R v McMaster - [2009] NZCA 393

IN THE COURT OF APPEAL OF NEW ZEALAND
CA608/2008
[2009] NZCA 393
THE QUEEN
v
PHILLIP MICHAEL MCMASTER
Hearing:29 June 2009

Court:Hammond, Simon France and Lang JJ
Counsel:H D M Lawry for Appellant

M D Downs for Crown

Judgment:9 September 2009 at 10 am

JUDGMENT OF THE COURT

A        The application to adduce further evidence is dismissed.
B        The appeal against the convictions and sentence is dismissed.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       The appellant, Phillip McMaster, was found guilty by a jury, presided over by Judge Blackie, on one count of unlawfully taking a motor vehicle and one count of aggravated robbery. He was sentenced to a term of eight years imprisonment.
[2]       Mr McMaster appeals his conviction on two bases. First, it is submitted that the Judge erred in the directions he gave to the jury on the elements of the aggravated robbery offence (s 235(b) of the Crimes Act 1961) and the parties issue (s 66(2) of the Crimes Act). Secondly, by way of a fresh evidence application, the other offenders involved in the robbery now say that Mr McMaster was not one of their number. For these reasons, it is said the verdicts are unsafe and should be set aside.
[3]       If the convictions are upheld, a sentence appeal is advanced on the footing that the sentence was manifestly excessive and failed adequately to take into account parity with the sentence of the co-accused.
Background
[4]       On 20 November 2006, two security guards were engaged in replenishing two automated teller machines in South Auckland. They were robbed at gunpoint of a sum of $140,000, which was in four canisters in $10 and $20 denominations.
[5]       The security guards were confronted by two men, one holding a firearm. The gunman demanded that the guards drop the bags containing the canisters, otherwise he would shoot. The other man picked up the bags that were dropped to the ground by the guards. These two men left the scene of the offending in a stolen Subaru which was driven by a third person.
[6]       Nathan Stevens admitted picking up the bags. He pleaded guilty to aggravated robbery, car conversion and money laundering in relation to some of the proceeds of the robbery. He later testified on behalf of the Crown. In addition to giving evidence as to his role, Mr Stevens said that Joshua Kite was the get-away driver, and that the appellant was the gunman.
[7]       Mr Stevens said in evidence that after the aggravated robbery, he, Mr Kite, Mr McMaster, and a further offender, Rima Tuau, went to the home of a relative of Mr McMaster to count and then divide the proceeds of the robbery. For his part in the robbery, Mr Stevens took $20,000.
[8]       Mr Stevens’ testimony squared with other evidence led by the Crown at trial.
[9]       First, there was supporting oral evidence. Mr McMaster’s grandfather said Mr McMaster came to his home on the day of the robbery, as…

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 McMaster

Details

AGLC: R v McMaster [2009] NZCA 393
Case: [2009] NZCA 393
Decision Date: 9 September 2009

CaseChat Overview and Summary

Phillip McMaster appeals his conviction on two counts: first, that the judge erred in his directions to the jury on the elements of aggravated robbery and the parties issue; and secondly, that fresh evidence from co-offenders asserts that McMaster was not part of the robbery. McMaster also appeals his sentence on the basis that it was manifestly excessive. The Crown Law Office represents the Crown. The appeal against the convictions and sentence is dismissed. The appellant was found guilty of one count of unlawfully taking a motor vehicle and one count of aggravated robbery. McMaster argues that the judge erred in his directions to the jury on the aggravated robbery offence and the parties issue. The court held that the judge's directions were not careful enough but found no miscarriage of justice. The court found no error in the judge's direction on the aggravated robbery offence and found that the jury was satisfied that McMaster was the gunman. McMaster argues that the judge should have aborted the trial when it was revealed that he had been in prison. The court held that the judge's decision not to abort the trial was within his discretion and found no error in his decision. McMaster argues that his eight-year term of imprisonment is manifestly excessive in light of the sentence imposed upon his co-offender, Nathan Stevens. The court held that the sentence was explicable given Stevens' more limited role in the enterprise overall, his guilty plea, his remorse, and the distinct assistance he provided to the authorities. The court found that McMaster's sentence involved an orthodox application of the Mako guidelines and found no error in the sentencing judge's decision.

Orders