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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

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].
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.
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.
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).
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.
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…

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 McFarlane v The Queen

Details

AGLC: McFarlane v The Queen [2015] NZCA 333
Case: [2015] NZCA 333
Decision Date: 27 July 2015 at 3.30 pm

CaseChat Overview and Summary

William Luke MacFarlane appealed against his sentence in the Court of Appeal of New Zealand. 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 related to drug offences. The appeal was heard by Stevens, Heath and Collins JJ on 21 July 2015 and judgment was delivered on 27 July 2015. The appeal was dismissed.

The appeal raised two issues. The first was whether the aggregate starting point of 10 years and six months’ imprisonment, adopted by Thomas J, was manifestly excessive. In fact, the aggregate starting point for all charges was 11 years’ imprisonment. The second issue was whether the reduction of two years from the aggregate starting point, made by Thomas J to reflect the totality of MacFarlane’s offending, was not sufficient. MacFarlane’s counsel accepted that the starting points for each offence adopted by Thomas J were appropriate, but contended that the total aggregate starting point was excessive. The Court of Appeal disagreed with this contention. The aggregate starting point was appropriate for three separate tranches of serious offending, and the reduction of two years to reflect the totality of MacFarlane’s offending was reasonable. The end sentence of seven years and six months’ imprisonment was within the permissible range for MacFarlane’s offending.

The Court of Appeal dismissed the appeal against sentence. The appeal was heard by Stevens, Heath and Collins JJ on 21 July 2015 and judgment was delivered on 27 July 2015. The appeal was dismissed.

Orders