McNeice v The Queen - [2012] NZCA 566

IN THE COURT OF APPEAL OF NEW ZEALAND

CA242/2012
[2012] NZCA 566

BETWEEN JAMES PATRICK MCNEICE
Appellant

AND THE QUEEN
Respondent

Hearing: 13 November 2012

Court: Harrison, MacKenzie and Courtney JJ

Counsel: J W Mackey for Appellant
K A L Bicknell

Judgment: 3 December 2012 at 12.00 pm

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

BThe appeal against sentence is allowed. The sentence of two years eight months imprisonment is quashed and a sentence of two years three months imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT
(Given by MacKenzie J)

The appellant, James McNeice, was convicted following trial in the District Court at Auckland before Judge Perkins and a jury on one count of aggravated burglary. He was sentenced to a term of two years and eight months imprisonment.[1] He appeals against both conviction and sentence.
[1] R v McNeice DC Auckland CRI-2010-090-8103, 5 April 2012.
The offending arose from a dispute between the victim and Mr McNeice’s partner, Ms Carlyon, who had lived at the victim’s address for a short time. The dispute apparently related to possession and ownership of a motorbike, and over the claim by the victim for rental owing by Ms Carlyon. On 18 April 2010 Mr McNeice and Ms Carlyon went to the address to try and regain some of her belongings which she had left there. Upon arrival at the address, Ms Carlyon waited in the car while Mr McNeice climbed over the fence into the property. He was carrying a meat cleaver, described by the Judge as “really some form of display item rather than a meat cleaver that one might use in the kitchen”. The victim went outside to talk to Mr McNeice. He grabbed the victim by the throat and pushed him against the wall of the house. He threatened the victim saying he would chop off his legs. Mr McNeice then went into the victim’s house and removed a television set and a laptop computer. Ms Carlyon retrieved the television set and put it in the car. The pair drove off.
The indictment jointly charged Mr McNeice and Ms Carlyon with a single count, that “on or about 18 April 2010, at Auckland, while committing burglary, had a weapon”. To establish the offence of burglary, the Crown was required to prove that, in entering the property, Mr McNeice did so with intent to commit a crime there. In opening the Crown case, counsel for the Crown said:
The Crown must also prove that when the accused went inside the property they intended on committing a crime. Now in terms of the intent of the accused, we can’t get inside their [head] to work out exactly what they were thinking when they went to Donovan Ave, but what we can do is look at the surrounding circumstances and from that draw an inference as to what their intentions were.
Now, given the threatening text messages which preceded the incidents and the fact that Mr McNeice took…

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 McNeice v The Queen

Details

AGLC: McNeice v The Queen [2012] NZCA 566
Case: [2012] NZCA 566
Decision Date: 3 December 2012

CaseChat Overview and Summary

James Patrick McNeice appealed against both his conviction and sentence for aggravated burglary. McNeice and his partner had gone to a property to retrieve some belongings after a dispute with the occupant. McNeice climbed over the fence into the property armed with a meat cleaver and threatened the victim. McNeice then entered the property and stole a television and a laptop. The Court of Appeal considered two main legal issues. Firstly, whether the Crown had altered its case during the trial in a manner that prejudiced McNeice. The Court held that there had been no such alteration. Secondly, whether the jury needed to be unanimous on the intended crime of assault or theft. The Court held that unanimity was not necessary. Regarding sentencing, the Court found the starting point of three years imprisonment too high and reduced it to two years and six months. The Court also reduced the sentence by three months for remorse, resulting in a final sentence of two years and three months.

The Court of Appeal dismissed the appeal against conviction. The appeal against sentence was allowed and a new sentence of two years and three months was substituted.

Orders