McDonald v Police HC Auckland CRI-2011-404-000178

[2011] NZHC 1379

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000178

LIAM ANTHONY MCDONALD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 August 2011

Counsel:         IM Tata for Appellant

KC Francis for Respondent

Judgment:      23 August 2011

JUDGMENT OF ASHER J

Solicitors/Counsel:

IM Tata, PO Box 22527, Otahuhu, Auckland 1640. Email:  [email protected]

Crown Solicitor, DX CP24063, Auckland 1140. Email:  [email protected]

MCDONALD V NZ POLICE HC AK CRI-2011-404-000178 23 August 2011

[1]      This is an appeal against a sentence of imprisonment of two years and one month given by Judge Harvey in the District Court at Auckland on 6 December

2010.   The appellant, Mr Liam McDonald, had on that day pleaded guilty to two charges of burglary, a number of charges of receiving and one charge of possession of  methamphetamine.     On  the  methamphetamine  charge  Mr  McDonald  was convicted and discharged.   As both counsel for the appellant and the respondent agree that the appeal should be allowed, and on the outcome, the background can be traversed quite briefly.

[2]      There  were  two  burglaries  involving  property  of  an  estimated  value  of

$20,000 and $5,000 respectively.  When Police executed a search warrant items of property were found that had been stolen in those burglaries, and also items stolen during other burglaries.  Mr McDonald admitted the burglaries and the receiving and pleaded guilty to the charges at the first possible opportunity.

[3]      At  the time of the sentencing on  6  December  2010,  the Supreme  Court decision in Hessell v R[1] had only been released some weeks before on 16 November

2010.

[1] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[4]      It is clear from the sentencing notes that the Judge sentenced Mr McDonald on the basis of the Supreme Court decision.  He set a starting point of two years and nine months’ imprisonment and after taking into account the early guilty pleas and determined   that   the   end   sentence   should   be   two   years   and   one   month’s imprisonment; that is, he applied a discount of 25 per cent.

[5]      There is nothing to indicate that any submission was made to the Judge that the discount should be any greater than the 25 per cent referred to in Hessell v R. This decision revised the earlier Court of Appeal decision in R v Hessell[2]  under which Mr McDonald would have been entitled to a discount of up to one-third in recognition of his early guilty plea.  That was replaced with an upper limit of 25 per

cent.   However, it has since become clear that where a defendant has decided to plead guilty before the Supreme Court’s decision of 16 November 2010, so that the applicable decision was the Court of Appeal’s decision which provided for a one- third discount, the discount that should be applied is the Court of Appeal discount and not the Supreme Court discount.[3]    Therefore, the discount that should have been used was one-third rather than 25 per cent.

[2] R v Hessell [2009] nzca 450, [2010] 2 NZLR 298.

[3] Vaine v R [2011] NZCA 283 at [33] and Hopwood v R [2011] NZCA 352 at [23].

[6]      The position taken by the Judge was understandable in the circumstances.  I

note the comments in Vaine:[4]

The Judge did not, we agree, make any error of law in the strict sense when he applied retrospectively the Supreme Court's principles governing plea. The difficulty is that the decision he took, so soon after the Supreme Court's decision, proved inconsistent with those of this Court and the High Court given since.

[4] At [34].

[7]      It would be unfair on Mr McDonald to impose a sentence given pursuant to a less sympathetic sentencing regime than that which applied when he elected to plead guilty.   It would also mean that his sentence was inconsistent with those of other defendants in the same situation, who received lower sentences.  Accordingly, the appeal must be allowed.

[8]      It has been necessary for Mr McDonald to apply for an extension of time to file his appeal under s 123 of the Summary Proceedings Act 1957.   Leave is not opposed.  Special circumstances apply and leave is granted.

Result

[9]      The   appeal   is   allowed.      In   respect   of   all   charges,   save   for   the methamphetamine charge, the sentence of two years and one month’s imprisonment is quashed.  On all those charges Mr McDonald will now serve a sentence of one year and ten months’ imprisonment.

1. The release conditions will be those set out in the pre-sentence report.

……………………………..

Asher J