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…

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 McCormick v Police

Details

AGLC: McCormick v Police [2021] NZHC 1299
Case: [2021] NZHC 1299
Decision Date: 3 June 2021

CaseChat Overview and Summary

The appellant, Alistair McCormick, appealed against his sentence of 30 months' imprisonment imposed by the Judge for various charges including burglary, breach of a protection order, receiving, and breach of intensive supervision. The primary legal issue was whether the sentence imposed by the Judge was manifestly excessive and whether a sentence of home detention should have been considered. The court considered whether the starting point and uplifts applied by the Judge were appropriate, and whether sufficient discounts were applied to the sentence. The appeal hinged on whether the Judge erred in imposing a sentence of imprisonment rather than home detention.

The court found that a starting point of 20 months for the burglaries was appropriate, but the Judge's starting point of 24 months was within the range. The court agreed with the Judge's approach of uplifting for the other charges, particularly the serious breaches of the protection order. The court considered the appellant's drug addiction and background but found that the evidence did not warrant a significant discount. The court applied a combined discount of 35 per cent, which led to a sentence of around 29 months' imprisonment. This compared closely with the Judge's sentence of 30 months' imprisonment. The court concluded that the Judge's sentence was not manifestly excessive or out of range, and the appeal was dismissed.

The court's decision highlights the importance of considering the totality of the offending and the appropriate starting point and uplifts when sentencing. The court also noted that the evidence of drug addiction did not warrant a significant discount. The court emphasised that the focus of the appeal was on the correctness of the end result rather than the process by which the sentence was reached. The court dismissed the appeal and upheld the Judge's sentence.

Orders