[11]   The Judge then accepted by way of mitigation that Mr McCormick had expressed remorse and was willing to engage in rehabilitation. He recognised both

those factors by a reduction of 10 per cent and then allowed Mr McCormick a further reduction of 20 per cent for the guilty plea. That led the Judge to the end sentence of 30 months’ imprisonment which he imposed as noted above. In addition the Judge made modest reparation orders.

Appeal

[12]   Ms Aickin submits the sentence of imprisonment was manifestly excessive and the Judge was in error in imposing the sentence of imprisonment.

[13]   In support of the appeal counsel submits the starting point of no more than 20 months’ imprisonment was appropriate for the three burglaries given the low value of the goods stolen and that they were committed at commercial premises in the middle of the night. Further, counsel submitted that, if the Judge had incorporated all relevant mitigating factors personal to the appellant, a significantly reduced sentencing end point would have been reached.

[14]   In particular Ms Aickin referred to the link she said existed between Mr McCormick’s drug addiction and his offending. She also submitted the Court was required to impose the least restrictive outcome available which would have been home detention. If the Judge had taken into account his drug addiction, Mr McCormick’s personal background, his remorse and willingness to undertake rehabilitation, a sentence allowing home detention to be considered would have been available to the Court. She noted that home detention was recommended by the pre- sentence writer.

Decision

[15]   The appeal is under s 250 of the Criminal Procedure Act 2011. The appellant must satisfy the Court there has been an error so that a different sentence should be imposed. The focus is on the correctness of the end result rather than the process by which the sentence was reached.2

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[16]   The principal challenge to the starting point is in relation to the burglaries. As counsel have noted there is no guideline judgment for burglary sentencing. The Court of Appeal in R v Columbus3 has discussed the approach that the Court may adopt and also in Arahanga v R4 the Court has discussed what might be appropriate starting points for various types of offending.

[17]   Having regard to the relevant authorities that counsel have helpfully referred to,5 I consider a starting point of 20 months as suggested by the appellant would be the bottom of the range for burglary offending in this case. It would be difficult to criticise the Judge’s starting point of 24 months. However, for present purposes and in constructing and in testing the sentence imposed in this case, the Court takes as a start point for the burglaries the 20 months advocated by Ms Aickin.

[18]   In constructing an appropriate end sentence, however, I consider the Judge’s approach of uplifting for the other unrelated offending, namely the receiving, the breaches of the protection order and the breach of the intensive supervision order, was an appropriate approach.

[19]   An uplift of four months for the receiving charge again, giving the appellant the benefit of the doubt on that, would be appropriate.

[20]   The breaches of the protection order, however particularly the second breach of the protection order, were particularly serious. There can be no criticism of the Judge’s assessment that the breaches of the protection order warranted an uplift of one year, nine months in total. As I have noted, there are a number of concerning features of that offending. It involved a number of different incidents, harassment over a lengthy period, and concerningly breaking into the victim’s home in the middle of the night.

3      R v Columbus [2008] NZCA 192.

4      Arahanga v R [2012] NZCA 480.

5      R v Stevens [2009] NZCA 190; Anderson v NZ Police HC Hamilton CRI-2006-419-119, 30 November 2006; Gordon v NZ Police HC Wanganui CRI-2009-403-3, 9 February 2009; and Crawford v NZ Police [2015] NZHC 3262.

[21]   An uplift of one year, nine months on those offences is entirely appropriate. That leads to an adjusted sentence of 45 months’ imprisonment. Some allowance must be made for the breach of the supervision order and for the fact that this offending occurred whilst the appellant was on bail and subject to a sentence. An uplift of a further five months to reflect those two factors would take the adjusted start point to 50 months. Standing back and looking at the matter for totality that starting point could be adjusted down to 45 months which would be three years, nine months.

[22]   The issue then is whether the further discounts should have been made available as Ms Aickin submits particularly for the appellant’s drug addiction as she described it.

[23]   As discussed with counsel there is really limited information before the Court about that. In the pre-sentence report the pre-sentence report writer notes that the circumstances, the unfortunate death of both his parents within a relatively short period of time, the break-up of a relationship, loss of a support network led the appellant to drug use, specifically methamphetamine which was normalised. The appellant described using drugs to “numb” everything. The report writer noted that the appellant had accepted his need to address his addiction to methamphetamine and relationship issues. There was also an alcohol and drug assessment report before the Court. It recommended an intensive outpatient treatment programme for Mr McCormick.

[24]   With respect to Ms Aickin’s submission that there was sufficient evidence before the Court of a drug addiction, I do not accept the material before the Court, which is essentially self-reporting of a rather limited nature of the use of drugs meets the requirements for a significant discount as referred to in Zhang.6

[25]   I also note that the Judge has provided a 10 per cent discount for remorse and rehabilitation prospects in this case. Even increasing that to 15 per cent to take account of the other factors referred to in the pre-sentence report, including the appellant’s background and use of drugs, when taken with the 20 per cent reduction for the guilty plea, which given the strong Police case, was appropriate, a combined discount of 35

6      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

per cent applied in accordance with Moses7 would lead to an end sentence of somewhere in the range of 29 months’ imprisonment.

[26]   Even on that adjusted basis the issue of home detention does not arise. It also compares closely with the Judge’s end result of 30 months’ imprisonment.

[27]   The appellant fails to satisfy the Court that the sentence imposed by the Judge was manifestly excessive or out of range. Ultimately there is no error in the end result of the sentence imposed. For those reasons, the appeal is dismissed

Venning J

7      Moses v R [2020] NZCA 296.