McKechnie v R
[2018] NZHC 1811
•20 July 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2018-463-51
CRI-2018-463-57 [2018] NZHC 1811
BETWEEN CRAIG McKECHNIE
Appellant
AND
THE QUEEN
Respondent
Hearing: 20 July 2018 Appearances:
A Schulze for Appellant
M S Jenkins for Respondent
Date:
20 July 2018
(ORAL) JUDGMENT OF LANG J
[on appeal against sentence]
McKECHNIE v R [2018] NZHC 1811 [20 July 2018]
[1] Mr McKechnie pleaded guilty in the District Court to seven charges of being in possession of methamphetamine for supply, possession of utensils, theft of a log splitter valued at $6,000, driving whilst suspended and breaching sentences of community work and supervision.
[2] On 1 June 2018, Judge Hollister-Jones sentenced Mr McKechnie to two years one month imprisonment.1 Mr McKechnie appeals against sentence on the basis that the end sentence is manifestly excessive.
The procedure in the District Court
[3] The manner in which the charges proceeded to sentence were somewhat convoluted. Mr McKechnie obtained a sentence indication from the Judge on 9 March 2018 in relation to the charges on which he was eventually sentenced together with some other charges. Mr McKechnie accepted the indication in relation to some charges, but not others. The matter then proceeded to sentencing in the District Court on 1 June 2018.
[4] Prior to the sentencing hearing, the Judge conducted another hearing in which he determined whether two quantities of cash found at Mr McKechnie’s address should be forfeited.2 The first of these was the sum of $15,000 that the police located hidden in a cereal box sitting on the kitchen table when they searched the address on 31 August 2017. When the police searched Mr McKechnie’s person, they found a glass methamphetamine pipe together with $9,510 in cash.
[5] Mr McKechnie contended that the cash that the police had found, both in the cereal box and on his person, came from the sale of two motor vehicles. After hearing evidence from Mr McKechnie, the Judge rejected that explanation.3 The Judge acknowledged there was a possibility that some of the cash may have come from the sale of the vehicles, but he was satisfied Mr McKechnie had applied all of the cash
1 R v McKechnie [2018] NZDC 11424.
2 R v McKechnie [2018] NZDC 11520.
3 R v McKechnie DC Rotorua, CRI-2017-063-3139 and 4380, 9 March 2018.
towards his future drug dealing activities. In other words, it became working capital for the acquisition of drugs in the future. For that reason the cash was forfeited in terms of s 32 of the Misuse of Drugs Act 1975. It did not matter that some of the cash had come from legitimate sources.4
The charges
[6] Two of the possession for supply charges related to quantities of methamphetamine found when the police searched Mr McKechnie’s address. The remaining charges related to quantities of methamphetamine the Crown alleged Mr McKechnie had supplied to others. These were discovered through an analysis of Mr McKechnie’s cellphone communications. In total, the Crown established that Mr McKechnie had been in possession of 5.85 grams of methamphetamine and had supplied, or offered to supply, the bulk of that to others.
[7] The theft charge related to a log splitter Mr McKechnie had acquired but never paid the owner for. This had a value of $6,000 and was uninsured.
[8] The charges of breaching sentences of supervision and community work were laid after Mr McKechnie failed to take any steps to complete sentences imposed on him on 20 June 2017 on charges of assault and speaking in a threatening manner. These resulted in a sentence of 120 hours of community work, together with supervision.
[9] The charge of driving whilst suspended was laid after the police stopped Mr McKechnie driving a vehicle on 7 August 2017. He had earlier been suspended from driving until 16 September 2017 because he had acquired excess demerit points.
The sentence
[10] The Judge took a starting point of three years imprisonment on the methamphetamine charges. This was in accordance with the indication he had given at the sentence indication hearing. He then added an uplift of four months to reflect the charge relating to the theft of the wood splitter, and a further uplift of two months
4 Keen v R [2015] NZCA 221 at [15].
to reflect the remaining charges. He then applied a discount of two months to reflect remorse and the fact that Mr McKechnie had been subject to restrictive EM bail conditions for approximately eight months. He applied a further discount of four months to reflect the fact that some of the forfeited cash may have come from the legitimate sale of motor vehicles. Finally, he said he would apply a discount of 25 per cent to reflect guilty pleas. This resulted in the end sentence of two years one month imprisonment.
The arguments
[11] Mr Schulze accepts that the starting point selected by the Judge in the methamphetamine charges was within range because the offending clearly fell within the bottom end of Band 2 identified in R v Fatu.5 He submits, however, that the Judge applied an uplift that was too high in relation to the theft of the log splitter. He points out that this would not have warranted a custodial sentence had Mr McKechnie been sentenced on it in isolation from the other charges. He submits an uplift of no more than two months was warranted to reflect that charge.
[12] Mr Schulze also submits the uplift of two months in relation to the remaining charges was too great. He submits that an uplift of no more than one month should have been applied in respect of those charges.
[13] Mr Schulze then contends the Judge ought to have applied a greater discount than four months to reflect the fact that a significant quantity of cash acquired from legitimate sources was forfeited. In addition, the Judge ought to have applied a greater discount to reflect Mr McKechnie’s remorse and the fact that he had been subject to restrictive EM bail conditions for eight months prior to being sentenced.
Decision
[14] It needs to be remembered that the manner in which a sentence is structured is of no real importance. The ultimate issue for appellate purposes is whether the end sentence can realistically be said to be manifestly excessive.
5 R v Fatu [2006] 2 NZLR 72 (CA).
[15] In the present case I consider the starting point selected in relation to the methamphetamine charges was well within the available range. It is clear from the summary of facts that Mr McKechnie was a reasonably busy retailer of methamphetamine over the short period during which the police analysed his cellphone communications. He was found in possession of around two grams of methamphetamine and he sold, or offered to sell, another 3.5 grams. In those circumstances a starting point of three years six months imprisonment could easily have been selected.
[16] I accept that the theft of the wood splitter would ordinarily warrant a community-based sentence. Nevertheless, the charge related to a theft of a valuable item and the owner has been left out of pocket in respect of the whole of the value of it. For that reason I am not prepared to say the starting point of four months imprisonment was outside the available range.
[17] I acknowledge there was a dispute in the District Court regarding the reasons why Mr McKechnie was unable to undertake sentences of community work and supervision. Mr Schulze tells me this revolved around whether Mr McKechnie could properly carry out the sentences whilst he was still subject to the strictures of EM bail. Be that as it may, the fact remains that Mr McKechnie appears not to have made any attempt to commence either sentence and, in addition, was found driving whilst he was suspended. It could be argued that the starting point for these charges was slightly on the high side, but I do not consider they warrant disturbing on appeal.
[18] I take that view because I do not consider the Judge had any jurisdictional basis on which to grant Mr McKechnie a discount for the fact that he had made orders forfeiting the cash found in his premises. It is implicit from the Judge’s forfeiture decision that he accepted that the bulk of those funds came from drug dealing activities.6 As a result they were automatically forfeited under the Misuse of Drugs Act 1975.
[19] To the extent that the remainder of the funds may have come from the sale of motor vehicles, the Judge was satisfied that these funds had been applied towards
6 R v McKechnie [2018] NZDC 11424.
future drug purposes. In other words, they had become part and parcel of Mr McKechnie’s drug dealing activities. They were therefore clearly forfeited in terms of s 32 of the Misuse of Drugs Act 1975.
[20] As the Judge acknowledged in his sentencing remarks, the forfeiture of items may only be taken into account for sentencing purposes when the court makes an instrument forfeiture order under s 10B of the Sentencing Act 2002.7 I consider that Henderson v R stands as authority for the proposition that other forms of forfeiture do not qualify for a reduction in sentence.8 Mr McKechnie can therefore consider himself fortunate that he received a discount of four months to which he was not entitled.
[21] This factor really disposes of the remaining issues raised in the appeal, as does the fact that the Judge appears to have made an arithmetical mistake in Mr McKechnie’s favour when calculating the discount to be provided for guilty pleas. The Judge gave him a discount of 11 months for guilty pleas rather than nine months as should have been the case for a sentence of three years imprisonment.
[22] The quantification of any discount to be given for remorse is in any event very much a matter for the discretion of the sentencing Judge. Furthermore, the pre- sentence report indicated it was difficult to ascertain the extent to which any remorse expressed by Mr McKechnie was genuine. The issue of the discount to be given in relation to restrictive EM bail conditions is similarly clouded by the fact that Mr McKechnie had the ability to leave his address during daytime hours in order to travel to his place of work even though that was apparently just a short distance away from the address to which he had been bailed.
[23] Taking those factors into account, I cannot say that the end sentence was manifestly excessive or outside the available range.
7 R v McKechnie, above n 1, at [13].
8 Henderson v R [2017] NZCA 605 at [32].
Result
[24]The appeal against sentence is dismissed.
Lang J
Solicitors:
Gordon Pilditch, Rotorua Lance Lawson, Rotorua
5