McDermott v Police
[2024] NZHC 503
•8 March 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-112
[2024] NZHC 503
BETWEEN CRAIG SHAUN MCDERMOTT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 February 2023 Appearances:
L Hadlow for Appellant
M E A Brosnan for Respondent
Judgment:
8 March 2024
JUDGMENT (REDACTED) OF PRESTON J
This judgment was delivered by me on 8 March 2024 at pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
MCDERMOTT v NEW ZEALAND POLICE [2024] NZHC 503 [8 March 2024]
Introduction
[1] Craig McDermott was sentenced in the District Court to 16 months’ imprisonment in relation to two incidents in 2022.1 The first incident involved a change of driving whilst disqualified2 and the second, charges of unlawful possession of a pistol,3 unlawful possession of ammunition,4 and possession of methamphetamine simpliciter.5
[2] Mr McDermott appeals his sentence to this Court on the ground that the Judge erred by declining to commute the sentence of imprisonment to a term of home detention.
Facts
[3] Mr McDermott was disqualified from driving from 16 March 2022 to 15 August 2022.
[4] Six days after his disqualification took effect Mr McDermott was identified driving an unregistered vehicle with false plates around 8:45 am on 22 March 2022. He swerved out of his lane multiple times, prompting a motorist to call police and photograph him in his car. Police arrived at Mr McDermott’s home address about 30 minutes after this and located his vehicle parked directly outside. He was summoned and his vehicle impounded.
[5] On 13 September 2022, police executed a search warrant at the [redacted] address where Mr McDermott lives with his partner and her [redacted] children (aged [redacted] years old at the time). In a backpack next to Mr McDermott’s bed, police found six rounds of .22 rifle ammunition and one round of 9mm pistol ammunition, together with a cut-down .22 rifle with its serial number removed. The weapon was loaded with a ramset blank round, followed by three live .22 rounds in the magazine. A non-compliant magazine had been forced into the modified gun’s well. In a bedside
1 Police v McDermott [2023] NZDC 25305.
2 Land Transport Act 1998, s 32; maximum penalty three months’ imprisonment.
3 Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.
4 Section 22B; maximum penalty $10,000 fine.
5 Misuse of Drugs Act 1975, ss 7(1)(a),(2); maximum penalty six months’ imprisonment.
drawer, police located 0.43 g of methamphetamine and a supply of new snaplock bags, scales and $760 in cash. It was acknowledged that Mr McDermott has a methamphetamine addiction.
District Court Decision
[6] Judge Flatley approached the sentencing with reference to the most serious charge, the unlawful possession of a pistol. He found Correction’s assessment that Mr McDermott presented a low risk of offending and low risk of harm to others “quite remarkable” and declined to accept it.6 The Judge also noted that all addresses proposed for home detention were rejected either by Corrections or police.
[7] The Judge was referred to a number of cases in relation to similarly charged offending, which indicated starting points ranging from 18-30 months’ imprisonment.7 The Judge considered a starting point of 22 months’ imprisonment reflected the aggravating features of the offending and uplifted that by one month for the driving offence. A full 25 per cent credit was granted for Mr McDermott’s guilty plea. This resulted in an end sentence of 16 months’ imprisonment.
[8] The Judge observed that the “big issue” on sentence was whether Mr McDermott could be sentenced to home detention. He declined to commute the sentence, citing denunciation and deterrence as the most prominent sentencing principles in this case and commenting:8
… It is not a strong enough deterrent sentence, in my view. You seem to be somewhat blasé about the circumstances of this offending, particularly your attitude towards the firearm in the bag and who it belonged to.
I am really concerned about the combination of factors, the presence of the firearm, the ammunition, the drugs. It is a recipe for disaster and it is a real concern, …
6 Police v McDermott, above n 1, at [6].
7 Smith v Police [2014] NZHC 2196; Moore v Police [2015] NZHC 3113; Ngawati v Police [2022] NZHC 2156; Police v Nelson [2023] NZDC 23545; R v Lorigan [2012] NZHC 2249.
8 Police v McDermott, above n 1, at [15], [16].
[9] The Judge did not accept the proposed detention address was suitable given the presence of Mr McDermott’s step-children and that it was the environment in which the offending occurred. He declined leave to apply for substitution of a sentence of home detention.
[10] Mr McDermott was disqualified from driving for six months and the Judge ordered forfeiture of the firearm.
Principles on appeal
[11]A sentence appeal is available as of right.9
[12] An appellate court may allow an appeal only if it is satisfied that there has been an error in the imposition of the sentence and a different sentence should be imposed.10 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.11 Only if the sentence is “manifestly excessive” will it be appropriate for this Court to intervene and substitute its own views.12
[13] These settled appellate principles apply equally to an appeal against a decision not to commute a sentence of imprisonment to home detention.13 The appeal is to be considered on the basis of whether the Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor or reached a decision that was plainly wrong.14 The appellate court will only modify the sentence if an error is identified.15 The weight placed on each factor is not a basis on which to challenge the exercise of discretion, unless that weight is excessive to the detriment of other principles.16 Because it is difficult in marginal cases to articulate why one sentence
9 Criminal Procedure Act 2011, s 244.
10 Sections 250(2) and 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
12 At [33].
13 Palmer v R [2016] NZCA 541 at [16], citing James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.
14 Palmer v R, above n 13, at [16].
15 Manikpersadh v R [2011] NZCA 452 at [12]; Palmer v R, above n 13, at [17].
16 McConnel v R [2013] NZCA 303 at [15]–[16].
should be preferred over another, the margin of appreciation extended to the sentencing Judge is usually significant.17
[14] There is no presumption in the Sentencing Act in favour of home detention or imprisonment when the home detention option is available however the closer a sentence is to two years’ imprisonment the more likely home detention will be inappropriate and vice versa.18 A sentence of imprisonment may be quashed and substituted for home detention when deterrence has been given complete priority without regard to other principles of the Sentencing Act 2002.19
Discussion
[15] Mr McDermott contends the Judge erred by focusing on the sentencing purposes of denunciation and deterrence to the exclusion of other relevant considerations in s 7 and 8 of the Act. His counsel, Ms Hadlow, submits this has occurred by erroneous reasoning in three respects:
(a)placing insufficient emphasis on Mr McDermott’s rehabilitative prospects;
(b)wrongly assessing the gravity of the offending; and
(c)failing to recognise home detention as the least restrictive outcome appropriate in the circumstances.20
[16] Counsel did not pursue a challenge to the Judge’s assessment that the address was unsuitable as Mr McDermott’s partner has withdrawn her consent. A related fourth limb of counsel’s argument, that the Judge paid insufficient regard to the appellant’s personal circumstances and the impact of the custodial sentence upon his family, is also moot, given this.
17 Palmer v R, above n 13, at [19].
18 Manikpersadh, above n 15, at [22] citing R v Hessell [2009] NZCA 450; Garnett v R [2010] NZCA 173 and see Fairbrother v R [2013] NZCA 340.
19 Fairbrother v R, above n 18, at [29].
20 Sentencing Act 2002, s 8(h).
[17] The appeal is advanced on grounds that leave to apply for home detention should have been granted.
Rehabilitation – did the Judge afford this principle insufficient weight?
[18] Ms Hadlow argues there is a real prospect of Mr McDermott benefitting from a rehabilitative purpose to sentencing, which the Judge failed to consider. She was instructed that the appellant had reduced his methadone consumption from 150 mg to 52 mg and noted the pre-sentence report assessment that he was at moderate risk of amphetamine use.
[19] I do not consider the Judge overlooked Mr McDermott’s rehabilitative prospects.
[20]The Court of Appeal observed in Doolan v R:21
[38] … In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.
[21] The Judge did not explicitly refer to the principle of rehabilitation in his sentencing remarks. It is however implicit in the experienced Judge’s assessment (when considering whether to commute the term) that the main principles of sentencing were denunciation and deterrence, that he undertook the sentencing analysis having regard to all of the principles and purposes in ss 7 and 8 of the Act.
[22] It is clear Judge Flatley did not place significant weight on Mr McDermott’s rehabilitative prospects. The relative weight to be given to the principles was a matter for him to assess. While it is positive that Mr McDermott has reduced his methadone use, he has been on the programme for 15 years. I agree with Ms Brosnan for the respondent that there was no other aspect, such as commencement of a rehabilitative programme or counselling which would support a greater focus in this regard. Further,
21 Doolan v R [2011] NZCA 542, [2011] BCL 811.
the pre-sentence report indicates Mr McDermott did not meet departmental criteria to undertake any rehabilitative programme and there was no substantive difference between the special conditions of home detention proposed and the release conditions if not commuted. Given those factors and Mr McDermott’s age, at 51 years, it is unremarkable the Judge did not place greater weight on rehabilitation. In these circumstances, given the presence of the firearm, the ammunition, the drugs and the evidence of dealing, the Judge’s emphasis on denunciation and deterrence was understandable.
The gravity of the offending
[23] Ms Hadlow submits the offending is properly considered as “on the lower end of serious” and that the Judge failed to consider its relative gravity, as he took a “global” approach to firearms offending in association with drug use or dealing in New Zealand instead of considering the specific facts of Mr McDermott’s case.
[24]No error is disclosed in this regard.
[25] The Judge considered the offending in context, adopting the firearm charge as the lead offence. His assessment of the culpability of the offending arose from the dangerous combination of the drugs and paraphernalia of dealing alongside the modified firearm and ammunition.
[26] Nor does the absence of any gang context assist the appellant, as Ms Hadlow argues. While that would have called for a higher starting point, the 22 months adopted was within the lower third of the identified range. It was both available and commensurate, on the facts.
[27] I do not consider the Judge’s remarks on the prevalence of events in New Zealand where guns are associated with drug use or trading suggest he wrongly assessed the specific features of Mr McDermott’s offending. To the contrary, it was the particular features of the offending – the toxic mix of the illegal modified weapon, loaded and with ready ammunition next to the methamphetamine and evidence of dealing - which indicated the gravity of the offending. This passage read in context
reflects the particular dangers the offending presented which, in the Judge’s view called for a sentence weighted towards denunciation and deterrence.
Was home detention the least restrictive outcome appropriate in the circumstances?
[28] On the third limb of the appeal Ms Hadlow submits that home detention was the least restrictive outcome appropriate in the circumstances. Counsel notes that Corrections (as of 19 January 2023, before their withdrawal of assent to the home detention proposal in August) assessed Mr McDermott as someone with a good ability to comply. He successfully completed a sentence of community detention in 2020 — although I note this was imposed following a review of a sentence of home detention. His criminal record is limited and historical, with no conviction for violent offending.
[29] Mr McDermott’s partner no longer supports the home detention proposal but counsel seeks an order granting leave to apply.
[30] A sentence of imprisonment is typically one of last resort.22 The factors counsel invokes all support Mr McDermott’s ability to comply with home detention however, ultimately this ground is also to be determined in light of the Judge’s view that home detention was not appropriate in this case, regardless of the address. That is, that denunciation and deterrence must take priority on sentence and required a custodial term. That view was available to him on the facts. I am not persuaded he erred in that regard.
The relevant circumstances personal to Mr McDermott
[31] Ms Hadlow in her written submissions also addressed a fourth ground, that the Judge took insufficient account of Mr McDermott’s personal circumstances despite letters from his partner, step-children and his partner’s family in support of him.
22 R v Rawiri [2011] NZCA 244 at [18].
[32] The Court, when determining if a sentence of imprisonment is disproportionately severe can consider the impact of imprisonment upon dependent children of the offender.23
[33] As noted, Mr McDermott’s partner has withdrawn her consent to the proposed address. While I accept the letters tendered from the family members demonstrate that Mr McDermott had provided pro-social support to [redacted] his step-children and indeed had a significant bond with one of them (and putting aside for present purposes the competing considerations arising from his offending within the family home and other matters)24 such influence would inevitably have been restricted to within the proposed detention address. On that basis and given the change in circumstances this issue is moot on the appeal.
Conclusion
[34] Home detention will often be imposed in favour of short sentences of imprisonment. This is because the gravity and nature of the offending, often by virtue of lower starting points and less serious offending, indicate that is an appropriate outcome. However, a short sentence of imprisonment remains available where the sentencing Judge, applying the relevant principles, finds it to be appropriate on the unique circumstances of the case before them. The weight a Judge affords a particular factor in sentencing is not a basis to challenge the exercise of the discretion unless disproportion is demonstrated.
[35] In Mr McDermott’s case, Judge Flatley considered that a sentence of home detention was not appropriate, regardless of the proposed address, due to the need to denounce and deter his offending. I have found no error in that approach.
23 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50]-[56].
24 [redacted].
Result
[36]The appeal is dismissed.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Dunedin
Public Defence Service, Dunedin
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