[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…

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 the King

Details

AGLC: McLean v The the King [2022] NZHC 2902
Case: [2022] NZHC 2902
Decision Date: 7 November 2022

CaseChat Overview and Summary

Alexander McLean appeals his sentence imposed by the District Court, arguing that the starting point was excessive, the judge double-counted his previous convictions, and insufficient weight was placed on his rehabilitative prospects. The Crown contends that the sentence was appropriate, taking into account the nature and circumstances of the offending, the need for denunciation and deterrence, and the risk McLean posed to the community. The High Court found that the starting point for the attempt to pervert the course of justice was too harsh and reduced the sentence to two years and 10 months’ imprisonment. The appeal was granted, and the original sentence was quashed, with a new sentence of two years and 10 months’ imprisonment substituted.

Orders