R v McLean - [2017] NZHC 3183

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-025-000812 [2017] NZHC 3183

THE QUEEN

v

BENJAMIN PETER MCLEAN

Hearing: 18 December 2017

Appearances:

R W Donnelly for the Crown
W N Dawkins and G S Williamson for the Defendant

Judgment:

18 December 2017

SENTENCING NOTES OF DUNNINGHAM J

[1] Benjamin Peter McLean, you are here for sentence having pleaded guilty to the charge of murdering your wife, Verity Ann McLean, and to the attempted murder of her partner, Garry William Duggan.

Background facts

[2] The relevant background facts are set out in full in the summary of facts, and that was read when you entered your pleas. So, for the purpose of today’s sentencing I am only going to give a brief summary. You were married to Mrs McLean for
18 years and you have three children with her, who were aged 9, 16 and 19 at the

time of her death. The second victim, Mr Duggan, was a long-time family friend.

R v MCLEAN [2017] NZHC 3183 [18 December 2017]

[3] The two victims began an affair in December 2016 and on 5 April 2017, your wife told you that she was leaving you and she moved into a house on Otepuni Avenue with Mr Duggan.

[4] In the early evening of 25 April 2017, you travelled to the victims’ home by bicycle. You had with you various equipment including a cut down .22 rifle with all identifying marks, apart from the maker’s name ground off it, a New Zealand Police portable radio programmed to listen to the Invercargill Police communications channel, a pair of ASP brand handcuffs such as are used by the New Zealand Police Armed Offenders Squad, scissors, towelling and rubber gloves.

[5] Mrs McLean was alone at the house when you arrived. Evidence from the scene examination suggests she was restrained by you. She also sustained extensive bruising to her face, arms and legs. Thirty-nine visible bruises were identified which the pathologist says was consistent with a fight occurring prior to her death. Finally, you shot her with the cut down .22 rifle by placing it under her chin and against her skin as she sat on the couch. She died from the gunshot wound entering the head and brain.

[6] Mr Duggan arrived home from work around 8.00 pm and parked his car. You appeared before him and pointed your gun at him. You fired and hit him in the right upper chest. You fired again and the second shot hit him in the left forearm. The two of you engaged in a violent struggle. Mr Duggan managed to take the rifle off you and smashed it over your head. This caused the stock to break off. You then went to your back pack and retrieved a wooden baton from it. You approached Mr Duggan and hit him on the forehead. The two of you ended up on the ground with you holding Mr Duggan…

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 McLean

Details

AGLC: R v McLean [2017] NZHC 3183
Case: [2017] NZHC 3183
Decision Date: 18 December 2017

CaseChat Overview and Summary

In the case of R v McLean, Benjamin Peter McLean was convicted of murdering his wife, Verity Ann McLean, and of the attempted murder of her partner, Garry William Duggan. The matter came before Dunningham J in the High Court of New Zealand, Invercargill Registry. The central legal issue was the determination of the appropriate minimum period of imprisonment (MPI) for the murder conviction, given the presence of aggravating factors that trigger s 104 of the Sentencing Act, and the impact of the attempted murder charge on the sentencing.

The Crown argued for a starting point of 18-19 years for the murder, with an uplift of two years for the attempted murder, and a two-year discount for McLean's guilty plea and lack of previous convictions. The defence contended that the facts of the case were less severe than those in R v Smith, which the Crown had cited, and sought a discount of one year for remorse and good character, and two years for the guilty plea. Additionally, the defence highlighted the need for McLean to be held in solitary confinement for security reasons, which would warrant a further discount.

Dunningham J determined that section 104 of the Sentencing Act did apply, mandating an MPI of 17 years unless manifestly unjust. The Court found that, despite the mitigating factors, the aggravating features of the crime, including the degree of planning, unlawful entry, and the callous nature of the murder, warranted an MPI of 17 years. The attempted murder charge warranted an uplift of two years, resulting in an MPI of 19 years. A two-year discount for the guilty plea and good character brought the MPI down to 17 years, which the Court deemed appropriate. The Court concluded that any further discount for solitary confinement would be insufficient to render a 17-year MPI manifestly unjust.

The final orders were that McLean be sentenced to life imprisonment for the murder with an MPI of 17 years and a concurrent sentence of seven years' imprisonment for the attempted murder.

Orders