McFarlane v Police - [2020] NZHC 1866

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000012

[2020] NZHC 1866

BETWEEN
ALISTAIR JOHN MCFARLANE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 July 2020

Appearances:

A de Jager for the Appellant

C J Bernhardt for the Respondent

Judgment:

29 July 2020

JUDGMENT OF NATION J

Introduction

[1] The appellant, Mr McFarlane, pled guilty to charges of driving while disqualified, burglary, possession of methamphetamine and possession of ammunition. He was sentenced to 18 months’ imprisonment, ordered to pay reparation and disqualified from driving.1 He appeals his sentence on the ground it was manifestly excessive and home detention, rather than imprisonment, ought to have been imposed.

Facts

[2] On 15 October 2018, Mr McFarlane was disqualified from driving. On 26 June 2019, Mr McFarlane was observed driving a vehicle and performing a U-turn on Burns Street, Dunedin to avoid a Police checkpoint. He turned left on to South Road and left

1 Police v McFarlane [2020] NZDC 6136.

MCFARLANE v POLICE [2020] NZHC 1866 [29 July 2020]

again on to Baker Street where he parked the vehicle. Police located Mr McFarlane once he had exited the vehicle. Mr McFarlane denied driving the vehicle. He stated he did not know how it got there and he was just walking to the shop.

[3] At about 1.30 am on 5 October 2019, Mr McFarlane was intoxicated when he arrived at the Green Island Veterinary Clinic. Having looked around the property, Mr McFarlane smashed a window and entered the building. He rummaged through draws and looked through the back rooms of the clinic, including the drug room. At about
1.00 pm, Mr McFarlane handed himself in to the Police, stating he had consumed a large amount of alcohol and could not remember anything. He was on bail for the driving charge when this offending occurred.

[4] On 3 January 2020, Police attended Mr McFarlane’s address in relation to another matter. Police detected a strong smell of cannabis and invoked a search of the house. Police located ammunition on the sofa next to Mr McFarlane and in a vehicle on the property. Mr McFarlane does not hold a firearms license. Police located two bags of methamphetamine weighing a total of 8 g under the sofa Mr McFarlane was sitting on. Mr McFarlane admitted the drug was methamphetamine and claimed ownership, saying one was for him and one for a friend.

District Court decision

[5] Judge Crosbie considered the lead offending to be the charge of burglary and adopted a starting point of 12 months’ imprisonment. On the charge of driving while disqualified, an uplift of six months was applied; an uplift of three months was applied on the charge of possession of ammunition; and an uplift of two months for the methamphetamine offending. This brought the starting point to 23 months’ imprisonment.

[6] The Judge then applied an uplift of three months’ imprisonment to reflect that some of the offending occurred while on bail. 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.

Continue reading McFarlane v Police

Details

AGLC: McFarlane v Police [2020] NZHC 1866
Case: [2020] NZHC 1866
Decision Date: 29 July 2020

CaseChat Overview and Summary

In this case, the appellant, Mr. Alistair John McFarlane, appealed his sentence imposed by the District Court, arguing that the sentence of 18 months' imprisonment was manifestly excessive and that home detention, rather than imprisonment, should have been imposed. The appellant pled guilty to charges of driving while disqualified, burglary, possession of methamphetamine, and possession of ammunition. The High Court of New Zealand reviewed the appeal to determine if there was an error in the imposition of the sentence.

The legal issues before the court were whether the District Court Judge erred in exercising his sentencing discretion, specifically in determining whether to impose home detention or imprisonment, and if the sentence was manifestly excessive. The court examined if the Judge applied an incorrect principle of law, gave insufficient or excessive weight to a relevant factor, or was plainly wrong.

The Court found that the District Court Judge had not erred in his decision to not impose home detention. The Judge had carefully considered the individual circumstances of the offender, including Mr. McFarlane's criminal history, rehabilitative needs, and the need for deterrence. The Judge clearly articulated that the purposes of holding Mr. McFarlane accountable and promoting a sense of responsibility were important, and that the need to deter Mr. McFarlane from continued offending outweighed the rehabilitative considerations. The Judge also took into account Mr. McFarlane's struggle with substance abuse and the trauma he suffered following the death of his baby and father.

However, the Court identified some slips in the Judge's sentencing remarks, which should be corrected to avoid an unintended injustice. The Judge had intended the end sentence to be 18 months' imprisonment, but the cumulative sentences imposed were 20 months. The Court allowed the appeal to correct these errors and ordered that the sentence of two months' imprisonment on the charge of possession of explosives be concurrent with other sentences, and that the sentence of disqualification for a period of 12 months beginning from the date of Mr. McFarlane's release be quashed. In all other respects, the sentence imposed in the District Court was confirmed.

In summary, the High Court of New Zealand dismissed the appeal, finding no error in the District Court's imposition of the 18-month imprisonment sentence, and only correcting minor errors in the sentencing remarks. The Court emphasised the importance of considering individual circumstances, rehabilitative needs, and the need for deterrence when determining the appropriate sentence.

Orders