McKenzie v The King - [2024] NZHC 1295

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 1295

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 1295 [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 1295
Case: [2024] NZHC 1295
Decision Date: 21 May 2024

CaseChat Overview and Summary

The appeal in McKenzie v The King involves Evan Craig Donald McKenzie, the appellant, who challenges the sentence imposed by Judge Savage. McKenzie was sentenced to four months' home detention for one count of assault on a person in a family relationship and two breaches of a protection order. The primary contention on appeal is that the sentencing Judge provided insufficient credit for the time McKenzie spent on electronically monitored bail (EM bail), suggesting that the sentence should have been three months' home detention instead. The legal issues at the heart of this appeal revolve around the appropriate discount for time spent on EM bail and whether the sentence imposed was within the range justified by accepted sentencing principles.

The court examined the case of Hohipa v R, where a significant discount for time spent on EM bail was applied, as a reference point. However, the court found that the conditions of McKenzie's EM bail were restrictive, similar to those in Hohipa, but with additional restrictions due to the nature of his offending. The court noted that while the discount for time on EM bail can range between 30 and 50 per cent, there is no strict guideline. The court concluded that the 55 per cent discount applied to McKenzie's sentence was within the acceptable range. Furthermore, the court found that even applying the sentencing principles in a more orthodox manner would not have led to a significantly different outcome. The court concluded that the sentence of four months' home detention was within the range justified by accepted sentencing principles and did not constitute a manifestly excessive sentence.

In light of the above, the appeal was dismissed. The court found no error in the sentence imposed by Judge Savage, as the sentence was clearly within the range justified by accepted sentencing principles. The final orders of the court reflect the dismissal of the appeal, maintaining the original sentence of four months' home detention.

Orders