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R v McFarlane

R v McFarlane

Case [2021] NZHC 2943 28 October 2021

Attempted Perverting the Course of Justice

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-087-000226

[2021] NZHC 2943

THE QUEEN

V

JAMES GRAEME MCFARLANE

Hearing: 28 October 2021

Appearances:

D J McWilliam & I J Hayden for Crown R O Gowing Defendant

Sentence:

28 October 2021

SENTENCE OF PAUL DAVISON J

Solicitors:
Crown Solicitor, Tauranga

R v MCFARLANE [2021] NZHC 2943 [28 October 2021]

[1] James McFarlane you appear for sentence this morning on one charge of wilfully attempting to pervert the course of justice.1 The maximum penalty for the offence is seven years’ imprisonment.

Background

[2] On the morning of Wednesday 2 October 2019, you became involved in a heated argument with your brother-in-law, Thunder Savage who at the time was staying with you and your wife and family for a few days. Mr Savage attempted to shut you out of your own house and you forced your way back inside.

[3] Your son who was sleeping in the garage at the rear of your property was woken by raised voices and came to the house and attempted to intervene. He then became involved in a struggle with Mr Savage who had armed himself with a short bladed oyster knife which he and your son were then struggling over. While that was happening you obtained a knife from the kitchen and as Mr Savage and your son continued to struggle over the oyster knife that Mr Savage was holding you stabbed Mr Savage below his left armpit in an attempt to stop him from stabbing your son and in order to defend your son from him. The knife wound you inflicted caused Mr Savage to collapse, and he bled profusely from the wound. Police and Ambulance were called and attended but Mr Savage could not be revived and he died at the scene.

[4] A post-mortem examination confirmed that Mr Savage had suffered a fatal stab wound to the left-hand side of his body just below the left armpit. The wound was over 205 millimetres deep and pierced his left fifth rib, punctured his lungs and major arteries leading from the heart.

[5] Your son told Police that Mr Savage had been stabbed once and said it was self-defence on his part. At the same time, he handed the Police a large black knife. The Police also recovered the oyster knife from the scene. Your son was initially charged with assaulting Mr Savage with a weapon, however that charge was

1 Crimes Act 1961, s 117(e). Maximum term of imprisonment: seven years.

subsequently withdrawn after you admitted to Police that it was you and not your son who had fatally stabbed Mr Savage.

[6] You were subsequently charged with Mr Savage’s murder or alternatively manslaughter. At your trial which concluded on 21 May 2021 you were found not guilty of both.

The attempting to pervert the course of justice offending

[7] It is the events that followed Mr Savage’s death that give rise to the…

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 McFarlane

Details

AGLC: R v McFarlane [2021] NZHC 2943
Case: [2021] NZHC 2943
Decision Date: 28 October 2021

CaseChat Overview and Summary

James Graeme McFarlane was sentenced by Paul Davison J in the High Court at Tauranga. McFarlane was found guilty of attempting to pervert the course of justice. The court was required to determine the appropriate sentence for this offence. The primary legal issue was to establish a suitable starting point for the sentence, taking into account the circumstances of the offence and relevant aggravating and mitigating factors.

The court first established the starting point for the sentence, considering the seriousness of the offence and its comparison to similar cases. The court found that McFarlane's offending fell within the less serious to moderately serious range, and set the starting point at 22 months' imprisonment. The court then considered mitigating factors such as the time McFarlane spent on restrictive bail, the lack of a discount for his late guilty plea, and his previous criminal history. The court determined that a discount of approximately 40% of the starting point was appropriate, reducing the adjusted starting point to 13 months' imprisonment.

Considering the sentencing purposes of holding McFarlane accountable, denunciation, deterrence, and community protection, the court decided that a community-based sentence was most appropriate. The court imposed a sentence of 12 months' supervision, 150 hours of community work, and directed McFarlane to attend the Waiariki Whānau Mentoring programme and any other counselling or programme as directed by his Department of Corrections Probation Officer.

In summary, the court sentenced McFarlane to 12 months' supervision and 150 hours of community work, with the special condition of attending the Waiariki Whānau Mentoring programme and any other counselling or programme as directed by his Department of Corrections Probation Officer.

Orders