[1] Mr McHugh, you appear for sentence today after having been found guilty by a jury of several charges. They are charges of murder, aggravated robbery, recklessly discharging a firearm, conspiring to pervert the course of justice, wounding with intent to injure and dishonest use of a document.

[2] The maximum sentences on those offences range from life imprisonment on the charge of murder down to seven years on all of the remaining charges other than that of aggravated robbery. The maximum sentence of 14 years is available on the charge of aggravated robbery.

The facts

[3] The facts that give rise to the charges were fully canvassed at trial and, as trial Judge, I have a good appreciation of them. The charges fall into three groups.

The events that occurred on 20 April 2014

[4] The first group of charges comprises those of murder, aggravated robbery and recklessly discharging a firearm. All of those charges arose out of an incident that occurred in the early hours of 20 April 2014. That was Easter weekend.

[5] The evidence established that during the days leading up to Easter you had been in Auckland selling cannabis. You returned to Gisborne on or about the Friday. You had received information from your then partner, Ms Dalrymple, that drugs were being sold from an address in Gisborne occupied by Mr Whatuira. On Saturday 19 April, you went to that address on at least two occasions in order to purchase drugs. You therefore knew that drugs and money were being held at the address.

[6] It is clear that you then formulated a plan to rob Mr Whatuira of drugs and money. In the early hours of the Sunday morning, you went to an associate’s address some distance out of Gisborne. You had been storing firearms and ammunition at this address. You had also been obtaining cannabis from him to sell. You uplifted a
.22 rifle and a quantity of ammunition. You then drove back into Gisborne. The

jury’s verdict makes it clear that the driver of the vehicle was Ms Dalrymple.

[7] You then went to Mr Whatuira’s address wearing a partial disguise. You obtained entry to the address through an insecure window at the rear of the property. You then walked through into a bedroom area where Mr Whatuira was sitting on a couch. Unknown to you, he had a visitor at that time. Mr Douglas Din Witere had arrived some time earlier to visit Mr Whatuira, and the two men were sitting in the lounge conversing when you walked in.

[8] As soon as you walked in, you pointed the firearm in the direction of Mr Whatuira. You then discharged a…

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 McHugh

Details

AGLC: R v McHugh [2015] NZHC 2389
Case: [2015] NZHC 2389
Decision Date: 1 October 2015

CaseChat Overview and Summary

McHugh was found guilty of multiple serious charges, including murder, aggravated robbery, recklessly discharging a firearm, conspiring to pervert the course of justice, dishonestly using a document, and wounding with intent to injure. The court was required to decide on the appropriate sentence for McHugh, particularly the minimum term of imprisonment for the murder charge, and to consider the implications of his other offences.

The court considered the purposes and principles of sentencing under the Sentencing Act 2002, particularly the need for deterrence and denunciation given the gravity of the offences. The court noted that a life sentence was mandatory for the murder charge, but the minimum term of imprisonment needed to be determined. The court found that the mandatory minimum term under section 104 of the Act was 17 years, and it was not manifestly unjust to impose this term given the circumstances of the case. The court further considered whether an uplift to the minimum term was necessary to reflect the seriousness of McHugh's other offences. After reviewing comparable cases, the court decided to increase the minimum term by one year and three months to account for the conspiracy to pervert the course of justice and by nine months for the wounding with intent to injure charge, resulting in a total minimum term of 19 years.

The final orders of the court were that McHugh was to be sentenced to life imprisonment with a minimum term of 19 years for the murder charge, seven years for the aggravated robbery, three years for recklessly discharging a firearm, four and a half years for conspiring to pervert the course of justice, two years for dishonestly using a document, and three years for wounding with intent to injure. All sentences were to be served concurrently.

Orders