McKenzie v The Queen

[2017] NZHC 2371

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000106- [2017] NZHC 2371

BETWEEN

STEVEN JOHN MCKENZIE

Appellant

AND

THE QUEEN Respondent

Hearing:	28 September 2017
Appearances:	E Huda for Appellant C C White for Respondent
Judgment:	28 September 2017

ORAL JUDGMENT OF GENDALL J

MCKENZIE v THE QUEEN [2017] NZHC 2371 [28 September 2017]

Background

[1]      On  11  May  2017  Mr  McKenzie  was  sentenced  by  Judge  Neave  in  the District Court at Christchurch to three years eight months’ imprisonment on four charges of burglary.1   At the time of sentencing he was already serving a sentence of two years four months on other charges.

[2]      Clearly it has become apparent now that Judge Neave intended the three years eight months figure to be the total single notional sentence for all of the offending.   By accident, the effect of his sentencing decision was to impose that sentence for the later charges cumulative to the initial sentence.  In a minute dated

8 August 2017 Judge Neave accepted that he had made a mistake and had “sentenced

Mr McKenzie to a longer term than [he] intended”.

[3]      The Judge considered the appropriate avenue for remedying the sentence was an appeal to this Court.   The Crown accepts the sentence should be remedied, although there is disagreement between the parties whether the appropriate sentence should be sixteen or seventeen months’ imprisonment.

The appeal

[4]      This Court can allow the appeal against sentence if it is satisfied there is an error in the sentence imposed and that an alternative sentence should be imposed.2

Where the error is a mathematical one resulting in a more severe sentence than was intended the sentence must be corrected on appeal even if the sentence imposed was within the available range.3

[5]      Here there has clearly been such an error.  The appeal is to be allowed.  The only question is whether the alternative sentence to be imposed should be one of sixteen or seventeen months’ imprisonment.  The Crown says it should be seventeen months to account for another administrative error which has resulted in a sentence

of two years three months’ imprisonment being passed down in respect of the first

1      R v McKenzie [2017] NZDC 9801.

2      Criminal Procedure Act, s 250.

3      Ferris-Bromley v R [2017] NZCA 115 at [15].

set of charges, despite the Judge’s sentencing notes stating the sentence was to be

two years four months’ imprisonment.

[6]      That other sentence is not the subject of this appeal.  Judge Neave was aware of that error in his sentencing notes, and proceeded to determine the appropriate single notional sentence by reference to the whole of the offending and not by reference to the sentence imposed on the first  set of charges.   As  a result, his conclusion that the appropriate overall sentence was three years eight months was not influenced by the first administrative error.  That single notional sentence is what should be given effect to on appeal.

Disposition

[7]      As a result, and in conclusion, I find that this appeal is allowed.  The sentence of three years eight months’ imprisonment is quashed and replaced with a sentence of one year four months’ imprisonment.  That sentence is cumulative to the sentence of two years four months’ imprisonment the appellant is already serving.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to:

Ethan Huda, Richard Maze, Barrister, Christchurch