McCormick v Police - [2012] NZHC 309

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-446 [2012] NZHC 309

BETWEEN DANIEL JAMES MCCORMICK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 February 2012

Appearances: F Fenton for the Appellant
S Waalkens for the Respondent

Judgment: 29 February 2012

JUDGMENT OF GILBERT J

This judgment was delivered by me on 29 February 2012 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Solicitors: Public Defence Service, Auckland: frances.fenton@justice.govt.nz
Crown Solicitor, Auckland: simon.waalkens@meredithconnell.co.nz

MCCORMICK V NZ POLICE HC AK CRI 2011-404-446 [29 February 2012]

[1] On 4 November 2011 Daniel McCormick was sentenced to two and a half years’ imprisonment after pleading guilty to a charge of burglary. He appeals pursuant to s 121(3)(b) of the Summary Proceedings Act 1957 on the grounds that the sentence is clearly excessive. He claims that his previous history of offending was given disproportionate weight by District Court Judge Andrée Wiltens.

The offending

[2] On 26 November 2010, Mr McCormick and an associate went to a seafood store in Otahuhu where Mr McCormick had been working on a casual basis. They cut through a chain fence and then used a key to unlock a storage chiller and remove boxes of seafood to the value of $2,000.

[3] Mr McCormick was co-operative with the Police and pleaded guilty to the charge at the earliest opportunity on 23 February 2011.

Sentencing judgment

[4] Judge Andrée Wiltens took into account that Mr McCormick, who was 35, had 29 previous convictions for burglary. The Judge categorised Mr McCormick as a “recidivist burglar” in terms of the Court of Appeal’s decision in Senior v Police.[1]

[1] Senior v Police (2000) 18 CRNZ 340 (HC).

[5] On this basis, Judge Andrée Wiltens considered that the starting point for the offending had to be a term of three and a half years’ imprisonment. In setting this starting point the Judge noted that the offending involved a breach of trust given that the seafood was stolen from his employer. The Judge then allowed a 25 per cent discount for a guilty plea, reducing the end sentence to a term of two and a half
years’ imprisonment.

[6] Ms Fenton, for Mr McCormick, referred to a number of comparable cases and submitted that an end sentence of no more than two years’ imprisonment could be justified in this case.

[7] Mr Waalkens, for the New Zealand Police, responsibly acknowledged that the end sentence was clearly excessive and that the appeal must be allowed. He agreed that an end sentence of no more than two years’ imprisonment would be appropriate. Having reviewed the authorities to which I have been referred, I am satisfied that this was a responsible concession. The sentence imposed on Mr McCormick was clearly excessive and cannot stand.

Discussion

[8] I accept Ms Fenton’s submission that Judge Andrée Wiltens erred in placing the weight that he did on Mr McCormick’s previous convictions and in failing to have sufficient regard to the…

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 [2012] NZHC 309
Case: [2012] NZHC 309
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the case of McCormick v Police, Daniel James McCormick appealed his sentence for burglary, arguing that it was excessively harsh. The High Court of New Zealand, Auckland Registry, heard the appeal and reviewed the circumstances surrounding the sentencing. The key issue was whether the sentence of two and a half years’ imprisonment was appropriate, considering McCormick's criminal history and the nature of the current offence.

The court found that Judge Andrée Wiltens had erred by placing too much emphasis on McCormick's prior convictions. The judge had categorised McCormick as a "recidivist burglar," which led to a starting point of three and a half years’ imprisonment, subsequently reduced to two and a half years with a 25% discount for an early guilty plea. The court acknowledged that while McCormick's history of burglary was significant, undue emphasis on past convictions was inappropriate, particularly as he had no convictions for dishonesty since 2002. The court concluded that the sentence was clearly excessive and needed to be reconsidered.

After reviewing the relevant authorities and the submissions from both parties, the court determined that a starting point of 21 months’ imprisonment was more appropriate, with an additional six months for prior offending. This resulted in a total of 21 months, reduced further to 15 months after accounting for the early guilty plea. The court also considered whether a sentence of home detention combined with community work would be suitable. Given McCormick's clean record since 2002, his remorse, and the support from his family, the court found that such a sentence would meet the purposes and principles of the Sentencing Act. Therefore, the appeal was allowed, and the original sentence was replaced with seven months’ home detention and 300 hours of community work, subject to specific conditions.

Orders