McCreath v R - [2014] NZCA 142

IN THE COURT OF APPEAL OF NEW ZEALAND

CA279/2013
[2014] NZCA 142

BETWEEN	MARK ANTHONY McCREATH Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2014
Court:	French, Ronald Young and Clifford JJ
Counsel:	G P Tyrrell for Appellant J E Mildenhall for Respondent
Judgment:	15 April 2014 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

The appellant, Mark McCreath, pleaded guilty in the District Court at Christchurch to charges of theft, burglary, possession of instruments for burglary, breach of a protection order and breaches of a sentence of intensive supervision. On 14 June 2012 Mr McCreath was sentenced by Judge Garland to a term of six years and three months’ imprisonment, and ordered to serve a minimum term of three years’ imprisonment.[1]
[1]R v McCreath DC Christchurch CRI-2011-009-2519, 14 June 2012.
Mr McCreath now seeks to appeal against his sentence as being manifestly excessive.
Mr McCreath originally also sought to appeal against his minimum term of imprisonment. Given the time Mr McCreath spent on remand prior to sentence, that appeal is moot and was not pursued before us.

Facts

Between September and October 2009 Mr McCreath opened an account at Bunnings Warehouse and charged goods worth more than $70,000 to it. He never made a payment on that account. He on-sold some of those goods a short time after purchasing them. Goods to the value of $22,000 were recovered by the police when Mr McCreath was apprehended. Mr McCreath faced a representative charge of theft with respect to that offending.
Mr McCreath later burgled one property on Sunday 26 September 2010, forcing entry through a rear window but stealing nothing. He burgled a further 12 residential properties in late December 2010, principally on Christmas and Boxing Days. On a number of occasions, Mr McCreath disturbed or was disturbed by the owners of the property and left empty-handed. From other properties he stole a variety of items, including laptop computers, gift vouchers, a chequebook, electronic items, a camera and cash. Based on the statements of fact to which Mr McCreath pleaded guilty, the Judge estimated the amount of stolen property as between $10,000 and $15,000. Mr McCreath was located by police in a van that contained a large amount of stolen property, and instruments (gloves and a screwdriver) for burglary. That offending gave rise to 13 summarily laid burglary charges, and one charge of possession of instruments for burglary.
On five occasions in December 2010 Mr McCreath failed to report in terms of a sentence of intensive supervision. Whilst in custody awaiting resolution of the theft and burglary charges, Mr McCreath sent mail and made phone calls to an ex‑partner and her children in contravention of protection orders. That offending gave rise to the balance of the charges Mr McCreath pleaded guilty to.

Extension of time

Mr McCreath’s appeal was filed out of…

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 McCreath v R

Details

AGLC: McCreath v R [2014] NZCA 142
Case: [2014] NZCA 142
Decision Date: 15 April 2014 at 11.30 am

CaseChat Overview and Summary

The appeal was brought by Mark McCreath against the sentence imposed by the District Court at Christchurch. McCreath pleaded guilty to various charges including theft, burglary, possession of instruments for burglary, and breaches of protection and supervision orders. The Crown did not object to the extension of time for appeal, and the Court granted the extension. The appeal itself, however, was dismissed.

The legal issues in the appeal were whether the sentencing judge had erred in calculating the discount for the guilty pleas, whether the judge should have made the totality assessment earlier in the sentencing process, and whether the discount for totality was inadequate. McCreath's counsel argued that these errors resulted in a manifestly excessive sentence. The Crown argued that the judge had followed the correct process and that the sentence was appropriate.

The Court found that the judge had not erred in calculating the discount for the guilty pleas. The judge had followed the approach encouraged by the Court of Appeal and the Supreme Court. The Court also found that it was not necessary for the totality assessment to be made at an earlier stage, and that the sentence of six years and three months was appropriate given the totality of McCreath's offending and his criminal history.

The Court granted McCreath an extension of time to appeal, but dismissed the appeal against the sentence. The final orders of the Court were that the appeal be dismissed and that McCreath be granted an extension of time to appeal.

Orders