R v McVeigh [2014] NZHC 1936 (15 August 2014)

Last Updated: 19 September 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-012-3015 [2014] NZHC 1936

THE QUEEN

v

_{ZANE ALEXANDER McVEIGH}

Hearing:	15 August 2014
Appearances:	R P Bates for Crown A Stevens for Defendant
Sentence:	15 August 2014

_{SENTENCING REMARKS OF LANG J}

R v McVEIGH [2014] NZHC 1936 [15 August 2014]

[1] Mr McVeigh, you appear for sentence today having pleaded guilty to a charge of abduction with intent to commit unlawful sexual connection. That sentence carries a maximum penalty of 14 years imprisonment.

Background

[2] The charge to which you have pleaded guilty arose as a result of an incident that occurred in Central Dunedin on the evening of 19 October 2013. At about 9.30 pm that evening the complainant was walking along Vogel Street in the Central City. That is a side street that is not particularly well lit. As she walked down the street on the footpath, a van cruised up beside her and then parked in front of her. Two men got out of the van, one of whom was you.

[3] The two men then set upon the complainant. You were one of the men and you had already opened the side door of the panel van. I viewed a video tape of the incident taken from a camera in the area. That shows quite a lengthy incident in which both you and your co-offender, Mr Lepper, endeavoured to physically restrain the complainant and then to bundle her into the van in which you arrived at the scene. As I have said, the incident went on for some time. It was only the tenacity and bravery of the complainant that prevented you and your co-offender from trapping her and placing her in the van.

[4] Eventually, however, she was able to struggle to the extent that the attention of passersby was attracted. They came to the scene and you and your co-offender then departed from the scene. As I have said, the whole incident was captured on video tape and that demonstrates something about the determination with which you and your co-offender went about your task that night. As I have said, it is a testament to the bravery and tenacity of the complainant that she was able to fight you off until help arrived.

Sentencing Act 2002

[5] Obviously in any case of offending as serious as this, the Court needs to take into account principles of denunciation and the need to hold the offenders accountable. The Court must also impose a sentence that deters any others who may

think like you from committing similar acts in the future. Having said that, the courts are also required to impose sentences that are the least restrictive outcome in the circumstances and that are broadly consistent with other similar cases.

[6] One of the factors the Court is required to take into account is the effect that the offending has had on the victim. I have had the benefit of a lengthy, yet moderate and very restrained, victim impact statement from the victim of your offending. She describes how terrifying the whole incident was. She had an inkling that something was wrong just before you grabbed her. Thereafter, she confirms that she fought with all her strength to avoid being taken prisoner by you and your co- offender.

[7] As you would expect, this offending has had extremely serious consequences for the victim. She now does not feel safe in open places. She has left Dunedin and gone to live in another centre. She has had relatives who have come to live here and she is sad about that, because she feels nervous about coming back to the city where this occurred. She was in the middle of university exams at the time this occurred and your offending caused her to fail one of her papers. It also marred what was part of the last period of her time in the city as a student. What should have been a time of festivity and celebration instead was a time of very deep sadness.

[8] Not surprisingly, this offending has also had a deep effect on her wider family. She was on her way to meet her parents for dinner that evening. Immediately after she had been rescued from your clutches she called her parents and they came to her aid. They describe this as being the worst day of their life. Indeed, it would be any parent’s nightmare to have this happen to their daughter in a public place. It will be many years before the victim is able to recover fully from this offending.

Starting point

[9] In an earlier hearing, I heard submissions from counsel about the appropriate starting point for any sentence to be imposed on you. The starting point is the sentence that reflects the gravity of the offending alone, but does not take into account factors that are personal to the offender. After hearing submissions from

your counsel and from the Crown, I indicated that a starting point of four and a half years imprisonment was appropriate in your case. I say that because I am satisfied that you were not the instigator of this whole episode.

[10] You were interviewed the day after the offending by the police. In a lengthy videotaped interview you described how you had been living rough on the streets of Christchurch at the time of this offending. You met your co-offender there, and he offered you a ride through to Dunedin. You said that you came through to Dunedin and checked in at a camp ground. On the evening of 19 October, you then went into the central city. Your co-offender was driving the van and he is an older man than you.

[11] You said that, as you drove along Vogel Street, your co-offender said words to the effect that you were going to “get this girl” after you saw her walking down the street. You then pulled in ahead of her, as the camera footage shows. You said that you knew that when you got out of the van and helped your co-offender, that he had sexual designs on the complainant. There is no evidence, however, that you yourself had any such designs. Your culpability, therefore, lies in physically assisting your co-offender to attempt to abduct the complainant. You are fortunate, indeed, that you did not succeed in that endeavour because, if you had, I have no doubt that you would be facing much graver charges than you are facing today. Having said that, I have no doubt that you were not the instigator of this incident. The instigator was your co-offender. Your culpability lies in the fact that you were willing to physically assist him abduct the complainant.

[12] Having regard to the authorities that counsel referred to me, I considered that a starting point of four and a half years imprisonment was appropriate, and I maintain that view today.

Aggravating factors

[13] You have a number of convictions, or notations, in the Youth Court for a range of offences. These include burglary and aggravated robbery. The aggravated robberies were of a relatively amateurish kind in your younger days. I do not

propose to apply a discount or an increase to your sentence to reflect that factor, because in many ways your earlier convictions were a different type of offending.

Mitigating factors

[14] Nevertheless, against that I will not be giving you credit for your youth when I come to consider mitigating factors. Although you were just 17 years of age at the time of this offending, you were no stranger to the Court system. On my count you had been before the Youth Court on seven or eight occasions. You knew what criminal offending was about and you knew you were about to get involved in serious criminal offending on this occasion. I consider your youth, which would normally be a mitigating factor, is balanced on this occasion by the fact that you have been before the courts on a number of earlier occasions and for relatively serious offending.

[15] I now need to consider the extent to which the sentence of four and a half years imprisonment needs to be reduced to reflect mitigating factors relating to you personally.

[16] The most obvious of these is the fact that you pleaded guilty, although not at an early stage. Your trial was originally set down to take place in September this year. Whether or not it would have taken place then is another matter because of a number of pre-trial arrangements that needed to be made. Nevertheless, your plea came just a month or so before the scheduled trial date. For that reason, I was only able to give it limited weight. I indicated at the earlier hearing that I would give you a deduction of 11 months to reflect that factor.

[17] At the earlier hearing, I left open the possibility of further discounts to reflect matters such as your youth, any remorse you may show and the assistance that you told the Court you would provide in relation to the prosecution of your co-offender. Those are the issues that I now need to deal with today. I have already dealt with the issue of youth, so I now pass to consider the other factors to which I have referred.

[18] The most important of these is the fact that you told the Court at the last hearing that you would give evidence against your co-offender, and that the evidence

would be broadly along the same lines as the version of events you gave the police in your videotaped interview. I took the view that that was an important matter because the prosecution against your co-offender potentially could have had difficulties. He did not make any statement to the police and the picture captured by the video camera in the street is not particularly clear. Had you given evidence, however, the jury would have had the whole story before it. They would have known the part that your co-offender played in the incident. I also consider, having watched the interview myself, that the jury is likely to have accepted your evidence regarding those events.

[19] Your offer of assistance would therefore have been a material factor at the trial of your co-offender. As matters have transpired, your co-offender pleaded guilty earlier this morning. I have no doubt that his decision to plead guilty was based, at least in part, on his knowledge of the fact that you were about to give evidence against him at his trial. I therefore consider that in effect you have made good on your promise to give evidence at trial.

[20] I propose to make an allowance of nine months to reflect that factor.

[21] Your counsel also asked me to take into account the issue of remorse. The pre-sentence report indicates that you are remorseful. You have demonstrated that in two ways. First, you have asked to attend a restorative justice conference with the victim. That did not occur, because she exercised her right not to meet with you. In addition, with the assistance of your parents you have offered to make an emotional harm payment to your victim in the sum of $1000.

[22] During the hearing, I indicated that I did not propose to give that factor concrete recognition in relation to sentence for a number of reasons. I was also concerned that your victim may not wish to accept your money. Having taken instructions on the matter, counsel for the Crown advises me that a payment of that nature would be of assistance to her. On that basis, I will make the order that your counsel asked me to make. I emphasise, however, that this factor has not played any part in reducing the sentence that I will impose on you. I propose to make an

allowance of two months to reflect your remorse for your offending. This leaves me with an end sentence of two years eight months imprisonment.

Minimum term

[23] In any case where the Court imposes a sentence of two years imprisonment or more, it has the power to require the offender to serve a minimum term of imprisonment. The Court may do that when it is satisfied that the usual parole provisions are not sufficient to recognise issues of denunciation, the need to hold the offender responsible, the need to protect the community and deterrence. Ordinarily, all of those factors would be engaged in your case because of the fact that the parole provisions require you to be permitted to apply for parole after serving just one-third of your sentence.

[24] Having regard to the fact that you are just 17 years of age, however, I have decided in this case not to impose a minimum term of imprisonment. You need to know though, Mr McVeigh, that in the future if you commit any form of offending such as this, you can confidently expect that the Court will be imposing a minimum term of imprisonment.

[25] The probation report says that you are determined to make the most of your time in prison and to undertake such courses as may be available to ensure that you do not come before the courts again, particularly in relation to offending of this type. I urge you to take advantage of that opportunity, Mr McVeigh, because you are now on the threshold of a significant criminal career. With this conviction, you are marked out as a person who has been prepared to commit a serious criminal offence. The courts will obviously take that into account should you appear before them again in the future.

Sentence

[26] On the charge to which you have pleaded guilty, you are sentenced to two years eight months imprisonment.

[27] I also direct that you are to make an emotional harm payment to the

_{complainant in the sum of $1000.}

Lang J

Solicitors:

Crown Solicitor, Dunedin

Counsel:

A Stevens, Dunedin