McLaren v The Queen - [2014] NZHC 3274

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-000043 [2014] NZHC 3274

TELEISHA MCLAREN

v

R

Hearing: 15 December 2014

Appearances:

H T Young for Appellant
S N McKenzie for Crown

Judgment:

17 December 2014

JUDGMENT OF DUNNINGHAM J

Introduction

[1] In August 2014, Ms Teleisha McLaren pleaded guilty to one count of each of the following:

(a) injuring with intent to injure;1

(b) kidnapping;2

(c) threatening to do grievous bodily harm;3 and

(d) driving while forbidden.4

1      Crimes Act 1961, s 189(2).
2      Crimes Act 1961, s 209.
3      Crimes Act 1961, s 306(1)(a).
4      Land Transport Act 1998, s 52(1)(c).

MCLAREN v R [2014] NZHC 3274 [17 December 2014]

[2] On 13 November 2014, Judge Crosbie sentenced her to two years and four months’ imprisonment on the lead charge of injuring with intent to injure. On each of the kidnapping and threatening to do grievous bodily harm charges, the Judge sentenced her to six months’ imprisonment, to be served concurrently with the sentence on the alleged charge. On the driving charge she was convicted, discharged, and disqualified from driving for six months.

[3] Ms McLaren now appeals against that sentence. She submits that there were errors in the determination of the sentence and, as a result, it was manifestly excessive.

Background

[4] The relevant background all relates to events occurring in July 2014, when

Ms McLaren was 18 years old.

[5] On 9 July 2014, Ms McLaren was stopped in Invercargill and found to be driving while forbidden.

[6] On 10 July 2014, Ms McLaren’s mother refused to return her two year old daughter until Ms McLaren cleaned up her house. Ms McLaren went to the police station and complained to police that her child was being kidnapped. She said to a police staff member “if she is going to kidnap my daughter, I will slit her throat”.

[7] At around 10.00 pm on 20 July 2014, Ms McLaren and her co-offender, Ms Crystal Murray, were at a house in Invercargill. They had been drinking for around five hours. This is where the events leading to the injuring with intent to injure took place.

[8] The victim of this offending is Ms Murray’s flatmate. Dr Jim Roache, a psychologist, reports that she is intellectually disabled. While she presents as a “likeable and friendly” young woman with a relatively normal vocabulary, she has significantly restricted cognitive abilities.

[9] Ms McLaren and Ms Murray went to the bedroom to discuss allegations that the victim had been “making things up” and talking about Ms Murray in a pejorative way behind her back. Upon emerging from the bedroom, they attacked the victim.

[10] They took the victim’s cellphone so she could not call the police. They also took her glasses so she could not see properly. Over the course of the attack, which lasted between 30 and 45 minutes, they prevented her from leaving on at least four separate occasions.

[11] The assault began by both Ms McLaren and Ms Murray…

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 McLaren v The Queen

Details

AGLC: McLaren v The Queen [2014] NZHC 3274
Case: [2014] NZHC 3274
Decision Date: 17 December 2014

CaseChat Overview and Summary

McLaren appeals her sentence of imprisonment for injuring with intent to injure, kidnapping, threatening to do grievous bodily harm and driving while forbidden. The appeal was heard by Dunningham J in the High Court at Invercargill. The appeal was based on the contention that the sentence was manifestly excessive because of errors in the determination of the sentence. The appeal was allowed in part. McLaren’s sentence of disqualification from driving for six months was quashed.

The Court considered four grounds of appeal. The first was that the Judge misstated the facts because he proceeded on the basis of an outdated summary of facts. The Court accepted that this was an error in the sentencing process. The Court found that it was preferable to consider the totality of the facts and decide the starting point independently of the Judge. The second ground of appeal was that the starting point adopted on the lead charge was too high. The Court found that the starting point of three years and three months’ imprisonment was within range and there was no reason to begin with a different starting point. The third ground of appeal was that the three uplifts imposed were too high. The Court found that a total uplift of three months for the kidnapping, threatening and bail charges was excessive, and reduced the uplift to two months for the threat and one month for offending while on bail. The final ground of appeal was that the Judge had no power to disqualify McLaren from driving. The Court found that the Judge’s power was limited to a fine only and quashed the disqualification from driving. The Court declined to modify the sentence, finding that it would be mere tinkering.

Orders