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’ imprisonment respectively, and mandatory disqualification of at least six months for each offence).

2      New Zealand Police v McLean [2023] NZDC 25623.

3      At [15]–[19].

4      At [20]–[21].

5      At [22]–[23].

approach in Longman v Police, Mr McLean would have reached “time served” on his home detention sentence which should be substituted by a combined sentence of community work and supervision.6 Mr Brown, for the Police, accepts that it was an error not to consider Mr McLean’s time in custody and the appeal should be allowed. He agrees that the Judge would have imposed a different sentence altogether if he had turned his mind to it.

[4]    Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied that there has been an error in the sentence imposed and a different sentence should be imposed. I am satisfied there was an error in the sentence imposed, as counsel agree. The way in which time remanded in custody is reflected in a sentence of home detention is an evaluative decision.7 There is a difference between High Court and Court of Appeal authorities as to whether the time in prison should be deducted from the starting point of imprisonment before it is converted to home detention or deducted on a one-for-one basis from the sentence of home detention.8 But it is an error not to take it into account at all and which method is used makes little difference here. An offender should be in no worse position, in terms of their time on home detention, than they would have been if the sentence had not been commuted to home detention.9 In light of Mr McLean’s 160 days remanded in custody, his end sentence of four months’ home detention was manifestly excessive.10 He had effectively already served his sentence. The end sentence was not within the range available.11 And he has now completed a month of home detention.

[5]    The existing sentences of community work, fines, and disqualifications will remain in place. There should be some credit given for the month spent on home detention. I quash the sentence of home detention and substitute instead a sentence of:

6      Longman v New Zealand Police [2017] NZHC 2928.

7      Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [14].

8      See the discussions in Mason v Police [2022] NZHC 1845 at [35] and Kirikino v Police [2023] NZHC 1821 at [19]–[21]. See Simon France (ed) Adams on Criminal Law — Sentencing (looseleaf ed, Thomson Reuters) at [SA.82.03].

9      Mason v Police, above n 8, at [35].
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].

11 Ripia v R [2011] NZCA 101 at [15].

(a)six months’ supervision for unlawful possession of a firearm, with special conditions:

(i)not to possess, use or consume alcohol or controlled drugs or any psychoactive substances unless they are prescribed by a doctor; and

(ii)to attend an assessment for an alcohol and drug programme and to attend and complete any counselling or treatment or programmes that come out of that assessment;

(b)three months’ supervision, to run cumulatively, for careless driving causing injury; and

(c)two months’ supervision, to run concurrently, for presenting an object that looked like a firearm.

Palmer J