Macfarlane v R
[2012] NZCA 317
•20 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA748/2011 [2012] NZCA 317 |
| BETWEEN WILLIAM JAMES MACFARLANE |
| AND THE QUEEN |
| Hearing: 11 July 2012 |
| Court: Arnold, Potter and MacKenzie JJ |
| Counsel: M A Edgar for Appellant |
| 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 as being the financier in part for Mr Clifton whom he described as “a prolific and experienced methamphetamine cook”. He noted the sum of $120,000 provided in two instalments in June and August 2009 to enable Mr Clifton to purchase pseudoephedrine.
The Judge accepted that the appellant’s role was limited to bankrolling the operation, that there were many other people supporting and helping Mr Clifton and that they were not known to the appellant, who was based in Tauranga while the manufacturing activities took place in Auckland. But the Judge said that the appellant joined in with Mr Clifton “with some degree of enthusiasm”.[6]
[6] At [8].
The Judge said that, while there had been much debate about relative culpabilities, he regarded the appellant and Mr Clifton as being equal partners and of equal culpability, insofar as both the June and August cooks were concerned. He gained little assistance from the sentences imposed on the other members of the manufacturing operation.
The Judge noted the general principle that when dealing with major drug offenders, deterrence both of the individuals concerned and against drug offenders generally, is vitally important.
He said that the August cook alone with its estimated yield of 746 grams puts the offending well into Band 4 of R v Fatu.[7] Allowing a ten per cent discount because the cook was terminated before completion, he reached a starting point for that manufacture alone of thirteen and a half years’ imprisonment. He said the June manufacture was at the top end of Band 3 of Fatu, which of itself would give a starting point in the range of 10 to 15 years’ imprisonment. However, applying the totality principle and “doing my best to avoid passing an overwhelmingly crushing sentence upon you”, the Judge adopted a starting point of 15 years’ imprisonment in respect of both manufacturing offences.
[7] R v Fatu [2006] 2 NZLR 72 (CA).
The Judge applied an uplift of 12 months for the appellant’s prior offending to reach a revised starting point of 16 years’ imprisonment.[8] From that starting point he allowed a discount of two years for the appellant’s assistance to the authorities in arranging the handover of an arsenal of weapons of various types.
[8]The appellant has a long list of previous convictions including seven convictions for receiving, theft and burglary and six drug related convictions. In 2004 he was sentenced to four years’ imprisonment for manufacturing methamphetamine.
The Judge said the receiving offences themselves would warrant a sentence of two years’ imprisonment but that he would not impose a cumulative sentence because the overall result would be crushing.
The end sentence was accordingly 14 years’ imprisonment. The Judge declined to impose a minimum period of imprisonment stating that he was anxious to assist in the rehabilitation of Mr Macfarlane.
Appellant’s submissions
The appellant submitted that even if the sentence of 14 years’ imprisonment was otherwise appropriate, there was an “unjustified” and “gross” disparity between the sentences imposed on the co-offenders.[9]
[9] R v Rameka [1973] 2 NZLR 592 (CA); R v Lawson [1982] 2 NZLR 219 (CA).
Mr Edgar, counsel for the appellant, acknowledged that gross disparity does not necessarily result in the reduction of a sentence; it does so only when the disparity is unjust such as to justify intervention on appeal.
Counsel accepted that the uplift applied by Judge Wade for the appellant’s criminal history was appropriate, that there were no discounts available beyond the two year discount for handing over weapons and that the concurrent sentence of two years on the receiving charges was appropriate.
The appellant disputed the finding of Judge Wade that he and Mr Clifton were “equal partners” and of “equal culpability” in respect of the June and August 2009 manufacturing operations. Mr Edgar submitted that clearly other financiers were involved as the sum of $50,000 provided by the appellant for the August 2009 cook was not sufficient to purchase the precursors necessary to finance the full estimated yield.
He submitted that the co-offenders played significant roles in the manufacturing operation and there was no basis to distinguish the appellant from the other offenders when setting a starting point. Counsel submitted that the appellant’s role in the offending was “more circumscribed” than assessed by the sentencing Judge, and that an end sentence within the range of 9 to 10 years’ imprisonment, after adjustment for aggravating and mitigating features, was appropriate.
Crown’s submissions
Mr Boldt said the Judge addressed the issue of parity in noting that the sentence imposed on other members of the manufacturing operation gave him little assistance. Counsel noted there were a number of “foot soldiers”, each with a distinct role in the manufacturing operation. This aspect, he submitted, was properly assessed by Judge Wade, who had an overview of the whole case and was well placed to assess relative culpabilities. He submitted 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.
Mr Boldt submitted that the sentences in respect of the June and August 2009 offending could well have been made cumulative and that the end sentence of 14 years was “merciful”.
Discussion
The appellant submits, not that the sentence of 14 years’ imprisonment is inappropriate in relation to his offending, but that there is unjustifiable disparity between his sentence and the lesser sentences imposed on other members involved in the manufacturing operation.
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”.[10] The difference must be “unjustifiable” or “gross”.[11] A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.
[10] R v Lawson, above n 9, at 223.
[11] R v Rameka, above n 9, at 594.
We do not propose to refer to the detail of the sentences imposed on the various co-offenders and the analyses of Judge Wade in imposing those sentences. The roles of each co-offender were different. They participated to varying degrees as assistants in sourcing precursor substances, materials, equipment and/or money, as an “apprentice cook”, and in allowing premises to be used for the manufacture of methamphetamine. In most cases the Judge adopted a starting point of ten years and allowed in some cases significant discounts for guilty pleas and personal circumstances.
We refer only to the case of Mr Fuimaono, with whose sentence the appellant claims there is a particularly unjust disparity such as to justify intervention by this Court on appeal.
Mr Fuimaono was found in possession of pseudoephedrine and methamphetamine. He pleaded guilty to two counts of manufacturing methamphetamine, two counts of possession of methamphetamine for supply and one count of possession of precursors for manufacture. The Judge described his role as “secondary”.[12] Apparently it was Mr Fuimaono’s intention to supply pseudoephedrine to Mr Clifton and receive methamphetamine in return but it appears he never actually supplied precursors to Mr Clifton because of the termination in August 2009 of the police operation. He was also to act as an advisor, minder and protector for Mr Clifton in relation to a gang with which Mr Fuimaono was associated, who were applying pressure to Mr Clifton.
[12] R v Fuimaono DC Auckland CRI-2009-004-18537, 24 June 2011 at [7].
The Judge adopted a six and a half years starting point for Mr Fuimaono’s offending, which the Crown described as “explicable, though undeniably generous”. The end sentence imposed was six years’ imprisonment.
The appellant’s role was quite different from that of Mr Fuimaono. He was Mr Clifton’s key financier. He was an experienced and calculating offender. He knew well what he was doing when he contributed large sums of money to a manufacturing operation from which he intended to derive significant profits.
Similarly, the appellant’s role was quite distinct from the roles of each of the other co-offenders. In sentencing each of those involved in these manufacturing operations the Judge made a careful assessment of their relative culpabilities and imposed sentences accordingly. As we have said at [10], he gained little assistance from the sentences imposed on the others. This Court should not lightly overturn that assessment of the trial Judge.
The appellant’s role as principal financier for Mr Clifton was singular and discrete. It was open to the Judge to make the assessment that in relation to the manufactures in June and August 2009 the appellant was an essential player and of broadly equal culpability with Mr Clifton.
The sentence of 14 years’ imprisonment was well within the range available to the sentencing Judge and cannot be criticised.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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