McKernan v Police
[2019] NZHC 3352
•17 December 2019
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. He then uplifted that sentence for the other charges as follows:
(a)15 months for the theft (ex car) and using documents offending;
(b)12 months for the separate instances of driving whilst disqualified; and
(c)one month for breach of community work.
[10] That brought the overall starting point to 46 months, which the Judge lowered to 42 months with regard to totality.
[11] Judge Phillips uplifted the sentence by three months for Mr McKernan’s outstanding fines of some $9,374.91, and a further nine months for his previous convictions and the fact that he was on both bail and sentence during the offending. He then allowed a credit of six months for personal mitigating factors, and a full 25 per cent guilty plea discount. That resulted in a sentence of three years’ imprisonment.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should
be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
Submissions
Appellant’s submissions
[13] Mr Stephenson, on behalf of Mr McKernan, submits that the total starting point was manifestly excessive. He suggests two ways in which the Judge erred in reaching that point.
[14] Firstly, Mr Stephenson says it has come to his attention that the Judge had an incorrect summary of facts in relation to the boat and trailer offending. The summary before the Judge stated that Mr McKernan had stolen the boat and trailer as well as received them, while he should only have been sentenced on the receiving charge. He says it is clear from the judgment that Judge Phillips proceeded on the basis that Mr McKernan was also responsible for stealing that property.5
[15] Mr Stephenson submits that given this error, the starting point of 18 months for that set of offending was too high. He refers to Ellis v R, where the offender received $5,000 worth of stolen property a few hours after the burglary.6 The Court of Appeal considered a starting point of 18 months to be stern but within range given the proximity in time of the receiving to the burglary, and therefore the close connection between the two. Mr Stephenson submits the Court cannot make the same inferences about closeness in time in this case given Mr McKernan collected the boat and trailer some three days after it was stolen, and that 14 months would therefore be an appropriate starting point.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
5 Police v McKernan, above n 1, at [2] and [7].
6 Ellis v R [2012] NZCA 513.
[16] Secondly, Mr Stephenson contends that the starting point of 15 months for the theft (ex car) and using a document charges was too high. He submits it is unclear whether the other three theft charges were taken into account in reaching this point, but assumes they were for the purpose of the appeal.
[17] Mr Stephenson submits that, in relation to the theft (ex car) and using a document offences, the starting point could not be more than 12 months. He refers in that submission to Rako v R, where the Court of Appeal held that a starting point of 12 to 18 months can be applied for multiple uses of cards at the value of $2,000 - $6,000.7 In the present case, Mr McKernan caused a loss of less than $2,000, including those items taken from the car. Given the offending was limited to one victim, occurred over a short period of time and involved some property being returned, Mr Stephenson submits that a starting point of less than 12 months is warranted for that set of offending.8
[18] In regard to the remaining three theft charges, Mr Stephenson submits that they involved low value items. He recommends an uplift of one month for the two shoplifting charges, and a further one month for the petrol theft. Ultimately, in regard to this second identified error, he contends that the starting point for the four theft charges and four using a document charges should have been 12 months rather than 15.
[19] Finally, Mr Stephenson submits that the Judge did not have sufficient regard to totality in adopting his overall starting point of 42 months. He submits that the offending was committed under the influence of methamphetamine and alcohol, and is emblematic of a man who has lost control over his life. For those reasons, the totality principle should be given significant weight. Mr Stephenson contends that the appropriate nominal starting point would be in the realm of two and a half years’ imprisonment.
[20]No issue is taken with the uplifts and discounts awarded for personal factors.
7 Rako v R [2015] NZCA 463 at [9].
8 With reference to the sentences imposed for similar offending in Doctor v Police [2017] NZHC 1084; and Horrell v Police [2016] NZHC 820.
Respondent’s submissions
[21] Mr Bates, for the respondent, submits that the end sentence was not manifestly excessive. He does not accept there was any confusion in regard to Mr McKernan being sentenced for receiving the boat and trailer. Based on the way the Judge described the offending, Mr Bates submits the obvious inference is that Mr McKernan may not necessarily have been involved directly in the theft of the boat but became involved shortly afterwards as the receiver. He contends the Court was properly able to infer that there was premeditation involved, and a close connection between the theft and the receiving. On that basis, 18 months in respect of the receiving charge was within range.
[22] In response to the submission that the starting point of 15 months on the charges of theft and using a document was too high, Mr Bates submits that argument fails to take into account the fact that further items valued at approximately $1,000 were taken from the vehicle. Because of that, the respondent contends the starting point in respect of those offences was within the range available to the Court.
[23] Mr Bates also submits that the Judge had proper regard to totality. He says that the Court had a wide range of offending before it, which the Judge considered was “serious offending, aggravated by past convictions; aggravated by you being on bail at various times”. This required an end sentence that properly reflected the extent of the criminality. Furthermore, there were no discrete uplifts given for three of the theft convictions, and the Judge stated he was being lenient in only uplifting the sentence by three months for outstanding fines.
[24] Mr Bates submits that the final sentence of three years’ imprisonment was well within range and that the appeal should be dismissed.
Analysis
Starting point for receiving
[25] I accept that the Judge did rely on an incorrect summary of facts in relation to the boat and trailer offending, which resulted in his belief that Mr McKernan was to
be sentenced for both theft and receiving in relation to that property. This is clear from the following passage of the judgment:9
I consider that the receiving and theft charges, relating to the boat and trailer, are the head or lead offending for your sentencing. You, with a co-offender, stole a boat, motor and trailer from Waitati worth some $8,000. I understand that you drove a motor vehicle (whilst disqualified) to take possession of the boat and took it through to a property at Waikouaiti where it was hidden from view. All that occurred on 12 April. It was found on 16 April.
[26] Based on the updated summary of facts to which Mr McKernan pleaded guilty, he should only have been sentenced on the basis that he and an associate received a stolen boat and trailer on 15 April.
[27] However, in determining whether 18 months was an appropriate starting point for that offending, I have regard to the following cases:
(a)Ellis v R, referenced by counsel: the defendant was found with stolen property worth $5,000 a few hours after the burglary.10 The Court of Appeal declined to interfere with the starting point of 18 months.
(b)R v Collier: the defendant received a stolen car worth $14,000 the day after it had been stolen.11 The Court of Appeal adopted a starting point of 18 months.
(c)Small v Police: the defendant received a stolen van and firearms worth
$7,200.12 The Judge appeared to accept the receiving was opportunistic, and adopted a starting point of 18 months.
(d)Ali v Police: the defendant received a car worth $8,800 between one and three weeks after it was stolen.13 The High Court upheld a starting point of 15 months.
9 Police v McKernan, above n 1, at [2].
10 Ellis v R, above n 6.
11 R v Collier CA170/03, 21 August 2003.
12 Small v Police HC Hamilton AP29/99, 30 March 1999.
13 Ali v Police [2017] NZHC 2869.
[28] Based on these cases, I do not consider the starting point of 18 months was out of range for the charge of receiving. It is therefore irrelevant that the Judge may have relied on an incorrect summary of facts.
Starting point for theft (ex car) and dishonestly using a document
[29] Mr Stephenson argues that the starting point of 15 months was excessive for the four charges of dishonestly using a document at a value of $175 and for theft from a car at a value of just over $1,000. I agree that that starting point would be too high if it were for the using a document charges alone, given the small value of the loss from that offending. While there is no tariff for such offending, Mr Stephenson is correct that starting points of more than 12 months seem to be applied where the amount at issue is more than $2,000; here it was only $175.
[30] Even with the added charge of theft (ex car), it is difficult to see how 15 months could be reached. That is especially so given some of the property was returned to the victim. I would see a starting point of 12 months as more appropriate for this set of offending.
Totality
[31] I am not satisfied that the Judge had insufficient regard to totality in lowering the overall starting point from 46 months to 42 months. The offending involved a large number of charges committed on multiple occasions. As is accepted by Mr Stephenson, the other uplifts and discounts imposed were reasonable. The Judge did not adopt discrete uplifts for three of the theft charges, which further allowed for totality. He also made a relatively small increase for outstanding fines compared to what he could have. Taking those matters into account, I consider there was an appropriate discount for totality, and that also went some way to making up for the high starting point on the theft (ex car) and document charges.
[32] Standing back and looking at the end sentence, I do not consider it was manifestly excessive in the circumstances. Mr McKernen was sentenced for a significant number of offences against the background of a significant criminal record.
Three years’ imprisonment is an appropriate end sentence in light of all relevant matters.
Conclusion
[33]The sentence was not manifestly excessive. The appeal is dismissed.
Solicitors:
Public Defence Service, Dunedin RPB Law, Dunedin
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