McFarland v Police - [2017] NZHC 1438

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2017-463-9 [2017] NZHC 1438

BETWEEN
BILLIE MCFARLANE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 June 2017

Counsel:

R Vigor-Brown for Appellant
S Casey for Respondent

Judgment:

27 June 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 27 June 2017 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Crown Solicitor, Rotorua

MCFARLANE v POLICE [2017] NZHC 1438 [27 June 2017]

[1] Billie McFarlane pleaded guilty to two sets of offending, the first comprising two burglary charges and multiple other charges1 and the second comprising a third burglary and other offending which occurred while Ms McFarlane was an absconder on bail.2 She was sentenced by Judge P W Cooper on all charges to three years and nine months’ imprisonment.

[2] Ms McFarlane appeals on the basis that the sentence was manifestly excessive and the Judge failed to have regard to the totality principle.

Background

[3] As Judge P W Cooper observed, there are basically two sets of offending. The first set of offending includes two burglaries. The first burglary occurred at commercial premises where approximately $3,800 of property was taken. The second burglary involved residential premises, with property to the value of approximately $30,000 taken, of which two thirds has been recovered. This offending also involved unlawful taking of a motor vehicle and driving while disqualified. At about this time there was also a breach of community work.

[4] The second set of offending included another residential burglary, breach of bail, receiving stolen items, consuming methamphetamine, dishonest use of a bank card and theft.

Sentencing remarks

[5] On the first set of offending (which was subject to a sentence indication), a start point of two years for the two charges of burglary was adopted. This involved one residential burglary and one commercial burglary. Added to this was three months for unlawful taking of a motor vehicle, and two months for driving while disqualified, and breach of community work. This was uplifted by three months for previous convictions. This resulted in a cumulative start point of two years and eight months. A discount of 25 percent for guilty plea was then applied, resulting in an end
sentence of sentence of two years’ imprisonment.

1 Unlawful taking of a motor vehicle, driving while disqualified, and breach of community work.
2 Failure to answer bail, consuming methamphetamine, five charges of receiving, one charge of dishonest use of a bank card and theft.

[6] On the second set a starting point of 12 months for the second residential burglary was adopted with a nine month uplift for the dishonesty offending, a further month for failure to answer bail and six months for offending while an absconder on bail. This resulted in a cumulative start point of two years and four months. With a discount of 25 percent for guilty plea, an end sentence of one year and nine months was imposed.

[7] A…

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.

Keep reading for free

Create a free CaseChat account to read McFarland v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 1438
Decision Date: 27 June 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Whata J reviewed the case of Billie McFarlane against the New Zealand Police. McFarlane had pleaded guilty to multiple charges including burglaries and breaching bail conditions. The crux of the appeal was the length of the sentence imposed by Judge P W Cooper, which McFarlane argued was excessively long and did not adequately consider the principle of totality. McFarlane was sentenced to three years and nine months' imprisonment. The court examined whether this sentence was manifestly excessive and whether the judge appropriately applied the totality principle in sentencing.

The court had to determine if the sentence imposed was manifestly excessive and whether the judge adequately applied the totality principle. The principle of totality requires that the total sentence for multiple offences be proportionate and not disproportionately punitive. The court considered the severity and nature of the offences, the discounts for a guilty plea, and compared the sentence to similar cases where the courts had substituted sentences. The analysis involved examining the starting point for the burglaries, the uplifts for other offending, and the discount for a guilty plea.

In examining the sentence, Whata J noted that while a starting point of three years for the burglaries was appropriate, the combined starting point of five years for all charges, including relatively minor related offences, was excessive. The court referred to previous cases where similar or lesser offending resulted in lower sentences. Whata J found that the sentence was not in line with the principle of totality and was disproportionate when compared to analogous cases. Consequently, the court substituted a sentence of three years and two months for the first burglary charge, with the other sentences to run concurrently.

The court allowed the appeal and quashed the original sentence. It substituted a sentence of three years and two months' imprisonment on the first burglary charge, with the other sentences to be served concurrently with this term. This decision aimed to ensure that the total sentence was proportionate and aligned with the principle of totality, reflecting a fair and balanced approach to sentencing.

Orders