R v McKenzie - [2009] NZCA 169

IN THE COURT OF APPEAL OF NEW ZEALAND
CA791/2008
[2009] NZCA 169
THE QUEEN
v
HAYDEN BRENT MCKENZIE
Hearing:30 April 2009

Court:Robertson, Chisholm and Gendall JJ
Counsel:G J King for Appellant

A Markham for Crown

Judgment:5 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       This appeal involves a narrow point, namely the contention that a minimum period of 21 years’ imprisonment imposed as part of a sentence of life imprisonment after the appellant pleaded guilty to a count of murder, was manifestly excessive.
[2]       Simon France J, who imposed the sentence, said:
[3]       The relevant facts can be briefly stated, but lose none of their appalling quality as a consequence. Mr McKenzie was associated with a white supremacist group. On the day in question, he and his two co-accused were out driving. They saw Mr Kim hitch-hiking. They picked him up, drove to a remote area and killed him. It is alleged Mr Kim was choked to death by the co-accused while Mr McKenzie pinned his arms. He was unknown to them.
[4]       Afterwards Mr Kim’s body was hidden. Mr McKenzie and his co-accused later returned and buried him. All his clothing and belongings were burned. The sole reason for killing Mr Kim was that he was Asian.

The appeal issues
[3] The appellant contends that the 21 years’ minimum non-parole period was manifestly excessive because it did not adequately reflect:
(a) a guilty plea;
(b)co-operation with authorities;
(c)remorse;
(d)custodial status; and
(e)the totality principle.

[4]       It was common ground at sentencing, and before us, that s 104 of the Sentencing Act 2002 applied. A minimum period of 17 years had to be imposed. It was accepted that a combination of relevant factors can justify a higher starting point: R v Baker [2007] NZCA 277. But it is argued for the appellant that no more than 17 years was required in the circumstances of the case, particularly as, at the time of sentence, Mr McKenzie had already been in custody in excess of four years for another murder.
Background
[5]       In June 2005, Mr McKenzie and another were sentenced to life imprisonment with an automatic minimum non-parole period of ten years. Section 104 of the Sentencing Act 2002 did not apply to a murder committed in 1999.
[6]       In June 2008, Mr McKenzie and another (“X”) were charged with the murder of Mr Kim. Another person (“U”) was charged with being an accessory after the fact to murder. Both Mr McKenzie and X declined to speak to the police about the matter, or to assist in the recovery of Mr Kim’s body.
[7]       In the course of a preliminary hearing on 14 October 2008, Mr McKenzie entered a plea of guilty and later assisted the police to locate Mr Kim’s body. This was after the receipt of a letter from the Crown Solicitor at Christchurch which relevantly said:
(a)The Crown would…

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 McKenzie

Details

AGLC: R v McKenzie [2009] NZCA 169
Case: [2009] NZCA 169
Decision Date: 5 May 2009

CaseChat Overview and Summary

This appeal concerns the contention that a minimum non-parole period of 21 years imposed as part of a sentence of life imprisonment for murder was manifestly excessive. The appellant, Hayden Brent McKenzie, was associated with a white supremacist group and, along with two co-accused, picked up an Asian man, Mr Kim, who was hitchhiking. The trio drove to a remote area where the co-accused choked Mr Kim to death while McKenzie held his arms. They buried his body and burned his clothing and belongings. McKenzie and his co-accused later returned to the burial site and hid the body. The sole reason for the killing was that Mr Kim was Asian. McKenzie pleaded guilty to the murder and assisted the police to locate the body. The appeal against the sentence imposed by Simon France J was dismissed.

The primary legal issue before the Court was whether the 21-year non-parole period was manifestly excessive. The appellant argued that the sentence did not adequately reflect his guilty plea, co-operation with authorities, remorse, custodial status, or the totality principle. The Crown accepted that a combination of relevant factors can justify a higher starting point but argued that the 21-year minimum non-parole period was justified in the circumstances. The Court found that the starting point of 24 years was appropriate, and the discount for the guilty plea, co-operation with authorities, and remorse was sufficient. The Court also found that the 21-year non-parole period was appropriate under the totality principle.

The Court of Appeal found that the starting point of 24 years was appropriate and that the discount for the guilty plea, co-operation with authorities, and remorse was sufficient. The Court also found that the 21-year non-parole period was appropriate under the totality principle. The Court concluded that the 21-year non-parole period was not manifestly excessive, and the appeal against the sentence was dismissed.

No further orders were made.

Orders