McDowell v The Queen - [2014] NZHC 3310

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-000038 [2014] NZHC 3310

SHANE LEIGH McDOWELL

v

R

Hearing: 15 December 2014

Appearances:

H T Young for Appellant
S N McKenzie for Crown

Judgment:

18 December 2014

RESERVED JUDGMENT OF DUNNINGHAM J

Introduction

[1] Shane McDowell appeals the sentence of three years, four months’ imprisonment imposed on him by Judge Phillips in relation to a variety of offences. The offences he was charged with were:

(a) On 24 November 2013 intentionally damaging the property of Louiciana Jackson by fire, where he ought to know that danger to life was likely to ensue;1

(b) On 24 November 2013 attempting to damage a vehicle belonging to

Mr Jackson by fire;2

1 Crimes Act 1961, s 267(1)(a).
2 Crimes Act 1961, s 268.

McDOWELL v R [2014] NZHC 3310 [18 December 2014]

(c) On 3 May 2014 together with another offender, intentionally and without claim of right, damaging clothing and personal belongings of Billie Brown by fire, having no interest in that property;3

(d)On 3 May 2014 entering a building, namely a bedroom, without authority and with intent to commit an imprisonable offence therein;4

(e) On 10 June 2014, three charges of unlawful possession of a firearm, not being the holder of a firearms licence.5

[2] Mr McDowell advances his appeal on the basis that the end sentence of three

years and four months’ imprisonment was manifestly excessive as:

(a) the starting point on the lead arson offending was too high;

(b)the cumulative starting point on the May 2014 property arson and burglary offending was too high; and

(c) an additional discount should have been made in order to recognise

the appellant’s rehabilitative prospects.

Background

[3] On 24 November 2013, Mr McDowell went to an associate’s address at Sneyd Street, Tuatapere. He consumed a large quantity of alcohol while he was there. At around 6.00 pm, Mr McDowell walked to the victim’s address which was also on Sneyd Street.

[4] Shortly after arriving at the victims’ address he was asked to leave. He eventually complied. However, at some point an altercation took place on Sneyd Street between Mr McDowell’s associate and the occupiers of the house. A
short time after, the police attended an incident on Sneyd Street, which resulted in

3      Crimes Act 1961, s 267(2)(a).
4      Crimes Act 1961, s 231(1)(a).
5      Arms Act 1983, s 20(1) and (3).

them driving Mr McDowell to his home on Main Road, Tuatapere at around 8.50 pm.

[5] Undeterred, Mr McDowell returned to Sneyd Street at around 10.00 pm. He walked into an unoccupied residential property next door to the victim’s house. Once inside the yard, he found and took a small bucket, some fuel and some newspaper. He carried these items to the victim’s vehicle which was parked directly outside the victim’s house. He then poured petrol over the driver’s door and, using the paper and lighter, attempted to light the fuel. He failed in this endeavour.

[6] While Mr McDowell was attempting…

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 McDowell v The Queen

Details

AGLC: McDowell v The Queen [2014] NZHC 3310
Case: [2014] NZHC 3310
Decision Date: 18 December 2014

CaseChat Overview and Summary

McDowell appeals against the sentence of three years and four months' imprisonment imposed on him by Judge Phillips. The offences he was convicted of include arson, unlawful possession of a firearm, and burglary. The primary ground of appeal is that the sentence was manifestly excessive because the starting point was too high and an additional discount should have been made to recognise his rehabilitative prospects. The Crown argued that the sentence was within the appropriate range and that any rehabilitative prospects were secondary to the aggravating features of the offending.

The court considered the aggravating and mitigating features of the offending. The court noted that the aggravating features included the fact that the victims were vulnerable and asleep at the time of the offence, the degree of premeditation and determination, and the fact that the offender was unlawfully present on the property. However, the actual harm and loss were relatively low. The court found that the initial starting point of four years was not outside the available range, but that the uplift of 12 months for the May 2014 offending was too high. The court also found that a discount of four months should be given for the rehabilitative prospects. Accordingly, the appeal was allowed, the sentence of three years and four months was quashed, and a sentence of three years' imprisonment was imposed.

Orders