Hearing: 21 September 2017

Appearances:

Y V Yelavich and S R Norrie for the Crown
AMM Ives and H B Leabourn for the Defendant

Judgment:

21 September 2017

SENTENCING NOTES OF MUIR J

Counsel/Solicitors:
Y V Yelavich, Kayes, Fletcher, Walker, Manukau
S R Norrie, Kayes, Fletcher, Walker, Manukau
AMM Ives, Barrister, Auckland
H B Leabourn, Barrister, Auckland

R v MCKEE [2017] NZHC 2286 [21 September 2017]

[1] Bodi McKee appears for sentence today having been found guilty of the charge of manslaughter following trial by jury. The victim of the offending was Mr Leslie Putt.

The offending

[2] The following summarises the facts against which I sentence Mr McKee. As trial judge I was able to make my own assessment of the witnesses and this summary reflects that assessment, subject always to consistency with the jury’s verdict.

[3] Mr McKee arrived at the address at 3 Winsford Street, Manurewa at around

7.00 am on Saturday 24 September 2016.

[4] He was in the words of one of the occupants of that house, Ms Monkley, “amped”. The unusual time of his unannounced arrival and the fact that Ms Monkley described him as having a can in his hand and believed he had been drinking, coupled with his demeanour, satisfy me that although not seriously intoxicated, he was under the influence of alcohol and/or on drugs at the time.

[5] I accept that he did not come to the property with any premeditated intention of having an altercation with the deceased, whose presence at the address was unexpected. Nor as he approached the property, where the deceased was sleeping in his car in the driveway, did it at first register with Mr McKee that Mr Putt was there. I accept in that respect the evidence of Ms Monkley and Mr Angus (supported by the witness Epsilon Lauvi) that, when the defendant first arrived, his intention was simply to make a social call on his friend Cody Shelford and/or play with Mr Shelford and Ms Monkley’s son, and that consistent with that intention he entered the house and spent time with them. I reject Mr Shelford’s evidence to the contrary. His defensiveness in respect of the drug dealing activities, which I am satisfied were being conducted from that property, permeated, in my view, much of his evidence

[6] I accept Ms Monkley’s evidence that Mr McKee and the deceased were known to each other and I am satisfied that there was some bad blood between them. The reasons were never explained in the evidence.

[7] At all times Mr McKee was carrying a shoulder bag in which there was a loaded 0.22 calibre pistol for which he had no firearms licence. Whether it was being carried for personal protection or, as Mr McKee now says in a letter to the Court, because he was in 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 McKee

Details

AGLC: R v McKee [2017] NZHC 2286
Case: [2017] NZHC 2286
Decision Date: 21 September 2017

CaseChat Overview and Summary

Bodi McKee appeared for sentence following his conviction for manslaughter. The deceased, Leslie Putt, was shot in the abdomen by McKee during an altercation. The court accepted that McKee had not intended to kill Putt but that his actions were reckless and amounted to excessive self-defence. The court rejected the Crown's submission that McKee had deliberately aimed for Putt's torso, finding instead that he intended to inflict a non-fatal injury or fire a warning shot. The court considered McKee's troubled upbringing, criminal history, and demonstrated remorse in mitigation. The court imposed a starting point of seven years and six months' imprisonment, reduced by discounts for excessive self-defence, remorse, and an offer to plead guilty, but increased by an uplift for previous violent offending. The court imposed a minimum period of imprisonment of three years, reflecting the gravity of the offending and the need for denunciation and accountability. McKee was sentenced to six years and three months' imprisonment, with a minimum period of imprisonment of three years.

Orders