McNeil v Police - [2016] NZHC 383

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000003 [2016] NZHC 383

BETWEEN
LIAM MCNEIL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 March 2016

Appearances:

A Kelland for Appellant
S E Burdes for Respondent

Judgment:

8 March 2016

ORAL JUDGMENT OF GENDALL J

Introduction

[1] The appellant was convicted in the District Court on one charge of injuring with intent to injure (a maximum penalty five years’ imprisonment), and two charges of robbery (a maximum penalty 10 years’ imprisonment). These latter offences, as I understand it, were committed whilst on bail for the former. He was sentenced to three years’ imprisonment by Judge Neave on 8 December 2015.

[2] The appellant appeals his sentence on the grounds that:
(a) The starting point adopted for the two robbery charges was too high. (b) The Judge incorrectly failed to factor into the end sentence a discount

he was prepared to give for the appellant’s efforts at rehabilitation.

(c) “Relevant considerations”, namely letters written by the appellant to the victims, were not before the Judge.

MCNEIL v NEW ZEALAND POLICE [2016] NZHC 383 [8 March 2016]

[3] For the reasons which follow, the appeal should be allowed, but only in part.

Principles on Appeal

[4] Turning now to the principles on appeal. The appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011.

[5] This Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.1

[6] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R2) in the decision of Larkin v
Ministry of Development:3

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

Grounds of Appeal

The starting point reached for the robberies was too high

[7] Both parties are in agreement that the correct approach to cases involving robbery charges is to use the bands identified in R v Mako for aggravated robbery, but at a discounted rate of 70%.4 In a discussion of (aggravated) street robberies, the Court in R v Mako considered that, depending on the circumstances, a starting point (for the relevant band of offending) of 18 months to three years would be
appropriate.5

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).
2      Ripia v R [2011] NZCA 101 at [15].
3      Larkin v Ministry of Development [2015]…

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.

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Details

Case: [2016] NZHC 383
Decision Date: 8 March 2016

CaseChat Overview and Summary

In this case, Liam McNeil appealed his sentence on three grounds, seeking a reduction in the three-year imprisonment sentence he received in the District Court. The High Court reviewed the appeal to determine if the sentence was improperly imposed or if it should be altered. The first issue was whether the starting point for the robbery charges was set too high. The Court found that the starting point of two years was justified under the relevant sentencing principles, and thus, this ground of appeal failed. The second issue was whether the Judge had failed to apply the discount for the appellant's rehabilitative efforts. The Court found that the Judge had indeed made a mathematical error by not applying the six-month discount for rehabilitative efforts, and that the sentence should be corrected accordingly. The final issue was whether the Judge had failed to consider relevant letters written by the appellant to the victims. The Court concluded that the Judge had adequately considered the appellant's remorse and motivation to change, and that no further discount was warranted.

The Court allowed the appeal in part, correcting the sentence to two years and seven months imprisonment. The corrected sentence comprised of 18 months for the charge of injuring with intent to injure, 13 months for each robbery charge (concurrent with each other but cumulative with the injuring charge), and the conviction and discharge for the breach of community work with any outstanding hours cancelled. The Court's decision highlights the importance of accurately applying sentencing principles and discounts, as well as ensuring that all relevant factors are considered when imposing a sentence.

Orders