McDonald v Police - [2018] NZHC 859

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATION OR IDENTIFYING PARTICULARS OF

VICTIM/CONNECTED PERSON PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000055

[2018] NZHC 859

BETWEEN
GRAEME MCDONALD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 April 2018

Appearances:

M Kan on behalf of I Ko for Appellant Z Hamill for Respondent

Judgment:

30 April 2015

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Manukau Counsel: M Kan, Auckland

MCDONALD v NEW ZEALAND POLICE [2018] NZHC 859 [30 April 2015]

[1] Mr McDonald pleaded guilty to one charge of indecent assault. Judge G A Andrée Wiltens sentenced him to 10 months’ home detention with six months post- detention conditions.1 Mr McDonald appeals the sentence.

[2] At the time of the offending Mr McDonald was 74 and the victim was 12 years old. She and her family were known to Mr McDonald and his wife. From time to time Mr McDonald and his wife had looked after the victim and her brother. The offending occurred when Mr McDonald took the brother and the victim to the spa pool at the complex where he lived. After the brother left the spa pool to go for a swim Mr McDonald pulled the victim close, rubbed her leg and then rubbed her vagina over the outside of her togs. She immediately got out of the spa pool and told her brother what had happened.

[3] In sentencing Mr McDonald the Judge took a starting point of 18 months’ imprisonment noting the offending involved a breach of trust from a person in the position of an adult caring for a child. The Judge took into account Mr McDonald had no previous convictions and also took into account the guilty plea, although noting it was entered at a very late stage on the morning of the scheduled trial.

[4] The Judge also took into account Mr McDonald’s age in arriving at an adjusted sentence of 12 months’ imprisonment.

[5] The Judge accepted that in the circumstances of the case home detention was an appropriate and the least restrictive sentencing outcome. Nevertheless, he fixed the sentence at 10 months’ home detention.

[6] The appeal is pursued on the grounds that the sentence was manifestly excessive because:

(a)the Judge failed to take into account all relevant personal circumstances of Mr McDonald, and particularly his health;

1 New Zealand Police v McDonald [2018] NZDC 3130.

(b)Mr McDonald’s remorse and efforts to make amends were not considered;

(c)through counsel Mr McDonald had made an offer of reparation of
$5,000. The Judge accepted Mr McDonald was able to pay that but did not consider it appropriate and regarded it “almost akin to an attempt to buy your way out of trouble”. The Judge said he was not prepared to consider it;

(d)a greater discount should have been provided for the guilty plea; and

(e)the Judge departed from the general practice of halving…

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.

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Details

Case: [2018] NZHC 859
Decision Date: 30 April 2015

CaseChat Overview and Summary

Graeme McDonald appeals the sentence imposed on him by Judge Andrée Wiltens after he pleaded guilty to one count of indecent assault. The Court had to consider whether the sentence of 10 months’ home detention, with six months’ post-detention conditions, was manifestly excessive. The key issues were whether the Judge failed to take into account all relevant personal circumstances of Mr McDonald, and particularly his health; Mr McDonald’s remorse and efforts to make amends were not considered; the Judge rejected a reparation offer of $5,000 as not being genuine and refused to allow a further discount for it; a greater discount should have been provided for the guilty plea; and the Judge departed from the general practice of halving the end sentence of imprisonment when calculating the length of the term of home detention.

The Court found that while the Judge did not expressly state the value attributed to each of the deductions the appellant was entitled to, the mitigating factors could not have amounted to more than a reduction of say four months or so from the starting point. However, the Court had reservations about the Judge’s approach to the offer for reparation or amends in this case. The views of the victims were not obtained as to the proposed payment of $5,000 and the Judge chose to simply reject the offer. Section 10 of the Sentencing Act 2002 expressly requires the Court to take into account an offer of amends. The Court found that some allowance should have been provided for the offer in the present case. Further, even if a Court determines that despite the offer it is appropriate to impose a sentence, s 10(3) requires the Court to take the offer into account when determining the appropriate sentence. The Court found that in the circumstances, the failure to take into account the offer of amends and the imposition of a sentence of 10 months home detention has resulted in an end sentence, which is, in the circumstances, manifestly excessive.

The appeal is allowed. The sentence of 10 months’ home detention is quashed. It is replaced with a sentence of six months’ home detention. The post-sentence conditions remain unaffected and I confirm them.

Orders