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R v McSweeney

R v McSweeney

Case [2007] NZCA 147 23 April 2007

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA488/06
[2007] NZCA 147
THE QUEEN
v
DAVID CHARLES MCSWEENEY
Hearing:16 April 2007

Court:Glazebrook, Randerson and Ronald Young JJ
Counsel:R P Chambers for Appellant

M D Downs for Crown

Judgment:23 April 2007 at 11am

JUDGMENT OF THE COURT

APPEAL AGAINST SENTENCE DISMISSED.
REASONS OF THE COURT

(Given by Ronald Young J)
[1]       On 28 November 2006 Mr McSweeney was sentenced to life imprisonment, with a minimum period of imprisonment of 15 years, having pleaded guilty to the murder of his wife. He also pleaded guilty to the assault of his mother-in-law and was sentenced to nine months imprisonment to be served concurrently.
[2]       He appeals against the minimum period of imprisonment submitting it was manifestly excessive because:
(i)        the sentencing Judge gave insufficient credit for his guilty plea;
(ii)the sentencing Judge mistakenly said at sentencing that there was a degree of premeditation in the killing; and
(iii)the minimum period of imprisonment exceeded periods imposed by the courts in similar cases.

Sentencing remarks
[3] Venning J summarised the facts as follows:
[3]The facts leading to the murder of the deceased can be shortly stated. After an argument during the course of which the deceased was injured, the deceased left your home on 2 April 2006 and went to live with her mother. She applied for and obtained a protection order. The protection order was served on you on 10 April 2006.
[4]Four days later, early on the morning of 14 April 2006 you went to the business premises of Creative Textiles, a business that you and the deceased owned and operated. In a statement you have put to the Court you say you drove past the business, saw the door was open but decided against driving your car into the carpark because you were concerned that if the deceased saw your car she would phone the police. You went home. You got a friend’s car and came back to the business. You parked it in the next door business carpark so it would not be recognised. In your statement you said the deceased saw you and greeted you in quite a friendly manner, that you spoke briefly and then you got angry. You say she cried out to her mother and started screaming and that you just wanted to stop her screaming.
[5]Mr McSweeney you stabbed the deceased and killed her in what can only be described as a frenzied attack. The pathologist’s report notes there were approximately 30 stab wounds to her arms and upper body, the most significant wounds being:
• defence type wounds to the arms and hands;
•a stab wound to the heart which was the fatal wound inflicted while still alive; and
•a wound to the neck which cut the larynx, trachea and right jugular vein.

[6]While you were attacking the deceased in this way her mother, the other victim that day, heard the deceased screaming, and came into the office area where she saw you hunched over…

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 McSweeney

Details

AGLC: R v McSweeney [2007] NZCA 147
Case: [2007] NZCA 147
Decision Date: 23 April 2007

CaseChat Overview and Summary

David Charles McSweeney appeals against the sentence imposed for the murder of his wife, arguing that the minimum period of imprisonment of 15 years is manifestly excessive. He contends that the sentencing judge did not give sufficient credit for his guilty plea, misconstrued the degree of premeditation, and that the sentence exceeded those in similar cases. The Crown argued that the sentence was appropriate given the circumstances, including the brutality of the crime and the appellant's early guilty plea.

The court found that while the appellant's guilty plea at an early stage demonstrated remorse and aimed to protect witnesses, the mitigating effect of the plea was already considered in the sentence. The court noted that the appellant's plea was not entirely unexpected due to the overwhelming evidence of guilt, and thus the discount for the plea was appropriately within the range of one to two years. Additionally, the court found no error in the judge's consideration of premeditation, which referred to the appellant's actions in breaching a protection order and not to planning the murder itself. The court also found that the sentence was in line with those in similar cases, noting that slight differences in the minimum terms of imprisonment did not establish manifest injustice.

The Court of Appeal dismissed the appeal against sentence, affirming the original sentence imposed.

Orders