Mackie v The Queen - [2012] NZCA 588

IN THE COURT OF APPEAL OF NEW ZEALAND

CA196/2012
[2012] NZCA 588

BETWEEN CHARLES ALEXANDER MACKIE
Appellant

AND THE QUEEN
Respondent

Hearing: 19 November 2012

Court: White, Miller and Asher JJ

Counsel: S N Hewson for Appellant
P D Marshall for Respondent

Judgment: 14 December 2012 at 11.30am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe order for forfeiture to the Crown of 100 per cent of the appellant’s interest in the property at 40 Sarah Street, Waikawa Beach, is quashed and replaced with an order for forfeiture of 50 per cent of such interest.
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REASONS OF THE COURT

(Given by White J)

Mr Mackie appeals against his sentence on one charge of cultivating cannabis on the ground that an order for the forfeiture of his property where the cannabis was cultivated ought not to have been made or was manifestly excessive when the seven months that he had been in prison on remand is taken into account.
The single charge of cultivating cannabis, to which Mr Mackie pleaded guilty, was brought following a police search of his property at 40 Sarah Street, Waikawa Beach. The search revealed that Mr Mackie was making extensive use of his property for cultivating cannabis:
(a)One bedroom was used as a vegetative growing room. It was completely lined with polythene, lit by two high-powered growing lights, and contained fans, heaters and numerous fertilisers. Twenty-six large “mother plants” and 575 cuttings or rooted clones were found in this room.
(b)The garage was used as the flowering room. It was lit by six height-adjustable growing lamps attached to timers, and utilised ventilation ducting and fans. A hygrometer monitored temperature and humidity levels. The room housed 108 cannabis plants: 82 of them about 30 cm in height and 26 approximately one metre tall.
(c)The master bedroom was used to dry cannabis. Twenty-six plants were found drying in a wardrobe along with two dehydrators. Police also located three zip-lock bags, holding a total of 69 grams of dried cannabis head.
Scales, various drug paraphernalia and a firearm were found in the house, as well as $490.70 in Mr Mackie’s wallet. He accepted that there was “a commercial component” to his offending. An ESR report on the growing operation assessed its sophistication level as “fair to average” but was unable to estimate yield. There was evidence of at least one previous crop.
The police estimated that Mr Mackie’s 26 flowering plants would produce between one and three ounces of head, with six harvests each year. Assuming sales by the ounce, it was estimated that the operation was capable of generating an annual income of between $46,800 and $140,000.
A forensic accountant analysed Mr Mackie’s financial affairs for the five year period between 31 October 2006 and 31 October 2011. He concluded that Mr Mackie “must have had access to funds outside his financial system [his bank accounts], because crucial expenditure items were too low or missing”.
At sentencing in the High Court at Palmerston…

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 Mackie v The Queen

Details

AGLC: Mackie v The Queen [2012] NZCA 588
Case: [2012] NZCA 588
Decision Date: 14 December 2012

CaseChat Overview and Summary

The appeal in Mackie v The Queen was brought by Charles Alexander Mackie against his sentence, which included the forfeiture of his entire interest in a property at 40 Sarah Street, Waikawa Beach. The property was forfeited due to its extensive use for cannabis cultivation, a previous conviction for the same offence, and the value of the cannabis involved. Mackie argued that the forfeiture order, combined with his 14-month sentence, was excessively harsh considering his personal circumstances and the nature of his offending.

The legal issues before the Court of Appeal were whether the forfeiture order was appropriate in light of the proportionality principle and whether a lesser forfeiture order would be more suitable given the circumstances of the case. The Court considered the statutory provisions of the Sentencing Act 2002, particularly sections 10B and 142N, which mandate that courts take into account forfeiture orders as part of sentencing and that such orders should be proportionate to the offence and the offender's circumstances. The Court also looked at the concept of "undue hardship" as a factor in determining the appropriateness of a forfeiture order.

The Court found that while the forfeiture of Mackie's property was warranted due to the nature and extent of his cannabis cultivation operation, the order for forfeiture of 100 per cent of his interest in the property was not justified. The Court noted several mitigating factors, including Mackie's age, limited earning capabilities, the significant personal and financial investment in the property, and the impact of forfeiture on his ability to re-establish himself. The Court concluded that an order for forfeiture of 50 per cent of Mackie’s interest in the property would be a more proportionate penalty given his culpability and personal circumstances. The Court thus allowed the appeal against the sentence, replacing the 100 per cent forfeiture order with an order for forfeiture of 50 per cent of Mackie’s interest in the property.

The final orders of the Court were that the appeal against sentence was allowed, and the order for forfeiture to the Crown of 100 per cent of Mackie’s interest in the property at 40 Sarah Street, Waikawa Beach, was quashed and replaced with an order for forfeiture of 50 per cent of such interest.

Orders