IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2019-412-000033
[2019] NZHC 3352
BETWEEN RIKKI ALAN MCKERNAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 December 2019 Appearances:
B Stephenson for Appellant R P Bates for Respondent
Judgment:
17 December 2019
JUDGMENT OF DUNNINGHAM J
Introduction
[1]Mr McKernan pleaded guilty to 14 charges as follows:
(a)theft under $500 (3);
(b)driving whilst disqualified, third or subsequent (3);
(c)theft (ex car) between $500 and $1,000;
(d)using a document for a pecuniary advantage (4);
(e)receiving over $1,000;
(f)possession of a drug utensil; and
MCKERNAN v NEW ZEALAND POLICE [2019] NZHC 3352 [17 December 2019]
(g)breach of community work.
[2] He was sentenced by Judge Phillips to three years’ imprisonment.1 Mr McKernan appeals that sentence on the basis that the Judge made errors which resulted in a manifestly excessive sentence.
Facts
[3] On 6 March and 23 March 2018, Mr McKernan entered New World in Blenheim and stole a punnet of fruit salad, worth less than $10 on each occasion. On one of these occasions he left the supermarket by driving a vehicle while disqualified.
[4] On 10 April 2019, Mr McKernan and a co-defendant stole a wallet and backpack from a Nissan vehicle. The backpack contained hunting equipment valued at $1,029. Mr McKernan then used a debit card found in the wallet at Anzac Mobil Ltd twice, and at Regent Night and Day Store twice. These purchases totalled $175. On 11 April Mr McKernan was contacted by a relative who knew the victim, who asked Mr McKernan to return the property. The stolen wallet and cards were returned, along with a pair of binoculars from the backpack, but the other stolen items remain missing.
[5] On 12 April 2019, police found a glass meth pipe in Mr McKernan’s vehicle during a search.
[6] On 15 April 2018, Mr McKernan and a co-defendant left an address in Waikouaiti in two separate cars. Mr McKernan was disqualified from driving at the time. The two offenders drove to a nearby address where they received possession of a boat and trailer that had been stolen three days earlier. They were collectively valued at $8,000.
[7] On 17 April 2019 Mr McKernan drove into a Z-Energy service station in Dunedin and filled his vehicle with $120.24 worth of petrol. He drove away without
1 Police v McKernan [2019] NZDC 18797.
attempting to pay. Later that day, Mr McKernan was found to be driving a vehicle whilst disqualified.
[8] Mr McKernan was sentenced to 150 hours’ community work on 5 March 2019. On 17 April he failed, without reasonable excuse, to attend community work as directed. He continued to disregard his sentence despite efforts to reengage him, and by November had completed only two hours’ community work.
District Court decision
[9] Judge Phillips considered the receiving and theft charges relating to the boat and trailer to be the lead offending. He adopted a starting point of 18 months for that offending.…
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- McKernan v Police [2019] NZHC 3352
- Case
- [2019] NZHC 3352
- Decision Date
CaseChat Overview and Summary
The Court considered the appellant's submissions that the starting point for his sentence was too high due to errors in the Judge's summary of facts and an inappropriate starting point for certain charges. The Court also considered the Crown's argument that the sentence was within the appropriate range and that the Judge had properly considered the totality of the offending.
The Court found that while the Judge did rely on an incorrect summary of facts regarding the boat and trailer, the starting point for the receiving charge was within an appropriate range. The Court also found that the starting point for the theft and document charges was too high, but this was mitigated by the appropriate discount for totality. Ultimately, the Court concluded that the three-year imprisonment sentence was not manifestly excessive and dismissed the appeal.
The final orders of the Court were to dismiss the appellant's appeal against his sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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