McLean v The King - [2024] NZHC 1799

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-52

[2024] NZHC 1799

MCKENNA TAMARANGI MCLEAN

v

THE KING

Hearing: 2 July 2024

Appearances:

J Lang and C A Hardy for Applicant P F Lee for Respondent

Judgment:

4 July 2024

JUDGMENT OF MUIR J

Sentence Appeal

This judgment was delivered by me on 4 July 2024 at 12 pm,

………………………………… Registrar/Deputy Registrar

Solicitors:

Public Defence Service Pollett Legal Limited

MCLEAN v R [2024] NZHC 1799

Introduction

[1] The appellant, Mr McLean, pleaded guilty to charges of strangulation,1 breach of a protection order,2 threatening to kill,3 and breach of release conditions.4 On 9 April 2024, he was sentenced by Judge S J Coyle to two years and six months’ imprisonment.5

[2] He now appeals his sentence on the basis that the Judge’s starting point of three years’ imprisonment was excessive and that inadequate discounts were given on account of issues addressed in a s 27 cultural report, attendance at a restorative justice conference and in respect of his guilty pleas.

The facts

[3] Mr McLean and the victim had been in a relationship for two years and have a one year old daughter. A temporary protection order in favour of the victim was issued on 24 August 2023 by the District Court at Tauranga, and Mr McLean was, at the time of offending, subject to release conditions (imposed in relation to an earlier incident of domestic violence involving the victim) which prevented him from associating with her.

[4] On 10 November 2023, Mr McLean was at the victim’s house, in breach of his release conditions. The couple’s one year old daughter was present at the time. Mr McLean, who had stayed up drinking by himself, woke the victim and their daughter by playing music and “banging about”. After the victim put their daughter back to sleep, she left the bedroom and went to Mr McLean in the living area. There he proceeded to place two hands around the victim’s throat and strangle her for four to five seconds. He repeated this several times.

[5] In an attempt to calm him down, the victim took Mr McLean to the bedroom. There he threatened to stab her in the head and said “I’ll kill you”. He threw a photo

1      Crimes Act 1961, s 189A(b). Maximum penalty seven years’ imprisonment.
2      Family Violence Act 2018, ss 90(a) and 112(1)(a). Maximum penalty three years’ imprisonment.
3      Crimes Act, s 306. Maximum penalty seven years’ imprisonment.
4      Sentencing Act 2002, s 96(1). Maximum penalty one year imprisonment or $2,000 fine.
5      Police v McLean [2024] NZDC 7706.

frame against a dresser in the room, smashing the frame and the glass. The victim again attempted to mollify Mr McLean by encouraging him to go to bed. As she lay beside him however, he proceeded to put her in a head lock which impeded her breathing for several seconds. He then repeated this action in a manner…

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 The King

Details

AGLC: McLean v The King [2024] NZHC 1799
Case: [2024] NZHC 1799
Decision Date: 4 July 2024

CaseChat Overview and Summary

In the case of McKenna Tamarangi McLean v The King, the appellant, Mr McLean, appealed his sentence for strangulation, breach of a protection order, threatening to kill, and breach of release conditions. Initially sentenced to two years and six months' imprisonment by Judge S J Coyle, Mr McLean argued that the starting point of three years was excessive and that insufficient discounts were applied for his guilty plea, attendance at a restorative justice conference, and factors detailed in a s 27 cultural report.

The court considered the starting point of three years as appropriate given the significant number of aggravating factors present, including a history of serious domestic violence, vulnerability of the victim, breach of a protection order, repeated strangulation, threats to kill, and the presence of a child during the offence. The court noted that although the strangulation did not result in loss of consciousness and was not accompanied by other types of assault, the duration and multiple discrete applications of force, along with other factors, placed the case within the mid to upper end of the moderate category.

Regarding the discounts, the court found that a 20 per cent discount for the guilty plea was appropriate, acknowledging the successful negotiation of charges and the timing of the plea. The court deemed a minimal discount for the restorative justice conference and a 15 per cent discount for background factors necessary. The total discounts were set at 37.5 per cent, reducing the sentence by three months.

The court allowed the appeal, substituting the sentence of two years and six months' imprisonment with a sentence of two years and three months' imprisonment. The judge urged Mr McLean to participate in therapeutic courses, particularly those focusing on anger management and alcoholism.

Orders