McInnes v The Queen - [2011] NZCA 261

IN THE COURT OF APPEAL OF NEW ZEALAND

CA852/2010
[2011] NZCA 261

BETWEEN TONY JAMES MCINNES
Appellant

AND THE QUEEN
Defendant

Hearing: 23 May 2011

Court: Glazebrook, Simon France and French JJ

Counsel: P H B Hall for Appellant
F Sinclair for Respondent

Judgment: 7 June 2011 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

Mr McInnes was convicted following a trial before Judge Moran of one count of possession of the class A drug LSD for supply and one count of possession of the class A drug methamphetamine. He had earlier pleaded guilty to one count of possession of a glass pipe (for smoking methamphetamine).
Mr McInnes was sentenced on 3 December 2010 to three years imprisonment. He appeals against that sentence on the basis that it was manifestly excessive.

Background[1]

[1] This is largely taken from the Crown submissions.

For some 14 years before the current offending, Mr McInnes had been involved in the fishing industry. In November 2009, he had an operation for an elbow injury and was obliged to stop work for seven months.
In January 2010, Mr McInnes left his home in Hawea, Central Otago, and travelled to Taupo, where on his evidence, he paid about $5,000 for an assortment of drugs. The payment came from a bank loan, which he and his fiancée had arranged for the purpose of their intended wedding.
On his way back Mr McInnes stayed in Christchurch. Here, he consumed some of the methamphetamine that he had bought. The motel owner contacted the police. Mr McInnes was arrested and found to have:
(a)2.9 grams of methamphetamine, 2 grams of which were divided into 10 point bags. The remainder was in a larger bag;
(b)       66 tabs of LSD;
(c)       a glass pipe, which had been used; and
(d)      a bag containing ecstasy (1.4 grams) and gelatine capsules.
The number of LSD tablets exceeded the threshold which triggers the reverse onus under s 6(6) of the Misuse of Drugs Act 1975.[2]
[2]LSD is presumed to be for supply where there are 25 or more tablets. See sch 5 of the Misuse of Drugs Act 1975.
Mr McInnes pleaded guilty on the day of his trial to possession of a methamphetamine pipe. He was acquitted on the charge of possessing ecstasy (MDMA) for supply. He was acquitted on the charge of possessing methamphetamine for supply and convicted for possession only. He was convicted on the remaining count, possessing LSD for supply.
The defence at trial was that Mr McInnes had become depressed in the period leading up to the offending. He said that he had bought the drugs in bulk because he had an opportunity to do so. He intended to use them gradually for his own consumption. It was suggested that such drugs were not readily accessible in Hawea. He possessed scales when apprehended because he needed to check the weight of the drugs he was buying. He also…

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 McInnes v The Queen

Details

AGLC: McInnes v The Queen [2011] NZCA 261
Case: [2011] NZCA 261
Decision Date: 7 June 2011

CaseChat Overview and Summary

Tony James McInnes appeals against a sentence of three years imprisonment imposed on him for possession of LSD for supply and possession of methamphetamine. The appeal is dismissed by the Court of Appeal of New Zealand. The court found that the sentence was not manifestly excessive and upheld the trial judge's decision.

The key legal issue in this case was whether the sentence imposed on Mr McInnes was manifestly excessive. The appeal was based on the argument that the sentence was disproportionate to the offence and the circumstances of the offender. The court considered the arguments made by the appellant's counsel that the conviction for possession of LSD for supply was likely due to the reverse onus and the lack of evidence of supply. The court also considered whether there was sufficient evidence for the trial judge to conclude that the majority of the LSD tabs were for supply.

The Court of Appeal found that the conviction for possession of LSD for supply was valid, regardless of whether the reverse onus was met or not. The court also found that there was ample evidence for the trial judge to conclude that the majority of the LSD tabs were for supply. The court held that the sentence was not manifestly excessive and dismissed the appeal. The court found that the trial judge had taken into account the appellant's efforts at rehabilitation and the restrictive bail conditions in imposing the sentence.

The Court of Appeal dismissed the appeal and upheld the sentence imposed on Mr McInnes. The court found that the sentence was not manifestly excessive and that there was sufficient evidence for the trial judge to conclude that the majority of the LSD tabs were for supply. The court also found that the conviction for possession of LSD for supply was valid, regardless of whether the reverse onus was met or not. The appellant's appeal against his sentence is therefore dismissed.

Orders