R v McFarlane - [2021] NZHC 1332

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-087-0226

[2021] NZHC 1332

THE QUEEN

v

JAMES MCFARLANE

Hearing: 4 June 2021

Appearances:

D McWilliam for the Crown S Franklin for the Respondent

Judgment:

4 June 2021

SENTENCING NOTES OF POWELL J

R v MCFARLANE [2021] NZHC 1332 [4 June 2021]

[1] James McFarlane, you come up for sentence today on one charge of wilfully attempting to pervert the course of justice.1

The offending

[2] You were charged because of statements you gave to Police after the death of your uncle, Thunder Savage. Your father and Mr Savage were temporarily staying with you and the rest of the whānau in Edgecumbe.

[3] At about 8 am on 2 October 2019, your father and your uncle got into an argument. As the argument escalated, you were woken up. You found your father trying to force himself into the family home as your uncle had shut him out. You and your uncle then started fighting. While you were fighting, your father stabbed your uncle below the left armpit with a large knife. Shortly afterwards your uncle collapsed, unresponsive and bleeding, from the stab wound.

[4] Police and an ambulance arrived but Mr Savage could not be revived. You approached the Police and handed over the knife that your father had used.

[5] When interviewed by the Police that day, you said Mr Savage had fallen on the knife during the struggle that occurred between him, yourself and your father. You said that you noticed the blood when you and your uncle ended up on the ground but that you had no idea exactly how he received the stab wound. A few weeks later, on 23 October 2019, you asked to speak to the Police again. This time you told them you had “left out some critical information” and that everything you said earlier was true apart from “how he got stabbed”. The present charge resulted.

Approach to sentencing

[6] Sentencing you today is a two-stage process.2 First, I must fix the starting point this type of offending would attract. This involves identifying the aggravating and mitigating features of your offending, the matters that make your offending more or less serious, which enables me to arrive at an appropriate term of imprisonment. I

1 Crimes Act 1961, s 117(e). Maximum penalty seven years’ imprisonment.
2 Moses v R [2020] NZCA 296.

must decide whether this starting point should be adjusted for totality considerations so that the overall offending is relative to the term of imprisonment. I must then at the second stage take into account any of your personal circumstances that are relevant, including your guilty plea. I must determine whether the starting point should be adjusted through uplifts or discounts as a result of those personal circumstances.

[7] In sentencing you today, I must have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing…

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 1332
Case: [2021] NZHC 1332
Decision Date: 4 June 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the case of the Crown versus James McFarlane was heard and decided on 4 June 2021. The defendant was charged with wilfully attempting to pervert the course of justice, a charge stemming from his involvement in the death of his uncle, Thunder Savage. The legal issues before the court included determining the appropriate starting point for sentencing, considering personal factors that may mitigate the severity of the sentence, and deciding whether the defendant's time spent on restrictive bail should be taken into account in the sentencing process.

The court began by setting the starting point for the sentence, noting that while there are no guideline judgments for sentencing attempts to pervert the course of justice due to the wide variation in circumstances, traditionally such attempts have been met with moderately lengthy terms of imprisonment. The court found that the defendant's actions, though unlawful, were driven by a misguided sense of loyalty to protect his father, and as such, his offending was at the less serious end of the spectrum. The court set the starting point at 18 months’ imprisonment, taking into account the need to denounce the defendant's conduct and deter others from committing similar offences.

In considering personal factors, the court acknowledged the defendant's remorse and guilty plea, awarding a discount for both. Additionally, the court recognised the significant time the defendant had already spent on restrictive bail conditions, which it deemed equivalent to a sentence of home detention. Given the defendant's remorse, acceptance of responsibility, and the time already served, the court concluded that no further term of detention was necessary and sentenced the defendant to six months' supervision, allowing him to continue his positive rehabilitation efforts.

The final orders of the court were that James McFarlane was convicted and sentenced to six months’ supervision for the offence of wilfully attempting to pervert the course of justice. This sentence was intended to support the defendant's ongoing rehabilitation and ensure he could continue his progress in finding employment and maintaining his family connections.

Orders