McKinlay v Police HC Rotorua CRI-2011-470-000028
[2011] NZHC 1918
•28 November 2011
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2011-470-000028
ROBERT MCKINLAY
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 28 November 2011
Counsel: JM Holmes for Appellant
R Jenson for Respondent
Judgment: 28 November 2011
JUDGMENT OF ASHER J
Solicitors/Counsel:
JM Holmes, PO Box 13455, Tauranga 3141. Email: [email protected]
Ronayne Hollister-Jones Lellman, DX HP40041, Tauranga 3141. Email: [email protected]
MCKINLAY V NZ POLICE HC ROT CRI-2011-470-000028 28 November 2011
Introduction
[1] Robert McKinlay appeals against a sentence of 12 months’ imprisonment
imposed on him by Judge Wolff in the District Court at Tauranga. The charges and the sentences imposed on each are as follows:
Threatening to kill (s 306 of the Crimes Act 1961, maximum penalty
seven years’ imprisonment): 12 months’ imprisonment;
Possession of methamphetamine (2) (s 7(1)(a) of the Misuse of Drugs
Act 1975, maximum penalty six months’ imprisonment): three
months’ imprisonment, concurrent; and
Theft (ss 219(1)(a) and 223(d) of the Crimes Act, maximum penalty
three months’ imprisonment): two months’ imprisonment, concurrent.
Mr McKinlay was also sentenced to one month’s imprisonment, concurrent, on a charge of breaching bail.
Background
[2] The complainant in respect of the lead charge of threatening to kill is Mr McKinlay’s former partner and the mother of his son, who was nine months old at the time. The Police summary indicates a history of violence administered by Mr McKinlay to the complainant and there had been in place a Police Safety Order. The order had been breached on two previous occasions, but at the time of the offending was no longer in force.
[3] The relationship between Mr McKinlay and the complainant had ended because of this history of violence. On the evening of Friday, 29 July 2011
Mr McKinlay appeared at the complainant’s home. He had been drinking heavily throughout the evening. The complainant was not aware he was at the door when she opened it. It seems Mr McKinlay then walked inside. There were no words or gestures made to him by the complainant indicating that he should not do so.
Nevertheless, the Police summary reports the complainant was surprised and scared at Mr McKinlay’s arrival.
[4] Mr McKinlay immediately started to argue with the complainant over their relationship. She told him that the relationship was over for good with no chance of it being rekindled. Mr McKinlay then pulled out a glass pipe used for smoking methamphetamine.
[5] He had a point bag containing methamphetamine with a straw inside it. He proceeded to put methamphetamine into the glass pipe and smoke it. The complainant felt that her and her son’s lives were in jeopardy. She lay down on a mattress in the lounge holding her son for protection. Not wanting to provoke a reaction she pretended to be asleep, and eventually did fall asleep.
[6] A short while later she woke to the sound of her son crying. Mr McKinlay was on the couch and in a menacing voice said to the complainant “Get your son away from me or else I will kill him.” There was a pause for a few seconds and then Mr McKinlay picked up a small blue handled bread and butter knife from the couch and started to stab himself in the head with it, five or six times. The complainant was fearful for her safety and that of her son. Mr McKinlay then got up from the couch and walked into the bathroom. The complainant took the chance to flee the house with her son. She ran to a neighbour where she called the Police.
[7] She explained she did not ask Mr McKinlay to leave because she feared he would hurt her or her son and damage the house. Mr McKinlay initially declined to comment to the Police. The victim impact statement indicates that the complainant, at least immediately afterwards, was fearful and traumatised by the events.
[8] The facts in relation to the other charges can be summarised more briefly. The first methamphetamine charge relates to the smoking of the methamphetamine before the threat to kill was made. The second relates to a separate event at a separate place and time when the Police searched a hotel room occupied by Mr McKinlay and found a plastic snap lock bag and white crystalline methamphetamine inside. The theft charge relates to shoplifting from a supermarket
where Mr McKinlay stole a sausage roll and a drink worth $6.50. The breach of bail charge relates to a failure by Mr McKinlay to arrive at court on a date when he was required to attend court. There are no further facts available on that charge.
[9] In his pre-sentence report Mr McKinlay is shown to be lacking in any genuine remorse for his offending. Indeed he appears to have a distorted view of the offending and not to blame himself for what happened. Nevertheless he is clearly entitled to a full credit for his early guilty pleas.
The decision
[10] In his decision Judge Wolff fixed a starting point of 18 months’ imprisonment on the lead charge of threatening to kill. He did not in any express way refer to the totality of the offending in reaching that starting point. He applied a one-third credit for the early guilty plea resulting in a sentence of 12 months’ imprisonment. He then, without explanatory comment, sentenced Mr McKinlay to the concurrent sentences on the other charges set out above preserving the effective term of 12 months’ imprisonment.
[11] Mr Holmes for Mr McKinlay in his helpful submissions focussed on the starting point. He submitted that it was plainly too high and relied on a number of cases he said were comparable. He submitted that the correct starting point was between eight and 10 months’ imprisonment for the totality of the offending and that the deduction for the guilty plea should be applied to that starting point.
[12] Mr Jenson for the Crown, on the other hand, submitted that the starting point was within range. He also referred to a number of comparable cases and made the point that the one-third discount for the guilty plea was excessive and in terms of
Hessell v R[1] should not have exceeded 25 per cent.
The starting point
[1] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[13] There is no tariff decision in relation to threatening to kill. I propose to briefly review a number of the cases referred to me by counsel as they do give an insight into the appropriate range for the starting point.
[14] In O’Connor v Police[2] the appellant threatened to kill a person the subject of a protection order against him. He entered her home and abused and threatened her, stating “I hate you, I’m going to kill you bitch”. He threatened to take her to a river and hang her and then kill himself. He then assaulted her by pushing her onto a couch, lying across her so as to pin her down and smother her. Other accompanying threatening actions were the subject of distinctcharges. This Court observed that the appellant might have expected a sentence of 12 months’ imprisonment on the threatening to kill and assault charges, cumulative on a condign 18 month sentence on charges for three breaches of the protection order. However, that appears to have taken into account the fact of a guilty plea.
[2] O’Connor v Police HC Wellington CRI-2008-485-13, 17 April 2008.
[15] In R v Sykes[3] the appellant threatened to kill his estranged cousin at a tangi at the appellant’s home. He yelled at the victim and smashed items in the house. He threatened members of the family. He pointed a pistol at the victim’s head and said “I will fucking kill you”. He continued to walk round the lounge of his house saying “I’m going to kill you, I’m going to kill them.” The pistol was loaded but was unable to be fired as it was loaded with incorrectly sized ammunition. The incident had a significant emotional effect on the victim. The Judge adopted a starting point of 18 months’ imprisonment, referring in particular to the use of the pistol as an aggravating feature.
[3] R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.
[16] In Blair v Police[4] the appellant threatened to kill his partner. Following an argument he phoned and threatened to kill her saying that if she rang the Police he would shoot her, her mother, father, and brother in the head and burn down her
house. He also sent a text threatening to kill her. On another occasion upon his
arrest by the Police he yelled at a constable saying he had better watch his back because he would kill him. He repeated that threat, adding that he would kill the constable’s family. This Court held that an appropriate starting point for the group of offences including the first threat to kill was 12 months’ imprisonment and that the second threat to kill merited a cumulative sentence not in excess of 12 months.
[4] Blair v Police HC Dunedin cri-2010-412-10, 13 May 2010.
[17] In Burchell v R[5] the Court of Appeal considered a threat made by the appellant as he was talking to a probation officer. The appellant became progressively angry and recounted details of his adverse experiences at the hands of the court system and the Police. He said that he had had enough and knew where the police officer the subject of his reference to the probation service lived and that if he saw that officer again he would kill him. The Court noted that it was particularly serious that the threat concerned a named police officer. However, it also noted that the police officer was not present. The scope of the threat was limited to the prospect of an opportunistic encounter. Its mode was unparticularised. It was the spontaneous culmination of an angry and irrational tirade against police officers and authorities in general. A starting point and end sentence of eight months’ imprisonment was quashed and four months’ imprisonment substituted.
[5] Burchell v R [2010] NZCA 314.
[18] Finally in R v Thomas[6] the appellant threatened to do grievous bodily harm to two young women whom she believed knew the identify of a person who had provided information (narked) to the police in relation to a serious supermarket burglary committed by her partner. She approached the two women after a court hearing and demanded to know who had narked to the police. By gesture she indicated a shot to the head. She said that if the complainants would not come with her and identify the informant she would drag them by the hair. Fearful for their safety they then drove with her to an address, during which she continued to demand details of the informant and to threaten to harm the complainants, including to burn down their homes if the required information was not provided. The Court of Appeal upheld an end sentence of nine months’ imprisonment, reached after consideration of a glowing pre-sentence report and guilty pleas. The starting point
was not identified.
[6] R v Thomas CA212/04, 2 August 2004.
[19] It has been observed that key factors in assessing the culpability of offending of this nature will include premeditation, the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim.[7] It can be added that the use of a weapon as part of the threat is an aggravating factor.
[7] Faaleaga v R [2011] NZCA 495 at [11].
[20] In this case the following aggravating factors were present:
(a) There was a history of violence between the complainant and Mr McKinlay. This history and the Police Safety Orders indicate that it was entirely understandable for the complainant to take any threats very seriously and to be terrorised by them.
(b)Mr McKinlay was drunk and then proceeded to take methamphetamine. The fact that he was under the influence of drugs would increase the terror that he could inflict on the complainant and their son as a consequence of the threat.
(c) Immediately following the threat Mr McKinlay picked up the knife.
The extent to which this is properly regarded as an aggravating factor is limited by the fact that he did not proceed to threaten the complainant with the knife, but rather used it on himself. Nevertheless, the fact that he was behaving in a deeply disturbed manner with a weapon following the threat to kill can only have added to the terror that was induced.
(d)There was immediate proximity between Mr McKinlay and the object of the threat, his nine month old son, and an ability to effect the threat. There was a knife at hand and in any event the ability to kill a nine
month old was obvious.
[21] This offending is less serious than that with which Sykes was concerned. In particular there was no threat using a firearm. However, it is considerably more serious than the threat in Burchell because the potential victim was there and there was the ability to immediately effect the threat. The terror induced in the mother was as a consequence considerable and warranted.
[22] The starting point of 18 months reached by the Judge, therefore, was too high. The appropriate range for the starting point was somewhere between 10 and
14 months.
[23] It is then necessary to consider what uplift was appropriate to take account of the other offending. It was all minor offending that for a first offender coming before the Court on one of the charges alone would have warranted no more than a modest fine. However, cumulatively that offending adds to culpability and shows a defiance of authority and a general lawlessness.
[24] When the totality of the offending is considered an uplift of up to two months was possible. The starting point that was available to the Judge was therefore somewhere between 11 and 16 months. The Judge deducted one-third, but it is not apparent why the 25 per cent prescribed by Hessell was exceeded. If the very highest point is reached and a deduction is made for the guilty plea of 25 per cent, in accordance with Hessell, a sentence of 12 months’ imprisonment is justified. Thus, a reduced starting point and discount for guilty plea, result in a sentence in the vicinity of that imposed.
Conclusion
[25] The sentence imposed was 12 months’ imprisonment. It has to be said that this was a severe sentence for this offending. However, for the reasons set out I consider it to have been within the range, albeit at the top, and it would be wrong for this Court to interfere.
[26] The appeal is therefore dismissed.
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Asher J
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