McDonald v R - [2011] NZCA 97

IN THE COURT OF APPEAL OF NEW ZEALAND

CA581/2010
[2011] NZCA 97

BETWEEN ERROL FRANCIS MCDONALD
Appellant

AND THE QUEEN
Respondent

Hearing: 28 February 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: R A A Weir for Appellant
T Epati for Respondent

Judgment: 25 March 2011 at 12 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Drug offending

On 1 October 2009 the police went to Errol McDonald’s home to uplift a firearm. On detecting the smell of cannabis, they conducted a warrantless search pursuant to s 18 of the Misuse of Drugs Act 1975. They found 32 g of cannabis in a drawer and 30 cannabis plants in a purpose-built room under the floor of a garden shed.
The next day the police returned with a search warrant to conduct a more thorough search. They found on this occasion over 3 kg of cannabis in various locations, more than $6,000 in cash, a set of scales, 18 boxes of resealable bags, a roll of tinfoil and a number of items associated with an indoor growing operation. The purpose-built room beneath the shed was a shipping container that had been lined. It contained ventilation fans and equipment for growing cannabis. Two cellphones located at the property indicated that Mr McDonald had been involved in the sale of quantities of cannabis over a six week period prior to 1 October 2009.
In addition, the police found a shotgun in the wardrobe and a Tazer in the front console of Mr McDonald’s vehicle.
Mr McDonald was charged with, and ultimately pleaded guilty to, counts of cultivating cannabis, selling cannabis, possessing cannabis for supply, unlawful possession of a firearm (the shotgun), and possession of a restricted weapon (the Tazer).
It was accepted at sentencing that the cultivation was a two crop rotation, the first crop having been in part sold and being in part represented by the dried material found at the house. The second crop, discovered by the police in plant form, was nearing maturity. The sentencing judge, Judge Bidois, sentenced Mr McDonald to a total of 33 months’ imprisonment.[1] Mr Weir, for Mr McDonald, submits that sentence was manifestly excessive. He also criticises the way in which the Judge reached the final figure.

Was the sentence manifestly excessive?

[1] R v McDonald DC Tauranga CRI-2009-070-8137, 13 July 2010.

We set out first how the Judge approached the sentencing exercise. His Honour took the cultivation charge as “the lead charge”.[2] He considered it fell into category 2 of the guideline judgment for cannabis cultivation and dealing, R v Terewi.[3] He fixed a starting point of two and a half years. He then considered what uplift was required for the cannabis that had already been sold and the cannabis which had been cultivated and was ready for sale. He determined the uplift should be a year.[4]
[2] At [14].
[3] R v Terewi [1999] 3 NZLR 62 (CA).
[4] At [14].
His Honour…

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 R

Details

AGLC: McDonald v R [2011] NZCA 97
Case: [2011] NZCA 97
Decision Date: 25 March 2011

CaseChat Overview and Summary

Errol Francis McDonald appealed against his sentence for various drug and firearm-related offences. The Crown accepted that McDonald was involved in the cultivation and sale of cannabis and was in possession of a shotgun and a Tazer. McDonald was sentenced to 33 months' imprisonment, and he argued that the sentence was manifestly excessive. The Court of Appeal was required to determine whether the sentence imposed by the sentencing judge was fair, appropriate, and not manifestly excessive.

The Court of Appeal reviewed the sentencing judge's approach and found that the starting point of two and a half years for the cultivation charge was appropriate. The Court of Appeal also found that the uplift for the other cannabis offences and the firearm offences were not excessive, especially considering the generous guilty plea discount applied. The Court of Appeal held that the overall sentence was fair and appropriate and not manifestly excessive.

The Court of Appeal dismissed the appeal and upheld the sentence imposed by the sentencing judge. The Court of Appeal found that the overall sentence was fair and appropriate, and the generous guilty plea discount justified the add-ons for the firearm offences. The Court of Appeal did not find any errors in the sentencing judge's approach that warranted a reduction in the sentence.

There were no final orders made in this case as the appeal was dismissed. The sentence imposed by the sentencing judge remained unchanged.

Orders