The Queen v McGregor - [2007] NZCA 365

IN THE COURT OF APPEAL OF NEW ZEALAND
CA209/07
[2007] NZCA 365
THE QUEEN
v
GRAHAM FREDERICK MCGREGOR
Hearing:25 July 2007

Court:Chambers, Keane and MacKenzie JJ
Counsel:D N Bunce for Appellant

K Raftery for Crown

Judgment:27 August 2007 at 11 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of five and a half years imprisonment is quashed and a sentence of four and a half years imprisonment is substituted.

____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
[1]       Following trial in the District Court at Christchurch, Graham McGregor was found guilty of robbing the Lincoln Road Health Pharmacy of drugs and money on 7 July 2006. He was sentenced to imprisonment for five and a half years. He appeals his conviction on two bases and his sentence as manifestly excessive.
[2]       The sole issue of significance at Mr McGregor’s trial was whether at the time of the offence he was elsewhere. This issue was not one the Crown had reason in the fullest sense to anticipate. Although Mr McGregor denied the offence and put the Crown to proof, the Crown relied on an admission he was said to have made on the day of the offence that he had been to the pharmacy that morning.
[3]       The first notice the Crown had of Mr McGregor’s defence was when his counsel made an opening statement. Mr McGregor had not given a notice of alibi under s 367A of the Crimes Act 1961. That shaped the trial. After Mr McGregor himself gave evidence the Crown called evidence in rebuttal. On this appeal, Mr McGregor contends, the trial judge, Judge Noble, made two errors that together denied him a fair trial.
[4]       First, Mr McGregor contends, the judge wrongly allowed counsel for the Crown, indeed assisted counsel, to question him as to when he had first told his own counsel of his claim of alibi – a communication protected from disclosure by legal professional privilege. Secondly, the judge misdirected the jury as to a related issue – Mr McGregor’s denial that he had on the day of the offence admitted to having been at or near the pharmacy at the time of the offence.
[5]       As to the sentence imposed, Mr McGregor contends, the judge sentenced him as if he had committed the offence for which he went to trial, an aggravated robbery, involving a firearm concealed but not used. The offence for which he was for sentence, however, as a result of the Crown having been given leave during the trial to amend the indictment, was a robbery in which no firearm figured. That called for a significantly lesser sentence.
Identity in issue
[6]       The owner of the pharmacy said in evidence that at 8 am on 7 July 2006, just as he opened the pharmacy, a person wearing a hooded sweatshirt with the hood up, his face covered by a scarf, entered and demanded money and drugs. He said…

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 The Queen v McGregor

Details

AGLC: The Queen v McGregor [2007] NZCA 365
Case: [2007] NZCA 365
Decision Date: 27 August 2007

CaseChat Overview and Summary

Graham McGregor was convicted of robbing the Lincoln Road Health Pharmacy and was sentenced to five and a half years in prison. He appeals both his conviction and sentence. The central issue in the trial was whether McGregor was elsewhere at the time of the offence. The Court of Appeal examined two claims of error by the trial judge: permitting questioning about when McGregor first told his counsel about his alibi, and misdirecting the jury regarding McGregor's denial of admitting to being at the pharmacy. The Court found that while the judge erred in allowing questioning about the timing of discussions with counsel, this did not result in a miscarriage of justice. The second error, though present, did not prejudice McGregor's defence significantly. As for the sentence, the Court found the original sentence to be manifestly excessive due to an inappropriate uplift for aggravating features of the offence and an overestimation of the need for deterrence given McGregor's history of previous offending. The appeal against the conviction was dismissed, but the appeal against the sentence was allowed, reducing the sentence to four and a half years imprisonment.

Orders