McLean v Police - [2023] NZHC 3724

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-36

[2023] NZHC 3724

BETWEEN
TRE MCLEAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 December 2023

Appearances:

E C Killeen for the Appellant N H Brown for the Respondent

Judgment:

15 December 2023

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors
E C Killeen, Barrister & Solicitor, Palmerston North Crown Solicitor, BVA The Practice, Palmerston North

MCLEAN v NEW ZEALAND POLICE [2023] NZHC 3724 [15 December 2023]

[1] Mr Tre McLean, now aged 21, has pleaded guilty to three firearms offences and three driving offences.1 They arose out of three separate incidents where he: pointed an imitation firearm at a complainant at the Highfield Lookout in Fielding on 24 December 2021; fled from Police in his car, lost control and seriously injured a passenger on 15 April 2022; and was found to have a stolen vehicle, sawn-off shotgun and ammunition at his house on 22 December 2022. He has no previous convictions. Mr McLean was remanded in custody on 23 December 2022. On 29 May 2023, he was granted electronically-monitored (EM) bail to his aunt’s house in Manurewa, Auckland, with a 24-hour curfew.

[2] On 16 November 2023, in the District Court at Palmerston North, Judge D G Smith sentenced Mr McLean to four months’ home detention and 60 hours’ community work, as consistent with the pre-sentence report of the Department of Corrections.2 The Judge set a starting point of 18 months’ imprisonment for the two lead firearms offences, added eight months for the two lead driving offences, and adjusted that to 22 months to reflect the totality of the offending.3 The Judge discounted the sentence by 25 per cent for Mr McLean’s guilty pleas, and six months for his youth, background of instability, violence, and drug use and deducted two months and three weeks for Mr McLean’s five and a half months on EM bail.4 That resulted in an end sentence of seven months and three weeks’ imprisonment, which the Judge converted to four months’ home detention with six months’ post-detention conditions. Mr McLean was also fined for the other offences and ordered to complete 60 hours of community work.5

[3] Mr McLean appeals the sentence on the sole basis that the Judge did not take into account the time he was remanded in custody. He spent 160 days in prison before he was granted EM bail. Ms Killeen, on his behalf, submits that, following the

1 Unlawful possession of a firearm and ammunition and presenting an object that looks like a firearm; Arms Act 1983, ss 45, 22B, and 52(2) (maximum penalties of four years’ imprisonment, a $10,000 fine, and six months’ imprisonment respectively). Unlawfully getting into a vehicle, failing to remain stopped, and careless driving causing injury; Crimes Act 1961, s 226(2) (maximum penalty of two years’ imprisonment); and Land Transport Act 1998, ss 52A(1)(b), 52A(3), 52A(6), 114, and 38(1)(a) (maximum penalties of a $10,000 fine and three months’…

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 McLean v Police

Details

AGLC: McLean v Police [2023] NZHC 3724
Case: [2023] NZHC 3724
Decision Date: 15 December 2023

CaseChat Overview and Summary

Tre McLean, the appellant, appealed the sentence imposed by the District Court against the respondent, New Zealand Police. The appeal arose from three firearms offences and three driving offences that occurred over three separate incidents. The appellant was sentenced to four months' home detention and 60 hours of community work. The appeal was based on the appellant's contention that the District Court judge did not take into account the 160 days he spent in custody before being granted electronically monitored bail. The court was required to decide whether the error in not considering the appellant's time in custody warranted a different sentence being imposed. The court held that the District Court judge's failure to consider the appellant's time in custody constituted an error, as it led to an excessive sentence of home detention. The court quashed the sentence of home detention and substituted it with a sentence of six months' supervision for unlawful possession of a firearm, three months' supervision for careless driving causing injury, and two months' supervision for presenting an object that looked like a firearm. The existing sentences of community work, fines, and disqualifications would remain in place, with some credit given for the month spent on home detention.

Orders