McEnirney v Police

[2021] NZHC 2732

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-112 [2021] NZHC 2732

BETWEEN

THOMAS SAMUEL McENIRNEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 October 2021
Counsel:	W T Nabney for Appellant E F Collis for Respondent
Judgment:	12 October 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 October 2021 at 4 pm

Registrar/Deputy Registrar

Solicitors:
W T Nabney (Tauranga) for Appellant

Pollett Legal (Tauranga) for Respondent

McENIRNEY v POLICE [2021] NZHC 2732 [12 October 2021]

Introduction

[1]      Mr McEnirney appeals against a sentence of two years and three months’

imprisonment  imposed  on  him  by  Judge  TR  Ingram  on  8 September  2021.1

Mr McEnirney submits that the sentence is manifestly excessive.

[2]      An appeal against sentence proceeds by rehearing.  I must decide for myself whether there has been an error in imposing the sentence such that a different sentence should be imposed.  If the sentence is manifestly excessive, then it must be corrected.

Judge Ingram’s sentence

[3]      Mr McEnirney pleaded guilty to 16 charges of supplying the Class B drug MDMA (Ecstasy).   The maximum penalty is 14 years’ imprisonment.   One was a representative charge covering 124 transactions. The quantity of MDMA supplied was fixed by the Judge following a disputed facts hearing as 256 grams.

[4]      Mr McEnirney also pleaded guilty to nine charges of selling prescription medicines, an offence under s 18 of the Medicines Act 1981, with a maximum penalty of six months’ imprisonment.  One of the charges was representative.  It applied to

20 prescription medicines, mostly anabolic steroids, and covered 251 transactions.

[5]      The Judge said:

[3]       In terms of the prescription medicines, it was clear to me from the records that were produced to me, that there were a substantial number of sales of prescription medicines over a period of time. You were selling prescription medicines illegally to people who were largely involved in body building, there may have been some others involved in purchasing.

[4]       The  reality,  however,  is  that  you  were  running  a  drug  dealing operation over the dark net for quite a long period of time, many months, and clearly you got your hands on some MDMA and on-sold that to a large number of customers over a considerable period. There were some 140 transactions over a period of five weeks,2 which indicates to me that this was a successful drug dealing operation, you knew what you were doing, and you were engaged in it as you yourself have accepted, simply for the money.

…

1      R v McEnirney [2021] NZDC 17934.

2      In fact, the period of offending as charged was five months.

[6]       I am satisfied that you were running your own sales organisation, on your own behalf, that the sales were on a commercial scale. It was not as large an operation as some selling operations. It was on such a scale as one man could attend to it simply and effectively in the way that you did, distributing drugs by means of courier delivery. Clearly you had links to the original source of the drugs. Clearly you were motivated by your own financial advantage, you were expecting and did obtain substantial financial gain from your operations.

[6]      The Judge adopted a starting point by reference to the decision of the Court of Appeal in Zhang v R3 of three years’ imprisonment.  The Judge imposed an uplift of one year to account for the charges of selling prescription medicines.  In this regard, the Judge said:

[15]      In terms of the Medicines Act charges I consider that an uplift of one year is appropriate, again, having regard to the substantial·scale and the period of time over which you offended in relation to those matters. I record that in the course of preparing for this hearing I have reminded myself of all the entries in the diary that you kept, and there were a vast number of sales of medicines, often in combination, some of which any doctor, and probably anybody, would have known should not be sold in combination and should not be ingested together, and the medicines are likely to produce harm if ingested in quantity in the circumstances.

[7]      The Judge discounted the overall start point of four years’ imprisonment by

12 months to account for pleas of guilty, plus nine months for good character and remorse. The end sentence was therefore two years and three months’ imprisonment.

[8]      Judge Ingram considered home detention, presumably on the basis that the end sentence of two years and three months’ imprisonment was a point on a sentencing range which could possibly be reduced to two years’ imprisonment.4  The Judge said:

[19]      I recognise that at two years and three months it would be open to me to consider, and if appropriate sentence you to a sentence of home detention. I regard that as simply being unconscionable in circumstances where someone has set out to make money from drug dealing over a period of time, given the quantities, and frankly your success in engaging in that nefarious trade. All of that leads me to the conclusion that it is just not appropriate for a sentence of home detention to be imposed.

3      Zhang v R [2019] NZCA 507.

4      Two years is the maximum period of imprisonment that can be commuted to a sentence of home detention.

The appeal

[9]      The appeal is brought on the basis that Judge Ingram erred in setting the starting point for the MDMA charges and that he erred again in uplifting that by

12 months to account for the Medicines Act charges. It is submitted also that the Judge should have given greater credit to Mr McEnirney for his personal circumstances and commuted the sentence to one of home detention.

[10]     Mr Nabney, for Mr McEnirney, submits that selling 256 grams of MDMA

brought Mr McEnirney into the lower part of band 2 in Zhang.  Mr Nabney describes

Mr McEnirney as being merely a distributor who was entirely reliant on the supply of drugs he was able to obtain from his supplier.  Accordingly, and given that the value of the 256 grams of MDMA is said to be around $33,000, the starting point of three years’ imprisonment was too high.  In Mr Nabney’s submission, a starting point of around 30 months’ imprisonment was appropriate.

[11]     As to the Medicines Act charges, Mr Nabney submits that all Mr McEnirney did was purchase prescription medicines at a wholesale rate, re-package them and sell them on the internet for a total of $49,563.  In Mr Nabney’s submission, an uplift of around six months’ imprisonment would have been appropriate.

[12]     As to home detention, Mr Nabney submits there is no presumption (as exists for Class A drug dealing) that Class B drug dealing should be met with a sentence of imprisonment.   The primary consideration should be the least restrictive outcome appropriate for an offender.

[13]     Mr Nabney points to Mr McEnirney’s limited criminal history and the steps he has taken to address his involvement with drugs with a view to overcoming the causes of his offending.  Mr Nabney submits:

25.The Appellant has a limited criminal history and pleaded guilty at an early opportunity.

26.The Appellant became involved with steroids because of his interest in body building as a teenager. He became involved in obtaining and selling drugs via the ‘dark web’ and accepts that this was motivated by commercial gain.

27.The Appellant has taken steps to address his use of steroids and has illustrated his desire to contribute to the addressing of drug and alcohol addiction within the community by making a donation of

$5,000 to the Salvation Army. It is submitted that such a gesture is a

significant example of genuine remorse.

28.The Appellant was compliant and cooperative with police throughout their investigation of him and was forthcoming with information when interviewed.

Discussion

[14]     I note, first, that Zhang does not apply to Class B drugs and does not purport to influence Class B sentences.   I accept it could be useful by analogy in that it describes the culpability of various layers of offenders in the drug supply hierarchies.

[15]     The Court of Appeal’s decision in R v Wallace and Christie5 applies.  I would put Mr McEnirney’s operation into the smaller operations category:

[32]      For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentencers to reflect the many varied circumstances that can arise.

I assess Mr McEnirney’s culpability as being towards the upper level of this category.

[16]     In my view, the three years starting point for the MDMA charges adopted by the Judge was at the lower end of the range available to him.  This was prolific, and successful,  offending  motivated  solely  by  commercial  gain.     Mr McEnirney successfully established a presence on a clandestine dark web, advertised his wares, and made scores of sales. A starting point of four years would not have been excessive.

[17]     Equally, the Medicines Act charges are cumulatively serious.  Mr McEnirney dealt prolifically in a wide range of anabolic steroids for commercial gain.  He used his dark web presence to efficiently sell medicines on hundreds of occasions.  The estimate is that the detected offending earned him about $49,000.  The Judge had to impose a significant uplift to the MDMA dealing starting point; one year is within

range.

5      R v Wallace and Christie [1999] 3 NZLR 159 (CA).

[18]     On a totality basis, a four years starting point is well within range.

[19]     The discounts applied by Judge Ingram are appropriate.  Presumably the full discount of 25 per cent for guilty pleas was awarded because the Judge felt that the pleas were entered at the first reasonable opportunity.  The discount of nine months (19 per cent) for personal factors was also within range. Mr McEnirney was a mature man (aged 35 years at sentencing) who offended prolifically for commercial gain.

Home Detention

[20]     In my view, the end sentence of two years and three months’ imprisonment was towards the lower end of the range available to Judge Ingram.  It is clear from the sentencing notes that Judge Ingram was impressed by Mr McEnirney’s rehabilitative efforts. He specifically recorded his view that the Parole Board might want to consider

Mr McEnirney for early parole.  No doubt the Judge was influenced by his view of

Mr McEnirney’s attributes in reaching his end sentence (as, of course, he was entitled to do).

[21]     It follows that the threshold for home detention has not been reached.

Decision

[22]     The appeal is dismissed.

Brewer J