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MacDonald v R [2024] NZCA 618 (26 November 2024)

Last Updated: 2 December 2024

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA531/2024
[2024] NZCA 618



BETWEEN

NICHOLAS ALEXANDER MACDONALD
Appellant


AND

THE KING
Respondent

Hearing:

5 November 2024

Court:

Cooke, Fitzgerald and Jagose JJ

Counsel:

K J Beaton KC and D Steyn for Appellant
C E Martyn and P J Brand for Respondent

Judgment:

26 November 2024 at 2.30 pm


JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Jagose J)

Background

Judgment under appeal

Approach on appeal

Discussion

Overall starting point

(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.

Aggravating and mitigating factors personal to Mr MacDonald

[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.

Was the final sentence manifestly excessive?

Result





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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