McKenzie v Police - [2015] NZHC 2742

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2015-454-000022 [2015] NZHC 2742

BETWEEN
ANGUS MCKENZIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 November 2015

Counsel:

M Andrews for Appellant
M J R Blaschke for Respondent

Judgment:

6 November 2015

JUDGMENT OF BROWN J

[1] Mr McKenzie pleaded guilty to eight charges as set out in the table below. He was sentenced as follows by Judge Smith on 25 August 2015 in the District Court
at Palmerston North:1

Date
Offence

Section

Maximum penalty

Sentence imposed

30 January 2015

Theft (less than

$500)

Crimes Act 1961, ss 219 and 223(d)

Three months’

imprisonment

1 ½ months’

imprisonment

5 February 2015

Failure to answer police bail

Bail Act 2000, s 24

Three months’
imprisonment;
fine not exceeding
$1,000

¾ month imprisonment

9 February 2015

Theft (less than
$500)

Crimes Act 1961, ss 219 and 223(d)

Three months’
imprisonment

1 ½ months’
imprisonment

12 and 19

February 2015

Breaching conditions

Sentencing Act

2002, s 96

One year imprisonment;

fine not exceeding

$2,000

1 ½ months’

imprisonment

1 Police v McKenzie [2015] NZDC 16947.

MCKENZIE v NZ POLICE [2015] NZHC 2742 [6 November 2015]

22 February 2015
Theft (less than
$500)

Crimes Act 1961, ss 219 and 223(d)

Three months’
imprisonment

1 ½ months’
imprisonment

26 February 2015

Breaching conditions

Sentencing Act
2002, s 96

One year imprisonment;

fine not exceeding

$2,000

2 ¼ months’
imprisonment

13 March 2015

Theft (less than
$500)

Crimes Act 1961, ss 219 and 223(d)

Three months’
imprisonment

1 ½ months’
imprisonment

28 May 2015

Failure to answer bail

Bail Act 2000, s 38

One year imprisonment;

fine not exceeding
$2,000

1 ½ months’
imprisonment

Total cumulative sentence
12 months’
imprisonment

[2] Each of the sentences was imposed cumulatively with the consequence that the ultimate sentence was a total of 12 months’ imprisonment.

Facts of the offending

[3] Mr McKenzie was released from prison on 14 January 2015 and was subject to release conditions. The facts of each charge in chronological order are as follows.

30 January 2015 – Theft

[4] On the afternoon of 30 January Mr McKenzie went to Countdown on Kimbolten Rd in Feilding. He took two Countdown chiller bags with him around the store and filled them with grocery items. He left the store with the bags without paying for the items, setting the door alarms off. He ran but was apprehended by Countdown staff not far from the store. He made the comment that “I didn’t have any money and was hungry”. There was $358.20 worth of groceries in the chiller bags.

5 February 2015 – Failure to answer police bail

[5] Mr McKenzie was placed on police bail following the 30 January incident, and failed to appear at Court on 5 February.

[6] On the afternoon of 6 February Mr McKenzie went to Melody’s New World in Palmerston North. He took a chiller bag from near the checkouts and placed some chilled pizzas and packets of bacon inside before leaving…

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 McKenzie v Police

Details

AGLC: McKenzie v Police [2015] NZHC 2742
Case: [2015] NZHC 2742
Decision Date: 6 November 2015

CaseChat Overview and Summary

Angus McKenzie, the appellant, pleaded guilty to multiple charges including theft and breaching conditions. He was sentenced to a cumulative total of 12 months’ imprisonment by the District Court at Palmerston North. McKenzie appealed the sentence, arguing that the Judge erred in applying the totality principle and did not sufficiently discount for his early guilty pleas. The appeal was heard by Brown J in the High Court of New Zealand. The legal issues before the court were whether the Judge erred in applying the totality principle and whether the sentence was manifestly excessive due to insufficient discounts for the appellant's early guilty pleas. The court found that the sentence was indeed excessive and there were errors in the imposition of cumulative sentences and in omitting discounts for the appellant's early guilty pleas and personal mitigating factors. The court concluded that the appropriate sentence should reflect the overall criminality of the offending, taking into account the totality principle. The appeal was allowed, and the original sentences were quashed. In substitution, the court imposed new cumulative and concurrent sentences resulting in a total term of imprisonment of six months.

Orders