McKechnie v R - [2018] NZHC 1811

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…

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 McKechnie v R

Details

AGLC: McKechnie v R [2018] NZHC 1811
Case: [2018] NZHC 1811
Decision Date: 20 July 2018

CaseChat Overview and Summary

Craig McKechnie appealed against his sentence of two years and one month imprisonment, imposed by Judge Hollister-Jones in the Rotorua District Court. McKechnie pleaded guilty to seven charges including possession of methamphetamine for supply, possession of utensils, theft of a log splitter, driving while suspended, and breaching sentences of community work and supervision. The High Court was asked to determine whether the sentence was manifestly excessive. The appeal hinged on whether the District Court Judge properly applied the sentencing principles and discounts for McKechnie's remorse, forfeited cash, and guilty pleas. The High Court found that the starting point of three years imprisonment for the methamphetamine charges was within range. While some of the uplifts and discounts applied may have been too high or low, the overall sentence was not manifestly excessive. The appeal against sentence was dismissed.

Orders