McCormick v The King

[2024] NZHC 220

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 between 2004 and 2021, all receiving relatively low-level sanctions, his compliance with electronically monitored bail conditions, bar one minor breach, and the circumstances and personal background to the offending, which Mr McCormick had explained to the pre-sentence report writer. There was no independent report and no evidence before the Judge of a disadvantageous personal background.

[9]    Judge Kellar applied the 20 per cent guilty plea credit previously indicated and gave five months’ credit in recognition of the 14 months spent on EM bail resulting in the end-sentence imposed of two years and four months’ imprisonment, with an order for reparations of $8,712.62.

4      Ms Hammond, the appellant’s wife, was sentenced on five charges as a party to burglary, to eight months’home detention: R v Hammond [2023] NZDC 22418.

5      Brooking v Police [2020] NZHC 1035.

6      Paku v R [2011] NZCA 269.

7      The Judge referred to 15 burglaries but, as counsel for the appellant accepts, this appears to be an inadvertent error as sentencing proceeded on ten charges.

Principles on appeal

[10]   An appeal against sentence is available as of right and is determined in accordance with s 250 of the Criminal Procedure Act 2011. This Court may allow the appeal only if satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.9 The Court should intervene and substitute its own views only if the sentence under appeal is “manifestly excessive” and not justified by the relevant sentencing principles.10

Submissions

Appellant’s submissions

[11]   Mr Williams, for the appellant, does not challenge the starting point adopted or the 20 per cent guilty plea credit. While acknowledging many positive background factors, counsel says there were background factors which had a causative contribution to the offending, and that a ten percent credit was appropriate citing Zhang v R11 and Carr v R.12

Respondent’s submissions

[12]   Ms Fiennes for the Crown does not oppose the report’s admission on appeal, having regard to the reality that while such reports should not be first adduced on appeal they are often accepted as it is usually in the interests of justice to do so.13 However, counsel submits that no additional discount is warranted. If the Court does consider additional credit was available, the Crown notes an uplift was available (and

8      Criminal Procedure Act 2011, ss 250(2) and 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

10     Ripia v R [2011] NZCA 101 at [15].

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

12     Carr v R [2020] NZCA 357.

13     Samuels v R [2022] NZHC 432 at [29]-[30]; Blackley v R [2020] NZHC 3048 at [4]; and Yonkwa- Dingom v R [2021] NZCA 603 at [32].

sought) at sentencing but not applied and further submits discounts for the guilty plea and time spent on EM bail were generous.

Discussion

Should the s 27 Report be admitted and if so with what result?

[13]   As the Court of Appeal has repeatedly observed, s 27 reports should not be submitted for the first time on appeal.14 Mr McCormick’s is another case in which a  s 27 report is advanced on appeal in circumstances where there would appear no reason why the report could not have been obtained at sentencing. I note sentencing occurred several  months  after  plea  and   a  s  27   report  was   advanced   on   behalf  of   Mr McCormick’s wife, albeit she was represented by separate counsel. Ultimately, however, as Mr Williams (not counsel at sentencing) submits, the Court must decide where the interests of justice lie.

[14]   In this case it is only by a slim margin I consider it is in the interests of justice to admit the report, given the material which was before the Court at sentencing and the further information within the report.

[15]   It is not always necessary to publicly exhibit the contents of s 27 reports and they should be discussed with care. In this case it suffices to note Mr McCormick has faced some adversity and a moderate level of dysfunction in his life, especially in his formative years on the Chatham Islands. Mr McCormick found aspects of boarding school in Christchurch in his youth difficult and, after later returning with his own family to Christchurch to avoid his children experiencing that dislocation, found the lifestyle adjustment challenging. He had previously worked in a well-paid and responsible role as a fishing boat skipper career, but found the change to various physical and less well-paid jobs in Christchurch difficult. This was exacerbated by COVID-19 impacts on the family’s living situation, as they had to move in with relatives, and their financial position.

14     Laipato v R [2021] NZCA 562 at [13].

[16]   There is certainly a greater depth of information within the s 27 report, however it remains almost entirely self-reported  and  to  some  extent  is  in  conflict  with  Mr McCormick’s own statement to the pre-sentence report writer, that “he had a good upbringing [and had] no background issues that require addressing.”

[17]   I accept Mr Williams’ submission that the s 27 report is a better vehicle for enquiry of relevant background factors. Nonetheless I consider there is force in the Crown’s submission that the Judge, though lacking a s 27 report, was furnished with a “relatively comprehensive” pre-sentence report. In particular, and other than the personal  matters  raised  relating  to  his  childhood,  the  proximate  drivers  of     Mr McCormick’s offending were identified in the pre-sentence report.

[18]   This included Mr McCormick’s frank acknowledgement of his willing engagement in the offending at outset, and claim there followed an element of coercion or undue influence by anti-social outsiders. Coercion and undue influence have been recognised as mitigating factors;15 however this explanation, which again relies on self-report, was also before the Judge in the pre-sentence report, is not strongly pressed on appeal and, as in the Court below, I am unable to place much weight upon it.

[19]   Further, both reports noted the financial pressure Mr McCormick explained lay behind the offending. The s 27 report indicates this stemmed from his wish to seek land-based work, which was less well paid. I note the evidence suggests he was in work, in the main, albeit I accept he remained financially strained. In terms of his cultural dislocation, Mr McCormick was not without any support network in Christchurch and prior to the offending had lived there for four years without incident.

[20]   As the Supreme Court has emphasised, the enquiry must be directed to whether an offender’s background had a causative contribution to their offending.16 When this is so, credit in the vicinity of ten percent or more may be available. In Berkland v R, a credit of ten per cent recognised the role of addiction in offending, as well as the defendant’s deprived background.17    The defendant’s upbringing involved  “multiple

15     Zhang v R, above n 11, at [154].

16     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

17 At [162].

criminogenic risk factors including poverty, trauma, chaotic home circumstances and poor educational outcomes”.18 In Williams v R, a traumatic childhood involving domestic violence, drug abuse, a series of foster homes from the age of six and nine schools attracted a credit of ten per cent.19

[21]   In the appellant’s case,  the report writer concluded that “[i]t may be that    Mr McCormick’s social and cultural isolation made Mr McCormick more susceptible to antisocial activities, particularly considering his difficult financial circumstances both during and after the COVID-19 pandemic”.

[22]   Standing back, on the information within the s 27 report, I consider the link between the moderate dysfunction suffered by Mr McCormick and what was a carefully orchestrated campaign of burglaries is tenuous, and would not justify more than five percent credit, at most.

[23]   Further, even accepting that a credit may have been available at that level if the s 27 report information was available at sentencing, a review of similar cases indicates that factor is mitigated by the generous starting point the Judge adopted. In R v Lowe,

$80,000 worth of goods were stolen in 15 burglaries over a three-month period. The Court adopted a starting point of eight years’ imprisonment (an aggravated starting point including personal factors, which would amount to six years if removed).20

[24]   In Paku v R the Court of Appeal considered an appeal from an aggravated starting point of five and a half years’ imprisonment, which the Court described as “far from harsh”.21 The starting point included four and a half years for the appellant’s property-based offences, including four counts of burglary of residential properties (with goods stolen totalling $15,000) and four counts of receiving property from others in an organised criminal burglary group (goods received totalling $18,000).22

18     Berkland v R, above n 16, at [156].

19     Williams v R [2023] NZCA 637 at [18], I note the Court at [24] said a larger credit may have been justified but this itself did not justify the finding of an error.

20     R v Lowe CA62/05, 4 July 2005 at [28]; Paku v R, above n 6, at [8].

21     Paku v R, above n 7, at [10].

22 At [5].

[25]   In Brooking v Police, a starting point of two years’ imprisonment adopted for the burglary of a residential property was then uplifted by a further two years for the burglary of five commercial premises, as well as three charges of receiving stolen property. The value of goods burgled totalled around $15,000, while the value of goods received totalled around $40,000. The starting point was upheld, with the 24- month uplift considered modest by this Court on appeal.23

Absence of uplift for offending on bail or previous conviction

[26]   Mr McCormick could also have reasonably expected to receive an uplift for offending on bail. He first appeared on the charge of being unlawfully in a yard24 on 27 May 2022. This was after the commission of the first five burglaries. He was granted bail. He went on to commit five further burglaries, first re-offending within about a week of the admission to bail.

Conclusion

[27]   A starting point of four years’ imprisonment would not have been out of range for this offending. I have found five per cent credit for Mr McCormick’s personal background factors may have been available on the information within the s 27 report now tendered. However, an adjustment of that degree could only be seen as tinkering, does not bring the sentence within range of home detention and in any event is offset by the uplift which was warranted in respect of the nature and extent of the further offending on bail.

[28]   The end sentence is the proper focus on appeal.25 Standing back and having regard to the totality of Mr McCormick’s offending I am unable to conclude the sentence imposed was manifestly excessive.

23     Brooking v Police, above n 5, at [19]–[20].

24     (Initially laid as a burglary charge but amended by the Crown in accordance with the sentence indication).

25     Williams v R, above n 19, at [25].

Result

[29]The appeal is dismissed.

………………………………………

Preston J

Solicitors:

Crown Solicitor, Christchurch for Respondent Copy to: Anselm Williams, Barrister, Christchurch