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 again forceful enough to impede her breathing. In total there were in the order of six applications of force. The couple’s one year old daughter was asleep on the bed at the time.

[6]    The following morning, and after a further argument, the victim pressed her family harm alarm, alerting the police. Mr McLean was subsequently charged with strangulation, breaching a protection order, threatening to kill, and breaching release conditions.

District Court decision

[7]    The Judge noted that Mr McLean had previous convictions for breaching release conditions and previous convictions for violent or threatening behaviour and that the victim thought that he was going to kill her and that she was scared of retaliation.

[8]    The Judge applied the guidelines adopted by the Court of Appeal  in  Shramka v R to assess the seriousness of Mr McLean’s offending.6 He found that the following aggravating factors were present:

(a)history of serious violence;

(b)vulnerability of the victim (particularly given her status as a protected person and the history of previous violence);

(c)breach of the protection order;

(d)aggravated violence (including prolonged and repeated strangulation); and

6      Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.

(e)the threats to kill the victim.

[9]    The Judge noted that there was prolonged and repeated strangulation and found the offending was at the higher end of moderate. He fixed a starting point of three years’ imprisonment which he then uplifted by two months for the breach of the protection order and the threatening to kill charge. He considered uplifting for the breach of release conditions charge but ultimately elected not to do so because it engaged the same factual issues as referenced in the breach of protection order charge. Accordingly, he arrived at a provisional sentence of three years and two months’ imprisonment.

[10]   The Judge then referred to Mr McLean’s s 27 report, which he said established a causative link between Mr McLean’s background of physical and sexual abuse and the offending. He noted that Mr McLean was a s 501 deportee7 who was not provided with assistance to reintegrate in New Zealand when he returned. He referred also to Mr McLean’s participation in a restorative justice conference for which the Judge said he was entitled to credit.

[11]   The Judge did not accept that a full discount of 25 per cent was available for Mr McLean’s guilty plea. He also declined to give Mr McLean a discount for remorse for the reason that this was not the first violent offending against the victim, the remorse was proffered for sentencing purposes and was, in any event, no greater than that implicit in (and rewarded by) his guilty plea.

[12]   The Judge allowed a  total,  undifferentiated,  discount  of  30  per  cent,  or 11 months, arriving at a sentence of two years and three months’ imprisonment.     He then then uplifted this by three months for Mr McLean’s previous offending, arriving at an end sentence of two years and six months’ imprisonment.

7      Migration Act 1958 (Australia)

Law on appeal

[13]   This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.8 Otherwise, the Court must dismiss the appeal.9

[14]   The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.11

Submissions

Starting point

[15]   For Mr McLean, Mr Lang submits that the starting point of three years’ imprisonment on the lead charge of strangulation was too high. He says that despite the number of aggravating features it is important that the “intensity” of those factors is taken into consideration when assessing the gravity and comparing the offending to other similar offending.

[16]   Mr Lang accepts that there were up to six separate applications of force to the victim’s throat, making the offending aggravated. He submits, however, that the applications of force were transitory, and the victim never lost, nor appears to have come close to losing, consciousness.

[17]   Mr Lang further submits that although the threats to kill were an aggravating feature they were otherwise recognised by a specific uplift for the threatening to kill charge, so care must be taken to avoid double counting. He points out that the victim

8      Criminal Procedure Act 2011, s 250(2).

9      Section 250(3).

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

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

appears to have consented to Mr McLean’s presence at the property making the breach less serious than cases involving non-consensual association.

[18]   Mr Lang accepts that although the offending could be categorised as moderate in Shramka terms, it was less serious than in that particular case. He cites a range of cases which he considers analogous and which he says provide context for the application of the three stage categorisation first discussed in Ackland v Police12 and endorsed in Shramka.13 He submits that a starting point of two years and eight months’ imprisonment is appropriate for Mr McLean’s offending.

[19]   For the Crown, Ms Lee submits that the aggravating feature of harm to associated persons is also engaged, due to the presence of the one year old child in the bedroom at the time of the second stage of the assault.14 She submits that the starting point may be considered to be at the higher end of the available range but was not manifestly excessive.15

Combined discount

[20]   Mr Lang submits that a 30 per cent discount for Mr McLean’s guilty plea, attendance at restorative justice, and cultural factors, was inadequate.

[21]   He submits that Mr McLean entered a guilty plea at his first case review hearing, after the police agreed to withdraw a second strangulation charge, and charges of assault on a person in a family relationship and wilful damage. He submits that  Mr McLean was entitled to a 20 per cent reduction for this, in accordance with Hessell v R.16

[22]   He further submits that a reduction of  five  per cent  was  appropriate  for  Mr McLean’s attendance at a restorative justice conference and that the s 27 report indicates a range of factors which are likely to have contributed to his offending,

12     Ackland v Police [2019] NZHC 312.

13     Hopa v R [2023] NZCA 320; Schell v Police [2023] NZHC 636; Miller v Police [2022] NZHC 2636.

14     See Shramka v R, above n 6, at [42(h)].

15     Counsel refers to Jackson v Police [2023] NZHC 1100.

16     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

including the instability of his upbringing; socioeconomic deprivation; normalisation of violence; childhood sexual abuse; limited education; and family mental health issues. He says that there was a clear causative link between Mr McLean’s background and the offending and that a discount in the range of 15 per cent would have been appropriate in the circumstances.

[23]He therefore contends for total discounts of 40 per cent.

[24]   By contrast Ms Lee says that although, in a sentencing vacuum, the discounts may appear less than those given in analogous cases, it is important to step back and consider the end sentence which was not manifestly excessive having regard to the fact that the Judge adopted a benign approach to uplifts.

Discussion

Starting point

[25]   The guideline case for strangulation is Shramka v R.17 There the Court of Appeal identified eight primary aggravating factors relating to the offence. Rather than suggesting bands based on the number of factors present, it provided examples as reference points for comparison in future sentencing.18

[26]   I consider the three year starting point adopted by the Judge a firm response to the offending but not outside the available range. There were a significant number of Shramka aggravating factors in play, namely:

(a)A history of very serious domestic violence involving the same victim. I refer in this context to his 2022 conviction for assault with stabbing or cutting instrument.

(b)Vulnerability of the victim given the history of previous violence and the fact that she was, at the time, subject to a protection order.

17     Shramka v R, above n 6.

18     At [42]–[45].

(c)Breach of the protection order recognising the right of the victim not to be harmed in her own dwelling, whether the offender was present with her permission or not.

(d)Aggravated violence given that the act of strangulation was repeated on multiple occasions.19

(e)Threats to kill, adding to the coercive nature of the offending and the victim’s trauma—noting the report of the Restorative Justice Trust that the victim “thought you were going to take my life tonight … I thought you were going to kill me in front of my children”.

(f)Offending in the presence of children, noting that the couple’s one year old child was on the bed at the time.20

[27]   I accept that the evidence is that the defendant did not lose consciousness and that, unlike in Shramka, the strangulation was not accompanied by any other type of assault.21 However, the duration of the offending—with multiple discrete applications of force—as well as the other factors referred to above, securely anchors the case within the mid to upper end of the moderate category for which a three year starting point is in range.

[28]   Nor am I dissuaded from that conclusion by the authorities to which the appellant refers. In the case of Hopa v R a challenge to a two year six month starting point was rejected by the Court of Appeal, with the Court simply noting that the starting point was “available”.22 So too may have been a higher starting point. I note also that in Hopa there was only one application of force with, as in this case, no loss of consciousness. Nor was the victim threatened with death.23

19 Noting that in Shramka the Court identified (at [42]) that repeated strangulations created an increased risk.

20 Mr Lang says that because the baby was asleep, I should exclude this as a consideration. In the absence of evidence that violent offending and threats to kill might have a subconscious influence on sleeping infants, I give the factor comparatively less weight.

21 In Shramka, this was punching to the head.
22 Hopa v R, above n 12.

23 Accepting that in the present case a separate charge of threatening to kill was brought and the importance of avoiding double counting.

[29]   In Schell v Police a starting point of two years four months was challenged on appeal.24 The sentencing judge determined that the offending was at the lower of the three levels identified in Shramka. The Court of Appeal considered the starting point stern but open to the sentencing judge. The case is not comparable having regard to the number of aggravating factors which I have identified.

[30]   Miller v Police was again an unsuccessful appeal.25 It was argued that the starting point of two years four months was too high. That argument was rejected. There was no cross appeal. Again therefore, the case is of limited assistance in determining an appropriate starting point.

Discounts

[31]   As indicated, the Judge applied a  combined  discount  of  30  per  cent for Mr McLean’s guilty plea, participation in a restorative justice conference and factors in the defendant’s background with a causative link to the offending and which therefore reduced his culpability.

[32]   Although the ultimate question is whether the overall sentence is manifestly excessive, not the process by which it was arrived at, I accept it would have been preferrable if the Judge had itemised and made a direct allowance for each of the personal mitigating factors which were relevant. Obviously, that enables cases to be better benchmarked against comparable cases for appeal purposes.

[33]   The Judge indicated that he did not consider a “full” 25 per cent discount appropriate because the guilty plea was not entered at the first available opportunity. However, it was entered at the case review hearing where various other charges were withdrawn. In my view, adopting the fact specific evaluative approach mandated by Hessell v R, a discount of 20 per cent (as submitted by Mr Lang) was appropriate.26 This takes into account the fact that negotiation of the charges proved successful, thus justifying, at least in part, the three month delay in guilty plea entry. It also recognises

24     Schell v Police, above n 12.

25     Miller v Police, above n 12.

26     Hessell v R, above n 15.

that the reduction in the number of charges was itself likely to have been something of a concession in the context of a strong Crown case.

[34]   Although the approach adopted by the sentencing judge was somewhat opaque, this would leave discounts of 10 per cent for the other identified mitigating factors. The issue is whether that is sufficient recognition within the context of the sentence as a whole.

[35]   In respect of participation in the restorative justice conference I consider only a minimal discount was appropriate. The report from the conference indicates that an earlier restorative justice conference had taken place in respect of previous offending against the victim, again with expressions of remorse from the defendant, and that there was at that time agreement on his part to develop “a plan to move forward”—all without any ultimate change in behaviour. No doubt the defendant’s similar expressions of contrition at the second conference appeared somewhat hollow in that context.

[36]   However, to the extent the conference facilitated closure on the victim’s part (expressed in the firm desire that there be no contact with her at all in the future and contact with the defendant’s daughter on a supervised basis only) it may have had some relatively nominal value warranting a small (two to three per cent) discount.

[37]   In respect of Mr McLean’s background, I accept that Dr Jarrod Gilbert’s comprehensive s 27 report speaks to a childhood and adolescence characterised by instability in care and housing, normalisation of violence, childhood sexual abuse, limited (if any) education, excess alcohol consumption and family mental health problems. Mr McLean is in that category of offender, who having come from a large and impoverished family where there was a limited parental skillset, and endemic violence probably stood little chance in life. His adult behaviours simply repeat the cycles to which he was exposed in youth.

[38]   In these circumstances, a notional 10 per cent discount was in my view, inadequate by a factor of five to 10 per cent.27

27     See the discussion in Stevens-Fraser v R [2022] NZHC 3470 at [18] to [21] and the authorities

[39]   I accept as a matter of principle Ms Lee’s submission that I must nevertheless stand back and consider the sentence as a whole. But I do not regard either the initial or subsequent uplifts as particularly benign—especially so if I take the defendant’s threats to kill into account when establishing a starting point for the strangulation charge and avoid double counting (as I do).

[40]   I accept also that adjustments of five to 10 per cent in relation to discounts can come close to tinkering and to therefore undermining the test for appellate intervention. However, coupled with what I consider to be an available but stern starting point, I consider that the principle in s 8(e) of the Sentencing Act 2002— consistency in sentencing levels—mandates a sentence reduction in this case. I adopt therefore, total discounts of 37.5 per cent, being 20 per cent for guilty plea, 15 per cent for background factors and two and a half per cent for participation in the restorative justice conference. The net effect is to reduce the sentence of imprisonment by three months.28

[41]   I urge Mr McLean to participate in all available therapeutic courses in the interim, particularly those directed towards anger management and his admitted alcoholism.

Result

[42]   I allow the appeal and substitute for the existing sentence of two years and six months’ imprisonment a sentence of two years and three months’ imprisonment.

Muir J

collected at fn 15 of that decision indicating discount ranges of 15 to 20 per cent in broadly equivalent circumstances.

28     With a slight rounding up which I consider appropriate.