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 to jail for one year.  Then when you were 24, a four year term was imposed for aggravated robbery and unlawfully detaining your victim. For a period your offending did not merit further jail but in 1997, while aged 34, you

were sentenced to a number of years’ imprisonment on several offences including

burglary, aggravated assault and two counts of demanding with menaces.

[5]      Then in 2001 you were sentenced to over 11 years in prison with a minimum term of eight years.  The offending is described in a Court of Appeal ruling on the sentence. A group of you broke into a dwelling occupied by people who had recently immigrated to New Zealand.  You detained the occupants, binding and blindfolding them. You searched the house for valuables, and left taking with you the youngest of the  female  occupants.     She  was  driven  around.     You  separated  from  your co-offenders who ultimately would sexual violate the woman as well as other offending. You travelled to Auckland to attempt to sell the stolen goods.

[6]      And now today you appear on two more separate kidnapping incidents.  You are here in this Court because the prosecution says the danger you pose to everyone means that I should give you a sentence that means you might stay in jail forever.

Preventive detention

[7]      I tell you now I am not going to do that.1   I have read the reports prepared on you.   You suffer from no mental illness.   You seem to have an anger issue and otherwise there is no real explanation. You just do what you want it seems.

[8]      What saves you is this:

(a)       the level of physical harm to the victims has been at the lower end;

(b)Dr Skipworth considers the violence prevention work, and drug and alcohol courses, that have a prospect of helping, and as noted there is

no underlying mental illness that might impede improvement;

1      The authorities suggest the preferred approach is to first fix the finite sentence.  Here I do not consider preventive detention sufficiently a possibility to make that necessary, and in any event a likely sentence around five to six years is common ground.

(c)      you say you are willing to engage in these treatments and people believe  that.    I must  say  it  seems  to  me  you  are  pretty  good  at convincing yourself you are not in the wrong, and it’s other people’s fault, which is nonsense.  If you are serious about accepting help, you should start by taking responsibility for your actions;

(d)you have good knowledge of, and are a good teacher of, Te Reo and at times you have shown you can work reliably and conscientiously.  So there is an alternative way of living that is realistically available to you. You are also one to commit to relationships, which is positive;

(e)      you are today going to receive yet another lengthy jail term which will provide enough opportunity for rehabilitation treatment programmes to work;

(f)      I accept what Mr Leabourn has said about your remorse and that is a positive sign that you will be open to the rehabilitation plans being offered.    Mr Leabourn  advised  that  you  want  to  apologise  to  the victims and I record that;

(g)For these reasons, despite your poor record, and the fact that this offending occurred only a year after you got out of jail, I consider a lengthy finite sentence (counsel agree it will be in the five to six year range) is sufficient, and will adequately protect the community.2   You obviously are a risk, but you’re also 50 and getting older.  Hopefully you may come to realise that the years you have left would be better spent in freedom.  You have said today that is what you want and I

hope it is the case.

2      I also note I considered recent Court of Appeal decisions on preventive detention for violence – R v Stephens [2011] NZCA 341; R v Abbott [2012] NZCA 43; R v Greathead [2014] NZCA 49. Each seemed more serious and involved greater actual risks.

Sentence

[9]      I take as a starting point the second incident involving the young woman.  I do so because it involves a longer duration, violence and there was nothing that initiated it.  You and your partner seemingly just decided to kidnap her and terrorise her.

[10]     Based on the cases referred to me by counsel I see the proper starting point as three and a half years.3   My only hesitation on that is that more could be appropriate. The prolonged abduction of a woman following a vicious gratuitous assault, and then being driven around with a blanket over her head, needs the strongest denunciation. To that I add 18 months for your past record, the fact that this offending was while you were on parole and the fact that it occurred not long after your similar offending against the young man.  That gives a sentence of five years.  I intend to assess the

guilty plea credit and other mitigation such as remorse at this point which I take as one year meaning four years for this offence.4     There then needs to be added a penalty for the offending against the young man (two further years) and the drugs (nothing extra).

[11]     That leaves a sentence of six years, a figure I am comfortable with.

[12]     As for how long you spend in jail I am going to focus only on what you should serve as punishment.  The Parole Board considers safety of the community and I will leave that aspect to them.

[13]     I intend to go near the maximum here.  There are two separate bad examples of kidnapping, and totality means the sentence is shorter than it might otherwise be. You terrorised two people for no good reason, you did so while you were on parole and not long after you had got out of jail for a similar type of crime.   I consider denunciation, punishment, and individual deterrence necessitate three and a half

years in jail and that is what I am imposing.  I intended to impose four years but will

3      The Court of Appeal authorities are reviewed by Lang J  in R v  MacKenzie HC Auckland CRI 2006-057-01114, 20 March 2007.   I see this case as less serious than Watson, but more serious than McKenzie itself which is, of course, not a tariff case.

4      20 per cent given timing and strength of case.

give you credit for 18 months on electronic bail, a factor I have just become aware of.

Please stand.

[14]     On the count of kidnapping occurring on 2 May 2011 I sentence you to six

years’ imprisonment.

[15]     On the counts  of  kidnapping and  robbery occurring  on  18 March 2011  I

sentence you to four years’ imprisonment.

[16]     On    the    count    of    possessing    equipment    for    the    manufacture    of

methamphetamine I sentence you to nine months’ imprisonment.

[17]     All sentences are concurrent.

[18]     I direct you serve three and a half years of your sentence on the six year sentence before you are to be eligible for release.

Simon France J

Solicitors:

Meredith Connell, Crown Solicitors, Auckland
H Leabourn, Barrister, Auckland