Mains v R - [2016] NZCA 290

IN THE COURT OF APPEAL OF NEW ZEALAND

CA686/2015
[2016] NZCA 290

BETWEEN	MAXWELL JOHN MAINS Appellant
AND	THE QUEEN Respondent

Hearing:	30 May 2016
Court:	Ellen France P, Clifford and Katz JJ
Counsel:	C M Ruane for Appellant M L Wong for Respondent
Judgment:	27 June 2016 at 11 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of three years and six months’ imprisonment on the charge of joint possession of 53 pounds of cannabis for the purpose of sale is quashed and a sentence of three years and three months’ imprisonment substituted. All other sentences are confirmed.

_________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Mr Mains appeals the sentence of three years and six months’ imprisonment imposed on him by Mander J in respect of two counts of possession of cannabis for sale and two counts of selling cannabis.[1] That sentence was reached by using a starting point of three years nine months’ imprisonment and then allowing a two month discount for personal mitigating factors and a further one-month (two per cent) discount for the late entry of guilty pleas.
[1]R v Mains [2015] NZHC 2750.
Mr Mains contends that the Judge’s starting point of three years and nine months’ imprisonment was too high, having regard to Mr Mains’ overall role within the cannabis operation. Second, Mr Mains submits that the discount he was given for pleading guilty shortly before trial was insufficient. These two errors are said to have resulted in an end sentence that was manifestly excessive.

Background

In 2008 the police commenced an investigation targeting large-scale cannabis cultivations located in Western Southland, including Fiordland.[2] When the police terminated the operation in May 2012 they found large quantities of cannabis that had been processed and stored on council owned scrub land in Queenstown. An area on that land had been cleared for the purpose of drying and processing cannabis. There were a series of tunnel type tracks in the scrub that led to another area that had been used to manicure and package cannabis into one pound bags. In that area police located two large plastic bins that contained equipment used to process and manicure cannabis, including electronic scales.
[2]Our summary of the factual background is based on the sentencing notes of Mander J and the agreed summary of facts.
The police also located five large plastic bins on the scrub land, containing 16 one pound bags of cannabis and 37 pounds of loose cannabis. In total, 53 pounds of dried premium grade cannabis head was located and recovered. The value of this cannabis is conservatively estimated as being worth approximately $170,000 if sold by the pound, and considerably more if broken down into retail amounts.
Mr Mains pleaded guilty to joint possession of this cannabis for the purposes of sale, either as a principal or as a party, with a Mr Brian McCarthy. Mr McCarthy was recognised as the lead offender, having been involved over a number…

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 Mains v R

Details

AGLC: Mains v R [2016] NZCA 290
Case: [2016] NZCA 290
Decision Date: 27 June 2016 at 11 am

CaseChat Overview and Summary

Maxwell John Mains appeals against the sentence imposed by Mander J in respect of two counts of possession of cannabis for sale and two counts of selling cannabis. The appeal focuses on the starting point of the sentence and the discount applied for the late entry of guilty pleas. Mains argues that the starting point of three years and nine months was too high, considering his role in the cannabis operation, and that the discount for pleading guilty was insufficient. The appeal court found that the starting point was appropriate, reflecting Mains' significant involvement in the large-scale cannabis operation, albeit in an assisting role rather than as the central figure. Regarding the discount for the guilty plea, the court found that Mains' early indication of willingness to plead guilty to possession and sale charges, despite the delay due to admissibility challenges, warranted a discount of four months, approximately 10 per cent. This adjustment led the court to conclude that the original sentence was manifestly excessive. Consequently, the sentence of three years and six months was quashed, and a sentence of three years and three months was substituted, while all other sentences were confirmed.

Orders