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R v McKay

R v McKay

Case [2023] NZHC 2103 9 August 2023

Admissibility of Evidence

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-009-8192

[2023] NZHC 2103

THE KING

v

NICHOLAS VINCENT MCKAY KELLY ARCHBOLD

KEHANNA JOY CULLEN

Hearing: 4 August 2023

Counsel:

B Hawes and A M Harvey for the Crown J D Lucas for the Defendant McKay

A M McCormick and N J Hansen for the Defendant Archbold P N Allan for the Defendant Cullen

Date:

9 August 2023

SENTENCING REMARKS OF HARLAND J

Introduction

[1] Mr McKay, Ms Archbold and Ms Cullen you each appear before the Court for sentence, having pleaded guilty to one charge of being an accessory after the fact to discharging a firearm with intent to cause grievous bodily harm.1 The maximum penalty for this offence for each of you is a term of imprisonment for five years.

1 Crimes Act 1961, ss 71, 198)1)(a) and 312.

R v MCKAY, ARCHBOLD & CULLEN [2023] NZHC 2103 [9 August 2023]

[2] Each of you assisted Mr Smith and/or Mr Sparks after Connor Whitehead was shot and killed. I do not repeat what they did but note that it is outlined in my sentencing remarks for them and you are entitled to a copy to see what I said about that.2

[3] The remarks I also made about my approach to sentencing them equally apply to you.3

[4]I start by dealing with you Mr McKay.

MR MCKAY

[5] Because your plea of guilty was based on the sentence indication given by me,4 you have accepted that a starting point of 16 months’ imprisonment is appropriate. I left open the prospect of an electronically monitored sentence. This will be addressed by me shortly after I have considered what deductions would be appropriate for you by way of mitigation.

[6] I also note that when I delivered by sentence indication decision I said that, in any event, you would receive a deduction of between 23 and 25 per cent to reflect your early guilty plea. It was an early guilty plea because it was not only entered after the sentence indication I gave you, and very promptly, but it also followed, that is a sentence indication followed, a change in the nature of the charge that had been laid against you. So, although the original charge was being an accessory after the fact to murder, to which you pleaded not guilty, when it was changed and after the sentence indication you entered a very early guilty plea. I take that into account.

[7]I start by outlining your offending.

The offending

[8] Mr McKay, both Mr Smith and Mr Sparks went to your house after the shooting and, from there, left to hide the firearms that had been discharged at Heaphy Place.

2      R v Smith & Sparks [2023] NZHC 2102.
3      At [25]-[26].
4      R v Archbold, McKay & Cullen [2023] NZHC 156.

[9] Mr Sparks told you directly that he and Mr Smith had shot someone and they thought that…

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 McKay

Details

AGLC: R v McKay [2023] NZHC 2103
Case: [2023] NZHC 2103
Decision Date: 9 August 2023

CaseChat Overview and Summary

The case before the High Court of New Zealand, Christchurch Registry, is R v McKay. The defendants, Nicholas Vincent McKay, Kelly Archbold, and Kehanna Joy Cullen, pleaded guilty to being an accessory after the fact to discharging a firearm with intent to cause grievous bodily harm. Each defendant faces a maximum penalty of five years' imprisonment. The court was required to decide on the appropriate sentence for each defendant, considering their personal circumstances, the nature of their offending, and the principles of sentencing.

The court began by outlining the defendants' involvement in assisting the principal offenders after the shooting of Connor Whitehead. McKay provided a place for one of the principal offenders to stay, permitted the use of his cell phone, moved the offender's car to hide it, and collected a care package to deliver to the offender. Archbold collected a care package and delivered it to McKay for the offender and organised for McKay to meet the offender to give him money and food. Cullen picked up one of the principal offenders and took him to another location, then brought him back to her home, lying to the police about his whereabouts. The court considered the defendants' personal circumstances, including their backgrounds, employment, and family situations, and assessed their culpability and the gravity of their offending.

The court determined that McKay's starting point for sentencing should be 16 months' imprisonment, considering his level of involvement and culpability. However, due to his early guilty plea and remorse, the court decided on a sentence of six months' community detention and 100 hours of community work. Archbold's starting point was set at 12 months' imprisonment, but the court decided on a sentence of four months' community detention and nine months' supervision, considering her personal circumstances and the influence of her relationship with one of the principal offenders. Cullen's starting point was nine months' imprisonment, but the court decided on a sentence of 100 hours of community work, considering her limited involvement and personal circumstances.

The court also considered the application for discharge without conviction and the application for permanent suppression of name for Cullen. The court declined the application for discharge without conviction, finding that the consequences of a conviction were not out of proportion to the gravity of the offending. The court also declined the application for permanent suppression of name, finding that the threshold for extreme hardship had not been met. However, the court granted interim and continued suppression of Cullen's name for a period of two weeks.

Orders