McLean v Police - [2018] NZHC 102

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-441-45 [2018] NZHC 102

BRIAN JOHN PERCY MCLEAN

v

NEW ZEALAND POLICE

Hearing: 7 February 2018

Appearances:

W Hawkins for Appellant
CC Gullidge for Respondent

Judgment:

13 February 2018

JUDGMENT OF CHURCHMAN J

Introduction

[1] Mr McLean pleaded guilty to one charge of assault with intent to injure.1 On

15 November 2017 in the Napier District Court, Judge Rea sentenced Mr McLean to

12 months’ imprisonment with six months of release conditions.2

[2] Mr McLean appeals his sentence on the basis that the sentence of imprisonment was manifestly excessive. Mr Hawkins for the appellant submits that Judge Rea failed to give measured consideration to imposing a sentence of home detention because:

(a) the Judge wrongly focused on the sentencing principles of denunciation

1 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2 New Zealand Police v McLean [2017] NZDC 25984.

MCLEAN v NEW ZEALAND POLICE [2018] NZHC 102 [13 February 2018]

and deterrence to the exclusion of other sentencing principles, in particular the rehabilitation of the appellant; and

(b)the sentencing Judge considered that home detention could not serve to denounce and deter the appellant.

[3] The Crown opposes the appeal and Mr Gullidge argues that it was open to the sentencing Judge to focus on the principles of denunciation and deterrence as opposed to rehabilitation given that the appellant is aged in his mid-forties and has over 100 previous convictions, including several convictions for violence. It is further argued that the end sentence of 12 months’ imprisonment was the least restrictive sentence available that would sufficiently denounce and deter the appellant given the gratuitous violence involved in the offending and his lengthy conviction history. Issues that arise in this appeal are whether the Judge erred in focusing solely on deterrence and whether a sentence of home detention adequately serves the principles of denunciation and deterrence.

Factual background

[4] The charge of assault with intent to injure arose from an incident on

15 September 2017. Mr McLean entered the Maraenui TAB at about 8.30pm and approached an associate in the gaming room. He was agitated at the time and, shortly after speaking quickly to his associate, he left the gaming room, appearing angry.

[5] As Mr McLean began to leave the TAB, he looked around and saw the victim looking at him. He yelled out to the victim, asking, in crude language, what he was looking at. He then approached the victim, who was sitting down at a bar leaner, drinking a beer at the time. Without warning, Mr McLean hit the victim in the side of the head in the region of his temple, once, with a round house punch. This immediately knocked the victim unconscious and he fell to the ground, hitting his head on the bar leaner rail as he did so. Mr McLean then left the TAB, challenging people who wanted to intercept him.

[6] The victim remained…

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 [2018] NZHC 102
Case: [2018] NZHC 102
Decision Date: 13 February 2018

CaseChat Overview and Summary

The appeal in McLean v Police is brought by the appellant, Brian John Percy McLean, against the sentence of imprisonment imposed by the District Court for one charge of assault with intent to injure. The respondent, New Zealand Police, opposes the appeal. The appellant pleaded guilty to the charge of assault with intent to injure on 15 November 2017. The sentencing judge adopted a starting point of 16 months’ imprisonment, reducing this by four months to recognise the appellant’s guilty plea. The judge imposed a sentence of 12 months’ imprisonment with six months of release conditions. The appellant appealed the sentence on the basis that the sentence of imprisonment was manifestly excessive. The Court of Appeal found that the sentencing judge erred in focusing solely on the purposes of denunciation and deterrence, and in failing to properly consider home detention as an option. The Court substituted the sentence of 12 months’ imprisonment with a sentence of four and a half months’ home detention, which takes into account time already spent in custody. The sentence of home detention is subject to the special conditions set out in para [46] of this decision. The varied sentence will commence on 13 February 2018.

Orders