McKee v The Queen - [2014] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND

CA489/2013
[2014] NZCA 337

BETWEEN	CAVELL ROBERT MAXWELL MCKEE Appellant
AND	THE QUEEN Respondent

Hearing:	10 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	M S Fernando for Appellant C A Harold for Respondent
Judgment:	22 July 2014 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Following his trial before Judge Dawson and a jury in the Auckland District Court, the appellant was convicted of aggravated robbery and supplying methamphetamine. Subsequently, the Judge sentenced him to an effective term of eight years’ imprisonment.[1]
[1]R v McKee DC Auckland CRI-2011-090-5860, 5 June 2013 [Sentencing notes].
The appellant originally appealed against both his conviction and sentence. However, the conviction appeal has been abandoned. He contends that the sentence of eight years’ imprisonment was clearly excessive, as a result of the Judge adopting too high a starting point and failing to make adequate allowance for remorse and steps taken by the appellant towards rehabilitation.
The notice of appeal was filed late due to communication difficulties between counsel and the appellant. The respondent does not oppose an extension of time to file the appeal and we extend the time accordingly.

The facts

In the early afternoon of 24 March 2011, the appellant entered a jewellery shop situated on West Coast Road, Glen Eden in West Auckland. Present in the shop were its owner (the male victim) and his 74 year old mother (the female victim).
On initially entering the premises, the appellant asked the male victim if he had any watches for sale. The male victim replied that he was out of watches. At that stage the appellant left, but shortly afterwards he returned.
On his return, he made his way to the back of the shop where the male victim was working at a workbench. He pointed a double barrelled shotgun at the male victim and said, “this is a hold up, it’s real, I’m on P, I’m nervous”, adding that he would shoot if he had to. He then asked the male victim on a number of occasions whether there was a “silent alarm”. As he did so, he held the shotgun against the male victim’s head. He then told the male victim to lie down on the floor, which he did. At this point, the female victim entered the shop, returning from the toilet at the rear of the premises. The appellant pointed the gun at her and told her to lie down. The male victim told her to do so, that it was “serious” and “for real”. The female victim then got herself down onto the floor where she lay face down. The appellant leant over the male victim, pulling his arms back behind his back and handcuffing him with metal handcuffs which the male victim said were very tight. The appellant then tied the female…

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 Queen

Details

AGLC: McKee v The Queen [2014] NZCA 337
Case: [2014] NZCA 337
Decision Date: 22 July 2014 at 11 am

CaseChat Overview and Summary

The appellant, Cavell Robert Maxwell McKee, appealed against his conviction and sentence for aggravated robbery and supplying methamphetamine. The appeal against the conviction was abandoned, leaving only the sentence in contention. McKee argued that the sentence of eight years' imprisonment was excessively harsh due to the judge adopting an excessively high starting point and failing to adequately account for his remorse and efforts towards rehabilitation. The notice of appeal was filed late, owing to difficulties in communication between the appellant and his counsel. However, the respondent did not oppose an extension of time to file the appeal, which the Court granted.

The legal issues before the Court were whether the starting point of seven years' imprisonment for the aggravated robbery was too high and whether the judge erred in not allowing a discount for remorse and acknowledging the appellant’s attempts at rehabilitation. The appellant's counsel argued that a starting point of four and a half to five years would have been more appropriate, citing previous cases as precedent. However, the Court found that the facts of the present case were worse than those in the cited cases and justified a starting point of eight years or more. The Court also held that the judge's decision to not consider remorse as a mitigating factor was appropriate given the appellant's extensive criminal history and his actions during the trial.

The Court concluded that the sentence imposed was not excessive and dismissed the appeal. The appellant's extensive criminal history, the seriousness of the current offending, and the judge's reasonable application of the totality principle in sentencing all contributed to the Court's decision. The Court noted that the appellant's recent efforts towards rehabilitation, if maintained, could be considered positively by the Parole Board in the future.

Orders