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Macfarlane v R

Macfarlane v R

Case [2012] NZCA 317 20 July 2012

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA748/2011
[2012] NZCA 317

BETWEEN WILLIAM JAMES MACFARLANE
Appellant

AND THE QUEEN
Respondent

Hearing: 11 July 2012

Court: Arnold, Potter and MacKenzie JJ

Counsel: M A Edgar for Appellant
D J Boldt for Respondent

Judgment: 20 July 2012 at 11.30 am

JUDGMENT OF THE COURT

A An extension of time to appeal is granted

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

William James Macfarlane was convicted after trial on two counts of manufacturing methamphetamine.[1] He was also convicted on unrelated charges of receiving 25 stolen computers. He was sentenced to 14 years’ imprisonment.[2] He appeals against that sentence on the ground that it is manifestly excessive. In particular, he submits that there is an unjustified disparity between his sentence and the sentences imposed on his co-offenders who received lesser sentences.[3]
[1]The appellant faced an indictment containing six charges of methamphetamine related offending between 17 April and 14 August 2009. He was acquitted on the remaining four charges.
[2] R v Macfarlane DC Auckland CRI-2009-004-18537, 25 August 2011.
[3]Christian Paul Clifton, the principal manufacturer in the methamphetamine manufacturing operation, was sentenced to life imprisonment. His sentence is subject to appeal.
The appellant seeks an extension of time for his appeal, which was filed approximately one and a half months out of time. An extension of time to appeal is not opposed by the Crown and is granted.

Factual background

The appellant was one of 12 offenders who were charged in connection with a major methamphetamine manufacturing operation in 2009.[4] Christian Clifton was the main “cook”. The appellant was his principal, but not sole, financier. He provided Mr Clifton with approximately $120,000 in instalments of $70,000 in respect of the June 2009 manufacture and $50,000 for the August 2009 manufacture. These funds were for the purchase of pseudoephedrine, one of the core ingredients in the manufacturing process.
[4] All other offenders entered guilty pleas and have been sentenced accordingly.
From the June 2009 manufacture, 12 ounces or 336 grams of methamphetamine were produced. The August manufacture was interrupted by the Armed Offenders Squad so no methamphetamine was produced but the estimated yield, based on the quantity of precursors found by police, was 746 grams.
The appellant accepted in submissions before this Court that the $120,000 he provided to Mr Clifton was sufficient to purchase enough pseudoephedrine to produce between 450 and 670 grams of methamphetamine.
On the same day that the methamphetamine laboratory where the August 2009 “cook” was carried out was searched by police, the appellant’s residential address in Tauranga was also searched. Police found 25 stolen computers which are the basis for the receiving charges.

District Court sentencing

Judge Wade sentenced the appellant.[5] He had presided at the trial and had also sentenced the other offenders involved in the same methamphetamine manufacturing operation after guilty pleas were entered.
[5] R v Macfarlane, above n 2.
Judge Wade identified Mr Macfarlane’s role…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Macfarlane v R

Details

AGLC: Macfarlane v R [2012] NZCA 317
Case: [2012] NZCA 317
Decision Date: 20 July 2012

CaseChat Overview and Summary

William James Macfarlane, the appellant, appeals against his sentence of 14 years' imprisonment imposed for manufacturing methamphetamine and receiving stolen computers. The appeal focuses on the disparity between the appellant's sentence and those of his co-offenders. The appellant argues that the sentence is manifestly excessive and there is an unjustified disparity between his sentence and those of his co-offenders. The Crown submits that the appellant's role as principal financier was quite different from the roles of other participants and it would be inappropriate to second-guess the Judge's careful assessment of the participants' relative culpability.

The court examined the disparity between the appellant's sentence and those of his co-offenders. The court held that disparity between the sentences of co-offenders will lead to a reduction in the sentence under appeal only if the difference is so marked as to lead a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders to think that something had gone wrong with the administration of justice. The court found that the appellant's role as principal financier for Mr Clifton was singular and discrete. The sentence of 14 years' imprisonment was well within the range available to the sentencing Judge and cannot be criticised. The appeal against sentence is dismissed.

The court granted an extension of time for the appeal, which was filed approximately one and a half months out of time. The extension of time to appeal is not opposed by the Crown and is granted. The appeal against sentence is dismissed.

Orders