McNeilly v R - [2011] NZCA 481

IN THE COURT OF APPEAL OF NEW ZEALAND

CA282/2011
[2011] NZCA 481

BETWEEN PHILIP JOHN MCNEILLY
Appellant

AND THE QUEEN
Respondent

Hearing: 8 September 2011

Court: Glazebrook, MacKenzie and Asher JJ

Counsel: M A Stevens for Appellant
M E Ball for Respondent

Judgment: 22 September 2011 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of four years imprisonment on each of the two counts of using a firearm in the commission of an offence is quashed and a sentence of three years and two months is substituted. All other components of the sentence imposed are confirmed.

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

The appellant pleaded guilty in the District Court at Oamaru to two counts of threatening to kill, two counts of using a firearm in the commission of an offence and one count of intentional damage. He also pleaded guilty to several summarily laid matters including threatening to kill, unlawful possession of a firearm, being intoxicated while in possession of the firearm and driving with excess breath alcohol. He was sentenced by Judge O’Driscoll on 20 April 2011 to four years imprisonment, and other related penalties.[1] He appeals against the sentence, on the grounds that it is manifestly excessive.

The offending

[1] R v McNeilly DC Oamaru CRI-2010-045-920, 20 April 2011.

All charges arose from events in the afternoon and evening of 7 October 2010. The appellant had been in a relationship with the female victim for about seven years and that relationship had ended in early 2010. She had formed a relationship with a new partner, the male victim. He had made derogatory statements about the appellant, suggesting that he was a sex offender. Those comments triggered the events of 7 October.
At about 3.00 pm on that day, the appellant sent the female victim four text messages threatening to blow her new partner’s head off. Shortly after that, the appellant, with an associate, Mr Cunningham, drove to the male victim’s work premises, where the female victim also was. The appellant was in possession of a sawn-off double barrelled shotgun. On arrival outside the rear of the premises the appellant spoke to the female victim, while he was still sitting in the car. He had the shotgun in his lap pointing up towards her. He yelled to her, “You go get him or I will blow your head off”. An argument ensued between the appellant and the female victim during which the appellant got out of the car holding the shotgun, partially covered with a cloth. In the course of the argument, Mr Cunningham was yelling out to the appellant, “Blow her head off, blow them all away”. The appellant waved the firearm around while yelling abuse before getting back into the car and driving off.
An hour or so later, the appellant and Mr Cunningham drove to a social gathering where the male victim was. Initially, Mr Cunningham remained in the vehicle with the shotgun, while the appellant…

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 McNeilly v R

Details

AGLC: McNeilly v R [2011] NZCA 481
Case: [2011] NZCA 481
Decision Date: 22 September 2011

CaseChat Overview and Summary

The appellant, Philip John McNeilly, appealed against the sentence of four years imprisonment for two counts of using a firearm in the commission of an offence, as well as other penalties. The appellant argued that the sentence was manifestly excessive. The appeal was heard by Glazebrook, MacKenzie, and Asher JJ on 8 September 2011. The appeal was allowed, and the sentence was reduced to three years and two months imprisonment.

The legal issues before the court were whether the starting point for the sentence was too high, the discount for the guilty pleas was too low, and whether there was unjustified disparity with the co-offender, Mr Cunningham. The appellant's counsel argued that the starting point of four years was too high, and that the appellant would feel aggrieved at receiving a sentence 18 months longer than Mr Cunningham, who had been charged with similar offences.

The court considered the circumstances of the offending, which involved a series of connected but discrete events over several hours, and the lack of assistance available to the sentencing Judge from the authorities. The court found that the starting point of four years adopted by the sentencing Judge, viewed in isolation from the co-offender’s sentence, was at the top of, but not outside, the available range. However, the court found that a difference of 18 months between the starting points of the two offenders was excessive, and that a difference of 12 months was a more appropriate reflection of their respective levels of culpability. The court also found that the discount for the guilty pleas should be 25 per cent, resulting in a final sentence of three years and two months imprisonment.

The court quashed the sentence of four years imprisonment on each of the two counts of using a firearm in the commission of an offence and substituted a sentence of three years and two months imprisonment. All other components of the sentence imposed were confirmed.

Orders