McDonald v Crown Law - [2016] NZHC 339

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 Crown

Judgment:

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

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 McDonald v Crown Law

Details

AGLC: McDonald v Crown Law [2016] NZHC 339
Case: [2016] NZHC 339
Decision Date: 3 March 2016

CaseChat Overview and Summary

Kerryn McDonald appealed his sentence of two years four months' imprisonment imposed by the District Court on three charges of importing the Class C drug Pentedrone. The appeal was heard by Dunningham J, who held that the sentence was not manifestly excessive. Mr McDonald's appeal was based on the argument that the starting point was manifestly excessive, the sentencing Judge did not apply principles of parity and consistency, the sentencing Judge gave insufficient credit for guilty pleas, and he was entitled to credit to reflect Crown delay in progressing the matter.

Dunningham J held that the starting point of three years four months was within range for this category two offending, and was not manifestly excessive. The Judge also held that the modest disparity between the end sentences of Mr McDonald and his co-offender, Mr Kitto, was justified because the Judge made factual findings which suggested that Mr McDonald was more culpable. The Judge held that the discount for the guilty pleas was appropriate, given the strength of the evidence against the defendants. Finally, the Judge held that the delay in the case was not caused by a failure by the prosecution to comply with a procedural requirement, and the discount for bail conditions and personal circumstances adequately took into account any effects of the delay on the defendant.

The appeal was dismissed.

Orders