McCormack-Cameron v Police
[2012] NZHC 3586
•21 December 2012
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2012-425-51 [2012] NZHC 3586
BETWEEN SHAUN TERRY MCCORMACK- CAMERON
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 17 December 2012
Appearances: R Smith for the appellant
R W Donnelly for the respondent
Judgment: 21 December 2012
JUDGMENT OF CLIFFORD J
[1] The appellant, Mr McCormack-Cameron, having earlier pleaded guilty, was sentenced by Judge O’Driscoll in the District Court at Invercargill to a total of 23 months’ imprisonment, on the following charges:
(a) theft of a motor vehicle (s 227(1) of the Crimes Act 1961 – maximum
sentence seven years’ imprisonment);
(b) unlawfully taking a vehicle (s 226(1) of the Crimes Act 1961 –
maximum sentence seven years’ imprisonment) x 2;
(c) failing to comply with a prohibition (s 52(1)(c) of the Land Transport
Act 1998 – maximum sentence $10,000 fine);
(d) cultivation of cannabis (s 9(1) of the Misuse of Drugs Act 1975 –
maximum sentence two years’ imprisonment/$2,000 fine);
MCCORMACK-CAMERON v POLICE HC INV CRI-2012-425-51 [21 December 2012]
(e) possession of cannabis plant (ss 7(1)(a) and (2) of the Misuse of Drugs Act 1975 – maximum sentence three months’ imprisonment/$500 fine); and
(f) possession of utensils for the purpose of committing an offence (s 13(1) of the Misuse of Drugs Act 1975 – maximum sentence one year’s imprisonment/$500 fine).
[2] Mr McCormack-Cameron was also ordered to pay reparation of $3,750 in total, and made subject to standard and special release conditions for six months after his sentence expiry date.
[3] Mr McCormack-Cameron says that that sentence of imprisonment was manifestly excessive.
Facts
[4] The charges Mr McCormack-Cameron faced arose out of three separate incidents of offending.
[5] In the last week of June 2012 Mr McCormack-Cameron was walking down Salford Street in Invercargill. He noticed that the keys were in the ignition of a Subaru Impreza parked on a front lawn. He got into the car and drove it to an associate’s address on Miller Street, and hid the car in a garage. His intention was, apparently, to use the engine from that car to replace the engine in his car which had recently blown out. By the time he realised that the engine from the Subaru would not fit his car, the Subaru had been completely dismantled and had been cut in half. Those circumstances gave rise to the charge of theft of a motor vehicle.
[6] Towards the end of July Mr McCormack-Cameron needed to remove the dismantled Subaru from the Miller Street address. He converted a Nissan Serena on Jack Street in the early hours of Monday 23 June, and in nearby Ash Street took a trailer from a driveway, hooked it to the Nissan Serena and drove to the Miller Street garage. There, with the help of his associates, he loaded the back half of the stolen and dismantled Subaru onto the trailer and drove away. He was driving the Nissan
towing the trailer with half of the Subaru on it when he was stopped by police on Otepuni Avenue in Invercargill. He admitted he was driving whilst having been forbidden to do so under the Land Transport Act 1998. Those events gave rise to the two charges of unlawfully taking a vehicle and the single charge of failing to comply with a s 52 prohibition.
[7] Mr McCormack-Cameron was bailed on that motor vehicle offending. During the course of a bail curfew check the police noticed a strong smell of cannabis coming from inside Mr McCormack-Cameron’s address. A subsequent search located a small amount of cannabis plant material, five cannabis plants growing in a cupboard and cannabis smoking utensils. Those circumstances gave rise to the cultivation and possession of cannabis charges and to the possession of utensils charge.
[8] Mr McCormack-Cameron is 26 years old. He has an extensive criminal history including, by my count and not taking account of any Youth Court offending, some eight previous charges of driving whilst disqualified and four of unlawful taking or interfering with a motor vehicle.
Sentencing decision
[9] The Judge correctly addressed each of the three instances of offending separately, identifying starting point and end sentences for each, and imposing cumulative terms of imprisonment. The Judge identified a starting point of 18 months imprisonment for the original theft of the Subaru, reducing that to 13 months on account of Mr McCormack-Cameron’s guilty plea. On the other motor vehicle charges he took a starting point of eight months’ imprisonment and again allowed a
25 per cent credit for the guilty plea. That resulted in a notional starting point sentence of 26 months’ imprisonment for the motor vehicle offending in totality, and an end cumulative sentence of 19 months.
[10] The Judge convicted and discharged Mr McCormack-Cameron on the unlicensed driver charge.
[11] The Judge then addressed the cannabis offending. He set a starting point sentence of six months’ imprisonment and reduced that by two months on account of Mr McCormack-Cameron’s guilty plea. The end sentence therefore on the cannabis offending was four months’ imprisonment, again to be served cumulatively.
[12] Finally, the Judge addressed issues of totality. He concluded that the overall sentence of 23 months did not breach the totality principle.
Appeal
[13] For Mr McCormack-Cameron, Mr Smith addressed his submissions principally to the cumulative 26 month starting point that the Judge had determined as appropriate with respect to the motor vehicle offending. In arguing that that was a manifestly excessive starting point, and had therefore resulted in a manifestly excessive sentence, Mr Smith was unable to refer me to any other relevant sentencing decision. Rather, he argued his case by reference to earlier motor vehicle offending, for which Mr Smith had received lesser sentences. His submission was that the starting point for that offending should be no more than 15 months’ imprisonment. He also submitted that the starting point of six months for the cannabis offending was manifestly excessive and should have been no more than four months. That would have resulted in an overall starting point of 18 to
20 months and, after credit for guilty pleas, an end sentence in the vicinity of
12 months.
[14] For the respondent, and again without the assistance of any relevant authorities, Mr Donnelly argued that the sentences imposed by the Judge were within range and not manifestly excessive. Mr Donnelly also referred to the significance of Mr McCormack-Cameron’s extensive earlier offending, noting that the Judge would not appear to have added to Mr McCormack-Cameron’s sentence by reference to that earlier offending.
Analysis
[15] I first observe that it is not clear to me Mr Donnelly was correct in saying that the Judge took no account, as an aggravating feature, of Mr McCormack-Cameron’s earlier offending. Rather, the Judge noted that Mr McCormack-Cameron was on bail at the time of the drug offending and that he did have earlier previous convictions for dishonesty.1 I infer, therefore, that those aggravating factors have influenced the starting point sentences the Judge identified.
[16] Proceeding on that basis, I have identified cases of a similar nature, namely
Bell v Police, Taki v Police, Graham v Police and Singh v R.2
[17] In Taki Williams J upheld a starting point of three years for very similar offending. According to the summary of facts Mr Taki was seen by the step- daughter of the owner of a Nissan, driving that vehicle, the car having been reported stolen two hours earlier. The vehicle was recovered undamaged and was valued at
$2,000. Mr Taki made off to avoid capture and was not apprehended at that point. Rather he abandoned the vehicle and it was the abandoned vehicle that was recovered. The next day he and two co-offenders smashed the rear passenger window of a car parked in the carport of a property. They removed the car's stereo, an amplifier and a large sub box. He received lesser concurrent sentences on one charge of theft, one of being in an enclosed yard without an excuse, and two of breaching parole. Mr Taki had in excess of 50 and as much as 60 dishonesty convictions, including seven of unlawfully taking a vehicle and 13 of theft from a car. He also had an extensive history of failing to comply with Court orders and sentencing conditions. He was 24 years old.
[18] In Bell the offender and an associate smashed their way into a vehicle in the early hours of the morning, hot wired it, stole the car stereo and then drove through
the streets of Napier at speeds of up to 200 km an hour in an attempt to avoid capture
1 Police v McCormack-Cameron DC Invercargill CRI-2012-025-001967, 9 October 2012 at [6].
2 Bell v Police HC Napier AP58/97, 11 September 1997; Taki v Police HC Rotorua CRI-2010-
470-25, 2 July 2010; Graham v Police HC Auckland CRI-2006-404-258, 12 October 2006;
Singh v R [2011] NZCA 139.
by the police. A four year starting point was identified as being appropriate,
resulting in an end sentence of three years’ imprisonment.
[19] In Graham an offender faced one charge of burglary, three charges of unlawfully taking a motor vehicle and three charges of driving whilst disqualified. The burglary involved the offender breaking into a car sales yard and removing the wheels of a motor vehicle. The offender was 20 years old and had offended persistently over the previous two years. A four year starting point was considered appropriate.
[20] In Singh a starting point sentence of two years and six months’ imprisonment was identified in the District Court for one count of unlawfully taking a motor vehicle (value $15,000), three counts of unlawfully getting into a motor vehicle and three theft charges. An uplift of nine months was added to that, because of extensive previous offending. The Court of Appeal upheld that starting point, and that uplift, although it noted the uplift was at the higher end of the available range. The Court did find, however, that there was a risk that the Judge may have double-counted Mr Singh’s previous offending, so reduced the end sentence by three months.
[21] By reference to those cases, the overall offending related to the motor vehicles here is similar but clearly less serious than in Bell, Graham and Singh. There is no dangerous getaway here (compared with Bell) and only two unlawful takings as opposed to three (in comparison to Graham). The stolen Subaru car was worth less than the car in Singh, but that is reflected in the starting point in this case being 26 months’ imprisonment rather than the four years in both Graham and Bell and the start point of 30 months (before previous convictions) in Singh.
[22] For these reasons the starting point of 26 months, when Mr McCormack- Cameron’s previous convictions are taken into account, cannot be seen to be too high.
[23] Turning to the cannabis offending, I note that in his written submissions – although this was not a point he made orally – Mr Smith argued that the Judge had been incorrect to uplift the cultivation charge by reference to the charges for
possession of cannabis and utensils. The Judge did not do that. Rather, he sentenced those additional charges concurrently with the sentence on the cultivation charge. Having said that, I am of the opinion that the cumulative four month sentence for the cannabis offending after the guilty plea discount was excessive, when the minimal amount of cannabis and lack of any level of commerciality is taken into account. This was very low level offending that would have usually resulted in a non- custodial sentence. As that was not an option available to the Judge, once he had decided that imprisonment was the only appropriate sentence for the other charges, a starting point of three months would have been appropriate to recognise this offending, reduced to two months to take into account the guilty plea. I acknowledge that in a number of cases, sentences of six months’ imprisonment have
been given for low level cannabis cultivation offending.3 But all those cases
involved significantly greater numbers of plants.
[24] I note finally an additional written ground of appeal – not pursued at the hearing – that there was disparity between the sentences imposed on Mr McCormack-Cameron and on his co-offenders.
[25] In my view, the differences between the offending for which Mr McCormack-Cameron and his co-offenders, and between their previous records, make it difficult to give any weight to the disparity argument. The co-offenders’ treatment was not such that I would conclude that the disparity in sentencing was unjustifiable or gross, given the significant additional offending for which Mr McCormack-Cameron faced sentence, the role he played in that offending, and his previous conviction history.
Conclusion
[26] It is my conclusion that the Judge was entitled to take a sentencing approach which emphasised the sentencing purposes of deterrence and denunciation when
dealing with a recidivist offender such as Mr McCormack- Cameron and as such the
3 Rossiter v Police HC Hamilton AP45/01, 11 September 2001; Barlow v Police HC Rotorua CRI-
2008-463-76, 1 December 2008; McQuillan v Police HC Palmerston North CRI-2004-454-22,
21 April 2004.
starting point sentence of 26 months for the two sets of theft and unlawful taking of a motor vehicle was not excessive.
[27] I am however of the opinion that the cumulative four month sentence for the cannabis offending, when the minimal amount of cannabis and lack of any level of commerciality is taken into account, was excessive. In its place I substitute a sentence of two months’ imprisonment. This results in a total end sentence of 21 months’ imprisonment.
[28] Mr McCormack-Cameron’s appeal is, therefore, allowed, but to that extent
only.
“Clifford J”
Solicitors:
Cruickshank Pryde, P O Box 857, Invercargill for the prisoner ([email protected]). The Crown Solicitor, P O Box 355, Invercargill ([email protected]).