[1] Mr Garson you appear today for sentence having pleaded guilty to the murder1 of Sean McKinnon and threatening to kill2 Mr McKinnon’s fiancée, Bianca Buckley. Your counsel accepts that the Court must impose a sentence of life imprisonment on the charge of murder. What I am required to decide today is how long you must remain in prison before you are eligible to be released on parole.

Background

[2] I will start with the facts of your offending. They are contained in an agreed summary of facts which you accepted when you entered your guilty pleas.

[3] Ms Buckley, a Canadian citizen, and Mr McKinnon, an Australian citizen, were visitors to Aotearoa New Zealand. They met each other in Canada and Mr McKinnon had flown from Australia to spend a couple of weeks with Ms Buckley who was completing a midwifery graduate programme in this country. They had plans for their future together.

[4] Late in the day on 15 August 2019, the two of them parked their rental campervan at Te Toto Gorge on the west coast, south of Raglan. They settled there for the night and went to sleep. But for your acts, it is most unlikely that this Court would know of the two of them.

[5] Two days earlier, on 13 August 2019, you and a friend, Roderick Finlayson, had gone to a gun shop in Hamilton where Mr Finlayson purchased a shotgun and ammunition for you. You paid for the firearm and the ammunition. This purchase was the culmination of discussions which had started in late March 2019 when you had contacted Mr Finlayson and asked him to purchase a firearm for you. You did not have a firearms licence and could not legally buy a firearm yourself. These negotiations continued over a number of months and were finalised on 12 August 2019. You had told Mr Finlayson you wanted “strong deadly ammo”. After completing the transaction at the gun shop you returned Mr Finlayson to his home and left, taking the firearm and ammunition with you.

1 Crimes Act 1961, ss 167, 168. Maximum penalty (s 172): life imprisonment.
2 Crimes Act 1961, s 306. Maximum penalty: seven years’ imprisonment.

[6] Over the following two days you repeatedly communicated with another friend. You told him you wanted to die by suicide and you asked him to shoot you. You explained to him that the recoil from the shotgun that you now had in your possession prevented you from shooting yourself and you required his assistance in consequence. He was reluctant to assist, but…

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 R v Garson

Details

AGLC: R v Garson [2020] NZHC 3259
Case: [2020] NZHC 3259
Decision Date: 9 December 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Gordon J was tasked with sentencing Mark Ronald Garson, who had pleaded guilty to the murder of Sean McKinnon and threatening to kill Mr McKinnon's fiancée, Bianca Buckley. The court had to determine the minimum term of imprisonment Garson would serve before being eligible for parole. The key legal issues were whether the specified circumstances under Section 104 of the Sentencing Act 2002 applied and, if so, whether imposing a minimum term of at least 17 years would be manifestly unjust.

The court considered various aggravating factors, including the use of a firearm, the unlawful entry into a dwelling place, the extent of harm caused, the callousness of the actions, and the vulnerability of the victims. The court found that Garson's actions were largely impulsive rather than premeditated. After reviewing relevant cases and adjusting for mitigating factors such as Garson's guilty plea and his genuine remorse, the court determined that a minimum term of 15 years and six months was appropriate. However, since Section 104 applied, the court imposed a minimum term of 17 years unless it would be manifestly unjust. Given the benefits of Garson's guilty plea, particularly in sparing the victims' family a traumatic trial, the court deemed it manifestly unjust to not consider the plea in the minimum term calculation. Therefore, the court ordered Garson to serve a minimum term of 15 years and six months before being eligible for parole.

Garson was sentenced to life imprisonment for the murder charge and three years' imprisonment, to be served concurrently, for the charge of threatening to kill.

Orders