McKay v The King
[2025] NZHC 1059
•6 May 2025
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 five years’ imprisonment. The Judge also ordered the firearms to be destroyed and the seized cash was forfeited.
The appeal
Appellant’s submissions
[7] Mr McKay contends the Judge erred by failing to provide reasons for the adopted starting point for the offering charge, either on the provision of the sentence indication or in his sentencing remarks. His counsel was critical that no explanation was provided for the reasons underlying the Judge’s decision to prefer the Crown’s analysis of the starting point.
[8] Further, counsel submitted, on behalf of Mr McKay, that the starting point should have been lower, as the appellant suffered from a long-standing addiction to methamphetamine and his offending took place largely to fund his drug habit and meet his drug debts. In that regard, reliance was placed on both Wineera v R5 and Gray v R6 to submit an appropriate starting point would have been five and a half years’ imprisonment. It is accepted that a starting point of between 12–18 months was appropriate for the firearms charges, but that an overall starting point of no more than six and a half years’ imprisonment should have resulted.
[9] No issue is taken with the 40 per cent deduction for guilty pleas and personal circumstances. It is also accepted an uplift of five per cent was appropriate to mark the appellant’s previous convictions.
5 Wineera v R [2021] NZHC 900.
6 Gray v R [2020] NZCA 548.
Respondent’s submissions
[10] Mr Alexander, for the respondent, argued the end sentence was within range. In particular, that the starting point for the offering to supply methamphetamine charge was appropriate, as was the 18-month uplift, and that the adjustment for totality was generous. It was submitted a global starting point of eight years’ imprisonment was legitimately available to the sentencing Court.
Analysis
[11] Mr McKay pleaded guilty following a sentence indication. The sentence indication was then followed by the Judge fixing the sentence. The starting point did not deviate from that provided in the indication. I accept that reasons should be provided, either when providing a sentence indication or when passing sentence, explaining why or how a starting point has been determined. Sentencing is a public exercise and a Judge’s reasons for taking a particular course should be publicly expressed. However, I do not consider that critique substantially assists Mr McKay on his appeal in this case.
[12] By necessity, the challenge to the sentence on appeal requires this Court to examine the starting point adopted by the sentencing Court. The appeal is brought on the basis the sentence is manifestly excessive and, in order to examine that submission, it is necessary for this Court to analyse the starting point applied in respect of the lead offence, either with or without the benefit of the lower Court’s reasoning. In the event, I do not consider the starting point, nor the end sentence, was out of the range available to the Judge. I set my reasons out as follows.
[13] Mr McKay offered to supply 196.5 grams of methamphetamine over a one- month period. In addition to the $26,490 in cash found under his bed, the analysis of his banking records identified $237,991 worth of bank deposits. The offending falls within band two of the sentencing bands in Zhang v R, for which the range of starting points is between two to nine years’ imprisonment.7 On the basis of the guidance
7 Zhang v R [2019] NZCA 507 at [125].
provided in Berkland v R, Mr McKay’s role in the offending must be assessed and factored into the setting of the starting point.8
[14] As submitted by the Crown, the value of the money found in situ, the deposits made to Mr McKay’s bank account, and the amounts of methamphetamine in which he was dealing, I accept, cannot be reconciled with the appellant’s claims he offended simply to fund his own methamphetamine addiction and pay past drug debts. The financial advantage went beyond supporting personal drug use, and there is evidence that some of the proceeds were spent on personal items and gambling. Mr McKay was an independent street dealer, and there is no evidence to suggest at the time of his illicit activities he was subject to any direction, pressure, influence or intimidation by others. His role clearly falls within the “significant” role outlined in Berkland.
[15] Wineera v R, which is relied upon by the appellant, can be distinguished. In that case the circumstances were unequivocal that the offender was dealing to fund his own addiction, and reports before the Court confirmed he was in need of drug rehabilitation.9 Similarly, Gray v R can be distinguished as the offender’s role in that case was identified as falling between “lesser” and “significant”. He had no understanding of, nor was privy to, the scale of the wider drug operation.10 In each of those cases a starting point of six years was adopted on the supply charges. In McRae v R, the offender was known to have supplied a lesser quantity of methamphetamine than in the present case—at least 112 grams, and a starting point of five and a half years was adopted, though the Judge noted a starting point of six years would have been available.11
[16] Arguably, the approach taken by the sentencing Judge was more generous than that taken in respect of the offenders in Wineera, Gray and McRae. Mr McKay was found in possession of significantly more cash and there was greater evidence, in the form of bank deposits, of the financial benefit he had received from his drug dealing activities. Moreover, the quantity of drugs was greater than McRae and more
8 Berkland v R [2022] NZSC 143.
9 Wineera v R, above n 5.
10 Gray v R, above n 6, at [7].
11 McRae v R [2022] NZHC 1581.
comparable to Wineera. As a result, I find the starting point of six years and six months’ imprisonment to be within the available range. The Judge did not err.
[17] Further, the adoption of an 18-month uplift for the firearm offending was, as the Judge acknowledged, on the “low” side. Two weapons were found, one of which was clearly for unlawful purposes, a sawn-off weapon. Ammunition was located with them. Given the uplift could be considered as relatively modest, and the further adjustment that was made for totality, I am unable to find the ultimate sentence imposed was outside the legitimate range available to the sentencing Court.
[18] As noted by the respondent, the Judge erred in his application of Moses by applying the uplift for previous convictions after having made deductions for personal mitigating factors.12 Strictly, these should have been quantified as a percentage and balanced to arrive at a net adjustment. In this case, the six-month increase translated to an uplift of 6.7 per cent. However, this was within the available range and did not result in the end sentence being manifestly excessive.
[19]Ultimately, I do not find the end sentence to have been manifestly excessive.
Result
[20]The appeal is dismissed.
Solicitors:
J Lucas Barrister, Christchurch Crown Solicitor, Christchurch
12 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
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