McDonald v Crown Law
[2016] NZHC 339
•3 March 2016
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2015-425-000056 [2016] NZHC 339
BETWEEN KERRYN ROBERT MCDONALD
Appellant
AND
CROWN LAW Respondent
Hearing: 29 February 2016 Appearances:
G S Williamson for Appellant
M A Mika for CrownJudgment:
3 March 2016
JUDGMENT OF DUNNINGHAM J
[1] Mr McDonald appeals his sentence of two years four months’ imprisonment imposed in the District Court on three charges of importing the Class C drug, Pentedrone.1 Mr McDonald was sentenced at the same time as his co-offender, Mr Kitto, who faced an additional charge of cannabis cultivation. Mr Kitto received a sentence of two years and seven months.
[2] Mr McDonald appeals on the basis that the end sentence was manifestly excessive. He relies on the following grounds:
(a) the starting point was manifestly excessive and out of line with authority;
(b)the sentencing Judge did not apply principles of parity and consistency;
1 R v Kitto and McDonald [2015] NZDC 24510.
MCDONALD v CROWN LAW [2016] NZHC 339 [3 March 2016]
(c) the sentencing Judge gave insufficient credit for guilty pleas; and
(d)Mr McDonald was entitled to credit to reflect Crown delay in progressing the matter.
Jurisdiction on appeal
[3] Mr McDonald is able to appeal the sentence imposed as of right.2 As the first appeal Court, this Court will only disturb the sentence appealed from if it can be satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.3 The focus is on the correctness of the end result, and the route by which the Judge reached that will be relevant, but not determinative.4
Factual background
[4] The charges against Mr Kitto and Mr McDonald arose out of a police surveillance operation of the Road Knights motorcycle gang during which the police intercepted a number of telephone calls including calls made by Mr Kitto and Mr McDonald. As a result of this surveillance they intercepted packages of a white powder being sent from China to Invercargill. The powder was subsequently analysed and found to be Pentedrone (which is a Class C analogue controlled drug). The street value of the Pentedrone has been agreed at $54,500.
[5] During the surveillance period, Mr McDonald purchased a prepaid cell-phone and supplied it to Mr Kitto. Information supplied to police in response to production orders established that there were a total of 11 calls made on the phone and they all related to the importation of the Pentedrone into New Zealand from China. Mr Kitto made all but one of the calls inquiring as to the whereabouts and status of the three packages of the drug. The other caller was identified as Mr McDonald who also inquired about the whereabouts of the intercepted package destined for an address in
Invercargill.
2 Criminal Procedure Act 2011, s 244.
3 Sections 247 and 250.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[6] Mr Kitto was also found, in conjunction with another defendant, to be
cultivating cannabis at the other defendant’s address. This involved growing
18 plants which would yield an estimated return of $18,000.
[7] Both defendants had previous convictions, but only Mr McDonald had drug related convictions (cultivation of cannabis in 2008 and possession of Class C drugs in 1998 and 1994).
The District Court sentencing
[8] After recounting the summary of facts, Judge M J Callaghan considered Mr McDonald’s pre-sentence report, which recommended imprisonment. The report identified Mr McDonald’s associations, involvement with drugs, and lifestyle as factors involved with his offending. Because of his history, Mr McDonald was considered at moderate risk of reoffending. He had expressed remorse, and described his actions as “stupid”. Mr McDonald also said he had not been a gang associate since 2009, and was employed.
[9] Judge Callaghan considered the authorities cited by counsel at considerable length, and then recited the relevant purposes and principles of sentencing under ss 7 and 8 of the Sentencing Act 2002.
[10] As aggravating features, the Judge listed: the potential harm to the community that could have resulted from the importation of this drug; the defendants’ premeditation (noting, however, that they were not “the head of the chain”); the fact that there was more than one importation and that the three offences were committed over a relatively short space of time.5
[11] The defendants’ guilty pleas were the sole mitigating feature. Judge Callaghan was not convinced that a further discount was appropriate to reflect that both defendants were subject to forfeiture proceedings saying there was authority for ignoring the profit forfeiture orders sought through civil proceedings
and, in any event, no money was gained from the venture.6 Accordingly, he did not
5 R v Kitto [2015] NZDC 24510 at [53].
6 At [55]–[59], citing R v Gray [2013] NZHC 450 at [39](h) and (j).
consider he was required to take the forfeiture proceedings into account under s 10B of the Sentencing Act. Nevertheless, in case he was wrong, the Judge gave “minimal” credit for the forfeiture orders.
[12] From a starting point of three years four months, Judge Callaghan reached an end sentence of two years four months’ imprisonment for Mr McDonald, which he arrived at as follows:
[61] …this importation was a well planned commercial enterprise. You were close to the centre of it. You were in close association with [the co- offenders]. You went to some lengths to ensure that you were not found out, by buying phones specifically to further the drug importation. You were checking the whereabouts of the incoming drugs. There were discussions that you were going to continue the importation which had been going on for a period of time. You had the tracking numbers of two of three importations and also the mobile phone top-ups. You were also in direct contact with the drug supplier in China. Also there were 11 calls made to New Zealand Post on the phone that you purchased to find out about the various packages. Of those 11 calls, you made one of them. There are 726 grams imported, this is three times as much as the amount in the R v Bardwell cases that have been referred to me. The value of the drugs has now been agreed at a street value of $54,500, which is approximately twice the amount as in the R v Bardwell cases.
[62] Taking into account those factors, I consider that a starting point of three years four months is warranted. As to your guilty plea, you are able to claim a discount of 20 percent because of the date that you indicated your first guilty plea, and also because of the fact that you gave a plea of guilty after the ESR certificate was sent.
[63] In respect also of the fact that you are to forfeit a sum of $6000 to the Crown, I am prepared to give you a five percent discount in respect to that. As to bail, the conditions were not onerous except for the first month of the time that you were on bail. Taking that into account, and your personal circumstances, a further five percent is available to you. That would mean that I have a total of 30 percent discount (a total of 12 months).
[13] Regarding Mr Kitto, Judge Callaghan noted that he was “close to the centre but… not the mastermind” of the offending. Mr Kitto had made a significant number of phone calls regarding the progress of the importation and was responsible for the transfer of funds. For his role in the offending, the Judge adopted a three year starting point. For the cannabis cultivation charge he took a starting point of two years three months which would have given a combined sentence of five years three months. However, this was adjusted to four years having regard to the totality principle. The Judge then gave a total discount of 30 per cent (20 per cent for guilty
plea, five per cent for bail and personal circumstances, and five per cent for the forfeiture orders), reaching an end sentence of two years seven months’ imprisonment.
Was the starting point manifestly excessive?
[14] Mr Williamson, for the appellant, submitted that the three year four months starting point was manifestly excessive and out of line with authority. He provided a helpful tabulation of relevant case law which set out 12 cases involving Class C offending. Those cases revealed starting points for sentencing which ranged from two years six months to five years. He emphasised that Mr McDonald was a category 2 offender in the R v Ho terminology (a courier with a key role in the
enterprise),7 but pointed out that this was not pseudoephedrine offending (which
authorities indicate is more serious), and both the quantity and street value of the drugs were less than those in pseudoephedrine offending cases with similar starting points.8 For these reasons he submitted that a starting point of no more than three years should have been adopted.
[15] In contrast the respondent submitted that the starting point was entirely consistent with the cases relied on by the appellant and was clearly within range.
Discussion
[16] The maximum penalty for the importation charges is eight years’ imprisonment.9 There is no tariff case for this type of offending, although the categories set out in R v Terewi for cannabis offending, have been applied, by analogy, to the importation of class C drugs.10
[17] This case is category 2 which generally attracts starting point sentences between two and four years.11
7 R v Ho HC Auckland CRI-2005-092-567, 12 April 2005 at [23]-[25].
8 Referring to Fraser v R [2013] NZCA 250 and R v Urlich HC Palmerston North
CRI-2010-054-1694, 13 December 2010.
9 Misuse of Drugs Act 1975, s 6(2)(c).
10 R v Terewi [1999] 3 NZLR 62 (CA).
11 R v Urlich at [27] citing R v Terewi.
[18] In Fraser v R, the Court of Appeal upheld a three year starting point for two charges of importing a Class C controlled drug bk-MDMA and one charge of possessing for sale.12 The total street value of the two importations was estimated at
$21,600. The Court of Appeal held the starting point within range because the offender had imported and dealt the drug, and bk-MDMA is a more serious Class C drug than cannabis, as it is an Ecstasy analogue.
[19] I consider the present offending can be seen as at least as serious as that in Fraser. The street value of the drugs in Fraser ($21,600) was less than the value imported by Mr McDonald ($54,500). This offending was larger in scale, conducted within a gang setting, and involved a greater degree of premeditation and sophistication. However, the appellant rightly pointed out that the appellant in Fraser was the primary offender, where in this case Mr McDonald was co-ordinating his efforts with gang members.
[20] In R v Urlich, the offender had imported a large amount (four kilograms) of the Class C drug BZP from China.13 However, there was a finding that “commerciality was not involved”, and the offending was of relatively low sophistication.14 Nevertheless, a starting point was adopted in that case of three years three months’ imprisonment. Despite the lesser quantity of drugs imported in this case, the offending is more serious than that in Urlich, as it involves the intended commerciality of the drug which was lacking in Urlich. It also involves a more serious drug, because Pentedrone is an analogue of the Class B drug methcathinone, an amphetamine-type drug.
[21] Despite the careful submissions of counsel for the appellant, I consider that, having regard to all aspects of the offending, including the value of the drug, the level of sophistication of the offending and the intended commerciality of the offending, the starting point of three years four months was entirely within range for this Category Two offending, and I do not consider it to be manifestly excessive or
out of line with authority.
12 Fraser v R [2013] NZCA 250.
13 R v Urlich HC Palmerston North CRI-2010-054-1694, 13 December 2010.
14 At [32].
Did the sentencing Judge apply principles of parity and consistency?
[22] The appellant submitted that the Judge failed to apply the principle of parity when adopting starting points, and that the modest three month disparity between Mr McDonald’s and Mr Kitto’s end sentences was not justified when the principle of parity was considered. Instead, Mr McDonald’s sentence should have been significantly less than Mr Kitto’s to reflect the different levels of offending.
[23] The appellant points out that the Crown had not distinguished between the defendants’ roles in the importation offending, treating them equally and laying the same charges against them and yet the Judge adopted a higher starting point for Mr McDonald in relation to this offending. In addition, Mr Kitto also faced a further drug-offending charge with an independent starting point of two years three months. Despite this Mr McDonald only ended up with a sentence three months shorter than his co-offender.
[24] Mr Williamson, for the appellant, submitted that this disparity is exacerbated when one considers the evidence of the parties’ roles in the importation offending, which suggests that Mr Kitto was more centrally involved than Mr McDonald. Specifically, he refers to the fact that Mr Kitto made 10 of the 11 calls on the prepaid cell-phone purchased by Mr McDonald, and was found in possession of a Western Union transfer slip used to pay for the drugs.
[25] The respondent accepted that the Crown sentencing submissions did not attempt to distinguish either of the offender’s roles in the importation, but says that the Judge carefully compared the different levels of involvement in the importation as between the appellant and Mr Kitto before setting the starting point for each defendant’s sentences. In this regard, the Crown pointed to the District Court findings regarding Mr McDonald’s relationship with a third defendant, Mr Dollman, where the pair discussed having imported “heaps” before, and the fact that it was the appellant who obtained the pre-paid cell-phone used to assist with the commission of the offending. The Judge made findings which were open to him that Mr McDonald was “close to the centre” of a well planned commercial enterprise and Mr Kitto was “close to the centre but … not the mastermind”.
[26] The respondent also pointed out that the appellant has prior convictions for drug offending which Mr Kitto did not have, although of course the Judge noted he put little weight on that.
[27] In all the circumstances, the Crown said that there were factual findings which support the distinction the Judge made for the starting point set for each defendant in relation to the importation offending, and the fact Mr Kitto was not sentenced to the full sentence for the cannabis offending was a conventional application of the totality principle. Thus, the starting points adopted did not offend accepted sentencing principles, nor did they result in a manifestly excessive end sentence for Mr McDonald.
Discussion
[28] It is well established that a lack of parity in sentencing is only grounds for an appeal if it was such to cause a reasonably minded, independent observer aware of all the circumstances of the offence and of the offenders to think something had gone wrong with the administration of justice.15
[29] The Judge’s adoption of different starting points for the co-offenders was, as R v Lawson affirms, consonant with the appearance of justice. Judge Callaghan assesses their different roles in the offending, and made factual findings which suggested that Mr McDonald was more culpable.16 Mr McDonald’s involvement with the third offender was greater than Mr Kitto’s, and the content of his telephone calls with that offender justified the finding that he was “close to the centre of this
well planned commercial enterprise”. It was also Mr McDonald who actioned the purchase of the cell-phone through which calls were made to track the importation of the packages.
[30] The additional cannabis charge which Mr Kitto faced was reflected in a significant uplift in the starting point which was reduced then to four years to reflect the totality principle. That is unexceptional and a proper reflection of how the
cultivation charge should be reflected in the overall sentence.
15 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
16 See R v Kitto [2015] NZDC 24510 at [9], [61] and [65].
[31] Given my view that the starting points were justified in both cases then, unless some other error occurred, the difference in the end sentences between the co-offenders must also necessarily be within the range that could be justified. This ground of appeal therefore fails.
Did the sentencing Judge give insufficient credit for guilty pleas?
[32] Mr Williamson submitted that Mr McDonald was entitled to a full 25 per cent discount for his guilty pleas, which were “entered as early as could be expected given the nature of the matter”. He also submitted that the guilty plea credits were disparate between the co-offenders, as both Mr Kitto and Mr McDonald received
20 per cent discounts, despite Mr Kitto’s pleas postdating Mr McDonald’s by at least six months. In those circumstances Mr Williamson submitted that Mr McDonald should have received more credit than Mr Kitto.
[33] Mr Mika, for the respondent, relying on Hessell v R, pointed out that the strength of the prosecution case is a relevant factor when assessing the discount to be granted for a guilty plea. In this case he submitted the Police case was “overwhelming” and neither the appellant nor Mr Kitto deserved even the 20 per
cent discount that they were granted.17
Discussion
[34] The charges were laid in late 2013. Pleas on all three charges were received once the Crown provided ESR certificates identifying the substance as Pentedrone, following chemical analysis. However, prior to this, the appellant had indicated to the Crown that guilty pleas would be entered once the certificates identified the drug as being Pentedrone, or else, if they were not identified as Pentedrone, then pleas of guilty to attempts to import would be entered.
[35] I accept that in those circumstances it could be said that guilty pleas were entered at the first available opportunity. However, that does not automatically entitle the defendant to a 25 per cent guilty plea. The respondent has correctly relied
on Hessell to say that the strength of the evidence against the defendants is also
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
relevant. Given the strength of the evidence at the time the plea was entered it was clearly open to the Judge to have given something less than the full 25 per cent discount, and I consider the 20 per cent discount was at the upper end of what Mr McDonald could have expected in the circumstances of these prosecutions.
[36] I acknowledge that it would have been possible to draw a distinction between the guilty plea discount which was given to Mr McDonald’s co-offender and that given to Mr McDonald. However, realistically, that would have resulted in Mr Kitto being given a smaller discount rather than warranting Mr McDonald getting a greater discount. In any event, the fact that the Judge was generous in the discount afforded to Mr Kitto does not satisfy me that there has been an error in the approach to sentencing Mr McDonald and that a different sentence should have been imposed.
[37] Accordingly, this ground of appeal fails too.
Was Mr McDonald entitled to credit for Crown delay in progressing the matter?
[38] Mr Williamson submitted that Mr McDonald was entitled to a credit of five per cent in recognition of the Crown’s delays in progressing the matter. In particular, he relied on the Crown’s delay in producing the ESR certificate identifying the drugs as Pentedrone, claiming this stalled the case against Mr McDonald.
[39] However, as the respondent’s submissions explained, the delay was caused by difficulties in scientifically analysing the imported power as Pentedrone. The obscure nature of the drug can make it difficult to obtain a controlled sample to prove that the drug was in fact Pentedrone. The respondent also pointed out that it was clear that all of the evidence showed that the intention was to import Pentedrone and the appellant indicated that if the powder was not Pentedrone then in any event, a guilty plea to an attempted importation would be entered.
[40] While resisting any credit for delay, the respondent said if such a credit was available, it should be seen as comprising part of the 5 per cent discount already afforded for bail conditions and personal circumstances.
Discussion
[41] Section 9(2) of the Sentencing Act specifies a range of mitigating factors which must be taken into account in sentencing to the extent that they are applicable in the particular case. Subsection (2)(fb), which was a factor added by the Sentencing Amendment Act (No. 2) 2011, refers to “any adverse effects on the offender of a delay in the disposition of the proceedings caused by a failure by the prosecutor to comply with a procedural requirement”. Subsection 9(4) also adds that:
Nothing in (1) or (2) – (a) prevents the Court from taking into account any other aggravating or mitigating factor that the Court thinks fit;
[42] The commentary on this provision in the Sentencing Act in Adams on Criminal Law, states that s 2(fb) gives “statutory recognition to, and extends, the existing practice of reducing the sentence when undue delay in the disposal of the case can be attributed to the prosecution or the Courts system”.18
[43] I am satisfied that the delay does not come within the factor listed at s (2)(fb), as it is not a delay caused by a failure by the prosecution to comply with a procedural requirement. It could only be taken account of, if at all, under the catch-all provision of s 9(4). However, to result in a discount, I consider it must either:
(a) reflect some fault on the part of the prosecution; or
(b)reflect some identifiable adverse consequence for the defendant that is not otherwise taken account of, for example, under s 9(2)(h) being the time the offender spent on bail with an EM condition.
[44] In this case the delay was occasioned by a circumstance which was beyond the control of the New Zealand Police. The only obvious consequence on the offender is the time spent on bail, but in that regard the Court concluded “the conditions were not onerous except for the first month of the time that you were on
bail”.19 In any event, the Court took into account the time Mr McDonald spent on
18 Robertson (ed) Adams on Criminal Law - Sentencing (looseleaf ed, Brookers) at SA 9.22B.
19 R v Kitto and McDonald, above n 1 at [68].
bail subject to conditions and his personal circumstances by providing a further five per cent discount on sentence. I consider that this discount adequately takes into account any effects of the delay on the defendant and the Judge did not err in failing to apply an additional discount for delay.
Conclusion
[45] In all the circumstances I am satisfied that the appellant’s sentence was not manifestly excessive and was well within range for offending of this type and degree. As neither requirement of s 250(2) of the CPA has been met, the appeal is dismissed.
Solicitors:
Hewat Galt, Invercargill
Preston Russell Law, Invercargill
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