McRae v The Queen - [2013] NZCA 75

IN THE COURT OF APPEAL OF NEW ZEALAND

CA642/2012
[2013] NZCA 75

BETWEEN TERRY RIKI MCRAE
Appellant

AND THE QUEEN
Respondent

Hearing: 6 March 2013

Court: Ellen France, Keane and Miller JJ

Counsel: C D Bean for Appellant
K Raftery for Respondent

Judgment: 26 March 2013 at 11 am

JUDGMENT OF THE COURT

AThe time for filing the appeal is extended.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

Terry McRae pleaded guilty to one charge of burglary. He was sentenced by Judge Burnett to a term of imprisonment of three and a half years.[1] He appeals against sentence on the basis it is manifestly excessive. The appeal focuses on the appropriateness of the starting point adopted, the uplift for personal aggravating features and the discount for mitigating factors.

Background

[1] R v McRae DC Hamilton CRI-2012-019-1679, 10 August 2012 [sentencing remarks].

We adopt the description of the events giving rise to the charges as set out in Judge Burnett’s sentencing remarks.
On the evening of 26 December 2011 the appellant, who was 23 years of age at sentencing, his 16‑year‑old girlfriend, and a 14‑year‑old boy went up to a residential property. The young girl was left outside the property to act as a lookout. The appellant and the 14‑year‑old went on to the residential property.
They approached the dwelling and went around to the rear of the property. They then forced open a lock on the side of the garage and went inside it.
Once inside they took a number of items including a new barbecue and trolley, bench-drop saw, belt sander and a large collection of tools and garden implements including a pair of bolt cutters. These goods had an approximate value of between $800 and $1500.
As the two were taking the items down the driveway past the house, the 73‑year‑old victim, the homeowner, was inside the house and he heard noises outside. He came outside the house and confronted the offenders. The victim was struck on the back of the head with the bolt cutters by the 14‑year‑old. The appellant continued on with the items that he had stolen and left the property. When he got to the road it seemed that the noise created, both by the items being taken and by the victim’s cries, caused neighbours to appear. The appellant then dumped the property and with his girlfriend left the property. They were later located in a house not far from the scene.
The victim sustained significant injuries in the attack. He spent seven weeks in hospital during which time he had some six operations and suffered a number of injuries including orbital facial fractures, fractures at the base of his skull on the right side of his head and face, considerable swelling to both eyes and to his left elbow, as well as an injury to the right eye that has resulted in permanent loss of sight. The victim has also suffered various medical problems as…

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 McRae v The Queen

Details

AGLC: McRae v The Queen [2013] NZCA 75
Case: [2013] NZCA 75
Decision Date: 26 March 2013

CaseChat Overview and Summary

In the case of McRae v The Queen, the appellant, Terry McRae, appealed against his sentence for burglary, arguing it was manifestly excessive. The Court of Appeal of New Zealand, consisting of Ellen France, Keane, and Miller JJ, heard the appeal. The appellant, who was 23 years old at the time of sentencing, pleaded guilty to one charge of burglary and was sentenced to a term of imprisonment of three and a half years. The appeal focused on the appropriateness of the starting point adopted, the uplift for personal aggravating features, and the discount for mitigating factors. The appellant argued that the starting point, the uplift for personal aggravating factors, and the discounts for mitigating factors were all excessive.

The Court of Appeal examined the legal issues surrounding the sentencing, including the starting point, the uplift for personal aggravating features, and the discounts for mitigating factors. The Court found no merit in the appellant's argument that the starting point was manifestly excessive, agreeing with the Judge's assessment that the offending was similar to that in Skipper v R. The Court also found that the eight-month uplift for personal aggravating factors was within range, considering the appellant's previous convictions and offending while on bail. Furthermore, the Court concluded that no downward adjustment was necessary on a totality basis, as the appellant had completed his previous sentence and was on bail awaiting sentence at the time of the current sentencing.

The Court of Appeal dismissed the appeal, extending the time for filing the appeal but upholding the original sentence. The Court found that the sentence was appropriate, taking into account the appellant's criminal history, the seriousness of the offence, and the discounts for mitigating factors. The appeal was dismissed, and the original sentence stood.

Orders