R v McLean - [2014] NZHC 572

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-092-013696

CRI 2013-004-013718 [2014] NZHC 572

THE QUEEN

v

MITA MCLEAN

Hearing: 25 March 2014

Counsel:

M R Walker for Crown
H B Leabourn for Defendant

Sentence:

25 March 2014

SENTENCE OF SIMON FRANCE J

[1] Mr McLean you appear for sentencing on four charges:

(a) On 18 March you were involved in a driving incident on the motorway. You were a passenger in the car driven by your pregnant fiancé. You say the victim in this matter changed lanes and thereby posed a danger to you. You, with your fiancé driving, pursued the victim and managed to get in front in congested traffic, causing him to stop. You and your fiancé abused him. You forced him to give you his licence, and then made him drive you to a nearby area. There you further threatened and terrorised the young victim before robbing him of everything he had with him – a GPS system, a phone, money, gift cards and a pen. You denied the offending but were convicted by a
District Court jury of kidnapping and robbery;

R v MCLEAN [2014] NZHC 572 [25 March 2014]

(b)two months later on 2 May, you and your fiancé pulled in behind a woman who was stopped on the side of the road to use her phone. Your partner opened the driver’s door and began assaulting the victim. As she got out and tried to run off, you caught her, forced her to the ground and continued the assault. She was then forced into your car and you drove her away. The victim was forced to crouch out of view. A rug was put over her head. The car was driven from Avondale to Silverdale where it stopped. The victim was left in the car with your fiancé why you went off. She managed to escape and seek help. For this offending you have pleaded guilty to a kidnapping charge;

(c) in between these two offences police searched your house looking for you. That was unsuccessful but there was located various items which can be used in the manufacture of methamphetamine – a bottle of hypophosphorous acid, a steam distiller and other equipment. You pleaded guilty. You say you did not intend to make methamphetamine but instead planned to sell these items.

Effect of offending

[2] The first victim is an 18 year old male undergoing treatment for cancer. He had a catheter fitted at the time and concern over that added to the stress of the event. His initial ongoing level of high anxiety and stress seems to be lessening with time and resolution of the charges.

[3] The second victim is a woman in her late 20’s who has been greatly

traumatised by the incident, and three years on is still struggling to cope.

Mr McLean

[4] Mr McLean you are 50 years old and have spent most of your adult life in jail. You were 17 when first sent…

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 [2014] NZHC 572
Case: [2014] NZHC 572
Decision Date: 25 March 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Mita McLean faced sentencing on multiple charges, including kidnapping, robbery, and possession of equipment for the manufacture of methamphetamine. The court heard from two victims, an 18-year-old male undergoing cancer treatment and a woman in her late 20s, both of whom experienced significant trauma from the incidents. McLean's extensive criminal history, marked by repeated violent offenses and imprisonment, was also considered in the sentencing process.

The legal issues before the court involved determining the appropriate sentence for McLean, considering the severity of the offenses, his criminal history, and potential for rehabilitation. The court needed to balance the need for punishment and deterrence with the possibility of rehabilitation and reintegration into society. The court also had to assess whether preventive detention was necessary to protect the community, given McLean's history of violent offending.

The court determined that a lengthy finite sentence within the five to six-year range would be sufficient to protect the community, while also allowing for rehabilitation. The sentencing judge noted McLean's willingness to engage in rehabilitation programs, his remorse, and the positive aspects of his character, such as his knowledge and teaching of Te Reo and his ability to work reliably. The court imposed a six-year sentence for the kidnapping incident on 2 May 2011, a four-year sentence for the kidnapping and robbery on 18 March 2011, and a nine-month sentence for possessing equipment for the manufacture of methamphetamine. All sentences were ordered to run concurrently, with McLean to serve three and a half years of the six-year sentence before being eligible for release.

The final orders of the court mandated that McLean serve three and a half years of his six-year sentence before being eligible for release, with the sentences for the other charges running concurrently.

Orders