McKay v The Queen - [2019] NZCA 493

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA422/2019
[2019] NZCA 493

BETWEEN	BRUCE ALEXANDER MCKAY Appellant
AND	THE QUEEN Respondent

Hearing:	26 September 2019
Court:	Clifford, Ellis and Peters JJ
Counsel:	G N E Bradford and S D Withers for Appellant D G Johnstone for Respondent
Judgment:	15 October 2019 at 4 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
B The sentence of 12 months’ home detention is quashed and a sentence of 10 months’ home detention substituted.

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REASONS OF THE COURT

(Given by Ellis J)

Mr McKay was convicted following a judge-alone trial before Toogood J on three charges of theft in a special relationship.[1] He was sentenced on 27 March 2019 to 12 months’ home detention on each charge, to be served concurrently.[2] He now appeals that sentence, essentially on the grounds that it is no longer on a par with that received by his co-offender, Mr Bublitz.
[1]Crimes Act 1961, ss 220 and 223(a) (maximum sentence of 7 years’ imprisonment); R v McKay [2019] NZHC 222.
[2]R v McKay [2019] NZHC 592 at [108].
Put simply, this Court has recently allowed Mr Bublitz’ sentence appeal and substituted a sentence of 11 months’ home detention for the sentence imposed by the trial Judge of three years and two months’ imprisonment.[3] Mr McKay contends that parity demands a similar reduction in his sentence.
[3]Bublitz v R [2019] NZCA 364. In that decision, the Court of Appeal also partially allowed Mr Bublitz’ appeals against conviction and dismissed Mr McKay’s appeal against conviction.
The sentence appeal was filed out of time but an extension was not opposed by the Crown, and shortly after the appeal was filed Gilbert J granted the necessary extension.

Background

It is not necessary to set out the details of the offending by Mr McKay and his co-offenders in any detail. They can be found in the trial Judge’s sentencing notes and in the earlier judgment of this Court, at [11]–[21].
For present purposes it suffices to say that the Judge found Mr Bublitz (charges 10 to 13) and Mr McKay (charges 10 to 12) guilty of theft in a special relationship, arising from related party transactions intentionally entered into by a company controlled by Mr Bublitz in breach of its Crown guarantee.[4] Mr Bublitz was also found guilty of two charges of making a false statement as a promoter of securities (charges 14 and 15).[5]
[4]A guarantee under the Crown Retail Deposit Guarantee Scheme established by the government in the wake of the 2007–2008 global financial crisis and the ensuing recession.
[5]Mr Bublitz was acquitted on six other charges of theft by a person in a special relationship involving a different company and Mr McKay was acquitted on one charge of making a false statement as a promoter and on one charge of making a false statement to a trustee for debenture holders.
Mr Bublitz was regarded as the principal party to…

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 McKay v The Queen

Details

AGLC: McKay v The Queen [2019] NZCA 493
Case: [2019] NZCA 493
Decision Date: 15 October 2019 at 4 pm

CaseChat Overview and Summary

The case of McKay v The Queen concerns an appeal by Bruce Alexander McKay against his sentence imposed by the High Court for theft in a special relationship. The Court of Appeal, comprising Clifford, Ellis, and Peters JJ, allowed the appeal and substituted a sentence of 10 months' home detention for the original sentence of 12 months' home detention. The primary legal issue in this case was whether the disparity between the sentences imposed on Mr McKay and his co-offender, Mr Bublitz, was unjustifiable and gross, warranting an adjustment of Mr McKay's sentence on the grounds of parity. The Court found that some adjustment to Mr McKay's sentence was required, but not to the extent suggested by the appellant's counsel. A reduction of no more than three months to the starting point was deemed appropriate, while the discounts for delay and personal mitigating factors were left unchanged. The Court of Appeal's decision was based on the principle that a lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence. Consequently, the appeal was allowed, and the sentence of 12 months' home detention was quashed and replaced with a sentence of 10 months' home detention.

Orders