[1] Benjamin McLean pleaded guilty to and was convicted of seven sets of offending, totalling 19 charges, on 19 October 2021 and 23 December 2021. These are charges of failing to stop,1 dangerous driving,2 theft,3 breach of community work,4 wilful damage,5 breach of a protection order,6 assault on a person in a family

1      Land Transport Act 1998, ss 52A(1)(a)(ii), (2), (3), and (6), and 114(2): maximum penalty a fine not exceeding $10,000 and a mandatory disqualification for six months.
2      Section 35(1)(b) and (2): maximum penalty three months’ imprisonment or a fine not exceeding
$4,500 and a mandatory disqualification for six months or more.
3      Crimes Act 1961, ss 219 and 223(b), (c) and (d): maximum penalty variously seven years’ imprisonment, one year’s imprisonment or three months’ imprisonment.
4      Sentencing Act 2002, s 71(1)(f): maximum penalty three months’ imprisonment or a fine not exceeding $1,000.
5      Summary Offences Act 1981, s 11(1)(a): maximum penalty three months’ imprisonment and a fine not exceeding $2,000.
6      Family Violence Act 2018, ss 9, 90(a), and 112(1)(a) and (b) and (3): maximum penalty three years’ imprisonment.

McLEAN v NEW ZEALAND POLICE [2022] NZHC 1802 [25 July 2022]

relationship7 and assault with a weapon.8 Mr McLean was sentenced by Judge Brandts-Giesen to home detention for eight months and two weeks and 80 hours of community work on 24 March 2022.9 Mr McLean appeals that sentence.

Facts

[2] Mr McLean committed a number of offences on seven occasions in a seven month period in 2021.

[3]The tranches were:

(a)Tranche A — four counts of theft (value under $500), driving in a dangerous manner (representative), and failing to stop when followed by red and blue flashing lights (representative)

(b)Tranche B — theft (value under $500)

(c)Tranche C — theft (value over $1,000), theft (value under $500) and breach of community work.

(d)Tranche D — theft (value under $500)

(e)Tranche E — assault on person in family relationship, three counts of contravening a protection order, wilful damage and assault with a weapon

(f)Tranche F — theft (value over $1,000)

(g)Tranche G — theft (value between $500 and $1,000).

7      Crimes Act, s 194A: maximum penalty two years’ imprisonment.
8      Section 202C: maximum penalty five years’ imprisonment.
9      Police v McLean [2022] NZDC 5134.

District Court decision

[4] Mr McLean accepted two different sentence indications, one from Judge Walker for tranches A and B of offending, and one from Judge Brandts-Giesen for the other tranches of offending. When Judge Brandts-Giesen sentenced Mr McLean, he considered both sentence indications, and also added a home detention sentence in remitting Mr McLean’s outstanding fines.

[5]The sentence the Judge imposed is reflected in my Table…

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 [2022] NZHC 1802
Case: [2022] NZHC 1802
Decision Date: 25 July 2022

CaseChat Overview and Summary

In McLean v Police, Benjamin McLean appealed against his sentence for a series of offences, arguing that the sentence imposed by the District Court was manifestly excessive. The District Court had sentenced McLean to home detention for eight months and two weeks and 80 hours of community work. The appeal centred on the extent of the discount applied for time spent in custody and on electronically monitored (EM) bail. The High Court considered the arguments of both parties, focusing on the appropriate discount for the time spent in custody, the time spent on EM bail, and the factors of remorse and cultural background. The Court determined that a five-month discount should have been applied for the time spent in custody, a three-week discount for the time spent on EM bail, and a 15 per cent discount for remorse and cultural issues. The Court concluded that the appropriate end sentence should be five months’ home detention, including the cumulative two-week period for the remission of fines. The Court quashed the original sentence and replaced it with a term of five months’ home detention, while maintaining the other conditions of the sentence.

Orders