McKernan v Police - [2012] NZHC 104

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000435 [2012] NZHC 104

NICHOLAS CHARLES MCKERNAN

v

NEW ZEALAND POLICE

Hearing: 3 February 2012

Counsel: N McDonald for the Appellant
Y Clarisse for the Respondent

Judgment: 10 February 2012 at 3:30 PM

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 10 February 2012 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
Y Clarisse – respondent – yvanca.clarisse@meredithconnell.co.nz
N McDonald – appellant – fax: 09 579 6087

MCKERNAN V POLICE HC AK CRI 2011-404-000435 10 February 2012

[1] On 27 June 2011, the appellant, Mr McKernan, burgled the Cockle Bay School, contrary to s 231(1)(a) of the Crimes Act 1961. He was charged along with a Mr Carl Unvericht on a count of burglary. Mr McKernan was also charged with being unlawfully on premises.

[2] Mr Unvericht entered a plea of guilty to the charge of burglary on 13 June

2011. He was sentenced by Judge AJ Johns to a sentence of 100 hours’ community

work.

[3] Mr McKernan entered a plea of guilty to the burglary charge on 16 August

2011, and to the charge of being unlawfully on premises. He was convicted on both counts and on 22 November 2011, he was sentenced by Judge Cooper to 14 months’ imprisonment in relation to the burglary. He was discharged on the other count.

[4] Mr McKernan now appeals against his sentence on the burglary conviction.

Factual Background

[5] At about 4.45 am on 27 June 2011, Messrs McKernan and Unvericht were at an associate’s house in Howick. Mr Unvericht agreed to drive Mr McKernan to the Cockle Bay area so that Mr McKernan could burgle the Cockle Bay School.

[6] Mr Unvericht drove the vehicle to Sandspit Road. He then parked. Mr McKernan got out of the vehicle. Mr Unvericht waited in the car.

[7] Mr McKernan went to the door of a classroom at the school, and used a screwdriver to jimmy it open. He then entered the classroom. He was rummaging through the classroom cupboards and table drawers when he was seen by a security guard. He then ran from the scene. He was located by the police in bushes at the rear of the premises a short time later and arrested.

[8] After seeing police in the area, Mr Unvericht left the area and returned to his home address. He was later located and arrested by the police.

[9] When the police spoke to him, Mr McKernan admitted to burgling the school. In explanation, he stated that he was looking for anything electronic to steal. He said that he intended to sell the items to pay for drugs. Mr Unverricht for his part admitted that he knew Mr McKernan was going to burgle and steal from the school, and that he agreed to drive him there and wait for him.

[10] Nine laptop computers and two digital cameras were stolen from the school,…

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.

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Details

Case: [2012] NZHC 104
Decision Date: 10 February 2012

CaseChat Overview and Summary

In McKernan v Police, the appellant, Mr McKernan, was convicted of burgling the Cockle Bay School. He was sentenced to 14 months’ imprisonment. He appeals the sentence. The respondent submitted that the sentence was not manifestly excessive, inappropriate, or too long. The appellant argued that the sentence was inappropriate given the disparity between the sentence imposed on him and the sentence imposed on his co-offender, Mr Unvericht. The Court held that the sentence was not manifestly excessive or inappropriate. The disparity between the sentences was justified. The sentence imposed on Mr Unvericht was too lenient. A reasonably minded independent observer would not have his or her confidence in the justice system restored if Mr McKernan’s sentence was reduced. The appeal was dismissed.

Orders