McFarlane v The King

[2024] NZHC 422

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-237

[2024] NZHC 422

BETWEEN

BILLIE MCFARLANE

Appellant

AND

THE KING

Respondent

Hearing:

28 February 2024

Appearances:

C M Yardley for the Appellant

W J S Mohammed for the Respondent

Judgment:

1 March 2024

JUDGMENT OF HARLAND J

[1]    Billie McFarlane has filed an appeal against her conviction and sentence in respect of one charge of burglary. Ms McFarlane was jointly charged with the burglary of a building at Yaldhurst on 30 March 2022. On 1 June 2023, following her guilty plea to the charge, she was convicted and sentenced to home detention for a period of 11 months.1

[2]    Mr Sutherland, Ms McFarlane’s co-defendant, pleaded not guilty to the charge. An issue arose during a pre-trial argument as to whether the charge of burglary could be sustained as a matter of law. The issue was whether the defendant had entered “a building”.

[3]    The allegation was that both defendants were intending to enter a property at Guys Road in order to severe the catalytic converters from the exhaust pipes of

1      R v Billie McFarlane [2023] NZDC 11095.

MCFARLANE v R [2024] NZHC 422 [1 March 2024]

campervans that were stored in a paddock on the property. Tools to carry out such a procedure were located in bags belonging to the defendants.

[4]    The property concerned is a lifestyle property consisting of a house, outbuildings and adjacent paddocks. The campervans were parked in the adjacent paddocks.

[5]    During the pre-trial argument, there was discussion about the proximity of the paddock that housed the campervans to the dwelling house. Ms Yardley, counsel for Ms McFarlane submitted that the Court took the view that the paddock, a part of the property, was not appurtenant to the dwelling house building and did not service the needs of the household. Mr Mohammed, for the Crown, accepted that “building” includes, among other things, an “enclosed yard”. To qualify as a building for the purposes of a charge of burglary, an enclosed yard must be sufficiently “appurtenant to a building”.2

[6]    As the summary of facts reveals, Ms McFarlane was located at the top end of paddocks, approximately 160 m from the street front building, which were the subject of the charge.

[7]    The Crown accepts that the paddock in which Ms McFarlane was found was insufficiently appurtenant to the building for the burglary charge to be sustained.

[8]    As it transpired, Mr Sutherland pleaded guilty to, amongst other things, a charge of being on a property without reasonable excuse. By that time, it was not open to the parties to remedy the situation in respect of Ms McFarlane in the District Court as she had already been convicted and sentenced.

[9]    Ms McFarlane filed an appeal against her conviction in the High Court on 27 November 2023 once the issue to do with Mr Sutherland became known.

2      Crimes Act 1961, s 231(2); Paul v Police [2017] NZHC 3021.

[10]   For the above reasons, the respondent does not oppose the appeal being allowed and the conviction being quashed. The suggestion thereafter is that Ms McFarlane will be dealt with in the District Court and in conjunction with the Police.

[11]   I am satisfied that it is appropriate to allow the appeal against Ms McFarlane’s conviction for burglary on the basis that to do otherwise would be a miscarriage of justice. However, an issue remains about what should happen in relation to the sentence imposed on this charge.

[12]   I issued a minute following the hearing of the appeal before me because it was not clear that the appellant had filed an appeal against her sentence. Ms Yardley has now addressed that difficulty and I have received submissions from Mr Mohammed about the process that might follow from hereon in.

[13]   As the sentence appeal now filed was filed out of time, leave is required. This is not opposed. I grant leave accordingly.

[14]   An appeal against sentence must be dealt with by way of a hearing involving oral submissions.3 It is agreed that the argument I heard before me on 28 February 2024, although prior in time, dealt with this issue. I am satisfied that this is correct and that I can proceed to determine it on the papers.

[15]   It follows, having allowed the conviction appeal, the sentence appeal ought also to be allowed.

[16]   Under s 251(2)(b) of the Criminal Procedure Act 2011, one option for the Court is to remit the sentence back to the District Court and direct that Court to take any action of a kind described in s 251(2)(a) or (b). These provisions enable a Court on appeal to set aside the sentence and impose another sentence it considers appropriate,4 or vary the sentence or any part of the sentence or any condition of the sentence.5 As part of the process, I am able to provide directions that I consider appropriate about the manner in which the specified action is to be taken by the sentencing Court.

3      Criminal Procedure Act 2011, s 330.

4      Section 251(2)(a).

5      Section 251(2)(b).

[17]   The sentence imposed in the District Court on this charge was one which also incorporated another charge of burglary and one of possession of instruments for burglary which occurred on 2 June 2022. Counsel submitted that these two charges related to one incident which, in the round, is more serious than the charge that I have been dealing with. A starting point of two years six months’ imprisonment was imposed in respect of these charges. There was then an additional three months attached to the starting point to reflect that Ms McFarlane was allegedly on bail for the first burglary on 30 March 2022 when the second, on 2 June 2022, was committed. So, the three month uplift will also need to be reconsidered by the District Court Judge.

[18]   I am satisfied that it is appropriate to remit the matter back to the District Court for Ms McFarlane to be resentenced in light of the outcome of this appeal. Given that she has served a significant portion of her sentence, I request that the matter be given some priority by the District Court. It will need to be placed back before Judge Kellar who was the sentencing Judge.

Result

[19]   The appeals against conviction and sentence are allowed. I remit the sentence back to Judge Kellar, pursuant to s 251(2)(c), to take any action of a kind described in s 251(2)(a) or (b).

Harland J

Solicitors:

C M Yardley, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.