[1] The appellant, Mr McFall, was sentenced to three years, seven months’ imprisonment, with a minimum period of imprisonment (“MPI") of two years, two months by Judge Gibson in the District Court at Auckland on 15 June 2015.1 The sentence was imposed for two charges of burglary, one charge of receiving (over
$1,000), three charges of receiving (under $500), one charge of unlawfully taking a motor vehicle, one charge of wilful damage and one charge of reckless driving.

[2] Mr McFall has appealed against sentence on the grounds that the starting point was too high, excessive weight was placed on Mr McFall’s previous criminal convictions, and that the MPI imposed was excessive and unnecessary.

Factual background

[3] In the afternoon of 11 March 2015, a green Honda motor vehicle was taken from the driveway of an address in Glen Eden. On 12 March 2015, while making unrelated enquiries, the police located the stolen vehicle parked at an address in Manurewa. Mr McFall was spoken to by police at this address. He claimed that two unknown males had dropped the vehicle off there earlier that day. These facts relate to the charge of receiving (over $1,000).

[4] In the afternoon on 22 March 2015, Mr McFall took a silver Honda motor vehicle from an address in Epsom.

[5] The first burglary took place between 9.30 and 10am on 23 March 2015 at a residential address in Sandringham. Mr McFall smashed a glass doorway at the rear of the address to gain access. Several bedrooms were searched, with drawers and sideboards thrown around. He took three New Zealand passports, a 42 inch flat screen television, an xbox gaming console, an acoustic guitar, a laptop computer and
an Ipad.

1 Police v McFall [2015] NZDC 10995 (“the District Court decision”).

[6] Shortly after, Mr McFall went to another residential address in Sandringham. He smashed a window into a bedroom at the front of the address to gain access. He took a laptop computer and several items of footwear.

[7] Later that morning on 23 March, the police observed Mr McFall driving on the wrong side of the road in the silver Honda he had stolen the day before. The vehicle travelled through an intersection causing other vehicles to take evasive action. The police then lost sight of the vehicle due to its excessive speed. A short time later, the police located Mr McFall hiding behind a small block of shops. The stolen vehicle…

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 McFall v Police

Details

AGLC: McFall v Police [2015] NZHC 2095
Case: [2015] NZHC 2095
Decision Date: 1 September 2015

CaseChat Overview and Summary

In the case of McFall v Police, the appellant, Mr Joseph Randell McFall, appealed against his sentence which was imposed by Judge Gibson in the District Court at Auckland on 15 June 2015. Mr McFall was sentenced to three years, seven months’ imprisonment, with a minimum period of imprisonment of two years, two months for various charges including burglary, receiving stolen property, unlawful taking of a motor vehicle, wilful damage, and reckless driving. The appellant argued that the starting point was too high, excessive weight was placed on his previous criminal convictions, and that the minimum period of imprisonment imposed was excessive and unnecessary.

The legal issues in this case were whether the starting point and uplift for previous convictions were appropriate, and whether the minimum period of imprisonment was justified. The court considered relevant case law and sentencing principles to determine if the sentence imposed was manifestly excessive or if there was an error in the sentence that warranted a different sentence. The court noted that while there is no specific tariff for burglary sentencing, the range of factors to consider includes the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, impact upon owners of property, and the extent of the offending where multiple burglaries are involved.

The court concluded that the starting point of two years, six months was too high, and the appropriate starting point should have been 21 months’ imprisonment. The uplift for previous convictions was deemed appropriate, as Mr McFall's recent criminal history showed a tendency to commit this type of offending. However, the court found that a minimum period of imprisonment of around 50 per cent would adequately serve to hold Mr McFall accountable, denounce his conduct, deter him from further offending, and to protect the community. As a result, the appeal against sentence was allowed, and the sentence was reduced to three years’ imprisonment with a minimum period of imprisonment of 18 months.

Orders