McFarlane v The Queen

[2015] NZCA 333

IN THE COURT OF APPEAL OF NEW ZEALAND

CA541/2014
[2015] NZCA 333

BETWEEN	WILLIAM LUKE MACFARLANE Appellant
AND	THE QUEEN Respondent

Hearing:	21 July 2015
Court:	Stevens, Heath and Collins JJ
Counsel:	M A Edgar for Appellant G A Kelly for Respondent
Judgment:	27 July 2015 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Collins J)

1. Mr MacFarlane was sentenced by Thomas J in the High Court at Auckland to a total of seven years and six months’ imprisonment on eight charges alleging drug related offending.[1]

   [1]R v MacFarlane [2014] NZHC 2203 at [76].

2. Mr MacFarlane was sentenced to concurrent terms of:

   (a)seven years and six months’ imprisonment for possession of methamphetamine for supply;

   (b)six months’ imprisonment for supplying methamphetamine;

   (c)two years’ imprisonment for conspiring to supply methamphetamine;

   (d)two years’ imprisonment for conspiring to supply a precursor substance used in the manufacture of methamphetamine;

   (e)two years and six months’ imprisonment on two charges of supplying a precursor material used in the manufacture of methamphetamine;

   (f)two years’ imprisonment for conspiring to commit aggravated robbery;

   (g)two years’ imprisonment for possession of methamphetamine for supply; and

   (h)six months’ imprisonment for possession of toluene, a substance used in the manufacture of methamphetamine.

3. The offending occurred in three distinct tranches.  The first four charges arose from “Operation Kiev” and involved offending from 16 February to 15 November 2012 in the Bay of Plenty region.  The fifth to seventh charges emerged from “Operation Maggie” and involved offending in July and August 2013 in the South Auckland area.  The eighth charge, which does not appear to have been directly related to the other charges, concerned offending in Auckland in December 2012.

4. Mr MacFarlane appeals his sentence on two grounds, namely:

   (a)the aggregate starting point of 10 years six months’ imprisonment adopted by Thomas J was manifestly excessive.  (In fact, the aggregate starting point for all charges was 11 years’ imprisonment);[2] and

   (b)the reduction of two years from the aggregate starting point Thomas J made to reflect the totality of Mr MacFarlane’s offending was not sufficient.

   [2]At [55] (six years), [59] (four years six months) and [62] (six months).

5. The end sentence was reached by deducting 18 months from a starting point adjusted for totality of nine years’ imprisonment.  That deduction reflected Mr MacFarlane’s guilty plea and his remorse.  This was a 25 per cent reduction which, Mr Edgar, counsel for Mr MacFarlane, accepted was a generous deduction in this case.

6. Mr Edgar also accepted the starting points for each offence adopted by Thomas J were appropriate.  However, Mr Edgar contended the total aggregate starting point was excessive.  We disagree.  In the circumstances of this case, when assessed in the light of the guideline decision of R v Fatu, the aggregate starting point of 11 years’ imprisonment was entirely appropriate for three separate tranches of serious offending.[3]  This conclusion is reinforced by the fact that the first charge involved 140 grams of methamphetamine and the sixth charge involved conspiracy to commit aggravated robbery with a firearm.  It is also significant that Mr MacFarlane’s offending covered a wide time span from February 2012 to August 2013.

   [3]R v Fatu [2006] 2 NZLR 72 (CA) at [34].

7. Nor can we find fault with the deduction made by Thomas J to reflect the totality of Mr MacFarlane’s offending.  This was a case in which cumulative sentences were available and if imposed would have resulted in a longer sentence of imprisonment.  The deduction of two years’ imprisonment to reflect the totality of Mr MacFarlane’s offending was reasonable in the circumstances of this case. 

8. Ultimately, we must concern ourselves with the end sentence, not the individual components of that sentence.[4]  In the present case, the end sentence was imposed in relation to the lead charge with all other sentences being concurrent.  The first charge involved quantities of methamphetamine that placed the case within band two of Fatu.  The sentence was within the range of sentences contemplated for “band two” offending by this Court in Fatu.

   [4]Gibson v R [2015] NZCA 57 at [9].

9. The end sentence of seven years and six months’ imprisonment was, in the circumstances of this case, well within the permissible range for Mr MacFarlane’s offending.

Result

1. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent