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MacDonald v R [2024] NZCA 618 (26 November 2024)
Last Updated: 2 December 2024
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IN THE COURT OF APPEAL OF NEW
ZEALANDI
TE KŌTI PĪRA O AOTEAROA
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BETWEEN
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NICHOLAS ALEXANDER MACDONALD Appellant
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AND
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THE KING Respondent
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Hearing:
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5 November 2024
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Court:
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Cooke, Fitzgerald and Jagose JJ
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Counsel:
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K J Beaton KC and D Steyn for Appellant C E Martyn and P J Brand
for Respondent
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Judgment:
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26 November 2024 at 2.30 pm
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JUDGMENT OF THE COURT
The appeal
against sentence is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Jagose J)
- [1] Nicholas
MacDonald appeals the 6 August 2024 decision of Judge M J Hunt in the District
Court at Christchurch, sentencing him
to five years and two months’
imprisonment on his guilty pleas to a range of dishonesty, drug, aggravated
burglary, and assault
charges — the last including of persons in a family
relationship, by strangulation, and with a
weapon.[1]
Background
- [2] The primary
victims were both in intimate relationships with Mr MacDonald, who was turning
22 and 23 years old at the time of
his offending.
- [3] In February
2022, the first victim said she wanted to end the relationship, and
Mr MacDonald was physically and verbally abusive
to her in response —
throwing her around their bedroom; hitting her 15–20 times to her jaw and
the side of her body;
locking the bedroom door, saying “[t]his is going to
be the longest hour and a half of your life”; punching her to her
head and
upper body some 10 times with both closed fists; continuing to beat her with
punches and elbows; biting her; on a number
of occasions, grabbing her around
the throat to throttle her for a few seconds; and kneeing her in the ribs
— all while she
cried and pleaded for the assault to stop. For this
admitted conduct, Mr MacDonald was convicted on one charge each of
male assaults
female and injuring with intent to injure.
- [4] On a variety
of occasions over January 2023, Mr MacDonald then hit, punched, slapped and
strangled his subsequent partner. When
she attempted to end their relationship,
late in the evening of 23 January 2023, he broke into her house armed with a
hammer, forcing
open her bedroom window, and physically confronted her, hitting
her with the hammer on her knee and holding it against her throat,
grabbing her
around the throat and squeezing her throat for a short time rendering her unable
to breathe as he threatened to kill
her and himself, twice punching her with a
closed fist to the back of her head and hitting her across her face with his
hand. His
behaviour fluctuated between being calm and aggressive. He retrieved
a 20-cm knife from the kitchen and threatened her with it,
pulling her hair and
saying he would “put her in the ground”, he wanted to die and would
take her with him, before repeatedly
trying to slice his own head with the
knife. For this admitted conduct, Mr MacDonald was convicted on one charge
of aggravated burglary
and two charges of assaults with a weapon (being the
hammer and the knife), as well as one representative charge of strangulation,
two representative charges of assault on a person in a family relationship and
one representative charge of threatening to kill.
- [5] Both victims
escaped when Mr MacDonald ceased his assault of them. He told the first to
“get the fuck out” and permitted
her departure. The second coaxed
Mr MacDonald into falling asleep on her bed, and she then took the
opportunity to leave. Both
were injured by Mr MacDonald: the first with
bruising to her arms and a headache such that she was suspected to have
sustained a
concussion; the second with swelling, lumps, and bruising to her
face, head, and throat. Their victim impact statements identify
the extreme
effect of his offending on them, leaving each profoundly destabilised in
multiple central aspects of their personal,
social, and working lives and
leading both separately to leave their homes in New Zealand to avoid the risk of
recurrence.
- [6] A third
victim was Mr MacDonald’s grandmother, from whose bank account, using her
card in breach of trust, Mr MacDonald
stole $1,100 on 17 December 2022.
She views his treatment of her as “elder abuse”.
- [7] On his
arrest, Mr MacDonald was also charged with an offence against the Medicines Act
1981 in respect of two white pills found
in his
possession.
Judgment under appeal
- [8] After
recounting the facts,[2] the Judge
noted Mr MacDonald’s history of family violence aggression against a
dysfunctional background of childhood neglect
and physical and sexual
abuse,[3] his later drug and alcohol
abuse leading to his “clinically significant” impairment and
distress,[4] with
“profound” effects on his
victims.[5]
- [9] The Judge
took a starting point of 28 months for Mr MacDonald’s offending against
the first victim, 30 months in respect
of his earlier January 2023 offending
against the second victim, and an additional 54 months for the 23 January 2023
offending also
against her.[6] That
was uplifted by four months for that offending occurring while he was on bail in
relation to his then-alleged offending against
the first victim, leading to a
starting point of 116 months’ (or nine years and eight months’)
imprisonment.[7]
- [10] The Judge
considered no “further” adjustment was required for
totality.[8] He applied a 20 per cent
discount (rounded up to 24 months) for Mr MacDonald’s personal
background, an additional 10 per cent
for his youth and remorse (rounded up to
12 months), and 15 per cent (rounded up to 18 months) for his guilty pleas,
resulting in
the Judge’s end sentence of five years and two months’
imprisonment.[9]
- [11] For Mr
MacDonald, Kerryn Beaton KC submits the Judge’s “effective
seven year” starting point for all of the
January 2023 offending was
too high, the Judge erred in not applying any totality reduction, and a
substantially larger discount
should have been allowed at least for the
prospects of Mr MacDonald’s rehabilitation in combination with his youth
and remorse.
Approach on appeal
- [12] We must
allow Mr MacDonald’s appeal only if satisfied there is both an error in
the sentence, and a different sentence
should be
imposed.[10] In any other case, we
must dismiss the appeal.[11] The
measure of error is that the sentence is manifestly excessive, a principle
well‑engrained in the approach to sentencing
appeals.[12] We will not intervene
where the sentence is within a range properly justified by accepted sentencing
principles.[13] Whether the
sentence is manifestly excessive is to be assessed in terms of the sentence
given; the process by which it is reached
rarely will be
decisive.[14]
Discussion
- [13] Given the
approach on appeal, we do not scrutinise the particular component of the
Judge’s sentence addressed to the January
2023 offending, or if the
Judge’s reference to totality is to be interpreted as meaning no
adjustment was made on that count.
The relatively light component for Mr
MacDonald’s earlier offending against the first victim, and omission of
any component
for his offending against the third victim or against the
Medicines Act, may be thought to encompass implicit deductions for totality,
meaning nothing “further” was required.
Overall
starting point
- [14] We note Mr
MacDonald pleaded guilty in terms of a summary of facts which specified:
“Between 1 and 23 January 2023, the
defendant assaulted and
strangled the [second] victim on numerous occasions” (emphasis
added).
- [15] We consider
Mr MacDonald’s overall offending against the victims clearly fell within
this Court’s classification
of the “[h]ighest level s 189A
offending” in
Shramka v R.[15]
It arose in response to the victims’ assertion of their own agency, and it
is offending bearing all the hallmarks of family
violence’s coercive and
controlling behaviour.
- [16] To varying
and overlapping degrees, all but the last of Shramka’s eight
“relevant aggravating factors” are present in
Mr MacDonald’s overall
offending:[16]
(a) premeditation and planning in locking the first victim’s bedroom door
and breaking in through the second victim’s
bedroom window bringing a
weapon with him;
(b) his strangulation of the second victim, and his history of strangling both
victims was part of very serious domestic violence;
(c) the victims were vulnerable, having sought to address the ending of their
relationships with Mr MacDonald; such circumstances
additionally
“enlarging the risk of injury and extending the psychological
consequences” for them;
(d) harming the victims where they lived;
(e) aggravated violence including repeated applications of force to the
victims’ throats;
(f) further aggravating threats to kill; and
(g) causing enduring psychological harm to the victims.
- [17] The common
thread of Mr MacDonald’s use of strangulation — in conjunction with
his other violent offending against,
and the impact of all his offending on,
each of the victims — elevates his offending to that “highest
level”.[17] Mr
MacDonald’s seemingly spontaneous and repeated resort to such violence in
the context of his interactions with the victims
put them at serious risk of
fatal consequences. His progression from “throttling” the first
victim through to multiple
episodes of “strangling” of the second
illustrates that risk.
- [18] A six-year
starting point thus was warranted for the 23 January 2023 offending
alone.[18] Mr MacDonald’s
prior serious domestic violence offending against the victims warranted three-
and four-year starting points,
the latter uplifted by reason of its repetition
of the offending against the first
victim.[19]
We consider such individual sentences reflect the seriousness of each group of
offending.[20] Mr MacDonald
relied on R v Gore and R v Drewett as more serious
offending.[21] However, that does
not take into account the subsequent enactment of s 189A, which informs
relevant sentencing involving
strangulation.[22]
- [19] But the
multiplicity of offences comprised by Mr MacDonald’s violent attacks on
the victims necessitates an evaluative,
rather than arithmetic, approach to an
overall starting point reflective of Mr MacDonald’s overall
culpability.[23] In Parker v
R, this Court held strangulation-led domestic violence offending over a year
— with five-, four-, and three-year starting points
for its constituent
strangulation, injuring with intent to cause grievous bodily harm, and other
serious violent offending (abduction,
assault with intent to injure, and
kidnapping) — should have resulted in “a total starting point of no
more than 10 years’
imprisonment”.[24] We do not
see the different offences in Parker to be materially
distinguishing.
- [20] If the
shorter period of Mr MacDonald’s comparable repetitive violent offending
against the second victim may have justified
a lesser starting point, that is
obviated by the inclusion of his similar offending against the first victim,
thus justifying the
Judge’s overall starting point of nine years and eight
months’ imprisonment. The Judge did not err in this respect.
Aggravating and mitigating factors personal to Mr
MacDonald
- [21] We note the
Judge’s starting point included a four-month uplift on account of Mr
MacDonald’s offending against the
second victim while on bail in relation
to his charged offending against the first victim. Such an uplift reflects an
offender’s
disregard for Court process, as bail implicitly is granted on
the basis the bailee “does not commit any offence while on
bail”.[25] No objection is
taken to that uplift, or to the Judge’s roughly 45 per cent discount for
Mr MacDonald’s guilty pleas,
background, youth, and remorse.
- [22] We have no
difficulty with the Judge’s discounts for Mr MacDonald’s
background’s contribution to his constrained
choice to avoid offending, or
for his accepted genuine remorse. Although the latter discount was packaged
with a discount for Mr
MacDonald’s youth, he is at the cusp for
consideration of such a discount, which usually reflects the impulsivity of
youth
offending and greater prospects for
rehabilitation.[26]
- [23] However, we
consider the Judge’s end sentence should have incorporated a discrete
discount for Mr MacDonald’s rehabilitative
steps and prospects, which were
amply demonstrated in the material before the Judge.
- [24] The Supreme
Court in Berkland v R held:
[27]
[161] Sentencing
judges should encourage offenders to take up the opportunities offered by
rehabilitative programmes to make the necessary
changes in their lives. One way
to do this is by providing material sentencing discounts when the evidence
suggests that is what
an offender is genuinely willing to do. Such
encouragement can be an inflection point in the life of a prisoner.
- [25] Similarly,
in Fakaosilea v R, this Court held the defendants’ prospects for
and efforts at rehabilitation “ought to have been positively
recognised”.[28]
Rehabilitation is a key principle and purpose of sentencing, especially for
someone who is relatively
young.[29]
- [26] Mr
MacDonald’s enforced abstinence from drugs and alcohol while remanded in
custody brought him apparent insight into the
causes of his offending and
incentive to avoid their recurrence. He completed available alcohol and drug
and tikanga courses, engaged
in counselling with an ACC counsellor, completed a
skills course for post-release tertiary study and worked in his unit as a
cleaner.
His potential was recognised by reservation of a place at a
residential addiction facility. This is tangible indication of Mr
MacDonald’s
self‑starting rehabilitative and reintegrative promise,
and justified a specific discount separately from those for his guilty
pleas,
background, and remorse.
- [27] In our
assessment, a total discount of 50 per cent would have better addressed all
relevant mitigating factors personal to Mr
MacDonald. The question remains,
however, whether the sentence imposed was manifestly excessive as a consequence
of the failure
to give this discount.
Was the final sentence
manifestly excessive?
- [28] Applying a
50 per cent discount to the Judge’s effective starting point of nine years
and four months, with the four-month
uplift, results in a final sentence of five
years’ imprisonment. That is only two months short of the Judge’s
end sentence,
which he reached by rounding up the discounts given by nearly two
months. An effective few days’ additional allowance for
Mr MacDonald’s rehabilitation is impermissible
“tinkering” with an in-range end sentence. The Judge’s end
sentence is not manifestly excessive.
Result
- [29] The appeal
against sentence is dismissed.
Solicitors:
Crown
Solicitor, Christchurch for Respondent
[1] R v MacDonald [2024]
NZDC 18451 [Judgment under appeal].
[2] At [5]–[19].
[3] At [20]–[23].
[4] At
[24]–[25].
[5] At
[20]–[26].
[6] At [27]–[28].
[7] At [29]–[31].
[8] At [27]–[33].
[9] At [33].
[10] Criminal Procedure Act
2011, s 250(2).
[11] Section 250(3).
[12] Tutakangahau v R
[2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].
[13] At [36].
[14] Ripia v R [2011]
NZCA 101 at [15].
[15]
Shramka v R [2022] NZCA 299, [2022] 3 NZLR
348 at [46]–[49].
[16] At [42]. Harm to
associated persons is not present.
[17] Shramka v R, above n
15, at [48].
[18] At [47]–[48].
[19] Parker v R [2023]
NZCA 608 at [25].
[20] Sentencing Act 2002, s
85(1).
[21] R v Gore CA414/05, 2
March 2006; and R v Drewett [2007] NZCA 48.
[22] Shramka v R, above n
15, at [14]–[29].
[23] Sentencing Act, s
85(2).
[24] Parker v R, above n
19, at [29].
[25] Bail Act 2000, s 30(4)(c);
and Clunie v R [2013] NZCA 110 at [22].
[26] Dickey v R [2023]
NZCA 2, [2023] 2 NZLR 405 at [76]–[87]; and Churchward v R [2011]
NZCA 531, (2011) 25 CRNZ 446 at [77]–[78].
[27] Berkland v R [2022]
NZSC 143, [2022] 1 NZLR 509. Similarly, see Kerr v R [2017] NZCA
498 at [62]; and Mallett v R [2014] NZCA 39 at [6] and [11].
[28] Fakaosilea v R
[2024] NZCA 218 at [200] and [227].
[29] Sentencing Act, ss 7(1)(h)
and 8(i); and Dickey v R, above n 26, at [76]–[87].
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