McDonald v The King
[2025] NZHC 3174
•23 October 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2025-485-045
[2025] NZHC 3174
BETWEEN JAMES MOSES MCDONALD
Appellant
AND
THE KING
Respondent
Hearing: 16 October 2025 Appearances:
L A Scott for Appellant
I P L Barfucci for Respondent via VMR
Judgment:
23 October 2025
JUDGMENT OF GRICE J
(Appeal against sentence)
[1] James McDonald was sentenced in the District Court at Wellington on 27 June 2025 to two years and seven months’ imprisonment,1 on charges of possession of methamphetamine for supply,2 supply of methamphetamine,3 possession of cannabis for sale,4 theft,5 and receiving stolen property.6
[2] Mr McDonald appeals against his sentence on the basis that it was manifestly excessive and wrong in principle. In particular, he contends that insufficient discounts were applied for personal mitigating features, and an appropriate sentence would have
1 R v McDonald [2025] NZDC 19127 [judgment under appeal].
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a) — maximum penalty life imprisonment.
3 Misuse of Drugs Act, s 6(1)(c) and (2)(a) — maximum penalty life imprisonment.
4 Misuse of Drugs Act, s 6(1)(f) and (2)(c) — maximum penalty eight years’ imprisonment.
5 Crimes Act, ss 219 and 223(b) — maximum penalty seven years’ imprisonment.
6 Crimes Act, ss 246 and 247(a) — maximum penalty seven years’ imprisonment.
MCDONALD v R [2025] NZHC 3174 [23 October 2025]
been no more than two years’ imprisonment, leaving open the possibility of electronically monitored sentences.
[3] The Crown opposes the appeal to the extent that it relates to rehabilitative prospects and addiction, and submits that sufficient discounts were applied for those factors. However, the Crown accepts that a greater discount could have been given for remorse.
Background
The offending
[4] On 10 March 2024, a vehicle took an enclosed trailer and its contents from Whanganui Hospital. Inside the trailer were two motorcycles and a large amount of riding and camping equipment. Later that night, Mr McDonald sent a video to an associate showing one of the motorcycles, valued at $8,000, stripped of its plastics. These events gave rise to the theft charge.
[5] On 27 May 2024, Mr McDonald was stopped while riding a stolen Kawasaki motorcycle with false registration plates. The motorcycle, valued at $17,000, had been roughly painted and had its engine and chassis numbers ground off. Upon his arrest, a search of Mr McDonald’s belongings revealed methamphetamine weighing a combined total of 58.62 grams,7 $755 cash, and various drug paraphernalia. This gave rise to the charges of possession of methamphetamine for supply and receiving stolen property (being the motorcycle).
[6] Subsequent analysis of Mr McDonald’s cell phone revealed evidence of 27 offers to supply a total of 53.25 grams of methamphetamine between February and May 2024, with a street value of $21,300. This gave rise to the charge of supply of methamphetamine. Additionally, text messages from May 2024 revealed four offers to sell a total of 476 grams of cannabis, with a street value of $5,950. This resulted in the charge of possession of cannabis for sale.
7 The sentencing Judge referred to a combined total of 33.7 grams, however the value of
58.62 grams has been taken from the amounts listed in the summary of facts.
Restorative justice conference
[7] Mr McDonald engaged in a restorative justice conference with the victims of the theft charge on 30 April 2025.8 The victims noted the significant impact the offending had on them. One of the motorbikes belonged to their nephew, who was in hospital after a serious accident at the time of the theft. There was also a World War II camper stretcher with sentimental value in the trailer.
[8] Mr McDonald apologised to the victims and their whānau, and offered to pay reparation of $6,250. The victims accepted his apology, noting that he had “put the work into it”, and accepted his offer of reparation. Mr McDonald agreed to pay weekly instalments of $100 from 7 May 2025, with the understanding that a final decision regarding full payment of reparation would be made by the Judge at sentencing.
Pre-sentence report
[9] Mr McDonald is Māori and has whakapapa to Ngā Rauru iwi and Puhea hapū. He is 40 years old and has five children, four of whom reside with their mother, his ex-partner. The pre-sentence report notes he was made redundant in 2017 from his employment at an oil rig in Australia, where he had worked for eight years. Following this he relapsed into methamphetamine use, which he says caused his relationship to break down. He said he endeavours to stay in contact with his children, but has not spoken to his two youngest children for seven years. He claims to have regular contact with his 22-year-old son.
[10] The report notes that Mr McDonald began using methamphetamine in his early twenties. In terms of the role of his addiction in the offending, Mr McDonald said he initially fell into drug dealing to fund his addiction, but soon discovered the earning potential and “began trafficking in earnest”. Mr McDonald informed the report writer that he breached his previous sentence of home detention in order to find suppliers of the drugs he was selling.
8 The restorative justice conference report says it was in relation to a receiving charge, but the facts referenced in the report concern the theft charge, according to the sentencing decision and the police summary of facts.
[11] Mr McDonald reported abstaining from methamphetamine since October 2024, when he began attending the Salvation Army Bridge Programme while on bail. He graduated from that programme three months later on 16 January 2025. He also completed a 12-week intensive out-patient programme through Care NZ, and has continued attending weekly counselling sessions through City Mission to support his abstinence. In addition, he attends twice weekly Narcotics Anonymous meetings, and the Salvation Army Recovery Church once a week.
[12] The report noted that Mr McDonald had expressed remorse to the victims of his offending through the restorative justice process, and had maintained the agreed weekly reparation payments since that time. Mr McDonald also advised that he had stopped associating with former antisocial peers and was doing his utmost to prove his intentions to lead a pro-social life, particularly for the sake of his children. He is currently employed through RJS Recruitment in construction, and is recognised by his employer as a valued staff member.
[13] In light of the steps Mr McDonald had taken to show accountability for his offending and his willingness to address his addiction, the report writer recommended a rehabilitative sentence of intensive supervision, paired with a restrictive sentence of community detention.
Decision under appeal
[14] Judge Laurensen found that the methamphetamine offending fell towards the lower end of band two of the guideline judgment Zhang v R.9 The Judge considered that Mr McDonald’s role in the offending involved elements of both the “lesser” and “significant” categories, noting that he had been operating as a street dealer in relation to significant quantities of methamphetamine, and generating considerable income.10 While the offending was driven partly by addiction, it was also profit-driven. A starting point of three and a half years’ imprisonment was adopted for the methamphetamine charges.
9 Judgment under appeal, above n 1, at [10] and [13], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
10 At [13].
[15] In relation to the cannabis charge, the Judge considered the relevant guideline judgment of R v Terewi, determining that the offending fell within category two.11 Taken on its own, that charge would have attracted a starting point of around 18 months, however the Judge considered an uplift of nine months’ imprisonment was appropriate having regard to the totality of the offending. A further uplift of six months was applied in respect of the theft and receiving charges (although noting that a starting point of 18 months would have been appropriate for that offending on its own).12 This resulted in an overall starting point of 57 months.
[16] Turning to personal aggravating and mitigating factors, the Judge applied an uplift of five per cent for Mr McDonald’s previous convictions.13 A 25 per cent reduction was then applied for Mr McDonald’s early guilty plea.14 A further five per cent discount was applied for his expression of remorse and offer of reparation, which he had begun paying in weekly instalments.15 In addition, the Judge considered a 15 per cent discount was appropriate for the role Mr McDonald’s methamphetamine addiction had played in his offending, and his rehabilitative prospects.16 These discounts brought the sentence to 34 months’ imprisonment, which was further reduced by three months to account for the eight months he had spent on electronically monitored bail (EM bail).17 Mr McDonald’s end sentence was therefore 31 months, or two years and seven months’ imprisonment. An order was made to pay the remaining balance of the agreed $6,250 reparation to the victims.18
Approach on appeal
[17] The appeal against sentence is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence and that a different sentence should be imposed.19 The statutory test has long been interpreted to mean that the court will
11 At [15], citing R v Terewi [1999] 3 NZLR 62 (CA).
12 At [17].
13 At [19].
14 At [20(a)].
15 At [20(b)].
16 At [20(c)].
17 At [22].
18 At [23].
19 Criminal Procedure Act 2011, s 250(2).
allow the appeal only if the sentence is manifestly excessive.20 In Tutakangahau v R, the Court of Appeal noted that generally an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.21 The focus is on the outcome of the final sentence, rather than “the route by which the judge reached that outcome”.22
Grounds of appeal
[18]Mr McDonald appeals against his sentence on the following grounds:
(a)The Judge failed to properly take into account personal mitigating factors, including addiction, rehabilitative prospects, and genuine remorse evidenced by his participation in restorative justice and offers to make amends.
(b)Had proper consideration been applied to these mitigating factors, even having regard to the starting point imposed by the Court (which he contends was too high), the end sentence would have reached the threshold for commutation to an electronically monitored sentence.
(c)Mr McDonald’s positive steps towards rehabilitation make him “the ideal candidate” for a community-based sentence, and “[i]t would be difficult to see a more promising example of someone having turned their life around”.
Addiction and rehabilitative prospects
Submissions
[19] Ms Scott, for Mr McDonald, submits that the role of addiction in the offending is relevant to both the starting point and as a personal mitigating factor. She notes that Mr McDonald fell into methamphetamine dealing in order to fund his habit. While acknowledging that his dealing increased once he discovered the earning potential,
20 Kumar v R [2015] NZCA 460 at [81].
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
22 Ripia v R [2011] NZCA 101 at [15].
Ms Scott says the financial gain involved was not to the level of cases such Scott v R and Joyce v R, which were relied on by the Crown at sentencing.23 In particular, Mr McDonald’s dealing was not in the nature of a commercial operation. He was found in possession of only $755 cash and traded a stolen bike for a gram of methamphetamine.
[20] Ms Scott also refers to the Supreme Court’s observation that a “full evaluation of the circumstances to achieve justice in the individual case” is required at sentencing.24 The Court of Appeal in Zhang noted that this means flexibility is required in applying guideline judgments.25 However, given that the starting point has not been explicitly brought into issue on appeal, the Judge’s application of the Zhang bands is of limited relevance.
[21] Notwithstanding the higher starting point adopted by the Judge, Ms Scott submits that, had the appropriate reductions been applied, the end sentence would have been a short-term sentence of imprisonment. She contends that an overall 15 per cent discount for addiction and rehabilitative prospects was insufficient. She relies on the guidance in Zhang in relation to addiction as a mitigating factor. The Court of Appeal noted there that:26
(k) Addiction shown to be causative of the offending is a mitigating consideration. It may in its own terms justify a sentence discount of up to 30 per cent, although that is not to be treated as an absolute limit. Addiction will often combine with mental health issues, and the two may need to be considered in combination, although without the doubling-up of an otherwise appropriate discount. Addiction also calls for consideration of a rehabilitative response as part of sentencing.
[22] Ms Scott notes that Mr McDonald has been addicted to substances for almost his entire life, consuming alcohol regularly from age 13, and up to 28 grams of cannabis per week by his late teens. He commenced regular use of methamphetamine in his twenties. His offending began after he was made redundant in 2017 in order to fund his daily use of methamphetamine. Ms Scott notes the positive report from the
23 Scott v R [2022] NZHC 2274; and Joyce v R [2020] NZCA 124.
24 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].
25 Zhang, above n 9, at [120].
26 At [10(k)].
Salvation Army Bridge programme which Mr McDonald successfully completed in January 2025, as well as the fact he has secured accommodation and employment, and is held in high regard at his workplace. She submits that employment has been a stabilising factor for Mr McDonald in the past in terms of his rehabilitation, and is essential so he can continue to meet his weekly reparation payments. He had paid back $600 at the time of sentencing, and Ms Scott indicates he has now paid a further
$1,400 while on bail. She submits that a sentence of imprisonment at this stage would erode these positive rehabilitative steps.
[23] Ms Barfucci, for the Crown, submits that the Judge was required to assess the combination of discounts applied for mitigating factors in the round, and consider whether this would result in an end sentence which appropriately reflected Mr McDonald’s culpability.27 She notes that the offending occurred while Mr McDonald was serving a sentence of home detention, and it would have been open to the Judge to uplift the sentence to reflect this aggravating feature. She contends that, in that context, the Judge did not err in applying a combined discount of 15 per cent for rehabilitation and addiction.
Analysis
[24] Mr McDonald has made tangible efforts to turn his life around, and has demonstrated consistency in attending counselling and other support services. He also reports that he has remained sober since October 2024. In addition, he is now engaged in employment and is using his wages to fund his weekly reparation payments.
[25] Nevertheless, I consider the discount of 15 per cent awarded by the Judge for addiction and rehabilitative prospects was within range, particularly given that addiction was only a partial motivator of Mr McDonald’s methamphetamine offending, alongside financial gain. However, I take into account the positive rehabilitative steps discussed above when considering the discount for remorse and restorative justice, given the significant overlap between these factors.
27 Howe v R [2010] NZCA 367 at [21].
Remorse
Submissions
[26] Ms Scott submits that the Judge failed to have regard to ss 10 and 8(j) of the Sentencing Act 2002 in awarding a discount of only five per cent for remorse, and says a discount of at least 15 per cent was warranted. She refers to Proctor v Police, in which this Court held that a five per cent discount given for remorse and attendance at a restorative justice meeting was inadequate.28 The offending in Proctor occurred in the context of the appellant’s employment at Victoria University of Wellington. It involved her setting up a fictitious entity to act as a new vendor for contracting work and invoicing the University a total of $481,000 over three years.29 The appellant had voluntarily attended the restorative justice meeting at “considerable effort”, and had made reparation of $250,000 through the sale of her family home, car, and assets, as well as the family bank accounts.30 With the additional consideration of the adverse effect on her children, the Judge on appeal considered an appropriate discount was 15 per cent.31
[27] While the restorative justice conference only related to the dishonesty offending, Ms Scott submits that it was clearly linked with the methamphetamine addiction issues (which have no identified victim). Furthermore, the remorseful and responsible approach taken by Mr McDonald, as recorded in the transcripts contained in the restorative justice report, is significant evidence of his remorse and the way in which he has turned his life around since receiving the intensive alcohol and drug treatment.
[28] The Crown accepted in its written submissions that the Court may take the view that an allowance of more than five per cent could have been awarded in this case. Ms Kearney notes that in Old v R, the appellant was given an allowance of 10 per cent for remorse, where he had participated in a successful restorative justice conference and offered to pay reparation to the victims.32 However, she submits that
28 Proctor v Police [2016] NZHC 2656 at [38].
29 At [2].
30 At [37].
31 At [41].
32 Old v R [2023] NZHC 2369.
the total reduction of 45 per cent for mitigating factors was not inadequate in the circumstances.
Fresh evidence updating circumstances
[29] Ms Scott handed up a letter from Wellington City Mission dated 16 October 2025, confirming that Mr McDonald remained in the supported transitional housing programme and has completed all case management goals, participated in the Intensive Outpatient Programme through Care NZ, and continues to engage in drug and alcohol counselling. Protective activities were in place to support his ongoing rehabilitation, including full-time employment, sobriety, and housing stability.
[30] Mr McDonald also provided a letter of remorse dated 11 October 2025, confirming he has taken consistent steps to turn his life around. He has maintained full time employment while on EM bail, and has continued to pay his reparation off at
$100 per week. To date, $2,000 of the approximately $4,000 has been paid.
[31] Mr McDonald’s partner was in Court for the appeal, as was a representative of his employer. Ms Scott also confirmed Mr McDonald had been able to work and attend counselling and drug rehabilitation support activities in the three months since EM bail was granted in the District Court pending this appeal.
[32] The Crown took no issue with the information concerning the bail and continued payment of reparation.
[33] As the new material is evidence which is fresh, credible and cogent, for the purpose of updating, and no objection is taken to its introduction, leave is granted for its filing.33
Analysis
[34] The Court of Appeal in Moses v R noted that the defendant bears the onus of showing that remorse is genuine, and while it need not be extraordinary, courts will
33 R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273.
look for tangible evidence such as engagement in restorative justice processes.34 Although a guilty plea is not synonymous with remorse, the two will often be paired, and may justify separate discounts.35
[35] I accept, as did the sentencing Judge, that there is evidence of real and genuine remorse by Mr McDonald. He actively engaged in the restorative justice meeting and candidly apologised to the victims. Furthermore, as noted above, he offered to pay reparations to the victims and has followed through on that agreement. In addition, I consider that the efforts he has made towards rehabilitation and addressing his addiction as a primary driver of his offending further demonstrates that he is genuinely remorseful. This is supported by the fresh evidence of his continued efforts while on EM bail.
[36] I also note that while the amounts of money at stake in terms of reparations were much greater in Proctor, Mr McDonald has realistically done all that could be expected of him to demonstrate his remorse in the circumstances. I consider that the discount of five per cent for remorse was insufficient, and a discount of 15 per cent would have been appropriate. Applying that discount takes the sentence to 25 and a half months’ imprisonment.
Time spent on EM bail
[37] The Judge at sentencing applied a discount of three months to reflect the fact that Mr McDonald had at that point spent eight months on bail. Since sentencing, Mr McDonald has spent a further almost four months EM bail. Applying the approach taken by the sentencing Judge, the sentence should be reduced by an additional one and half months accordingly.
[38] This brings the end sentence to one of 24 months’ imprisonment. Therefore, I now turn to consider whether the sentence should be commuted to one of home detention.
34 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
35 At [25] and [26].
Home detention
[39] A sentence of home detention may be imposed where an offender would otherwise be sentenced to a short-term sentence of imprisonment, if the court is satisfied that the purpose for which the sentence is imposed cannot be achieved by any less restrictive sentence or combination of sentences.36
[40] Before imposing a sentence of home detention, the court is required to consider a pre-sentence report prepared by a probation officer, setting out the suitability of the proposed home detention residence and providing confirmation that the offender consents to any relevant conditions.37 The court must be satisfied that the proposed home detention residence is suitable, any occupants have consented, and that the offender has been made aware of and understands the conditions that will apply during the sentence of home detention and agrees to comply with them.38
[41] Section 16(1) of the Sentencing Act provides that when considering whether to impose a sentence of imprisonment, the court must have regard to the desirability of keeping offenders in the community as far as is practicable and consonant with the safety of the community. In particular, a court must not impose a sentence of imprisonment unless it is satisfied that:39
(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.
[42] However, s 17 states that nothing in that part of the Sentencing Act limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other available sentence.
36 Sentencing Act 2002, s 15A(1). A short-term sentence of imprisonment is one of two years or less: see s 4 definition of “short-term sentence”; and Parole Act 2002, s 4(1) definition of “short-term sentence”.
37 Sentencing Act, ss 80A(2A) and 26A(2).
38 Section 80A(2)(a).
39 Section 16(2).
[43] There is a presumption of imprisonment for Class A drug offending.40 However, the Court in Zhang noted that realistic prospects of rehabilitation may displace that presumption.41
[44] Ms Barfucci submits that a sentence of home detention would not be appropriate in the circumstances. In particular, she submits that the offending involved the supply of a reasonably significant quantity of methamphetamine, and the offending occurred while Mr McDonald was serving a sentence of home detention.
[45] The pre-sentence report noted that Mr McDonald consented to being subject to an electronically monitored sentence. His current address, of which he is the sole occupant, was assessed as suitable for electronic monitoring. The police confirmed there were no known issues to be highlighted in relation to the address.
[46] The report further noted that Mr McDonald had one previous breach of release conditions from 2021, and four active breaches of home detention, suggesting a low level of compliance. However, the writer considered the community support networks he has built up in the past year should be seen as mitigating factors. Therefore, his overall ability to comply with a community-based sentence was assessed as moderate.
[47] The views of the victims are also relevant. One of the victims commented at the restorative justice conference that a prison sentence would be detrimental to Mr McDonald’s recovery, and she hoped he would be able to continue in the new way of life he had embarked upon.
[48] I agree with the pre-sentence report writer and the victim that a sentence of imprisonment would not support Mr McDonald’s rehabilitative efforts to date. I consider that he has demonstrated responsibility and discipline through his compliance with his EM bail conditions thus far, as well as his employment and attendance at regular weekly commitments. In my view, this can be taken as evidence that he will comply with a sentence of home detention, despite his previous offending. I note that
40 Misuse of Drugs Act, s 6(4).
41 Zhang, above n 9, at [54].
home detention is one step short of imprisonment, and is a “real alternative” to such a sentence which carries a considerable degree of deterrence and denunciation.42
[49] I therefore consider it appropriate to commute the sentence of 24 months’ imprisonment to a sentence of 12 months’ home detention.43
Conclusion
[50] The appeal is allowed. The sentence of two years and seven months’ imprisonment was manifestly excessive. That sentence is set aside and a sentence of 12 months’ home detention is imposed.
[51] The sentence of home detention is to be served at the proposed address specified in the pre-sentence report. The following special conditions apply to Mr McDonald:
(a)Not to possess, consume or use any alcohol or drugs not prescribed to him.
(b)To attend an assessment for alcohol/other drugs as directed by a probation officer, and to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.
(c)To undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a probation officer.
Grice J
Solicitors:
C & M Legal, Whanganui for Respondent
42 R v Iosefa [2008] NZCA 453 at [41].
43 The period for which the sentence is imposed is halved to reflect the fact that Mr McDonald would otherwise have been required to serve half of his sentence of imprisonment: see Parole Act, s 86(1).
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