McIndoe v The Queen - [2021] NZHC 3023

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CRI-2021-485-73

[2021] NZHC 3023

BETWEEN
PAUL JOZEF MCINDOE

Appellant

AND

THE QUEEN

Respondent

Hearing: 9 November 2021

Appearances:

R Solomon and C O Thorburn for Appellant A G McCluskey for Respondent

Judgment:

9 November 2021

ORAL JUDGMENT OF ISAC J

Introduction

[1] Mr McIndoe appeals a sentence of two years and six months’ imprisonment1 imposed on charges of burglary, theft, four charges of driving while disqualified, driving while suspended, and failing to stop for red and blue flashing lights.2

[2] I have concluded that the appeal should be allowed, and the sentence substituted for one of home detention.

1 Police v McIndoe [2021] NZDC 20314.
2 Crimes Act 1961, s 231(1)(a), maximum penalty 10 years’ imprisonment (burglary); ss 219 and 223(d), maximum penalty three months’ imprisonment (theft); Land Transport Act 1998, ss 32(1)(a) and 32(3), maximum penalty three months’ imprisonment, $4,500 fine and mandatory six months’ disqualification (driving while disqualified); ss 32(1)(c) and 32(3), maximum penalty three months’ imprisonment, $4,500 fine and mandatory six months’ disqualification (driving while suspended); ss 52A(1)(a)(ii), (5), (6) and 114(2), maximum penalty three months’ imprisonment, $10,000 fine and mandatory two years’ disqualification (failing to stop for red and blue flashing lights).

MCINDOE v R [2021] NZHC 3023 [9 November 2021]

The offending

The driving offences

[3] Mr McIndoe was suspended from driving on 11 December 2020 until 11 March 2021. He drove on 4 February 2021 and was subsequently disqualified from driving in the Porirua District Court.

[4] On 18 February 2021 Mr McIndoe was driving and the Police activated their lights and sirens to stop his vehicle. Mr McIndoe failed to stop and weaved in and out of traffic, in excess of 100 km/hour. Police abandoned the pursuit. Mr McIndoe drove again on 19 February and twice on 24 February.

Theft

[5] On 8 April 2021, Mr McIndoe was at a petrol station. An associate handed him a Bluetooth speaker worth $40, which Mr McIndoe hid in his jacket before exiting without paying.

Burglary

[6] On 8 May 2021, Mr McIndoe entered Michael Hill Jeweller wearing a black face mask, a black hooded top and black gloves. He jumped over the counter and when challenged he told a staff member to “fuck off”. Mr McIndoe took $28,895 worth of jewellery, put it in his pockets and attempted to leave but was restrained by the store manager and a member of the public. He told Police he stole the jewellery to pay a drug debt.

District Court judgment

[7] The Judge classified the burglary as “an extreme version” of shoplifting and acknowledged the factual similarities between the offending and the cases referred to by the prosecution of aggravated robbery.3 He then concluded the burglary charge could not be dealt with through a community-based sentence.4 The Judge identified

3 Police v McIndoe, above n 1, at [2].

the significant dangers to the staff in store and members…

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 McIndoe v The Queen

Details

AGLC: McIndoe v The Queen [2021] NZHC 3023
Case: [2021] NZHC 3023
Decision Date: 9 November 2021

CaseChat Overview and Summary

In McIndoe v The Queen, the appellant Paul Jozef McIndoe appealed against his sentence for multiple charges, including burglary, theft, and driving offences. The District Court had imposed a two-year and six-month imprisonment sentence, which McIndoe contended was manifestly excessive. The appeal was heard by Isac J in the High Court of New Zealand.

The central legal issues in the case were whether the starting point for sentencing was too high and whether the sentence should have been reduced to account for McIndoe's addiction, his efforts to engage in rehabilitation, and the time he spent on electronic monitoring (EM) bail. McIndoe argued that the starting point was too high and that the sentence should be reduced by 15% in recognition of his addiction and efforts to address it, and by two months for time spent on EM bail. The Crown accepted that some discount for addiction and time spent on EM bail could be appropriate but did not challenge the sentence being within the range.

The Court determined that the starting point adopted by the District Court was within range, despite the reliance on aggravated robbery cases. The aggravating features of McIndoe's offending, such as the confrontation with staff and the substantial value of the stolen property, justified a starting point of three years. The Court also found that the District Court had not erred in not providing any discounts for addiction and rehabilitative prospects, which was deemed an oversight. Given McIndoe's addiction and efforts to engage in rehabilitation, a 15% discount was appropriate. Additionally, a two-month discount for time spent on EM bail was warranted. After applying these discounts and an uplift for previous criminal offending, the Court substituted the sentence with one of 11 months of home detention.

The Court imposed special conditions for home detention, including abstaining from alcohol and drugs, attending alcohol and drug assessments and recommended treatments, and undergoing a psychological assessment with a departmental psychologist. The final orders included these conditions, and the sentence of home detention was set to commence immediately.

Orders