McIlroy v The Queen - [2016] NZCA 86

IN THE COURT OF APPEAL OF NEW ZEALAND

CA536/2015
[2016] NZCA 86

BETWEEN	ASHLEY MCILROY Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2016
Court:	Ellen France P, Keane and Dobson JJ
Counsel:	M J Phelps for Appellant D La Hood and R Georgiou for Respondent
Judgment:	5 April 2016 at 9.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

BThe appeal against sentence is allowed. The minimum period of imprisonment of three years is quashed. The concurrent sentences of six years imprisonment on the aggravated robbery charge and one years imprisonment on the unlawful possession of a firearm charge otherwise stand.

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REASONS OF THE COURT

(Given by Ellen France P)

Introduction

The appellant pleaded guilty after the first day of evidence in his trial on a charge of aggravated robbery and of unlawful possession of a firearm. He was sentenced by the trial Judge, Judge Adeane, to a sentence of six years imprisonment with a minimum period of imprisonment (MPI) of three years.[1] The appellant appeals out of time against sentence. He says the Judge was wrong to impose an MPI.

Facts

[1]R v McIlroy [2015] NZDC 8183 [sentencing remarks].

The incident giving rise to the charges occurred on 1 August 2014 and is summarised by Judge Adeane as follows:
[2] This was a dairy robbery. The [appellant] knew the premises; apparently he had previously been a customer there. He, ahead of committing the robbery, sought out some clothing to wear as a disguise. He obtained a scarf from a young woman friend and this was wrapped around his face. A .303 rifle was carried into the dairy. It was presented at the shopkeeper and a relatively small amount of money was taken.

Sentencing remarks

Judge Adeane treated the offending as a more serious example of the category of robberies of small businesses discussed in R v Mako.[2] This Court in Mako identified starting points ranging from four years up to six years for these types of robberies depending on the extent of aggravating features.[3]
[2]R v Mako [2000] 2 NZLR 170 (CA) at [56].
[3]At [56].
The Judge saw it as aggravating that the appellant had been on “an alcohol and P binge” for a number of days before the incident.[4] The night before he had a .303 rifle he was trying to sell and was showing it off to a number of young men at a party. Although there was another person involved in the robbery, that person’s role was limited to accompanying the appellant in the car that day.
[4]Sentencing remarks, above n 1, at [4].
Importantly, for present purposes, the Judge did not accept the submissions made by the Crown that it was not possible to determine whether or not the gun used in the robbery was loaded. Rather, the Judge took the view the gun was “in all likelihood” loaded.[5] Judge Adeane explained this conclusion in this way:[6]
… we do…

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 McIlroy v The Queen

Details

AGLC: McIlroy v The Queen [2016] NZCA 86
Case: [2016] NZCA 86
Decision Date: 5 April 2016 at 9.30 am

CaseChat Overview and Summary

The appeal before the New Zealand Court of Appeal was brought by Ashley McIlroy, who was appealing against his sentence for aggravated robbery and unlawful possession of a firearm. The case was heard on 3 March 2016, and the judgment was delivered on 5 April 2016 by Ellen France P, Keane, and Dobson JJ. The appellant was represented by M J Phelps, while the Crown was represented by D La Hood and R Georgiou. The appeal was against the sentence imposed by Judge Adeane, which included a minimum period of imprisonment of three years. The court granted the application for an extension of time to appeal and allowed the appeal against the sentence. The minimum period of imprisonment was quashed, but the concurrent sentences of six years imprisonment for aggravated robbery and one year for unlawful possession of a firearm remained.

The legal issue before the court was whether the trial Judge was right to conclude that the minimum period of imprisonment was needed for public safety reasons. The appellant argued that the evidence did not support the Judge's conclusion that the gun used in the robbery was likely to be loaded, that the appellant's criminal record did not indicate a propensity towards violent offending, that the appellant was in full-time employment at the time of the offending, and that the Judge did not take into account the fact that the appellant pleaded guilty. The Crown supported the Judge's approach, essentially for the reasons he gave. The court considered the four matters raised by the appellant and concluded that the Judge made more of the appellant's perceived propensity for serious violent offending than was justified, and he was wrong to conclude the minimum period of imprisonment was needed for public safety reasons.

The court found that the evidence was open to the conclusion that the gun was loaded, which supported the imposition of a minimum period of imprisonment on the basis of a public safety concern. However, the court also found that the Judge made more of the appellant's perceived propensity for serious violent offending than was justified, and he was wrong to conclude the minimum period of imprisonment was needed for public safety reasons. The court found that the appellant's previous convictions were not as serious as those in the cases relied on by the Crown, that there was a gap in offending of this nature, that the appellant had been in employment prior to the index offending, and that the appellant pleaded guilty. Based on present information, the court considered that the Judge made more of the appellant's perceived propensity for serious violent offending than was justified, and he was wrong to conclude the minimum period of imprisonment was needed for public safety reasons. The Parole Board can of course consider any risk to public safety at the time the appellant becomes eligible for parole.

Orders