McRae v The King
[2024] NZCA 324
•18 July 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA744/2023 [2024] NZCA 324 |
| BETWEEN | STEVIE ANNE MCRAE |
| AND | THE KING |
| Hearing: | 13 March 2024 |
Court: | French, Palmer and Cooke JJ |
Counsel: | G A Walsh and M J James for Appellant |
Judgment: | 18 July 2024 at 10.30 am |
JUDGMENT OF THE COURT
AThe conviction appeal is dismissed.
BThe sentence appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
Ms Stevie McRae, the appellant, was tried in the District Court at Hamilton before a jury and Judge S R Clark, and convicted of aggravated burglary, theft, and conversion of a vehicle. Ms McRae was sentenced to imprisonment for two years and one and a half months and ordered to pay reparations of $2,000.[1] She appeals her convictions and sentence.
What happened?
[1]R v Dunseath [2023] NZDC 27398 [sentencing decision] at [58].
Stevie McRae and Lola McRae are sisters who have two half-sisters, Crystal Forbes and Jannine Forbes. In January 2022, the Forbes sisters came into the possession of a Honda Odyssey car which the McRae sisters said they were not entitled to, as the car belonged to another relative. The Forbes sisters had not returned the car. The McRae sisters, and Troy Dunsheath, the appellant’s partner, attempted to recover it.
On 18 January 2022, the Forbes sisters were staying at a farm address in Puriri, Thames. The McRae sisters and Mr Dunsheath (who all ended up as co‑defendants), as well as two other relatives, drove to the address just prior to midnight that evening. Ms McRae armed herself with a small axe or hatchet and Lola McRae armed herself with a metal or wooden pipe or pole. In the sentencing decision, the Judge described the events as follows:
[11] The defendants entered the lounge area of the address located on the second storey. They did so via some external stairs on the second floor. They opened a screen door and entered. Mr Michael Ward and Mr Michael Hocking were asleep in the lounge at the time. Crystal and Jannine Forbes were asleep in a bedroom.
[12] Ms Stevie McRae walked into the lounge. She directed her attention towards Mr Michael Ward whom she woke up. She was yelling out: “[w]here are my fucking sisters?” in reference to the Forbes sisters. Stevie McRae took Mr Ward’s phone off him which had been resting on his chest while he was asleep. That phone has never been recovered.
[13] Lola McRae stood in the lounge area. She also demanded to know where her sisters were. She had in her possession at that time the pipe …
[14] Mr Troy Dunseath sat on a couch next to Mr Michael Hocking. He had his hands hidden in his hoodie giving the appearance that he was armed with something. He held his finger up to Mr Hocking's lips and said words to the effect: “[s]hut your fucking mouth and just stay there.” Clearly that was done to ensure compliance on the part of Mr Hocking.
[15] Jannine Forbes emerged from a bedroom and confronted her sisters Lola and Stevie McRae. There was a standoff and an argument about the whereabouts of the Honda Odyssey. Eventually the defendants left the house.
[16] On the way out of the house Lola McRae struck Mr Ward's utility vehicle, breaking the rear right-hand side [tail lights]. It needs to be recorded that the utility was inoperable at the time.
[17] On leaving the property [one of Ms Stevie’s relatives] started a Suzuki quad bike. He was encouraged to drive the quad bike away from the property by Ms Stevie McRae who was heard to say: “[g]o, go, go, just go, don’t worry about us.” That quad bike was driven to and stored in Lola McRae’s garage at some time between 2 am and 3 am the following morning, 19 January 2022.
[18] Mr Troy Dunseath admitted in his interview with the police that at some stage he rode the Suzuki quad bike before getting off it and following it back into town in the early hours of the morning. There is CCTV footage which shows the quad bike travelling in the Thames area followed behind by a white car which some or all of the defendants had travelled to 226 Wainui Road.
On 5 September 2023, after a jury trial in the District Court at Hamilton, Judge Clark entered convictions for all three defendants for aggravated burglary and conversion of a motor vehicle. Ms McRae was also convicted of theft but acquitted of one charge of assault with a weapon and one charge of intentional damage. Three charges of intentional damage against her were dismissed during the trial.
On 6 December 2023, the Judge sentenced Ms McRae to imprisonment for two years and one and a half months and to pay reparation of $2,000.[2]
[2]At [58].
Ms McRae appeals her conviction and sentence. The grounds of the conviction appeal that were pursued concern Ms McRae’s authority to enter the house, that there was no direct evidence that Ms McRae did not have authority to be at the house and the Judge erred when discussing authority to enter in his summing up.
Should the convictions be overturned?
The conviction appeal is brought on the basis first that the verdict for aggravated burglary was unreasonable and second, that the Judge’s summing up was not fair and balanced, leading to a miscarriage of justice.[3]
[3]Criminal Procedure Act 2011, s 232(2)(a) and (c) respectively.
The verdict will be unreasonable if an appellate court, having regard to all the evidence, is satisfied that the jury could not reasonably have been satisfied to the required standard that a defendant was guilty.[4] Appellate courts do not interfere lightly with a jury’s decision.[5] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.[6] Under s 232 of the Criminal Procedure Act 2011 (CPA), we must allow the appeal if we are satisfied that a miscarriage of justice occurred for any reason.[7]
[4]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17]; and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [10].
[5]Owen v R, above n 5, at [13(e)], endorsing R v Munro [2008] 1 NZLR 87 (CA).
[6]Criminal Procedure Act, s 232(4).
[7]Section 232(2)(c).
The Judge spent some time in his summing up directing the jury regarding authority to enter. He suggested they needed to consider the question in the context of what happened and gave illustrative examples. He said the jury needed to consider whether any authority was exceeded. He stated that:
[84] There may also be situations in what we call an “implied licence” arises, an implied licence to enter, and that can be because of an amicable previous social visit or where someone is simply making enquiries of an occupier. That sort of implied licence however cannot be relied upon in this case if you accept that at the time of entry Stevie McRae had an intention to assault or threaten the occupants.
Mr Walsh, for Ms McRae, submits the doors to the house were unlocked, Ms McRae only used her “normal angry sister voice”, she had been there before, and she had general authority to be where her sisters lived and to see them. Mr Walsh submits she did not exceed that authority.
Mr Walsh acknowledged there was a lot of yelling and the evidence was that Mr Ward was “freaking out and feeling threatened” and Mr Hocking was “quite scared”. We consider it is untenable to suggest that it was consistent with any authority Ms McRae had to be in the house for her to enter unannounced around midnight when everyone in the house was asleep, aggressively and threateningly wave an axe or tomahawk around her sisters’ lounge and yell out questions about where they were for the purpose of taking a car in her sisters’ possession.
It was open to the jury to find the appellant guilty on the evidence before it. There were no deficiencies in the Judge’s summing up and no miscarriage of justice arose.
The conviction appeal is dismissed.
Should the sentence be overturned?
Treating the aggravated burglary as the lead charge, the Crown submitted a starting point of four years’ imprisonment was appropriate.[8] Ms McRae’s counsel submitted that a starting point of two years’ imprisonment was appropriate.[9] The Judge had regard to the guideline judgment for aggravated robbery, R v Mako, and to other comparable cases.[10] He set a starting point of two years and three months, on the basis of the following aggravating factors:[11]
(a)the offending involved “some planning”;
(b)the incident occurred at night;
(c)there were five participants involved;
(d)Ms McRae was likely to know there would be others at the address;
(e)the associated offending (conversion and theft); and
(f)the impact on the victims.
[8]Sentencing decision, above n 1, at [25].
[9]At [27].
[10]At [30], referring to R v Mako [2000] 2 NZLR 170 (CA); and Pohutuhutu v R [2017] NZCA 501 at [61], in which this Court noted that sentencing for aggravated burglary usually proceeds by way of analogy to R v Mako, the tariff case for aggravated robbery.
[11]Sentencing decision, above n 1, at [38]–[46].
The Judge then adjusted Ms McRae’s sentence by:[12]
(a)a three‑month uplift for the theft;
(b)a five per cent uplift for her previous offending;
(c)a 15 per cent reduction for her personal background; and
(d)a five per cent reduction for rehabilitation prospects.
[12]At [52]–[54].
That resulted in an end sentence of two years and one and a half months’ imprisonment. Ms McRae was also ordered to pay reparations of $2,000.[13]
[13]At [58].
Mr Walsh submits that the Judge placed undue weight on the offending occurring at night in an isolated area, that the aggravating factors were double‑counted, and that there was no forced entry nor violence. Having regard to other cases, the starting point should have been two years’ imprisonment.
Under s 250 of the CPA, we must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed.[14] Otherwise, we must dismiss the appeal.[15] The Court will only intervene and substitute its own view on appeal if the sentence is manifestly excessive.[16] The focus is on whether the end sentence is within the available range.[17]
[14]Criminal Procedure Act, s 250(2).
[15]Section 250(3).
[16]Ripia v R [2011] NZCA 101 at [15]. See also Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; and Te Aho v R [2013] NZCA 47 at [30].
[17]Tutakangahau v R, above n 26, at [32]–[36].
We agree there was no actual violence to the victims. But they endured a frightening ordeal nonetheless, being woken by threatening and aggressive yelling by a person wielding a tomahawk or axe in their living room. Almost all the comparable cases referred to by the Judge and counsel that had violence had significantly higher starting points.[18] There was no violence in Masina v R but there was property damage and a starting point of three and a half years’ imprisonment for both aggravated burglary and wilful damage.[19] There was a lower starting point only in Aramiz v R, for aggravated burglary and threatening to kill which involved some violence, but the appeal was by the offender and the High Court had no trouble finding the starting point was not too high.[20]
[18]Archbold v R [2015] NZCA 493; Daniels v R [2015] NZCA 295; Murray v R [2023] NZCA 126; Dey v R [2021] NZCA 342; and Patrick v R [2008] NZCA 115.
[19]Masina v R [2022] NZHC 3280 at [3].
[20]Aramiz v R [2020] NZHC 78 at [27].
The associated offending should have been treated only as an uplift and not as an aggravating factor. But that was not material to the aggravating factors overall. Having regard to R v Mako the starting point of two years and three months’ imprisonment was well within range.[21] With relatively generous discounts, the end sentence is well within the range available and is not manifestly excessive. The sentence appeal is dismissed.
Result
[21]R v Mako, above n 11.
The conviction appeal is dismissed.
The sentence appeal is dismissed.
Solicitors:
Crown Solicitor, Hamilton for Respondent