R v McDonald - [2022] NZHC 2808

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-092-012375

[2022] NZHC 2808

THE KING

v

GEORGE MCDONALD

Hearing: 28 October 2022

Appearances:

C P Howard and C D Piho for the Crown

M W Ryan and J-A E Tulloch for the Defendant

Sentencing:

28 October 2022

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors/Counsel:
Crown Solicitor (Kayes Fletcher Walker Limited), Manukau Vulcan Chambers, Auckland

R v MCDONALD [2022] NZHC 2808 [28 October 2022]

[1] George McDonald, you appear today for sentencing having been found guilty by a jury on 30 May 20221 of wounding with intent to cause grievous bodily harm.2

[2]The maximum penalty for that offence is 14 years’ imprisonment.3

[3] Before I proceed, I note that, in one respect at least, you are a fortunate man. This was your third “strike” offence. Had the three strikes law not been repealed just days before you had originally been set down for sentence, there is a very real prospect that you would have been sentenced to serve the full 14 years of the maximum term of imprisonment.

[4] However, the three strikes law has been repealed so you will have the benefit of the repeal.4 Accordingly, I follow the orthodox approach to sentencing.

[5]This is the process I will follow:

(a)First, I will outline the circumstances of your offending.

(b)Secondly, I will consider your relevant personal circumstances as they have been put before the Court.

(c)Thirdly, I will explain the approach to setting the sentence and discuss the requirements of the Sentencing Act 2002 as they apply in this case and in accordance with decisions of the Court of Appeal and High Court.

(d)Finally, I will determine and impose the sentence I consider appropriate.

1      R v McDonald HC Auckland CRI-2019-092-12375, 31 May 2022 (Bench Note No 11 of van Bohemen J).
2      Crimes Act 1961, s 188(1).
3      Section 188(1).
4      Sentencing Act 2002, s 6 and sch 1AA, cl 14.

The offending

[6] Mr McDonald, you were charged in relation to events that occurred in the early hours of 10 November 2019 in connection with a party. Because this was largely a family party, I am going to set out what happened in some detail.

[7] On the night of 9 November 2019, a surprise 21st birthday party was held for a young Tongan man at Ōtara. The address was the home of the young man’s aunt and your brother, Henry.

[8]The guests were all or almost all Tongan. They were all part of a wider family

– first and second cousins of the 21-year-old whose party it was.

[9] A lot of alcohol was drunk by guests before and at the party. However, at least until sometime after midnight, the vibe at the party was good and people were having a good time.

[10] At a certain point, you and some cousins and friends dropped by in your blue ute. You stayed a short time and then…

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 McDonald

Details

AGLC: R v McDonald [2022] NZHC 2808
Case: [2022] NZHC 2808
Decision Date: 28 October 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v McDonald involved the sentencing of George McDonald, who was found guilty of wounding with intent to cause grievous bodily harm. The court was required to decide the appropriate sentence, taking into account the nature of the offence, the circumstances surrounding it, and McDonald's personal background. The court identified several aggravating factors, including the use of a weapon, the seriousness of the injury inflicted, and the premeditated nature of the offence. Despite the absence of genuine remorse and the persistence of gang affiliations, the court acknowledged mitigating factors such as cultural influences and the time spent on electronically monitored bail. The court determined a starting point of eight years' imprisonment, adjusted for aggravating and mitigating factors, resulting in a final sentence of six years and three months, with a minimum period of imprisonment of two years and nine months. This decision reflects the court's consideration of the principles of accountability, deterrence, and community protection, while also taking into account the unique circumstances of McDonald's case.

Orders