McQuilken v The Queen - [2017] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

CA633/2016
[2017] NZCA 283

BETWEEN	JAYDEN MCQUILKEN Appellant
AND	THE QUEEN Respondent

Hearing:	19 June 2017
Court:	Asher, Venning and Dobson JJ
Counsel:	C G Tuck for Appellant E J Hoskin for Respondent
Judgment:	5 July 2017 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed to the extent that the sentence of six months’ imprisonment imposed for the conviction on receiving stolen goods in charge 10 is quashed and a sentence of one month’s imprisonment is substituted.
BIn all other respects the appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Dobson J)

The appellant, Ms McQuilken, was sentenced by Judge Harding in the District Court at Tauranga on 18 November 2016 to a term of four years’ imprisonment.[1] That was imposed for a conviction for attempting to pervert the course of justice. Lesser concurrent terms were also imposed for three charges of receiving and one of driving while disqualified.
[1]R v McQuilken [2016] NZDC 23312.
Ms McQuilken appealed against the sentence as manifestly excessive, arguing that the sentencing Judge adopted a starting point that was too high.

The offending

Two Mongrel Mob associates, one of whom was Ms McQuilken’s partner, were charged with relatively serious aggravated robberies and burglary. The police executed search warrants on the property Ms McQuilken shared with her partner and recovered a substantial volume of items that had been taken in the robberies and burglary. Ms McQuilken was charged with receiving a cellphone, an iPod and a PS4 console, plus a substantial volume of jewellery items, clothing and furnishings. The value of items that Ms McQuilken had received from each of the robberies and burglary were valued respectively at approximately $1,500, $200 and $5,000.
Shortly before their trial on those charges, Ms McQuilken took photographs of a five-page witness statement from a proposed prosecution witness that had been provided as part of police disclosure. She posted the whole statement on her Facebook page and made a number of comments inciting violence against the proposed witness. She tagged in the Facebook post to a large number of known Mongrel Mob members and associates, thereby publicising to those who might access this medium her invitation for others identifying with that gang to harm the witness. Ms McQuilken commented:
Heads up Errbody. Patch member calls himself a born in Mongrel. U make me sik U lil nigga. Fukn die. [xx] is a pig informant. Billem then killem hangim with his longtail SFSH.[2]
[2]Witness’ identity removed.
The post generated a number of further comments, including from Ms McQuilken. She deleted the post from her Facebook page the following day when requested to do so by the police. A further charge of perverting the course of justice was added to the proceedings against Ms McQuilken.
There was no evidence as to whether the Facebook post had been read by the witness who was identified. However, when the trial proceeded the witness targeted by…

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 McQuilken v The Queen

Details

AGLC: McQuilken v The Queen [2017] NZCA 283
Case: [2017] NZCA 283
Decision Date: 5 July 2017 at 10.30 am

CaseChat Overview and Summary

In McQuilken v The Queen, Ms McQuilken appealed against her sentence of four years’ imprisonment, imposed for attempting to pervert the course of justice, three charges of receiving and one charge of driving while disqualified. The appeal was primarily concerned with the starting point of five years, which the appellant argued was too high. The court considered whether the starting point was appropriate and whether the reductions applied to the sentence were justified.

The court found that the starting point was at the top of the appropriate range, considering the serious nature of the offence and the impact on the proceedings. The court also found that the reductions applied for remorse, willingness to seek help, and a guilty plea were generous but not excessive. The appeal was dismissed in relation to the overall sentence but allowed in relation to the six-month sentence for receiving property valued at less than $500, which was substituted with a one-month sentence.

The court substituted the one-month sentence for the six-month sentence imposed for the conviction on receiving stolen goods in charge 10 and dismissed the appeal in all other respects.

Orders