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McCormick v The King

McCormick v The King

Case [2024] NZHC 220 19 February 2024

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-225

[2024] NZHC 220

BETWEEN ADRIANNE STUART OSCAR MCCORMICK
Appellant

AND

THE KING

Respondent

Hearing: 15 February 2024

Appearances:

A M S Williams & K N Stitely for Appellant L Fiennes for Respondent

Judgment:

19 February 2024

JUDGMENT OF PRESTON J

This judgment was delivered by me on 19 February 2024 at pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

MCCORMICK v R [2024] NZHC 220 [19 February 2024]

Introduction

[1] Adrianne McCormick appeals the sentence of two years and four months’ imprisonment1 imposed by Judge Kellar upon ten charges of burglary2 and one charge of unlawfully being in a yard3, as manifestly excessive. He contends insufficient credit was afforded for personal background factors, supported by a report he seeks to adduce on appeal, and that the appropriate sentence is one of two years imprisonment or less, commuted to home detention.

Facts

[2] Between March and June 2022 Mr McCormick and his wife committed a series of burglaries involving the theft of gas califont water heaters from residential and commercial properties in Christchurch.

[3] Mr McCormick’s wife searched Trade Me to locate vacant properties. Mr McCormick would then enter the identified properties and steal the gas califonts, sometimes assisted by his wife.

[4] During that period of offending, on 24 May 2022, Mr McCormick unlawfully entered a neighbour’s yard, breaking open a garden shed before walking around the property looking into windows while holding a hammer taken from the shed.

District Court Decision

Sentence Indication

[5] Judge Kellar gave the appellant a brief sentence indication, on 12 May 2023, of a starting point of three and a half years and guilty plea credit of 20 percent if accepted. The Judge also noted that “there may be other discounts” applied at sentencing relating to personal factors, of which he was then unaware.

1      R v McCormick [2023] NZDC 22418.
2      Crimes Act 1961, s 231(1)(a); maximum penalty ten years’ imprisonment.
3      Summary Offences Act 1981, s 29; maximum penalty three months’ imprisonment.

Sentencing

[6] The appellant accepted the sentence indication, and was sentenced on 10 October 2023.4

[7] Judge Kellar confirmed the starting point indicated, having regard to a number of aggravating factors and in light of two comparable cases: Brooking v Police5 and Paku v R.6 The Judge noted that the properties burgled were largely residential, although the majority were unoccupied and Mr McCormick did not enter into the buildings. There was a reasonably high degree of premeditation and financial loss suffered: the califonts were valued at $2,000 and sold on Facebook. None were recovered. Some damage was caused by the removal of the heating systems and which further aggravating the offending was the emotional impact on the victims and its extent including ten burglaries over just four months.7

[8] The Judge noted personal factors relevant to sentencing. These included Mr McCormick’s nine prior criminal convictions…

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 The King

Details

AGLC: McCormick v The King [2024] NZHC 220
Case: [2024] NZHC 220
Decision Date: 19 February 2024

CaseChat Overview and Summary

Adrianne Stuart Oscar McCormick appeals against the two-year-and-four-month imprisonment sentence imposed on him for ten counts of burglary and one count of unlawfully being in a yard. He argues that the sentence was manifestly excessive due to insufficient credit being given for his personal background factors. The respondent submits that no additional discount is warranted. The Court must determine whether the sentence imposed was justified and whether a different sentence should be imposed.

The appeal against sentence hinges on the principles outlined in the Criminal Procedure Act 2011. The Court of Appeal has held that intervention is only warranted if the sentence under appeal is "manifestly excessive" and not justified by the relevant sentencing principles. The Court will examine the sentencing principles applied by the District Court, the mitigating and aggravating factors considered, and whether the sentence imposed was within the range that can properly be justified.

The appellant argues that a ten percent credit was appropriate for his personal background factors, citing cases such as Zhang v R and Carr v R. The respondent contends that no additional discount is warranted, and if additional credit was available, an uplift was warranted for the nature and extent of the further offending on bail. The Court must weigh the personal background factors presented in the s 27 report against the District Court's findings and the overall offending.

The Court admits the s 27 report, albeit reluctantly, as it is in the interests of justice to do so. The report reveals a moderate level of dysfunction in Mr McCormick's life, including adversity and cultural dislocation. However, the Court finds the link between these factors and the offending to be tenuous, justifying at most a five percent credit. The Court also notes that the generous starting point and uplift for further offending on bail mitigate any potential credit for personal background factors.

The Court concludes that a starting point of four years’ imprisonment would not have been out of range for this offending. While five percent credit for Mr McCormick’s personal background factors may have been available, such an adjustment would only be seen as tinkering, does not bring the sentence within range of home detention, and is offset by the uplift warranted for the nature and extent of the further offending on bail. The Court is unable to conclude that the sentence imposed was manifestly excessive.

The appeal is dismissed.

Orders