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McDermott v Police

McDermott v Police

Case [2024] NZHC 503 8 March 2024

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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…

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 McDermott v Police

Details

AGLC: McDermott v Police [2024] NZHC 503
Case: [2024] NZHC 503
Decision Date: 8 March 2024

CaseChat Overview and Summary

Craig McDermott appeals his sentence for two incidents that occurred in 2022. The first incident involved driving while disqualified, and the second involved unlawful possession of a pistol, ammunition, and methamphetamine. McDermott was sentenced to 16 months' imprisonment in the District Court and appeals on the basis that the sentencing judge erred in declining to commute the sentence to home detention. The appeal raises questions about the weight given to the sentencing principles and whether the sentence was appropriate in the circumstances.

The appeal hinges on whether the sentencing judge erred in focusing on the purposes of denunciation and deterrence over other relevant sentencing considerations. The appellant's counsel argued that the judge placed insufficient emphasis on the appellant's rehabilitative prospects, wrongly assessed the gravity of the offending, and failed to recognise home detention as the least restrictive outcome. The court found that the judge did not err in considering the rehabilitative prospects, as the evidence did not support a greater focus on rehabilitation. The court also found that the judge did not wrongly assess the gravity of the offending, as the particular features of the offending indicated its seriousness. Finally, the court found that the judge appropriately considered the appropriateness of home detention, given the need to denounce and deter the offending.

The appeal was dismissed, and the original sentence was upheld. The court found no error in the judge's approach to sentencing, and the weight given to the various sentencing principles was a matter for the judge to assess. The court concluded that a short sentence of imprisonment remained available where appropriate on the unique circumstances of the case before the judge.

Orders