McDonald v The King - [2023] NZCA 172

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA684/2022
[2023] NZCA 172

BETWEEN	GEORGE MCDONALD Appellant
AND	THE KING Respondent

Hearing:	3 May 2023
Court:	Gilbert, Thomas and Woolford JJ
Counsel:	K E Tuialii for Appellant C P Howard and L A Taula for Respondent
Judgment:	16 May 2023 at 9.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Following a trial by jury in the High Court at Auckland, Mr McDonald was found guilty of one charge of wounding with intent to cause grievous bodily harm, having shot the complainant in his leg causing a large wound that required several surgeries. Mr McDonald was convicted and sentenced by van Bohemen J to six years and three months’ imprisonment.[1] The Judge ordered Mr McDonald to serve a minimum period of imprisonment of two years and nine months.[2]
[1]R v McDonald [2022] NZHC 2808 [Sentencing judgment] at [123].
[2]At [124].
The sentence was constructed by:
(a)adopting a starting point of eight years’ imprisonment;[3]
(b)applying an uplift of nine months for previous convictions for violent offending;[4]
(c)allowing a discount of seven per cent for cultural factors;[5]
(d)allowing a discount of five per cent for financial reparation made to the complainant;[6]
(e)allowing a discount of five per cent for rehabilitative prospects;[7] and
(f)deducting 12 months for over two years spent on electronically monitored bail.[8]
[3]At [91].
[4]At [96].
[5]At [106].
[6]At [110].
[7]At [111].
[8]At [115].
Mr McDonald appeals against his sentence. He contends that the Judge ought to have allowed a greater discount for cultural factors and he should have allowed further discounts for rehabilitation, addiction, and remorse. Having reviewed all the relevant materials and reflected on the submissions, we have reached the conclusion that the Judge made no error in his careful assessment of the available discounts for mitigating factors. As we agree with his thoughtful analysis and the end sentence he imposed, our reasons for dismissing the appeal can be kept relatively brief.

Personal background

Before describing the facts of the index offending, it is helpful to briefly set out Mr McDonald’s background. This will provide the relevant context for the offending and the main drivers of it — limited education, negative influence of peers, early exposure to drugs and alcohol, proclivity for violence, early incarceration, successive and increasing periods of imprisonment, and entrenchment in gang lifestyle (as a member of the Comancheros motorcycle gang).
Mr McDonald is of Tongan descent and is the youngest of seven children. His parents separated when he was aged six and he remained in the care of his mother, who was a good role model. Despite being given the opportunity, Mr McDonald achieved only a limited education. He was exposed to alcohol and drugs from a young age. He was living rough before the age of 16 and became immersed in the world of street gangs where violence was normalised. He is now institutionalised, having…

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 McDonald v The King

Details

AGLC: McDonald v The King [2023] NZCA 172
Case: [2023] NZCA 172
Decision Date: 16 May 2023 at 9.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. George McDonald appealed against the sentence imposed by van Bohemen J in the High Court at Auckland, which found him guilty of wounding with intent to cause grievous bodily harm by shooting the complainant in his leg. McDonald was sentenced to six years and three months in prison, with a minimum period of two years and nine months. The appeal court considered whether the Judge had erred in his assessment of mitigating factors such as cultural factors, addiction, remorse, and rehabilitation prospects.

The appeal court held that the Judge had correctly assessed the mitigating factors. Regarding cultural factors, the court found that McDonald's situation was not comparable to cases where greater discounts had been allowed for factors associated with serial deprivation. The Judge acknowledged McDonald's gravitation to the gang world and its associated life of alcohol, violence, and crime, but considered that McDonald's position was as much the consequence of his poor choices as cultural deprivation and the absence of a father. The Judge did not consider McDonald's situation comparable to cases where discounts of up to 30 per cent had been allowed for factors associated with serial deprivation. The appeal court found that the allowance given by the Judge for cultural factors was within the available range in all the circumstances.

The appeal court also found that the Judge had made no error in not allowing a further discount for addiction. Addiction was not a driver of this offending, and there was no evidence to support it. The court held that the Judge was clearly entitled not to allow any discount for remorse, as McDonald appeared not to have accepted responsibility for his offending, even now. The court agreed with the Judge that there was no basis for any separate discount for remorse. Regarding rehabilitation, the appeal court found that the Judge had given McDonald a discrete discount of five per cent to reflect his willingness to change, which was within the available range in all the circumstances.

The appeal court concluded that there was no error in the sentence or that a lesser sentence ought to have been imposed in all the circumstances. The appeal against sentence was dismissed.

The court dismissed the appeal against sentence, and the sentence imposed by the High Court at Auckland was upheld. The court held that the Judge had made no error in his assessment of the available discounts for mitigating factors. The appeal court agreed with the Judge's thoughtful analysis and the end sentence he imposed, and the appeal against sentence must accordingly be dismissed.

Orders