R v McGee [2014] NZHC 849 (29 April 2014)

Last Updated: 7 May 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-4968 [2014] NZHC 849

THE QUEEN

v

LANCE ULRICK McGEE LINDA MAY BUDD

Charges: Plea:	McGee - Kidnapping (x2) Budd - Kidnapping Not Guilty
Counsel:	JN Foster for Crown RJ Laybourn for McGee KL Tustin for Budd
Sentenced:	29 April 2014

_{SENTENCING NOTES OF BREWER J}

Solicitors/Counsel: Almao Douch (Hamilton) for Crown Roger Laybourn (Hamilton) for McGee Kerry Tustin (Hamilton) for Budd

R v McGEE & BUDD [2014] NZHC 849 [29 April 2014]

Introduction

[1] Mr McGee, the jury found you guilty of two charges of kidnapping. They relate to the same incident and I will group them together for sentencing purposes. Ms Budd, the jury found you guilty of one charge of kidnapping.

[2] The maximum sentence for kidnapping is 14 years’ imprisonment.

Facts

[3] I will not go into detail on the facts of your offending. The evidence, of course, was brought out before the jury.

[4] Essentially, at about 6:30 am on 10 April 2012 you, Mr McGee, together with Mr Martin kidnapped the victim at an address in Auckland and then drove her to your house in Hamilton. There she was taken to a shed at the rear of your property where she was tied up. Her arms, legs and neck were secured by a rope. She was told she had to pay $30,000 ransom before she would be released. This was in the context of a drugs debt. The debt itself was $20,000 and the extra $10,000 was going to go to you and your associates as your fee for the kidnapping.

[5] The victim was left in the shed for some hours. The evidence was that you, Mr McGee, went over to the shed to check on her several times over the course of about two hours. You and Mr Martin then left to drive back to Auckland because you needed to report to the methamphetamine withdrawal course you were attending. During the time you were at Hamilton, you directed that the victim be tied and blindfolded and before departing for Auckland you directed Mr Kaka to watch over the victim to make sure she did not escape.

[6] Ms Budd, you were not at the address when Mr McGee and Mr Martin arrived with the victim. You spent the night away from the address and you did not return until Mr McGee and Mr Martin had left to go back to Auckland. You told the Police that you did not know that the victim had been kidnapped and was in your back shed. You maintain that today. The jury obviously found to the contrary, and in my view was right to do so.

[7] I approach your sentence on the basis that when you arrived at the address you found Mr Kaka there and found out what was going on. You then joined in with the kidnapping and took charge. Mr Kaka, a 19 year old, was not the dominant party once you returned home. Mr Martin gave evidence that when he returned from Auckland you were at the address. The victim, who had been untied at one point, had been retied while Mr Martin was away. He described how you went to the shed a number of times, that you were involved in making demands for money from the victim and that at one point you were playing with a knife in the shed.

[8] Your co-accused, Ms Phan, gave evidence of your involvement also. I found much of her evidence to be self-serving, but to the extent that she corroborates what Mr Martin described then I accept her account. This includes you going to and from the shed and making demands for the victim to pay and threatening her with consequences if she did not.

Purposes and principles of sentencing

[9] In sentencing you both today, I have to do three things. The first is to consider the purposes and principles of sentencing as set out in the Sentencing Act

2002. These require me to strike a balance between holding you accountable for your offending and assisting in your rehabilitation and reintegration. The second is to take account of the sentences handed down to others in circumstances similar to yours. The third is to consider your personal circumstances.

Personal circumstances

Mr McGee

[10] Mr McGee, you are 39 years old. You had a terrible childhood, have had long-term association with the Mongrel Mob and a history of methamphetamine addiction spanning 14 years. You do not have an extensive criminal history, although you have had three relatively short terms of imprisonment. The last two of

_{these were imposed for violence:}

2 June 1999 – assault with intent to injure – seven months’ imprisonment

4 June 1999 – male assaults female – seven months’ imprisonment

_{(concurrent with the other sentence)}

[11] In 2012, you referred yourself to a drug rehabilitation programme specifically designed for members of the Mongrel Mob. You completed the eight week programme and, although you admit to having had two relapses since completing the programme, I accept that you have taken real steps to address your drug problem.

[12] Mr McGee, I am not going to hold your criminal record against you as an aggravating factor. Your last violent offending was in 1999 and I think it better to regard your history as meaning that you can claim no credit for having a good character. I note that you continue to deny having played any role in the kidnapping of the victim and so remorse is not an issue.

Ms Budd

[13] Ms Budd, you have been living with your 17 year old son, 11 year old daughter and two year old son. At the time of your offending you also had a baby who was four months old. You were remanded in custody following your conviction and your baby was sent to live with whanau. Tragically, he died.

[14] You are also 39 years old. You have two convictions for driving while under the influence of alcohol. You served a sentence of home detention in 2011-2012 for the second of those convictions. You have a total of 10 previous convictions for the period 1992 to 2012.

[15] As with Mr McGee, I will not regard those convictions as aggravating your situation. I will, instead, take them as meaning that you cannot claim credit for good character. I note that you too continue to deny any part in the kidnapping and so remorse is not a factor in your sentencing.

Determining sentence

Mr McGee

[16] Mr McGee, this was a kidnapping for financial gain. It was in a criminal underworld context, namely collecting a drug related debt with an additional $10,000 collection fee. Your victim was tied up, blindfolded and threatened. At one point a knife was produced, although there was no evidence in your trial that the knife was used directly to threaten. The kidnapping was planned and your victim was taken from Auckland to Hamilton and detained in excess of nine hours. You did not release her, she escaped. I have no victim impact statement for your victim but I have no doubt that she was terrified and traumatised.

[17] Your fellow offender, Mr Martin, has already been sentenced.¹ The starting point for his sentence was five-and-a-half years’ imprisonment. I have had regard to the cases cited by the lawyers in their submissions and I find your offending and that of Mr Martin to be broadly at the same level.² On the one hand, Mr Martin’s case differs from yours in that he was sentenced on a fact background which included him holding a knife against your victim’s throat. On the other hand, he was only 18 years old and you were clearly “the muscle”. It was to your house that you took the victim, and it was at your direction she was tied up and imprisoned in the shed.

[18] I adopt the same starting point for you as was adopted for Mr Martin, namely five-and-a-half years’ imprisonment.

[19] I do not find there to be any mitigating factors.

[20] The drug rehabilitation course which you successfully passed is a positive factor for you. But this whole kidnapping was against a background of methamphetamine involvement and, indeed, your attendance at the course was used

_{by you to distance yourself from liability for the kidnapping.}

¹ _{R v Martin [2013] NZHC 2675.}

² R v Kimber, Martin, McArthur & Walling HC Rotorua CRI-2003-070-6113, 17 June 2005; R v Rangitaawa & Ors HC Christchurch CRI-2004-009-14066, 11 August 2005; Piper v R [2012] NZCA 104.

Ms Budd

[21] Ms Budd, your part in this kidnapping was less serious than Mr McGee’s. There is no evidence you were involved in the planning process, and you were present at the house for about half the period of the kidnapping. But I consider that you joined in, and that you played an active and, at times, dominant part in what followed. Your lawyer submits that a starting point in the range of two years to two- and-a-half years’ imprisonment is appropriate, bearing in mind that the starting point

for Mr Kaka was two-and-a-half years’ imprisonment.³

[22] The Crown’s lawyer submits that your role was worse than that of Mr Kaka because he was pretty much just there. He was not as actively involved as you. The Crown suggests a starting point of three years to four-and-a-half years’ imprisonment.

[23] I agree with the Crown that your involvement in the incident was more blameworthy than Mr Kaka’s. I take into account also the cases I have been referred to, particularly R v Rangitaawa and Piper v R, which have factual backgrounds which I think – looking at your role alone – are, save for one factor, broadly at a similar level of blameworthiness. That factor is that you were not involved in the planning. I, therefore, fix the starting point for your sentence at three years’ imprisonment.

[24] I see no relevant mitigating factors. It is true that you are a mother of young children, but that is not in itself a mitigating factor. If it were, being the mother of young children would always be a factor justifying a diminution of sentence. Indeed, in the circumstances of this case, it was your house that was used for the kidnapping after you had brought your children home to it.

Loss of baby

[25] I now turn to how I should acknowledge the death of your baby.

[26] Both your lawyers have submitted that I need to reduce your sentences to take into account the death of your baby son. That is not to try to compensate you for that loss. It is because it makes serving a term of imprisonment more difficult. There is the difficulty you will face in being fully involved in the coroner’s inquiry while sentenced prisoners. Your separation from your other children is made emotionally more difficult, as is making arrangements for their ongoing care. I also have no doubt that you feel his death is a consequence of you being involved in this offending. I am sure, Ms Budd, that you must feel that if only you had had him in your care he would still be alive. For your sake, I hope that the coroner’s report will show that that is not the case.

[27] The law does permit me to recognise this tragedy in your lives by reducing your sentences because they would otherwise be disproportionately severe. I have been referred to cases where this has been done.⁴ But the law does not permit me to, in effect, wipe away the seriousness of your offending. I consider I should reduce each of your sentences by six months for this factor.

Sentence

[28] Mr McGee, on each of the charges of kidnapping, you are sentenced to five

years’ imprisonment.

[29] Ms Budd, on your charge of kidnapping, you are sentenced to two years six months’ imprisonment. Because the sentence is longer than two years, home detention is not an option.

[30] Kidnapping is what is known as a three strikes offence. This is your first strike and the law requires me to give both of you a warning of the consequences of another serious violence conviction. You will also be given a written notice

_{outlining these consequences, which lists the ‘serious violent offences’.}

If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of

imprisonment then you will serve that sentence without parole or

_{early release.}

If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge

_{must sentence you to a minimum term of imprisonment.}

[31] In this case, you would be eligible for consideration for minimum terms of imprisonment in any event. The Crown does not seek them. I do not think in the circumstances of this case, including the loss of your child, that a minimum sentence would be justified and I will not impose one.

_{[32] You may stand down.}

Brewer J