McKernan v Police - [2019] NZHC 3352

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.…

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 McKernan v Police

Details

AGLC: McKernan v Police [2019] NZHC 3352
Case: [2019] NZHC 3352
Decision Date: 17 December 2019

CaseChat Overview and Summary

The case of McKernan v Police involves an appeal by the appellant, Rikki Alan McKernan, against his three-year imprisonment sentence imposed by Judge Phillips. The appellant pleaded guilty to multiple charges including theft, driving while disqualified, and possession of a drug utensil. The primary legal issue in this appeal was whether the sentencing Judge made errors that resulted in a manifestly excessive sentence.

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