McKay v The King - [2025] NZHC 1059

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-64 [2025] NZHC 1059

BETWEEN JOSEPH PETER MCKAY
Appellant

AND THE KING
Respondent

Hearing: 1 May 2025 Appearances: R R Adams for Appellant
B Alexander for Respondent

Judgment: 6 May 2025

JUDGMENT OF MANDER J

This judgment was delivered by me on 6 May 2025 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

MCKAY v R [2025] NZHC 1059 [6 May 2025]

Introduction

[1] Joseph Peter McKay pleaded guilty, following a sentence indication, to a representative charge of offering to supply a Class A controlled drug, namely methamphetamine;1 separate charges of possessing methamphetamine2 and utensils;3 and two charges of unlawfully possessing firearms.4 He was sentenced to five years’ imprisonment on the lead charge of offering to supply methamphetamine. He now appeals that sentence on the grounds it was manifestly excessive.

Facts

[2] The offering to supply charge was based on text messages sent by the appellant to a number of associates to whom he offered, in total, to supply 196.5 grams of methamphetamine. After executing a search warrant, police found $26,490 cash under the defendant’s bed, unused point bags, and digital scales. Banking records showed that between 1 September 2022 and 6 November 2023, deposits were made into his bank account in the total sum of $237,991.06.

[3] The possession charges related to 0.86 grams of methamphetamine found in a bag under the defendant’s bed, a glass pipe, and three glass bongs.

[4] The firearm charges concerned a shotgun located in the cupboard of the defendant’s home, and a sawn-off shotgun that was found alongside ammunition in the boot of the defendant’s car.

District Court Decision

[5] Judge Crosbie provided a sentence indication in which he fixed an overall starting point of seven years and six months’ imprisonment. That was uplifted by six months for the appellant’s previous convictions. The Judge noted there would be discounts of no more than 15 per cent should guilty pleas be entered and potentially further reductions relating to personal circumstances and addiction.

1      Misuse of Drugs Act 1975, s 6(1)(c) and 2; maximum penalty life imprisonment.
2      Sections 7(1)(a) and (2); maximum penalty six months’ imprisonment.
3      Sections 13(1)(a) and (3); maximum penalty one year’ imprisonment.
4      Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.

[6] Mr McKay pleaded guilty. At sentencing, the Judge adopted a starting point on the lead charge of six years and six months. An uplift of 18 months was imposed for the firearms offending and after an adjustment for totality, he fixed an overall starting point of seven years and six months’ imprisonment. It was agreed by counsel that 20 per cent was appropriate to recognise the guilty pleas, and a further 20 per cent discount for personal circumstances and Mr McKay’s addiction issues. An uplift of six months was added for previous convictions. This resulted in an end sentence of…

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 McKay v The King

Details

AGLC: McKay v The King [2025] NZHC 1059
Case: [2025] NZHC 1059
Decision Date: 6 May 2025

CaseChat Overview and Summary

The appellant, Joseph Peter McKay, pleaded guilty to various charges, including offering to supply a Class A controlled drug, possessing methamphetamine and utensils, and unlawfully possessing firearms. He was sentenced to five years' imprisonment on the leading charge of offering to supply methamphetamine and appealed, arguing the sentence was manifestly excessive. The appeal focused on the starting point for the sentence, the appropriateness of the 18-month uplift for the firearm charges, and the overall sentence.

The court considered whether the starting point for the offering charge was appropriate. The appellant argued that the starting point should have been lower due to his addiction to methamphetamine and the fact that his offending was largely to fund his drug habit and pay off drug debts. However, the court found that the appellant's role in the offending was significant, and the financial benefit he derived from his drug dealing activities was substantial. The court held that the starting point of six years and six months was within the available range.

The court also considered the 18-month uplift for the firearm charges and the overall sentence. The court found that the uplift was modest, and the overall sentence was within the legitimate range available to the sentencing court. The court also noted that the Judge had erred in his application of Moses by applying the uplift for previous convictions after making deductions for personal mitigating factors. However, this error did not result in the end sentence being manifestly excessive.

The appeal was dismissed, and the sentence was upheld.

Orders