McKee v The King - [2024] NZHC 3071

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…

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 McKee v The King

Details

AGLC: McKee v The King [2024] NZHC 3071
Case: [2024] NZHC 3071
Decision Date: 21 October 2024

CaseChat Overview and Summary

The appeal in McKee v The King involves Bodi McKee, who appealed against his 25-month imprisonment sentence and 30-month driving disqualification imposed by Judge A M Wharepouri. The primary legal issue was whether the sentence was manifestly excessive or wrong in principle. Ms Ives, representing the appellant, argued that the sentence was excessive due to the starting point and various uplifts applied by the Judge. The Crown defended the sentence, asserting that the starting point and uplifts were appropriate given the nature of the offences and the appellant's criminal history.

The High Court, presided over by Venning J, considered the appellant's arguments and the Crown's defence. The Court held that the starting point of 24 months for the Arms Act offences was justified due to the serious nature of the firearm possession. The Court also found the uplifts for the remaining charges and previous convictions to be appropriate, despite some concerns about the uplift for offending while on bail. The Court ultimately concluded that while the uplifts resulted in an indeterminate sentence rather than a short-term sentence, the 25 months' imprisonment was not manifestly excessive given the appellant's extensive criminal history and propensity for firearm-related offences.

The appeal was dismissed, and the original sentence of 25 months' imprisonment and 30-month driving disqualification was upheld.

Orders