B        The appeal against sentence is allowed in part.
C        The order for forfeiture to the Crown of 50 per cent of the appellant’s interest in the Carter Road property is quashed and replaced with an order for forfeiture of 25 per cent of such interest.
D        In other respects the sentence stands.

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

After a three week trial before Lang J and a jury in the Auckland High Court Ian Macpherson was found guilty on six charges: manufacturing methamphetamine; possessing a precursor substance; producing cannabis resin; possession of cannabis resin for supply; possession of cannabis for sale; and possession of a methamphetamine pipe. Before trial he had pleaded guilty to cultivating cannabis. He was found not guilty on three further charges.
Following conviction and before imposing sentence Lang J made an order under s 142N of the Sentencing Act 2002 forfeiting 50 per cent of Mr Macpherson’s interest in a property at 214 Carter Road, Oratia, to the Crown.[1] In monetary terms this amounted to approximately $380,000. At sentencing[2] Mr Macpherson was also sentenced to nine months home detention. His co-accused, Warwick Mack, was sentenced to nine years imprisonment.[3]
[1]      R v Macpherson HC Auckland CRI-2009-090-11944, 19 August 2011.
[2]      R v Macpherson HC Auckland CRI-2009-090-11944, 16 September 2011.
[3]      R v Mack HC Auckland CRI-2009-090-11944, 15 July 2011.
Mr Macpherson appeals against conviction and sentence. His conviction appeal relies on two grounds:
(a)refusal to sever his trial from Mr Mack’s trial led to a miscarriage of justice; and
(b)the jury was misdirected about whether Mr Macpherson had “produced” cannabis resin in terms of s 6(1)(b) of the Misuse of Drugs Act 1975.

The appeal against sentence alleging that the sentence was manifestly excessive focuses on the order for forfeiture.

Background

Events giving rise to the trial spanned a period of almost four and a half years from September 2005 to January 2010. Four different properties were involved, of which one belonged to Mr Macpherson.
On 23 September 2005 the police executed a search warrant at 3 Gum Road, Henderson, where Mr Mack was using a garage for panel-beating motor vehicles. A sophisticated clandestine laboratory was discovered in the garage, although the laboratory was inactive at the time. As a result of that search Mr Mack faced a charge of manufacturing methamphetamine, possession charges, and charges concerning firearms. Mr Macpherson was not involved.
Five days later the police executed a search warrant at 21 Tirimoana Road, Glendene. Mr Mack occupied a flat at that address. Although chemicals and precursor substances were found, there was no evidence that methamphetamine…

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 MacPherson v R

Details

AGLC: MacPherson v R [2012] NZCA 552
Case: [2012] NZCA 552
Decision Date: 28 November 2012

CaseChat Overview and Summary

Ian Campbell MacPherson was found guilty by a jury of several drug-related offences and sentenced to nine months home detention. MacPherson appealed against his conviction and sentence, arguing that the trial judge should have severed his trial from that of his co-accused and that the jury was misdirected about whether MacPherson had "produced" cannabis resin. MacPherson also argued that the sentence, particularly the order for forfeiture of 50% of his interest in the Carter Road property, was manifestly excessive. The Court of Appeal dismissed the appeal against conviction, finding that there was no miscarriage of justice and that the jury was correctly directed. The appeal against sentence was allowed in part, with the order for forfeiture of 50% of MacPherson's interest in the Carter Road property being quashed and replaced with an order for forfeiture of 25% of such interest. The Court held that the original order for forfeiture was manifestly excessive and did not reflect the least restrictive outcome in terms of the Sentencing Act. The Court declined to provide guidance on the relationship between sentence and instrument forfeiture, noting that each case would depend on its own facts and the exercise of judgment on the part of the sentencing Court.

Orders