McKeagg v The King

[2024] NZHC 3799

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-000121

[2024] NZHC 3799

BETWEEN

TYRONE ARAMAHAU MCKEAGG

Appellant

AND

THE KING

Respondent

Hearing:	9 December 2024
Appearances:	A O B Spence for Appellant H J Speight for Respondent
Judgment:	12 December 2024

JUDGMENT OF ANDREW J

[Reasons judgment]

This judgment was delivered by Justice Andrew on 12 December 2024 at 11.30 am

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………

MCKEAGG v R [2024] NZHC 3799 [12 December 2024]

[1]This judgment contains my reasons for dismissing this sentence appeal.

Introduction

[2]This is an appeal against sentence.

[3]        In the District Court the appellant, Mr McKeagg, pleaded guilty to two charges of burglary,1 four charges of theft (under $500),2 one charge of shoplifting,3 one charge of being found without reasonable excuse in an enclosed yard,4 and one charge of possession of methamphetamine.5 He was sentenced to 16 months’ imprisonment. The Judge granted leave for him to apply for substitution of his sentence if an appropriate address for home detention was found.

[4]On appeal, Mr McKeagg contends that his sentence was manifestly excessive.

[5]The Crown opposes the appeal.

[6]        On 26 November 2024, the imprisonment sentence was substituted with a sentence of home detention. Mr McKeagg is currently serving that sentence, being home detention of six-and-a-half months, at his father’s residence. That sentence is now the final sentence for the purposes of the appeal.

The District Court decision

[7]The Judge recorded the summary of facts in respect of each charge as follows:6

[4]        The summary of facts in respect of the Crown matter relates to the burglary of Tauranga Boys' College on 16 June 2023. At approximately 11.38 pm you were observed on the school's CCTV footage walking around the school before making your way back out of the school towards Thirteenth Avenue. A short time later you have then re-entered the school grounds through a gate on Thirteenth Avenue. You were with a second unknown person, and you were both carrying dark objects which appeared to be black

1      Crimes Act 1961, s 231(1)(a): maximum penalty ten years’ imprisonment.

2      Sections 219 and 223(d): maximum penalty three months’ imprisonment.

3      Sections 219 and 223(d): maximum penalty three months’ imprisonment.

4      Summary Offences Act 1981, s 29(1)(b): maximum penalty three months’ imprisonment, $2,000 maximum fine.

5      Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum penalty one year’s imprisonment and

$500 fine.

6      R v McKeagg [2024] NZDC 24498.

drums. You have cut through a wire fence leading into an enclosed locked storage shed under a building of classrooms. You have placed a piece of cloth fabric into the fuel tank of a quad bike and set that alight. You and your associate were then captured on CCTV running from the scene. The fire has caused extensive damage not only to the bike but to the storage area and the classrooms have also suffered smoke damage and you have heard today that reparation is sought in the sum of $17,139.42. You were originally charged with arson, however that charge was withdrawn and hence you are to be sentenced in respect of the burglary inherent in that summary of facts.

[5]        The remaining charges are charges which are referred to as police charges and remain within the Police Prosecution Service. I will refer briefly to the summaries of fact in respect of those charges.

[6]        The burglary involves the burglary of a supermarket. It is acknowledged that that burglary was during the course of the evening when no one was there, so it is a burglary which could be regarded as being at a lower level.

[7]        The theft charges relating to an incident on 8 May 2023 involve you entering Rebel Sports in Tauranga and selecting a pair of shoes. You have removed your shoes and put on the shoes that you had picked, and you have left your shoes on the seating in the store and you have promptly left the store wearing the shoes.

[8]   On 9 May you have entered an enclosed yard behind Rebel Sports, the same place that you were at the day before, and you have removed two handful of shoes from the disposal bin.

[9]        In respect of the charge of theft on 29 April 2023, you have driven a motor vehicle to BP Connect, the vehicle has false registration fixed to it to conceal your identity. You have pumped $205.85 wo1ih of petrol into your vehicle, and you have left making no attempt to pay.

[10]      On 5 May you have driven the same vehicle into BP Connect Te Puna. You have pumped $97.89 worth of petrol into the vehicle, and you have again left making no attempt to pay.

[ 11] In terms of the charge of possession of methamphetamine, you were driving a vehicle in Maungatapu on 21 August. Police have stopped you and have observed a zip lock bag containing what they believe to be methamphetamine. A drug search was invoked and during the course of that search police located three and a half grams of methamphetamine which was in a black glasses case placed in the glovebox. That speaks to your issues with methamphetamine.

[8]        The Judge then referred to two pre-sentence reports before him. He noted there had been attempts to find an address which would be suitable for home detention, but none was available. The Judge discussed Mr McKeagg’s personal circumstances, noting that there had been “significant” family circumstances (the death of two of his brothers by suicide) which would have had a “profound” effect upon the appellant.

One of the reports noted that this had led to his drug dependency. The Judge did not accept that there was evidence showing a direct link between Mr McKeagg’s background and his substance abuse and the circumstances of his offending. However, he accepted that the appellant’s background “played some part”.

[9]        The Judge noted that Mr McKeagg has two sons for whom he has shared caregiving responsibilities. He had worked at the same job for eight years but had a “serious drug problem”. The pre-sentence report said that this was directly linked to the offending. The Judge also referred to the second pre-sentence report which recorded that Mr McKeagg was remorseful for his actions and took responsibility for them.

[10]      In addressing the issue of the starting point, the Judge took as the lead offending the charges of burglary. He set a starting point for the first burglary at 20 months’ imprisonment. He then adopted an uplift of eight months’ imprisonment for the second burglary, noting that a water blaster valued at $1,000 had been taken and later recovered. For the balance of the offending, the Judge set an uplift of three months’ imprisonment. This resulted in an adjusted starting point of two years, seven months’ imprisonment.

[11]      In relation to mitigating factors, the Judge adopted a 20 per cent reduction for the guilty pleas. He allowed a further 15 per cent reduction for personal circumstances and a further reduction of four months’ imprisonment for time spent in custody and on electronically monitored bail. This resulted in a total reduction of 14 months and three weeks from the adjusted starting point.

[12]      The end sentence imposed was 16 months’ imprisonment, adjusted for totality. As noted, the Judge also granted leave for Mr McKeagg to apply for substitution if an appropriate address for home detention was found.

Relevant legal principles

[13]      This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.7 Otherwise, the Court must dismiss the appeal.8

[14]      The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.9 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.10

Analysis and decision

[15]      As noted above, the end sentence and what must now be the focus of the appeal, is one of six-and-a-half months’ home detention. The critical issue to address is whether that final sentence is manifestly excessive.

[16]      In support of the contention that the final sentence is manifestly excessive, Mr McKeagg contends:

(a)the District Court Judge erroneously considered features of the offending aggravated that were not elements of the offence and to which no culpability attached. In particular, it is said that he attributed culpability to Mr McKeagg for the damage caused when there was no basis in the summary of facts for that finding;

(b)the District Court Judge was further in error in placing insufficient weight on the purpose of sentencing to assist Mr McKeagg with his rehabilitation;

7      Criminal Procedure Act 2011, s 250(2).

8      Section 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

10     Ripia v R [2011] NZCA 101 at [15].

(c)the Judge was in error in finding that a sentence of imprisonment was the only appropriate outcome.

[17]      On appeal, Mr McKeagg seeks a finding that the appropriate end sentence is one of intensive supervision or community detention.

[18]      I find that the final sentence, namely six-and-a-half months’ home detention is not manifestly excessive. As the case law makes clear, the ultimate issue is not so much the process by which a sentence is reached, but whether the final sentence itself is manifestly excessive.

[19]      It is clear from the procedural history that the District Court Judge long held the view that home detention was the likely appropriate outcome. The proceedings were adjourned on a number of occasions to give the appellant the opportunity of providing a suitable home detention address.

[20]      I accept that there may be some merit to the submissions of Ms Spence that the starting point of 20 months’ imprisonment was too high. However, in my view, the Judge was entitled to take into account the fact that the premises burgled was a school and the community would regard crimes committed against such premises as serious.11 This was properly taken into account in setting a higher starting point, though one within range. As the Court of Appeal has repeatedly expressed, while there is no tariff case for burglary, it is the “intrinsic nature and gravity of the offence charged” which must be the primary consideration in setting a starting point.12 That is determined with close reference to the surrounding circumstances, including among other things the nature of the premises, and of course any damage eventuating from the burglary.

[21]      As Ms Spence submitted, the summary of facts  does not  state that it  was  Mr McKeagg who placed the piece of cloth fabric into the fuel tank of the quad bike and set it alight. The relevant paragraph of the summary states that Mr McKeagg syphoned the petrol, with a fire starting due to the use of a lighter. It is unclear who was directly responsible for that.

11     On this point, see Tilby v New Zeland Police [2019] NZHC 1552 at [8].

12     R v Columbus [2008] NZCA 192 at [13]. See also McKernan v Police [2012] NZHC 104 at [38]– [40].

[22]      However, ultimately, I find there is no need to express a concluded view on those issues. As I have been emphasising, the focus is on the end sentence. The Judge allowed reductions for guilty pleas at 20 per cent despite those being entered at a later stage, as well as to reflect the appellant’s background. These totalled a 35 per cent reduction on sentence altogether. The end sentence was therefore within range.

[23]      Turning to the type of end sentence imposed, I reject Ms Spence’s submission that a sentence of intensive supervision or community detention would have been more appropriate here. A sentence of home detention is intended to be a rehabilitative sentence and despite the difficulties Mr McKeagg has experienced in accessing rehabilitative support, the sentence of home detention does provide him with an opportunity going forward to take the necessary rehabilitative steps which, to his credit, he is intent on taking.

[24]      The end sentence of home detention was entirely consistent with the sentencing principles in the Sentencing Act 2002. This includes denunciation and deterrence. In my view, and on the facts here, a more serious sentence than either supervision or community detention was required. At the time he imposed the original sentence of imprisonment, the Judge had no other realistic option and of course he did expressly allow leave for home detention.

[25]For all these reasons, I conclude that the appeal should be dismissed.

Result

[26]The appeal is dismissed.

Andrew J