McLean v The the King
[2022] NZHC 2902
•7 November 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2022-412-000038-41
[2022] NZHC 2902
BETWEEN ALEXANDER IAN MCLEAN
Appellant
AND
THE KING
Respondent
Hearing: 26 October 2022 Appearances:
L S Collins for Appellant
M E A Brosnan for Respondent
Judgment:
7 November 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 7 November 2021 at 11.00 am.
Registrar/Deputy Registrar Date:
MCLEAN v THE KING [2022] NZHC 2902 [7 November 2022]
Introduction
[1] The appellant, Alexander McLean, was sentenced in the District Court1 to three years and two months’ imprisonment in respect of two charges of entry onto agricultural land with intent to commit an imprisonable offence;2 one charge of attempting to pervert the course of justice;3 three charges of unlawful possession of ammunition;4 one charge of unlawful hunting;5 one charge of attempted unlawful hunting;6 four charges of driving whilst disqualified (third or subsequent);7 one charge of intentional damage;8 and one charge of failing to supply information under the Land Transport Act 1998.9
[1]Mr McLean appeals the decision on the grounds that:
(a)the starting point was excessive;
(b)the Judge double counted Mr McLean’s previous convictions by considering them as an aggravating factor increasing the starting point and applying an uplift for them; and
(c)insufficient weight was placed on Mr McLean’s rehabilitative prospects and the desirability of keeping him in the community.
1 R v McLean [2022] NZDC 18937.
2 Crimes Act 1961, s231A(1) and (2); maximum penalty 10 years’ imprisonment.
3 Crimes Act, s 117(e); maximum penalty 7 years’ imprisonment.
4 Arms Act 1983, s 45(1)(b); maximum penalty 4 years’ imprisonment and/or a fine not exceeding
$5,000.
5 Wild Animal Control Act 1977, ss 8(2) and 39(1); maximum penalty 2 years’ imprisonment and/or a fine not exceeding $100,000.
6 Wild Animal Act, ss 8(2) and 39(1); and Crimes Act, s 311(1); maximum penalty 1 year imprisonment and/or a fine not exceeding $50,000.
7 Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty 2 years’ imprisonment or a fine not exceeding $6,000. The offender must also be disqualified from holding or obtaining a driver licence for 1 year or more.
8 Summary Offences Act 1981, s 11(1)(a); maximum penalty 3 months’ imprisonment or a fine not exceeding $2,000.
9 Land Transport Act, s 52(6)(a) and (7); maximum penalty a fine not exceeding $20,000.
Facts
[2]Prior to the present offending, Mr McLean had his firearms licence revoked on
23 October 2018 (he was deemed to not be a fit and proper person) and was disqualified from driving for 18 months starting 29 April 2020.
Intentional damage
[3] Around 10 pm on 25 November 2020, Mr McLean and an associate drove to Lake Onslow and approached a hut belonging to his ex-partner’s family. With a knife, he twice punctured the water tanks which supplied the hut with water. A window was also damaged.
Driving whilst disqualified and unlawful possession of ammunition
[4] At about 12.30 on 9 December 2020, Mr McLean was driving his car on State Highway 8 between Roxburgh and Alexandra. Police stopped him at Alexandra, and the vehicle was impounded for 28 days. Mr McLean was seen putting a box of rifle ammunition in his backpack which led to a search of the vehicle. Police found three rounds of seven-millimetre ammunition in a magazine, a 12-gauge shotgun round, and six .410-bore shotgun rounds.
Driving whilst disqualified and unlawful possession of ammunition
[5] On 15 April 2021, Mr McLean was driving his car and spotted police. He stopped suddenly and erratically and was seen changing seats with the passenger. When searched, police found on Mr McLean three rounds of seven-millimetre Rem Mag bullets, five rounds of .30-30 Winchester bullets, one .410-bore shotgun bullet, and one 12-gauge rubber shotgun bullet.
Entering onto agricultural land with intent to commit an imprisonable offence, unlawful hunting, attempted unlawful hunting, unlawful possession of ammunition, and attempting to pervert the course of justice
[6] On 13 May 2021, in the afternoon, Mr McLean and a youth drove in his partner’s car to the Hindon Road area. They had several pig dogs and hunting equipment. Mr McLean lacked the necessary hunting permit and the permission of
relevant persons. The two parked up and moved along the railway lines. GPS data from the dogs’ collars demonstrated they had proceeded to hunt along the railway lines and two stations of agricultural land adjoining the lines. When arrested by police, Mr McLean’s car was searched. In it, 90 rounds of .22 ammunition and 10 rounds of
.308 bullets were found. Mr McLean claimed the ammunition was his girlfriend’s. Subsequently, on 15 May, Mr McLean applied for a relevant permit and, upon receipt, doctored it to make it appear as if it was valid for the date on which he was hunting. He used his lawyer to get the document to police, who then contacted the Department of Conservation and discovered the deception.
Driving while disqualified, entering agricultural land with intent to commit an imprisonable offence
[7] On 6 August 2021, Mr McLean signed a bail variation to permit him to attend a wedding in Christchurch. His curfew was suspended from 10 am on 6 August until 1 am on 8 August for this purpose. There were bail conditions that he not drive a motor vehicle, not go hunting and not enter agricultural or conservation land between those times.
[8] At about 11.30 pm on 6 August, Mr McLean drove to a locked gate on Mt Allen Road, Mosgiel. The gate and property are owned and managed by a forestry company. Only workers or permitted hunters have keys to access the block, and then only during daylight hours. Mr McLean used a portable angle grinder he had with him to cut the padlock to the gate to gain entry. He then spent nearly three hours hunting wild animals before leaving. He drove his car to a garage in Outram, fuelled up, and drove off.
Driving whilst disqualified, failing to provide information
[9] On Saturday 22 August 2021 at about 6 pm, Mr McLean and three associates arrived at an address in Momona to purchase a car he had seen for sale on Facebook. He took the car for a test drive, leaving the property and driving on a public road. After buying the car, Mr McLean drove it away on public roads. At about 9.40 am on 30 August, that car was seen driving at speed on Milton Highway. Police endeavoured to stop the vehicle using flashing lights and sirens, but the vehicle failed to stop. That
evening, police issued the defendant a notice under the Land Transport Act requiring him to identify the driver. He had 14 days to do so, and he failed to provide the information.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.11
District Court decision
Starting point
[11] The Judge adopted the approach suggested by the Crown and broke the charges down into four sets, aiming to set a starting point for each set before making an appropriate totality adjustment. The four starting points led to a combined starting point of 60 months’ imprisonment (five years), which was reduced by 20 per cent for totality to a final figure of 48 months’ imprisonment (four years).
[12] The first set the Judge considered was the wilful damage charge. The Judge accepted a discrete, cumulative starting point was appropriate for this charge. He found this offending was different in kind and separated in time to the rest of Mr McLean’s offending. He also observed that this starting point reflected the inconvenience and harm caused to the victim. A starting point of one month’s imprisonment was set.
[13] The second set of charges concerned the entry onto agricultural land with intent to commit an imprisonable offence (taken as the lead charge for this set), unlawful
10 Criminal Procedure Act 2011, ss 250(2) and 250(3).
11 Ripia v R [2011] NZCA 101 at [15].
hunting, attempted unlawful hunting, and unlawful possession of ammunition charges. The Judge first turned to the entry charge. Given the similarities between this relatively new charge and burglary, the Judge viewed considerations relevant to burglary as applicable. The bringing of dogs, hunting equipment, an angle grinder to gain entry, and the distance between where he lived and where the offending occurred all pointed to premeditation. The premeditation, as well as there being two charges, gave rise to a starting point of 14 months’ imprisonment. Turning to the remainder of the charges, the Judge highlighted this was repeat offending, involved persistent behaviour, and concerned a quantity of ammunition possessed by Mr McLean despite him having been deemed unfit to be in charge of firearms. A starting point of 12 months’ imprisonment was used to reflect this. The second set therefore attracted a total starting point of 26 months’ imprisonment.
[14] The third set was Mr McLean’s attempt to pervert the course of justice. The Judge applied a starting point of 18 months’ imprisonment. He referred to R v Jones, where the defendant edited videos to conceal his offending.12 The Judge found Mr McLean’s offending to be less serious than cases involving intimidation of witnesses but found the offending serious enough to warrant the starting point.
[15] The fourth set of offending concerned the driving while disqualified and failing to give information charges. The Judge recognised Mr McLean had five similar previous convictions. He found the offending was plainly premeditated, persistent, and involved flouting a court order, sometimes to facilitate other offending. The Judge considered his adopted figure of 15 months’ imprisonment was generous.
[16] The final starting point reached was 60 months’ imprisonment. A totality reduction of 20 per cent brought this to 48 months.
Uplift
[17] Mr McLean’s relevant previous convictions were assessed as warranting an uplift. The Judge did not consider his previous driving whilst disqualified convictions in reaching this conclusion. Mr McLean was also subject to sentence for the
12 R v Jones [2018] NZHC 984.
November, December, and April offending and had been on bail since 9 December 2020. Taken together, the Judge found a 15 per cent uplift was warranted.
Discounts
[18] The Judge acknowledged that both counsel submitted Mr McLean should receive a discount of 20 per cent for his guilty pleas and adopted that figure.
[19] The Judge assessed Mr McLean’s youth alongside other background matters but found his history of offending required some tempering of the discount youth may otherwise provide. The Judge considered formative experiences had led to cognitive distortions in Mr McLean and that hunting was an outlet for managing stress in the absence of other helpful means of doing so. Considering youth, background matters, and potential rehabilitation, the Judge adopted a further 15 per cent discount.
[20] No additional discount was given for remorse in light of Mr McLean’s attitude towards his offending. Further, the Judge found Mr McLean’s behaviour while on bail was so poor no credit could be provided for time spent on bail.
End sentence
[21] In addition to the end sentence of three years and two months’ imprisonment, the Judge ordered Mr McLean be disqualified from driving for one year and 10 months.
Submissions
Appellant’s submissions
[22] In broad terms, Mr Collins, for Mr McLean, submitted the end sentence was manifestly excessive and that a more appropriate sentence was one of home detention. Such a sentence which would allow Mr McLean to engage in meaningful employment while remaining sufficiently severe to appropriately reflect the offending.
[23] The wilful damage starting point of one month was not contested, but Mr Collins submitted Mr McLean’s remorse, early guilty plea, and offers of reparation and restorative justice meant this was excessive.
[24] In respect of the entering agricultural land charges, Mr Collins contended a 14-month starting point was excessive. Referencing the related offence of burglary, Mr Collins submitted that Mr McLean did not enter any building or invade any sense of residential privacy. Furthermore, his entry onto the land was not to further a dishonesty offence, and, while there are safety concerns around hunting without permission, Mr McLean did not have a firearm on either occasion. Mr Collins argued such a starting point would only have been appropriate if Mr McLean was a recidivist offender with an extensive history.
[25] As to the 12-month uplift imposed for the associated hunting and ammunition offending, Mr Collins submitted this had been informed, in part, by Mr McLean’s previous convictions. He submitted that these previous convictions were later used to justify a 15 per cent uplift and therefore the Judge had erred, double counting to an extent.
[26] Mr Collins submitted the 18-month uplift for Mr McLean’s attempt to pervert the course of justice was unduly stern. In light of the lack of intimidation, threats of violence, or success, he submitted a more appropriate starting point to be 12 months, given it was far less sophisticated than other cases.
[27] The final matter concerning the starting point raised by Mr Collins pertained to the driving whilst disqualified charges. Mr Collins appeared to argue that by adopting a higher starting point on this offence (recognising the previous convictions), this created a higher global starting point to which a further percentage uplift was applied for other previous convictions.
[28] Mr Collins took no issue with the discounts applied by the Judge nor the Judge’s approach to totality. However, he submitted that home detention would be a preferable sentence. Mr Collins argued that home detention would meet the principles of deterrence and denunciation while providing for rehabilitation. He referred to
Mr McLean’s youth, the value of avoiding a “crushing” sentence and of promoting prospects of employment within the community.
Respondent’s submissions
[29] As to the first set of charges, Ms Brosnan, counsel for the Crown, submitted the distinctive nature of Mr McLean’s wilful damage offending meant a discrete starting point was appropriate and reflected the harm and inconvenience caused to the victim.
[30] As to the second set of charges, Ms Brosnan submitted that s 231A of the Crimes Act, relating to entry onto rural land, was similar to burglary but opined that it is different to a burglary charge and may not neatly fit into factors relevant to burglary. She submitted Parliament may have intended the offence to cover property that does not fall within the scope of a burglary offence. As such, the lack of entry into a dwelling or residential property may be less relevant as a consideration.
[31] Further, Ms Brosnan argued there was a degree of dishonesty to Mr McLean’s entry onto the land as he lacked the required permit.
[32] She also submitted that the lack of a firearm is irrelevant because, if a firearm had been present, the charge would have been laid in its aggravated form. She submitted Mr McLean possessed a hunting knife for hunting purposes, which should be considered an aggravating factor. She argued the lack of animal death is irrelevant as that is not the mischief being aimed at by the section. Relevant to the Judge’s later uplifts, Ms Brosnan submitted Mr McLean’s previous similar convictions were not considered at this stage.
[33] The remaining charges in the second set were argued to be different in kind and warranting a cumulative uplift.
[34] Ms Brosnan submitted that if an uplift was deemed inappropriate, then those remaining charges ought to be treated as aggravating offending-related factors of the two s 231A charges. As the Judge did not treat them in that fashion, Ms Brosnan submitted that a starting point exceeding 14 months would have been appropriate.
[35] As to the third set of charges, Ms Brosnan submitted 18 months’ imprisonment in respect of Mr McLean’s attempt to pervert the course of justice, alongside premeditation and involvement of innocent counsel, was within range despite the lack of witness intimidation and the fact that the attempt was unsuccessful. She submitted it is the intent and potential effect of the attempt that are relevant, and principles of denunciation and deterrence should be brought to the fore.
[36] As to the fourth set of charges, Ms Brosnan submitted that the Judge taking Mr McLean’s previous driving while disqualified convictions into account in setting the starting point for that offending was permissible. She referred to the fact that the Judge expressly avoided double counting these convictions when later applying an uplift for previous offending.
[37] Ms Brosnan submitted that the Judge did not err by uplifting the starting point by 15 per cent for Mr McLean’s prior convictions, offending on sentence, and offending on bail.
[38] Ms Brosnan submitted that the Judge did not consider Mr McLean’s prior s 231A and hunting-style convictions when he adopted a starting point for that offending (second set). The Judge further specified that he set aside Mr McLean’s prior driving convictions when considering what personal uplift was appropriate for conviction history. As such, she submitted it cannot be perceived that the Judge had double counted prior convictions.
[39] Ms Brosnan submitted that an uplift of 15 per cent was very fair to Mr McLean, given the need for deterrence. Mr McLean had several recent relevant convictions, had offended whilst on bail and sentence, and had exhibited a degree of deceit in his offending on bail and adherence (or lack thereof) to bail conditions.
[40] Ms Brosnan agreed that, as highlighted by Mr Collins, the personal credits afforded by the Judge were generous. The Judge allowed credit of 15 per cent in recognition of Mr McLean’s background matters, rehabilitative prospects, and the effect of imprisonment for someone of his age receiving imprisonment for the first time.
[41] Ms Brosnan submitted that s 16 Sentencing Act 2002 (the Act) does not operate as a free-standing, first principle, or dominant purpose section.13 Section 16 is “engaged where the court has, on a principled basis, an option whether to sentence the offender to imprisonment or to a sentence less than imprisonment”.14
[42] She further submitted that s 16 cannot apply to enable a sentence of home detention to be imposed if it is precluded by the requirement of s 15A(1)(b) of the Act.15 Section 15A(1)(b) provides that home detention is only available where the Court would otherwise sentence an offender to a short-term sentence of imprisonment. Ms Brosnan submitted that Mr McLean was not eligible for a short-term sentence of imprisonment, being one that is 24 months imprisonment or less.16 Thus s 15A(1)(b) is not satisfied, s 16 could not be engaged, and the Judge was unable to consider whether a sentence less than imprisonment was appropriate.
[43] Ms Brosnan submitted that the Judge did not err by not placing weight on s 16 of the Act nor referencing the general desirability of keeping young offenders in the community.
[44] She highlighted that the Judge was conscious of the impact of imprisonment upon a young person receiving their first imprisonment sentence and accounted for this when allowing credit for personal mitigating factors.
[45] Ms Brosnan submitted that if the Court was minded to consider Mr McLean eligible for a short-term sentence of imprisonment, that a substituted sentence was not appropriate. Mr McLean exhibited persistent and wilful disregard for court orders. Mr McLean was described as unable to cease offending, finds enjoyment in his risk- taking behaviour, and will undertake the action if he thinks he will not be caught. He did not abide by his EM curfew, offended on bail, and on many occasions left without prior approval. In some instances, Mr McLean travelled a considerable distance away from his bail address and was absent for up to 16 hours.
13 Nassery v R [2022] NZCA 213 at [22].
14 At [23].
15 At [25].
16 Sentencing Act 2002, s 4(1); and Parole Act 2002, s 4(1).
[46] Finally, Ms Brosnan submitted that the need for denunciation and deterrence means that a sentence of short imprisonment was not appropriate. Further, she submitted that pursuant to s 17 of the Act, a sentence of imprisonment is appropriate as Mr McLean is unlikely to comply with any other sentence.
Discussion
[47] I consider the approach adopted in the District Court of splitting the offending into four different sets was appropriate. Adopting the same approach allows for easier engagement with whether the sentence was manifestly excessive or not.
First set of offending
[48] A starting point of one month in respect of the wilful damage was clearly available to the Judge.17 It was discrete offending involving more than trivial damage to the water tank of a reasonably remote hut. Moreover, it was not necessary for the Judge at this stage to undertake an analysis of appropriate discounts to reflect Mr McLean’s remorse, offer of reparation, and willingness to engage in restorative justice. It was open, and indeed proper, for the Judge to consider holistically possible discounting factors in relation to the offending as a whole after setting relevant starting points.
Second set of offending
[49]The issues relating to the second set of offending are threefold:
(a)whether the starting point adopted for the entry onto land charges was within range with reference to the offence of burglary;
(b)whether an uplift should have been applied for the hunting offences; and
(c)whether the starting point was informed by Mr McLean’s previous convictions, thereby leading to double counting later on.
17 Swinton v New Zealand Police [2014] NZHC 298; Whiu v New Zealand Police [2020] NZHC 298; and Chruz Te Rure v New Zealand Police [2021] NZHC 3048.
Starting point
[50] Section 231A was inserted on 12 March 2019 by s 8 of the Crimes Amendment Act 2019. The offence was introduced into the Bill by way of Supplementary Order Paper. Hansard in relation to the amendments reveal its intended function as an extension of burglary which, in light of the fact that many valuable assets on rural properties are outside in paddocks, was considered reasonable as it removes the need for an offender to have broken into a building in order to be liable.18 This is reflected in the exclusion of buildings within the definition of land. It is clear, therefore, that burglary is an analogous offence and factors relevant to it may be looked to for a measure of guidance.
[51] Burglary itself lacks a guideline judgment due to the range of circumstances in which the offence can be committed.19 This factor is particularly pronounced in the present case due to the paucity of more directly relevant authority.
[52] Here, there are clear elements of premeditation to both instances of offending. Mr McLean has driven some distance to these locations. In respect of the May offending, pig dogs were brought as well as hunting equipment. For the August offending, Mr McLean used an angle grinder in order to cut the padlock on a locked gate and gain entry. The May offending also saw the involvement of a younger associate/accomplice.20
[53] There are several factors reducing the comparative seriousness of the offending. It was not sophisticated and involved a comparatively low possible emotional impact on the custodians of the property. However, the character and intent behind the offence is such that the nature of the property is a factor attracting lesser mitigating weight.
[54] Police v Koroheke saw a starting point of 12 months adopted where premeditation was the key aggravating factor. Here, Mr Koroheke had travelled to a rural property and stolen a truck. This gave rise to one charge under s 231A. In the
18 (20 February 2019) 736 NZPD 9529.
19 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
20 Elers v R [2018] NZHC 497 at [15].
circumstances, recognising particularly the fact that two charges are before the Court, while a lower starting point may have been available to the Judge, I consider 14 months’ imprisonment to have been an appropriate starting point. It is more suitable to address any recidivism when assessing personal aggravating factors.21
[55] No issue was taken with an uplift being applied for the possession of ammunition. Here, over the several instances of offending, Mr McLean was found with 120 rounds of ammunition, but this was not in tandem with a firearm. In Tahapehi v New Zealand Police, the appellant was found with 32 rounds of ammunition.22 The High Court adopted a starting point of six months. In R v Walker-Haturini, five live shells were found, and no firearm was present.23 The Court noted that a stern response was required nonetheless due to dangers posed to the community.24 The starting point was seven months’ imprisonment. Blackett v New Zealand Police saw Mr Blackett breach a geographical parole condition and, when approached by police at his home, he showed them 366 rounds of ammunition in a safe.25 A starting point of 20 months was substituted on appeal for 12 months.
[56] Here, Mr McLean has considerably more ammunition than in Tahapehi and Walker-Haturini. While he possessed considerably less ammunition than Mr Blackett, the offending here is more persistent. I consider the Judge’s approach of nine to 10 months as a starting point to have been within range.
Was an uplift appropriate for the hunting offences?
[57] I consider the Judge has addressed any perceived error by way of a generous 20 per cent discount for totality.
21 Gibbs v R [2015] NZHC 2460 at [11]; and R v Columbus [2008] NZCA 192.
22 Tahapehi v New Zealand Police [2018] NZHC 2666.
23 R v Walker-Haturini [2021] NZHC 1208.
24 Citing R v Richardson CA450/02, 25 March 2003 at [33]; R v Fonotia [2007] NZCA 188; [2007] 3 NZLR 388 at [40]; Torea v R [2011] NZCA 96 at [11]; R v McLean [2009] NZCA 465 at [24]; and Haggie v R [2011] NZCA 221 at [23].
25 Blackett v New Zealand Police [2013] NZHC 1675.
Was the starting point informed by previous convictions, therefore leading to double counting?
[58] In relation to the second set of offending, I consider the Judge did not take Mr McLean’s previous convictions into account. At [56], the Judge addressed Mr McLean’s hunting and ammunition charges and refers to them as involving “repeat offending” and “persistent behaviour”. This, read in context, was in reference to the facts of the offending before the Judge. On multiple occasions, Mr McLean had been found unlawfully in possession of ammunition, hunting, or attempting to hunt. The phrases are not a reference to Mr McLean’s prior convictions.
Third set of offending
[59] Any attempt to disturb the process of administration of justice is serious and to be deplored. It will nearly always be met with a moderately lengthy term of imprisonment.26 I attach little weight to the fact that the attempt was ultimately unsuccessful. The offence is to attempt to pervert the course of justice. Mr McLean made a premeditated, concerted effort at doing so, going so far as to involve his counsel in order to get the falsified permit to police. It was only through police diligence that the attempt failed. Mr McLean’s motive was clearly to have the charge withdrawn and escape conviction.
[60] Nevertheless, offending such as this is less serious than instances of intimidation of witnesses.
[61] I note the following cases that are similar in that they involve the provision of material from a third party or doctoring of material:
(a)Powle v R:27 Here, Ms Powle and her co-offender organised for a third party to provide a false affidavit taking responsibility for some of the offending in order to facilitate a grant of bail for the co-offender. A starting point of 15 months’ imprisonment was undisturbed on appeal.
26 M (CA469/2013) v R [2013] NZCA 385 at [9].
27 R v Powle [2016] NZDC 20936; and Powle v R [2017] NZCA 96, (2017) 28 CRNZ 412.
(b)Jones v R:28 Mr Jones edited videos taken on his phone in a manner concealing matters relating to driving offending and did not provide police with the original recording. A starting point of 18 months was taken.
(c)Stevens v Police:29 Ms Stevens was found to have been driving with excess breath alcohol. At the scene, she gave police a different name, that of her cousin. Throughout the court process she maintained this identity, eventually leading to a conviction being entered for the cousin. A starting point of 12 months’ imprisonment was undisturbed on appeal.
[62] I consider Mr McLean’s level of criminality to have been more proximate to that of Ms Stevens than Ms Powle or Mr Jones. Therefore, I consider the starting point for this set ought to have been 12 months.
Fourth set of offending
[63] No issue has been taken with the starting point adopted in relation to the driving whilst disqualified (third or subsequent) charges. In light of Mr McLean’s five previous convictions for like offending, a starting point of 15 months was clearly available.
Discount for totality
[64] I consider a 20 per cent discount to reflect totality was entirely appropriate and apply it to the altered starting point.
Adjustments for personal aggravating and mitigating factors
[65] Mr Collins recognised the discounts provided by the Judge were relatively generous. While I do not agree with the Judge that previous offending such as that committed by Mr McLean should detract from the nexus between his background and
28 Jones v R [2018] NZHC 984.
29 Stevens v Police [2012] NZHC 871.
his culpability for the present offending, the 15 per cent discount was reasonable. The only issue that emerged at this point was whether any double counting of Mr McLean’s previous convictions occurred. The Judge adopted an uplift of 15 per cent to reflect the previous convictions as well as Mr McLean’s offending having occurred to an extent while subject to court sentence and bail.
[66] I do not agree with Mr Collins that any double counting has occurred. Previous convictions were not, in my opinion, given weight in respect of the second set of offending. Further, the Judge was clearly alive to the intricacies of this somewhat complicated sentencing and very deliberately navigated around Mr McLean’s driving convictions.
[67] When considering his previous convictions and offending whilst on bail and subject to sentence, deterrence becomes a highly relevant principle. In circumstances where Mr McLean minimised his offending and appears to take a measure of enjoyment from risk-taking behaviour and avoiding detection, this principle only becomes more relevant. The dangers inherent in his offending are such that the consequences must be brought home to Mr McLean. An uplift of 15 per cent was appropriate.
[68] The Judge did not err in accounting for previous driving while disqualified convictions in setting a higher starting point before recognising previous convictions as a personal aggravating factor. The starting point of 60 months was adjusted to 48 months to reflect totality. Providing an uplift for previous driving convictions as an aggravating factor of the offending is an accepted approach.30 Where personal mitigating factors exceed personal aggravating factors, as is usually the case, a defendant will be better off if previous convictions are included in the starting point because the multiplicand to which discounts are applied is higher.
30 Drinkwater v Police [2013] NZHC 1036 at [18]; Maxwell v Police [2013] NZHC 3172 at [13];
Fataiki v Police, above n 10, at [29]; and Opetaia v Police [2015] NZHC 2532 at [36].
Summary of change
[69] The reduction in starting point for the attempt to pervert the course of justice charge leads to 54 months’ imprisonment. A 20 per cent totality adjustment yields a starting point of 43 months’ imprisonment. Applying a net discount of 20 per cent creates a sentence of 34 months (two years and 10 months).
Home detention
[70] Mr Collins is correct in his submission that the youth of an offender may provide justification for a more rehabilitative approach to sentencing, recognising the capacity for young people to change. Considerations around avoiding a “crushing” sentence may also hold some relevance. He is also correct that s 16 of the Act encourages the Court to have regard to the desirability of keeping offenders in the community, although only so far as that is practicable and consonant with the safety of the community.
[71] Even accounting for the reduced starting point, Mr McLean is not eligible for a short-term sentence, and home detention is not available for consideration. It would be inappropriate to interfere with the District Court’s judgment, particularly in circumstances where there are several considerations making denunciation and deterrence especially applicable principles encouraging imprisonment.
Conclusion
[72] For all the above reasons, I find the Judge did err in that the starting point for the attempt to pervert the course of justice was too harsh.
[73]The sentence should have been two years and 10 months’ imprisonment.
Result
[74]The appeal is granted.
[75] The sentence of three years and two months’ imprisonment is quashed. A sentence of two years and 10 months’ imprisonment is substituted.
Doogue J
Solicitors:
Crown Solicitor, Dunedin CC:
L Collins, Dunedin
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