McKenzie v The King - [2024] NZHC 1296

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2024-476-006

[2024] NZHC 1296

BETWEEN
EVAN CRAIG DONALD MCKENZIE

Appellant

AND

THE KING

Respondent

Hearing (via VMR): 21 May 2024

Appearances:

M Bonniface for Appellant A McRae for Respondent

Judgment:

21 May 2024

JUDGMENT OF GRAU J

[Sentence appeal]

[1] On 15 March 2024, Judge Savage sentenced Mr McKenzie to four months’ home detention on one charge of assault on a person in a family relationship and two breaches of a protection order.1

[2] Mr McKenzie appeals his sentence. The only ground advanced on appeal is that the sentencing Judge erred in providing insufficient credit for time spent on electronically monitored bail (EM bail), and the end sentence should instead have been three months’ home detention.

1 R v McKenzie [2024] NZDC 5859; charges pursuant to Crimes Act 1961, s 194A (maximum penalty of two years’ imprisonment) and Family Violence Act 2018, ss 9, 90(a), and 112(1)(a) (maximum penalty of three years’ imprisonment) respectively.

MCKENZIE v R [2024] NZHC 1296 [21 May 2024]

The offending

[3] Mr McKenzie and the victim were previously in a relationship. A protection order had been in place since late 2022.

[4] On 10 February 2023, Mr McKenzie arrived at the victim’s home and entered without permission. An argument began over a financial issue. The victim asked Mr McKenzie to leave. He refused and the argument continued. He kicked the victim in the lower leg and left the address shortly after. He then sent the victim multiple abusive messages via text message and Snapchat.

Sentencing indication

[5] On 31 October 2023, Judge Savage gave Mr McKenzie a sentence indication. His Honour adopted a starting point of 18 months’ imprisonment, taking into account the entry into the victim’s home and a concerted attempt to manipulate her or to cause her psychological pain, as well as the assault on her.2 An uplift of two months would apply for Mr McKenzie’s history of offending.3 Guilty pleas would attract a 20 per cent credit, which the Judge described as reasonably generous.4 The Judge also noted that Mr McKenzie seemed to be doing well on EM bail. His Honour indicated that Mr McKenzie would receive a credit for that, as well as for the time he had spent in custody.5

Sentencing decision under appeal

[6] Judge Savage noted the sentence indication was of a starting point of 20 months’ imprisonment with a credit of 20 per cent for the guilty plea, reducing it to 16 months.6 His Honour then applied a two-month reduction to take into account the time Mr McKenzie had spent in custody. He also reduced the sentence by five months for the time Mr McKenzie spent on EM bail.7 That led to an end point of nine months’

2 R v McKenzie DC Timaru CRI-2023-076-282, 31 October 2023 (Note of Judge C D Savage on Sentencing Indication) at [3]–[6].
3 At [6].
4 At [8].
5 At [9].
6

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 The King

Details

AGLC: McKenzie v The King [2024] NZHC 1296
Case: [2024] NZHC 1296
Decision Date: 21 May 2024

CaseChat Overview and Summary

Evan Craig Donald McKenzie appeals against his sentence for one charge of assault on a person in a family relationship and two breaches of a protection order. The appeal is against the sentence imposed by Judge Savage on 15 March 2024, which was four months’ home detention. The appeal is based on the argument that the Judge erred in providing insufficient credit for time spent on electronically monitored bail (EM bail) and that the end sentence should have been three months’ home detention. The appeal raises issues concerning the appropriate discount to be applied for time spent on EM bail, the relevance of the Hohipa v R case, and whether the sentence imposed was manifestly excessive.

The court considered the arguments advanced by both parties and examined the relevant sentencing principles. The court noted that no issue was taken with the Judge's starting point or with the reductions made for the guilty pleas and for the time spent in custody. The court also considered the restrictive nature of the EM bail conditions and the duration of time spent on EM bail. The court concluded that the discount of 55 per cent afforded to Mr McKenzie for time spent on EM bail was within the available range and that the sentence imposed was not manifestly excessive. The court also noted that even if the sentencing exercise had been undertaken in a different manner, the end sentence would still have been within an available range. The court ultimately dismissed the appeal, finding that the sentence imposed was not manifestly excessive.

The court did not make any further orders beyond dismissing the appeal. The sentence of four months’ home detention remains in effect.

Orders