Macartney v R [2017] NZCA 340 (10 August 2017)

Last Updated: 16 August 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA273/2017 [2017] NZCA 340
BETWEEN	KYLE JAMES MACARTNEY Appellant
AND	THE QUEEN Respondent

Hearing:	1 August 2017
Court:	Clifford, Simon France and Toogood JJ
Counsel:	AJD Bamford for Appellant R K Thomson for Respondent
Judgment:	10 August 2017 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Mr Macartney appeals a sentence of two years and three months’ imprisonment imposed by Judge Zohrab in the District Court at Nelson for charges of burglary and possession of cannabis.^[1] Mr Macartney was also to be resentenced on charges of male assaults female (x 2) and assault on a child.^[2] The resentencing arose in part because the existing sentence of supervision was cancelled when Mr Macartney was remanded in custody on the burglary charge. Mr Macartney had yet to complete a Stopping Violence course required as part of the supervision sentence and there were concerns about his attitude towards that. However, he had otherwise completed the sentence, and no extra penalty was imposed for these charges.^[3]
[2] Mr Macartney was owed money for some tyres. He had not been paid. He and an associate, Shaun Pene, visited the debtor’s house at 1 am. They forced entry into the dwelling and started to throw things around the lounge. A TV was damaged. This awoke the two victims who were sleeping in the house, as were their two young children. By use of an internal door, the victims were able to prevent the offenders gaining access to the part of the house where they and the now crying children were. The offenders were yelling about the money but left when they realised the police had been called.
[3] Mr Pene pleaded guilty to a charge of burglary. Judge Ruth took a two year starting point, which ultimately ended up as a sentence of community detention and intensive supervision.^[4] Mr Macartney on the other hand denied the charge but was found guilty. Judge Zohrab took a starting point of two years and three months’ imprisonment for the burglary on the basis that the debt was Mr Macartney’s and he was the architect of the offending.^[5] As noted, after uplifts for the other offences and adjustments, the final outcome for Mr Macartney was two years and three months’ imprisonment. It is this difference in outcome between the codefendants that has prompted the appeal.
[4] The appeal lacks merit for several reasons. First, Mr Pene was sentenced on the basis of his submission that the robbery was Mr Macartney’s idea. So both men were sentenced on the same basis and the difference in starting points is rational.^[6] Second, there were numerous distinguishing features including Mr Pene’s guilty plea and Mr Macartney’s other offending.
[5] Finally, we note the Judge made an arithmetical error in the course of sentencing. The correct sentence for Mr Macartney should have been two years and nine months’ imprisonment. Given our view of the seriousness of the burglary, Mr Macartney is fortunate his sentence is not being adjusted upwards to correct the error.
[6] The appeal against sentence is dismissed.

Solicitors:
Bamford Law, Nelson for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Macartney [2017] NZDC 10224 at [19]. When arrested Mr Macartney was found in possession of 86 grams of cannabis.

^[2] At [1].

^[3] At [13].

^[4] Police v Pene [2017] NZDC 2602.

^[5] R v Macartney, above n 1, at [6] and [10].

^[6] As it happens Mr Pene testified on Mr Macartney’s behalf and took full responsibility. It is not surprising the Judge put this evidence to one side.