McKee v The King
[2024] NZHC 3071
•21 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000543 CRI-2024-404-000544 [2024] NZHC 3071
BETWEEN BODI MCKEE
Appellant
AND
THE KING
Respondent
Hearing: 21 October 2024 Appearances:
A M M Ives for Appellant
F Ganchi and K Nihill for Respondent
Judgment:
21 October 2024
ORAL JUDGMENT OF VENNING J
[Appeal against sentence]
Solicitors: Meredith Connell, Auckland Counsel: A M M Ives, Auckland
MCKEE v R [2024] NZHC 3071 [21 October 2024]
Introduction
[1]Bodi McKee pleaded guilty to charges of:
(a)unlawfully getting into a motor vehicle;
(b)unlawful possession of explosives;
(c)unlawful possession of a prohibited firearm;
(d)driving whilst disqualified;
(e)failing to stop; and
(f)reckless driving.
[2] On 27 September 2024, Judge A M Wharepouri sentenced Mr McKee to 25 months’ imprisonment and disqualified him from driving for 30 months, commencing 29 December 2024.1
Appeal
[3] Mr McKee appeals the sentence of 25 months’ imprisonment to this Court. He does not challenge the disqualification and nor is it suggested that a sentence other than imprisonment was appropriate. Ms Ives submits on behalf of Mr McKee that the term of 25 months itself is manifestly excessive. The appeal is advanced on the basis the Judge erred in:
(a)adopting too high a starting point for the Arms Act 1983 offending by imposing a four months’ uplift for the possession of ammunition;
(b)imposing excessive uplifts for the lesser charges and for the defendant’s previous convictions; and
1 R v McKee [2024] NZDC 23909.
(c)imposing an uplift of two months for offending whilst on bail.
Background
[4]I take the background facts of the offending from the Judge’s summary:
[2] On 1 March 2023, a Nissan motor vehicle was taken from outside an address on Princes Street in the central city area. It was located approximately six days later in Papakura, abandoned on a residential street there. Police later carried out a forensic examination of the car and your DNA was found on the steering wheel. Then on 29 August 2023, you were arrested by police in connection with the unlawfully getting into charge. A search warrant was obtained to do with the vehicle that you were using on the day of your arrest. With that search warrant, police executed a search of the vehicle and inside the car police located a black duffel bag. Inside the duffel bag police found a
.22 Ruger firearm which had been sawn down and approximately ten .22 rounds of ammunition. Of most concern was the fact that the .22 Ruger had a round in the chamber and that it had been actioned, meaning that it was capable of immediate fire. The charges in connection with the facts that I have just recounted are with the Crown.
[3] There are other police charges. The facts relating to the charges handled by the police are that on 30 December 2023 you were the driver of a VW Golf on Hill Road, Manurewa. You were the sole occupant of the car. Police activated red and blue flashing lights to have you stop but you failed to do so and instead you accelerated, reaching speeds of up to approximately 130 kilometres per hour, overtaking multiple vehicles using the wrong side of the road to do so. The police Eagle helicopter participated in the pursuit following you from above and measured you travelling at 160 kilometres per hour at one stage. You eventually came to a stop on Genesis Place, Flat Bush, abandoned the vehicle, and then made your way to a nearby address on Thomas Road. That was where the police later found you.
District Court sentence
[5] The Judge structured the sentence in the following way. He took the Arms Act charges as the lead offending noting the firearm was cut down, loaded, and had been actioned meaning it was capable of immediate fire by anyone who handled it. It was readily available to Mr McKee as it was in the car he had been in that day. The Judge took a starting point of 20 months’ imprisonment for the possession of the prohibited firearm, then uplifted that by four months to reflect the 10 rounds of ammunition found with the firearm, before adding a further uplift of four months for the balance of the offending. The Judge then noted that the offending occurred while Mr McKee was on bail and added an additional two month uplift for that which led to an adjusted start point of 30 months’ imprisonment.
[6] From that adjusted start point the Judge gave Mr McKee a 10 per cent reduction for the guilty plea discount, noting there was a procedural delay brought about by his absconding and the strength of the Police case. The Judge also allowed Mr McKee a further 15 per cent discount for his personal circumstances which had been outlined both in the pre-sentence PAC report and also by Professor Gallivan in a s 27 report. Finally, the Judge was prepared to grant an additional five per cent for remorse. Taking those mitigating factors into account, the adjusted end sentence was 21 months’ imprisonment. The Judge then uplifted that by four months to take into account Mr McKee’s previous convictions to arrive at the end sentence of 25 months’ imprisonment.
The approach to the appeal
[7] The appeal is brought under Part 6, subpart 4 of the Criminal Procedure Act 2011 (CPA). This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed upon sentence and a different sentence should be imposed. In Tutakangahau v R the Court of Appeal confirmed that s 250(2) of the CPA was not intended to change the approach to appeals against sentence.2 It still remains for an appellant to satisfy the appeal Court that the sentence was manifestly excessive or wrong in principle. The focus remains on whether the sentence was within range rather than the process by which it is reached.
Appellant’s submissions
[8] Ms Ives noted that, while perhaps the starting point of 20 months for possession of the firearm could be said to be within range having regard to the relevant authorities, it could be considered stern when considered with the four-month uplift for the possession of ammunition. She noted that in Pue v R,3 a Court of Appeal decision, the sentencing Court had taken a starting point of 18 months for the possession and that case involved a loaded pistol being found under the front passenger’s seat, whereas the weapon in the present case was in the boot of the car used by Mr McKee. She also noted that the Crown had not sought to distinguish the possession of ammunition charges in its submissions in the District Court. Ms Ives noted that in a number of
2 Tutakangahau v R [2014] NZCA 279 at [26].
3 Pue v R [2014] NZCA 273.
decisions the Court has regarded the presence of ammunition as an aggravating feature of the possession of a firearm, but the practice is to take an overall starting point to reflect the culpability of both offences.4 Ms Ives then submitted that the uplift of four months for the remaining offending was excessive given that the unlawfully getting into the vehicle predated a sentence of four months’ imprisonment imposed in June 2023 for a series of unrelated offences and that the driving offences, albeit concerning, attracted maximum penalties of three months in each case and also attracted a significant punitive element by virtue of the mandatory 24 month disqualification.
[9] Although the unlawfully getting into the motor vehicle offending occurred in March 2023, Mr McKee was not charged with that offence until 12 August 2023 when arrested and the search warrant executed on his house and car. It was at that time that the firearm and ammunition were located in the boot of the car he was using that day and he was arrested on all three charges. At that time, as noted, he was subject to a sentence of four months’ imprisonment imposed on 29 June 2023. The driving charges then arose on 31 December 2023 when Mr McKee was on bail for the Crown charges.
[10] Ms Ives submitted that if the unlawfully getting into charge had been part of the June 2023 sentencing it is unlikely to have added more than two months to that particular sentence. The Judge should have made a further downward adjustment for totality, and no more than an uplift of two months overall was warranted for the other offending. She argued that an uplift of no more than two months overall was warranted for the other offending.
[11] Next, Ms Ives submitted that it appeared the Judge understood the lead offending had occurred while Mr McKee was on bail, but it had not. As she noted, at the time the charges were laid in August Mr McKee had no other active charges. In the circumstances, the uplift of two months if applied solely to the driving offending which is the only offending which occurred on bail would essentially constitute close to, on her calculations, a 100 per cent, but even on the Judge’s calculations, around 50 per cent uplift. Finally, Ms Ives noted that following the approach in Mo’unga v R,5
4 R v Collett [2021] NZHC 1658; Gunning v Police [2019] NZHC 309; and Moore v Police [2015] NZHC 3113.
5 Mo’unga v R [2023] NZHC 1967.
the Judge had applied the uplift for previous convictions of four months as a final step in the sentencing process to result in the end sentence of 25 months’ imprisonment. While accepting some uplift was appropriate she submitted the four months was excessive. In her submission the appropriate end sentence would have been a sentence of between about 18 and 22, 23 months’ imprisonment.
Crown response
[12] The Crown submits that, having regard to the possession of ammunition in addition to the firearm the starting point of 24 months was appropriate for both and available to the Judge. The Crown referred to the cases of Byles v R and Ngawati v Police, for instance.6 On the uplift for offending whilst on bail the Crown notes that Mr McKee cut off his bracelet and absconded from the Grace Foundation and the driving offences occurred while he was effectively on the run whilst being subject to a warrant for his arrest. In the circumstances the two-month uplift even if only for the driving offences could not be said to be manifestly excessive
[13] Further, the four-month uplift for the charges of unlawfully getting into a motor vehicle, driving while disqualified, failing to stop and reckless driving effectively equated to one month for each of the charges which could not be said to be excessive in the circumstances. The Crown submits the adjusted start point of 30 months adequately took account of totality.
[14] The Crown submits that the uplift of four months for the previous convictions was not excessive given the previous convictions included charges of manslaughter with a firearm and an earlier charge of unlawful possession of a firearm as well as a substantial number of offences involving interfering with and stealing cars.
[15] Finally, the Crown submits that, even if the Court was to consider the global starting point was outside the range or the uplifts were excessive this has not resulted in an end sentence which can be said to be manifestly excessive. The Crown submits there ought to have been no discount for remorse and efforts at rehabilitation. When Mr McKee was interviewed for a pre-sentence report in September there was no
6 Byles v R [2013] NZCA 18; and Ngawati v Police [2022] NZHC 2156.
remorse suggested and there is little evidence apart from some late certificates as to attempts at or prospects of rehabilitation.
Analysis
[16] I consider the Judge was correct to take the Arms Act charges as the lead offences for the purposes of sentencing. The aggravating features of the possession of a firearm charge in this case were that the firearm had been sawn down, was ready for use and had a round in the chamber. It was also in the car used by Mr McKee, albeit located in a duffel bag in the boot and Mr McKee was not, at the time, driving the car or the car was not being driven in a residential area, although it had been earlier in the day.
[17] In Byles v R,7 the Court of Appeal accepted the Crown submission that the nature of the weapon (which had been altered for criminal purposes) supported a starting point of two years. In doing so, the Court referred to an earlier decision of R v Richardson,8 where the Court had upheld a starting point of two years for the possession of altered firearms.
[18] In Herewini v Police, Moore J upheld a starting point of two years, six months where Mr Herewini was found with a sawn-off shotgun in his car (together with knives).9 The additional aggravating features of that case were the suggestion of a gang connection, and that Mr Herewini was driving in a residential area. I accept Ms Ives’ point that that is not the case that Mr McKee faces.
[19] In Ngawiti v Police,10 Dunningham J upheld a starting point of two years, three months. The car Mr Ngawiti was driving was stopped and a revolver pistol with a round in the chamber was found following a search. In the course of her decision, Dunningham J reviewed a number of other cases of sentencing for possession of a firearm. The starting point in the cases ranged from 18 months to two years, six months.
7 Byles v R, above n 6.
8 R v Richardson CA 450/02, 25 March 2003
9 Herewini v Police [2014] NZHC 2396.
10 Ngawati v Police, above n 6.
[20] Having regard to the authorities and the aggravating features of the possession of the firearm, in this case, namely that it had been sawn down, was ready for use and was accompanied by ammunition, the starting point of 24 months for both Arms Act offences was well open to the Judge in my judgment.
[21] I also consider the four month uplift for the balance of the offending to have been open to the Judge. The driving offending was particularly bad. Mr McKee failed to stop for Police who were using red and blue lights and drove at speeds up to 160 km in a 50 km area, overtook cars on the wrong side of the road and drove through red lights, all this while being a disqualified driver.
[22] Next, while I note Ms Ives’ point that the driving offending was the only offending whilst on bail, I accept the Crown submission that Mr McKee was effectively on the run at the time and in breach of his bail conditions warranted a stern response.
[23] While no issue is taken with allowance for mitigating factors, I consider the allowance for 10 per cent for the guilty plea to have been appropriate given the background to the offending, the strength of the Crown case, in particular in relation to possession of a firearm, and the reckless driving, and the reason the matter was not dealt with earlier. The 15 per cent for personal factors and five per cent for remorse overall must be regarded as generous in the circumstances.
[24] Apart from the points the Crown makes, I note that while Profession Gallivan suggests the possibility of Mr McKee suffering from ADHD, with respect, he is not qualified to give that opinion. While the 15 per cent for personal factors could be regarded as appropriate, I consider the five per cent for remorse in this case to have been generous.
[25] Ms Ives produced a letter from Mr McKee which had been available to the sentencing Judge, in which he expresses remorse. The PAC report is quite clear however that at the time there was no genuine remorse, I consider the expression of remorse by Mr McKee in his letter to have been self-serving and the five per cent for remorse generous in the circumstances.
[26] The remaining issue is the uplift of four months for previous convictions. I note the Judge adopted the approach taken in Mo’unga v R and applied the uplift at the end of the exercise.11 That approach was applied by Johnstone J in Watene-Christie v Police and was approved by the Court of Appeal in a footnote in Moses & Ors v R.12
[27] Initially, I considered there may be some force in Ms Ives’ submission that the uplift of two months for the offending whilst on bail may have been on the high side. Ms Ives also of course criticised the uplift of four months for the further offending. A reduction in either of those would have led to a sentence of in the range of 22 to 23 months and a short term sentence. While the difference between 23 or 25 months is only two months and might be regarded as tinkering, I accept Ms Ives’ point that the difference between an indeterminate sentence of 25 months and a short-term sentence has a real impact on release dates.
[28] However, on reflection, I do not consider that the uplifts in this case to have been excessive or to have led in the end result to a manifestly excessive sentence. Mr McKee’s previous conviction list is both extensive and relevant. Obviously, it is of concern that he has a conviction for manslaughter committed in 2016 which involved a firearm. Also, he has a recent conviction from early 2023 for the unlawful possession of a firearm. That offending occurred only very shortly after the sentence for manslaughter was completed. Mr McKee clearly has a propensity to offend regarding firearms which is of concern. He also has a number of convictions for unlawfully getting into and interfering with cars and for driving offences. The driving offending was serious and warranted an uplift of one to two months. As noted, I also consider the five per cent for remorse was generous in the circumstances.
[29] In the circumstances, standing back and looking at the matter overall, despite the practical effect of the uplifts which have led to an indeterminate sentence rather than a short term sentence, I do not consider the 25 months to be manifestly excessive sentence in Mr McKee’s circumstances.
11 Mo’unga v R, above n 5.
12 Watene-Christie v Police [2023] NZHC 2148; Moses & Ors v R [2024] NZCA 121 at [42].
[30]For those reasons the appeal is dismissed.
Venning J
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