McLaren v Police
[2021] NZHC 742
•1 April 2021
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2021-441-000006
[2021] NZHC 742
BETWEEN DOMINIC McLAREN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 March 2021 Counsel:
S Yee & K Pedder for the Appellant C Stuart for the Respondent
Judgment:
1 April 2021
JUDGMENT OF ISAC J
Introduction
[1] Mr McLaren (the appellant) is 25 years old and suffers from mental illness and cannabis addiction. He was sentenced in the District Court1 to seven months’ imprisonment with leave to apply for home detention on a representative charge of using a document for pecuniary advantage.2 He now appeals that sentence.
Background
[2] On 3 July 2020 Mr McLaren gained possession of the victim’s bank card and used it at various retailers between 3 and 7 July. He amassed approximately $5,613.24 worth of fraudulent transactions through 68 separate dealings. The purchases included electronics, grocery items and other miscellaneous items. The victim does not know the appellant.
1 Police v McLaren [2021] NZDC 1954.
2 Crimes Act 1961, s 228(1)(b), maximum sentence 7 years’ imprisonment.
McLAREN v NEW ZEALAND POLICE [2021] NZHC 742 [1 April 2021]
[3] Mr McLaren said he “blacks out” when he gets pay wave cards and he needs help.
District Court decision
[4] The Judge observed that there was some compulsive behaviour associated with Mr McLaren’s offending.3 He noted the appellant’s previous convictions – 29 for dishonesty – “does not make for happy reading either”.4
[5] Because there was no address available to the appellant, the pre-sentence report recommended imprisonment.5 A psychological report, prepared pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, recommended that any sentence should provide an opportunity for Mr McLaren’s referral to the regional forensic Mental Health Service for further support and assessment, and to encourage participation in a programme to enhance his awareness of his cultural heritage.6
[6] The Judge acknowledged counsel for the appellant’s concession that a term of imprisonment was most likely.7
[7] Having considered the extent and range of the offending, the Judge set a starting point of nine months.8 The aggravating features were the multiple transactions over several days. In addition, the Judge added an uplift for the appellant’s previous convictions for dishonesty of 3 months.9
[8] In terms of mitigation, the Judge acknowledged the appellant’s personal circumstances, including his upbringing and various health issues.10 The Judge gave a 15 per cent discount for those mitigating factors and a 25 per cent discount for the early guilty plea.11
3 Police v McLaren, above n 1, at [6].
4 At [7].
5 At [8].
6 At [9]. Mr McLaren is of Rongomaiwahine, Ngāti Kahungunu and Ngāti Toa descent, but appears to have become estranged from his whanau.
7 At [10].
8 At [11].
9 At [11].
10 At [12].
11 At [12]. The total discount was 40% or 4.8 months from 12 months.
[9] The Judge then commuted the sentence to seven months’ imprisonment to reflect totality.12
Submissions
Appellant
[10] Mr McLaren does not challenge the nine-month starting point set by the Judge. His counsel did however say no uplift should have been applied for Mr McLaren’s previous convictions, and that the Judge erred by not providing sufficient personal discounts.
[11] In terms of the uplift given, counsel submitted that although it was not numerically outside the range of ordinary uplifts,13 it was disproportionate to the sentence imposed for the original sentence. The original sentence was for supervision. Counsel argued that an uplift of 3 months imprisonment was disproportionate given the previous sentence which led to the uplift resulted in a community based sentence.14 Notably, this was the first occasion the appellant has been sentenced to imprisonment.15
[12] In relation to the discounts given for personal circumstances, counsel submitted that a 30 per cent discount was appropriate in recognition of Mr McLaren’s mental health, traumatic upbringing, personal circumstances, and an element of medical compulsion and addiction.16
12 At [13]. The Judge also cancelled the appellant’s sentence of community work and granted leave for the appellant to apply for home detention should that become available.
13 20 previous convictions for using a document for pecuniary advantage are relevant in nature due to their similarity and recentness in time.
14 Citing Orchard v R [2019] NZCA 529 at [41].
15 The appellant’s relevant convictions are: 1 x taking/obtaining/using document for pecuniary advantage committed on 19 September 2019 (sentenced to 9 months to come up if called upon and $80 reparation); 1 x taking/obtaining/using document for pecuniary advantage committed on
23 July 2019 (sentenced to 80 hours community work and $154 reparation); 18 x taking/obtaining/using document for pecuniary advantage committed on 6 and 16 February 2019 (sentenced to 9 months’ supervision); 7 x theft (under $500) and shoplifting (under $500) between September 2013 and May 2018 (sentenced to supervision, community work and reparation).
16 According to counsel, a 30% discount as given to Ms Crighton in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648, (2019) 29 CRNZ 282 at [201] was submitted as being appropriate here.
Respondent
[13] The respondent submits the end sentence was well within range, largely because the starting point was lenient.
[14] Because the starting point was lenient, the respondent says the downstream effect is that the end sentence cannot be described as manifestly excessive.17
[15] The uplift of three months appropriately accounted for the sequential nature of the appellant’s dishonesty offending and recognised the cancellation of the unserved community work. It also served the combined purposes of general and specific deterrence, as well as denouncing the recidivist nature of the offending.
[16] And the respondent says the 15 per cent discount for personal circumstances was reasonable. In the absence of medically confirmed diagnoses or an identifiable nexus between the appellant’s drug use and offending in this case, a 30 per cent discount would be inappropriate. Equally, the appellant’s background and medical condition cannot be said to be directly causative of the offending.
[17] Finally, I took counsel for the respondent to accept that while the starting point for the sentence was lenient, it was not manifestly inadequate or outside the possible range.
Approach on appeal
[18] 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 be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.18 In Tutakangahau v R the Court of Appeal stated that a “court will not intervene where the sentence is within the range that can properly be justified
17 Counsel submitted that offending of this nature (losses between $2,000 and $6,000) can attract a starting point between 12 and 18 months’ imprisonment, and cited the following cases to support this: Rako v R [2015] NZCA 463; Keenan v Police HC Christchurch CRI-2007-409-97, 5 June 2007; Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011; Edwards v Police [2012] NZHC 737; Tiopira v Police [2012] NZHC 1720.
18 Criminal Procedure Act 2011, ss 250(2) and 250(3).
by accepted sentencing principles”.19 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.20
[19] The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached. 21
Analysis
[20] The starting point imposed by the Judge was undoubtedly lenient when considered against similar cases.22
[21] Nevertheless, I consider there were two errors in the sentence imposed and those errors resulted in an end sentence that was manifestly excessive, despite its relatively short duration.
[22] First, in my view the three-month uplift for previous convictions was disproportionate to the sentence imposed for the original offence. As the Court of Appeal said in Orchard v R:23
…any such uplift must be proportionate to the sentence imposed for the original offence. An uplift is unlikely to be proportionate if it exceeds the prior sentence.
[23] The appellant did not receive an electronic — let alone custodial — sentence for his previous relevant convictions. An uplift of three months’ imprisonment therefore exceeds the prior sentences for previous offending. In my view, while an uplift was warranted, it ought to be limited to one month’s imprisonment.
[24] Second, I consider that the discount of 15 per cent did not sufficiently reflect Mr McLaren’s personal circumstances.
19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
20 Ripia v R [2011] NZCA 101 at [15].
21 At [15].
22 See Rako v R, above n 17; Keenan v Police, above n 17; Walsh v Police, above n 17; Edwards v Police, above n 17; Tiopira v Police, above n 17.
23 Orchard v R, above n 14, at [41] (footnote omitted).
[25] The s 38 report outlines much of Mr McLaren’s background trauma and immense struggle.24 The summary states:
Mr. McLaren is a troubled young Māori man with a past history of severe familial abuse and trauma, failure and bullying at school and involvement in criminal activity as a young person. As an adult Mr. McLaren has lacked employable skills and his drugs habits and his rejection of his whānau has resulted in his living rough on the streets. Mr. McLaren is currently consumed by a focus on command voices that he says are constantly messaging encouragement to self-harm or to harm others. He is desperately afraid that he might be induced to act on these commands and seeks help to ablate them. Although obsessed with the situation, he does not present with other symptomatic evidence of psychosis, such as irrational beliefs or delusional thought processes. His mental health records suggest the possibility of drug induced psychosis, but lack psychiatric evaluation. It would be reasonable to assume, however, that in the current circumstances Mr. McLaren is at risk of self-harm and, potentially, a risk to others.
[26] At the appeal, counsel for Mr McLaren was able to provide me with two assessments by a psychiatrist, one before Mr McLaren’s sentencing, and one after. The clinician has made a provisional diagnosis of paranoid schizophrenia, and a firm diagnosis of cannabis dependence. It would not be surprising if the two are found to be interlinked. The report goes on to indicate that Mr McLaren is reporting near- constant auditory hallucinations. A referral for admission to Purehurehu, a secure psychiatric assessment facility, has been made.
[27] In Poi v R the Court of Appeal granted a 20 per cent discount to acknowledge the appellant’s severe deprivation and disadvantage.25 The Court said:26
In accordance with the principles we have outlined at [23] to [27] above, it is our view that Mr Wilson’s culpability for the offending is diminished by his background circumstances. That is not to say, of course, that he has no culpability or that he bears no responsibility for the choices he has made. Mr Wilson’s culpability for this offending is significant (as reflected in the lengthy prison sentence imposed). But we accept that Mr Wilson’s background and the profound trauma he has suffered have severely limited his choices, distorted his values, impaired his decision-making and resulted in him coming under the negative influence of the Mongrel Mob gang.
24 This includes receiving “hidings” from his step-father, having a gun pointed to his head as a child, being around family violence from a young age, living on the streets, and using methamphetamine and synthetic cannabis.
25 Poi v R [2020] NZCA 312 at [39].
26 At [36].
[28] The Court also usefully noted the observations of the High Court of Australia in Bugmy v R, where they stated:27
Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[29] The appellant’s upbringing bears many of the hallmarks described in Poi v R.28 They include family dysfunction and violence, time in care, limited education, and alcohol and drug abuse.
[30] In addition to deprivation and cultural dislocation, Mr McLaren also suffers from cannabis dependence and, it seems, has a significant psychotic mental illness. Given the combination of addiction, age, mental illness and history of abuse and deprivation, I consider a 25 per cent discount is appropriate.
[31]I therefore impose a sentence of 5 month’s imprisonment calculated as follows:
(a)I adopt a starting point of 9 months’ imprisonment;
(b)I apply a discount of 50 per cent to reflect plea and personal circumstances;
(c)I then add a one month uplift for previous offending, bringing a total of five and a half month’s imprisonment, which I then discount to five months on the basis of totality, with leave to apply for home detention. Cancellation of the existing 80 hours of community work is confirmed.
[32] I do not consider this to be ‘tinkering’. Even though the original sentence imposed was relatively short, the total adjustment is a reduction of slightly less than
30 per cent. The Courts have tended to define tinkering by reference to the proportionate reduction,29 rather than the period involved, and in any case, I note
27 Poi v R, above n 25, at [37]. See also Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [43].
28 Poi v R, above n 25, at [34].
29 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at SAB5.02.
Dobson J’s accurate observation in Snowball v Police that the relative importance of correctly factoring in mental impairment on sentencing may warrant even a small reduction.30
Isac J
Solicitors:
Crown Solicitor’s Office, Napier Public Defence Service, Napier
30 Snowball v Police [2019] NZHC 143 at [20].
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