R v McClutchie - [2013] NZHC 1988

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2012-003-000621 [2013] NZHC 1988

THE QUEEN

v

JORDAN NEPIA McCLUTCHIE

Hearing: 8 August 2013

Counsel: A McRae for Crown
M Starling for Prisoner

Judgment: 8 August 2013

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, Timaru
Counsel:
M Starling, Christchurch

R v McCLUTCHIE [2013] NZHC 1988 [8 August 2013]

Introduction

[1] Jordan Nepia McCluthie, you appear for sentence today having pleaded guilty to one charge of driving with an excess blood alcohol concentration causing death, two charges of driving with an excess blood alcohol concentration causing injury, and one of unlawfully taking a motor vehicle.

[2] The most serious charge is that of driving with an excess blood alcohol concentration causing death. The maximum penalty for that offence is 10 years imprisonment, a $20,000 fine and disqualification for one year or more. That makes it very plain how serious the offending is.

[3] You entered guilty pleas in this Court on 7 March 2013, following transfer from the District Court. The case was transferred because the Crown intended to charge you with manslaughter. Ultimately, the Crown did not proceed with that charge as a result of your pleas of guilty. You were remanded on bail pending sentence.[1] A sentencing date was set for 3 May 2013. Before that date you breached your bail and absconded. Having been re-arrested, you now appear for sentence.

Summary of facts

[1] R v McClutchie [2013] NZHC 493.

[4] From 24 August 2007, you were an unlicensed driver and forbidden to drive a motor vehicle.

[5] Between 3pm on 26 February 2012 and 12pm on 27 February 2012, a Nissan van was stolen from a business address in Christchurch.

[6] On 3 March 2012 you received a text from Ms Hunt to come and pick her up and take her to Ashburton. You went to her address. She was there with her daughter, Ms Weston. Ms Hunt and Ms Weston are members of your whanau. You
arrived in the stolen motor vehicle and were the sole occupant.

[7] At 5.15pm you went to pick up petrol at Caroline Bay, in Timaru. Following obtaining that petrol, Ms Hunt got into the front passenger seat and you drove away from the forecourt. No attempt was made to pay for the fuel.

[8] You were driving, with Ms Hunt sitting in the passenger seat. Ms Weston was seated beside you. You arrived in Ashburton. You went to a liquor store and purchased alcohol. You then went to Countdown and purchased more alcohol. You then drove to an address in Ashburton to pick up a friend, Rochelle Rimene. After that, you were in the driver’s seat. Ms Hunt was in the passenger’s seat and Ms Weston and Ms Rimene got into the back of the van. There were no seats in the back of the van. That meant that Ms Weston and Ms Rimene were seated on the metal floor.

[9] During the evening the four…

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 McClutchie

Details

AGLC: R v McClutchie [2013] NZHC 1988
Case: [2013] NZHC 1988
Decision Date: 8 August 2013

CaseChat Overview and Summary

The defendant, Jordan Nepia McClutchie, was sentenced by Justice Heath in the High Court of New Zealand for multiple charges related to driving under the influence and causing death and injury. McClutchie pleaded guilty to driving with an excess blood alcohol concentration causing death, two charges of driving with an excess blood alcohol concentration causing injury, and unlawfully taking a motor vehicle. The court had to decide on the appropriate sentence for these serious offences, taking into account the aggravating and mitigating factors. The key legal issues involved determining the appropriate starting point for the sentence, the credit for the guilty pleas, and the effect on the victims and their families.

The court reasoned that a sentence short of imprisonment would not be appropriate due to McClutchie’s decision to abscond and evade sentencing. The court considered the gravity of the offence, the level of alcohol in his blood, and the excessive speed at which he was driving. Aggravating factors included his failure to heed warnings to slow down, his consumption of alcohol while driving, and his attempt to leave the scene without alerting authorities. The court also noted McClutchie’s extensive criminal history and the need to protect the community. After weighing these factors, the court decided on a starting point of five years imprisonment for the most serious charge, with an uplift of three months due to personal aggravating factors. The guilty pleas were considered, but the absconding negated any additional credit for remorse. The final sentence was four years and three months imprisonment, to be served concurrently. Additionally, McClutchie was disqualified from holding or obtaining a driver’s licence for four years from the date of his release. The court discharged McClutchie on the manslaughter charge due to lack of evidence from the Crown.

The final orders included a sentence of four years and three months imprisonment for the charges of driving with an excess blood alcohol concentration causing death and injury, and one year for unlawfully taking a motor vehicle. These sentences were to run concurrently. McClutchie was also disqualified from holding or obtaining a driver’s licence for four years, starting from the date of his release from prison. The manslaughter charge was discharged, effectively resulting in an acquittal.

Orders