McLaren v Police - [2021] NZHC 742

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

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: [2021] NZHC 742
Decision Date: 1 April 2021

CaseChat Overview and Summary

Dominic McLaren appeals his seven-month imprisonment sentence for using a document for pecuniary advantage, arguing that the sentence was manifestly excessive and that the District Court judge should have provided greater discounts for his personal circumstances and previous convictions. The High Court accepted the appeal, finding that the sentence was excessive, and substituted a five-month imprisonment sentence with leave to apply for home detention. The District Court judge had set a starting point of nine months, reflecting the appellant’s extensive offending. The appellant had amassed approximately $5,613.24 in fraudulent transactions through 68 separate dealings over four days. The District Court judge imposed a three-month uplift for the appellant’s previous convictions, and a 15 per cent discount for personal circumstances, resulting in a seven-month sentence. The appellant argued that the uplift was disproportionate and that a greater discount was appropriate given his mental illness, traumatic upbringing, and addiction. The High Court found that the three-month uplift was disproportionate and should be limited to one month, and that the 15 per cent discount did not sufficiently reflect the appellant’s personal circumstances. The High Court imposed a sentence of five months’ imprisonment, with a 50 per cent discount for plea and personal circumstances, and a one-month uplift for previous convictions, bringing the total to five and a half months, discounted to five months for totality, with leave to apply for home detention.

Orders