McKechnie v The Queen
[2020] NZHC 3423
•18 December 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2020-412-000034
[2020] NZHC 3423
BETWEEN DANIEL PATRICK MCKECHNIE
Appellant
AND
THE QUEEN
Respondent
Hearing: 14 December 2020 Appearances:
J-A Kincade QC for Appellant R D Smith for Respondent
Judgment:
18 December 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 18 December 2020 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date 18 December 2020
[1] On 9 July 2015, Mr McKechnie was sentenced to seven years’ imprisonment on charges of importing a range of Class A, B and C drugs.1 He now appeals his sentence on the basis it was manifestly excessive because:
(a)the Court did not take account of Mr McKechnie’s drug addiction as a driver of his offending; and
1 R v McKechnie [2015] NZDC 13450.
MCKECHNIE v R [2020] NZHC 3423 [18 December 2020]
(b)the Court did not adequately take into account Mr McKechnie’s previous good character and personal background in mitigation of his sentence.
Leave to appeal out of time
[2] The appeal is filed approximately five years out of time. Mr McKechnie has filed an affidavit setting out the grounds for seeking leave to bring his appeal out of time. He says:
My trial lawyer told me I could not appeal as I accepted a sentence indication. I only recently knew that I could appeal against sentence after another prisoner told me that I could. This is why my appeal was lodged so late.
[3] Mr Smith, for the Crown, did not seek to challenge Mr McKechnie’s evidence. While he made informal enquiries of Mr McKechnie’s original solicitor, who doubted he would have given such advice, Mr Smith acknowledged that given Mr McKechnie’s age, he may simply not have understood the advice given at the time and it was more constructive to focus on the merits of the appeal in deciding whether leave should be granted.
[4] The question of whether an extension of time should be granted will depend upon the interests of justice and the circumstances of the particular case.2 While a long delay will point against leave being granted, particularly where it is not adequately explained, the merits of the appeal are usually determinative.
[5] In the present case, I consider the question of leave will follow an examination of the merits of the appeal and, accordingly, I go on to examine these before determining the issue of leave.
District Court sentence
[6] Sentencing in this case was a somewhat protracted process. Mr McKechnie sought a sentence indication on 10 December 2014 on the charges he was then facing. A sentence of five years was indicated before discounts for mitigating personal
2 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99].
circumstances and guilty pleas. However, that was not accepted and there was further serious offending while Mr McKechnie was on bail. He sought a further sentence indication on 1 May 2015. In it the Judge noted the offending encompassed not just the original charges but the further “very serious offending” which occurred when he was on bail.
[7] The Judge identified the relevant tariff decision at the time, R v Fatu.3 The Judge noted that Mr McKechnie breached his bail term “over and over and over again”, and then:
[21] … You went further and you involved other people in serious drug offending. Your importations were carefully planned not only as to how the drugs came in but the type of drug, the amount of drug so that you had a wide range amount [sic] of drugs available for distribution. You used false documentation in order to augment the use of post office boxes.
[22] It made an absolute nonsense of the claim that you made through [your counsel] … that the cocaine and other drugs were, primarily, being imported by you for your own use. You might recall that I accepted that submission and I went as far as saying that if that could be established I would give you further credit for it.
[8] Taking into account a starting point of six and a half years on the methamphetamine offending, uplifting it by two years for the Class B dealing and then imposing “a merciful uplift of nine months” for other offending, the Judge reached a starting point of nine years and three months. He reduced that to nine years. He then added that to the offending which he gave a sentence indication for in December 2014, to reach a total starting point of 14 years. However, he then adjusted that saying “an appropriate starting point on a merciful basis is 10 years and six months”.4 The Judge then took into account a guilty plea credit of 20 per cent, a credit for youth and good character of 10 per cent, to reach an overall term of imprisonment of seven years.
[9] When sentencing Mr McKechnie on 9 July 2015, the Judge repeated the conclusions of the sentencing indication, saying that taking into account his guilty plea of the credit for youth, and factors described as “chances and opportunities and potentiality”, he reached an end sentence of seven years. Although the Judge
3 R v Fatu [2006] 2 NZLR 72 (CA).
4 R v McKechnie DC Dunedin CRI-2014-012-916, 1 May 2015 at [27].
acknowledged the evidence that was then before the Court regarding Mr McKechnie’s addictions, he gave no express discount for that.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.8
Submissions
Appellant’s submissions
[11] The submission focused on the principles relating to mitigating factors in drug sentencing which were ultimately articulated by the Court of Appeal in Zhang v R.9 While acknowledging that the revised sentencing approach in Zhang cannot apply to the current case, Ms Kincaid QC emphasised that even prior to Zhang personal circumstances were relevant. For example, in R v Jarden it was said that although “the personal circumstances of the offender must be subordinated to the importance of deterrence … this does not mean that personal circumstances can never be relevant”.10
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
8 Skipper v R [2011] NZCA 250 at [28].
9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
10 R v Jarden [2008] NZSC 69 [2008] 3 NZLR 612 at [12].
[12] Ms Kincaid’s primary concern was that although the District Court had before it more information than it had at the sentencing indication in May, including a drug and alcohol assessment which confirmed Mr McKechnie’s history of drug and alcohol dependence, as well as character references provided by members of the community, the Judge did not move from the sentencing indication of seven years’ imprisonment. Ms Kincaid therefore argues that the sentencing Judge erred in failing to take into account the combined impact of Mr McKechnie’s personal mitigating factors at sentencing. In particular, the Judge erred in failing to consider Mr McKechnie’s addiction as a driving factor of his offending, his attempts at rehabilitation, his background of limited family support, particularly when placed in the context of his youth, and the letters that had been written in support. She submits there should have been a further 20 per cent reduction for Mr McKechnie’s combination of personal mitigating circumstances. This would reduce his sentence from one of seven years’ imprisonment to one of five years and six months’ imprisonment.
Respondent’s submissions
[13] Mr Smith focused on whether the end sentence was within the available range. In his view, even if the District Court erred in not taking adequate account of Mr McKechnie’s personal circumstances, the appeal should be dismissed because:
(a)the Judge adopted a merciful overall starting point;
(b)the 20 per cent credit allowed for the appellant’s guilty plea was generous;
(c)the Judge allowed a 10 per cent credit to reflect the appellant’s youth; and
(d)the suggestion that the appellant’s addiction was a causative factor of the offending was questionable and any weight that could be attached to that claim could only be modest, if anything.
[14] Mr Smith points out that given the overall quantity and diversity in the drugs involved, and the obvious commercial purpose of the offending where the appellant
was operating as the ringleader of an importation syndicate, the starting point could well have been higher. He considers this is particularly so given Mr McKechnie continued to offend while subject to bail conditions, with that offending involving the enlisting of associates to assist in the importation enterprise. The offending while on bail included the importation of:
(a)119 g of methamphetamine;
(b)101.2 g of MDMA; and
(c)50 tabs of LSD.
[15] Mr McKechnie obtained forged driver licenses for use in the offending which in itself could have resulted in a charge of forgery, carrying a maximum penalty of 10 years’ imprisonment. He also points out that using the indicia set out by the Court of Appeal in Zhang, his role would have to be regarded as significant.
[16] Mr Smith also submits that the 20 per cent credit for guilty pleas was generous given Mr McKechnie first appeared before the Court in March 2014, yet only pleaded guilty on the basis of an overwhelming case in May 2015. Furthermore, if Mr McKechnie’s discounts were increased to reflect his personal circumstances, that would have the effect of diluting the credits that were provided to the appellant’s co-defendants who co-operated fully with authorities.
[17] In respect of the credit for addiction, the Crown does not accept his assertion that the offending was entirely addiction-driven, noting he was convicted of importing a wide range of drugs and was making substantial quantities of money. Given the clear commercial element to the offending, the Crown says the appellant has not met the onus upon him to demonstrate that the offending was addiction-driven, such that would mitigate his culpability and require a further discount.
Analysis
[18] As was said recently by the Court of Appeal in Taylor v R, in assessing the merits of the appeal for the purpose of gauging whether leave should be granted, the
appeal Court is required to focus upon the end sentence rather than the process by which it was achieved.11 I also have to consider whether the approach taken by the Judge, based as it was, upon the applicable guideline judgment at the time, was orthodox and not seriously capable of being argued to have resulted in a manifestly excessive sentence.12 While I accept Ms Kincaid’s submission that addiction could always have been taken into account as a mitigating factor, I must consider whether:
(a)the Judge wrongly ignored it; and
(b)if he did, whether the end sentence was manifestly excessive.
[19] To answer the first question, it is important to look at the totality of the sentencing process. It was clear that Mr McKechnie’s counsel suggested early on that the offending was for Mr McKechnie’s personal use and addiction-driven. However, by the time it came to sentencing, the sophistication of Mr McKechnie’s importing operation had become clear and, by implication, the Judge rejected addiction as the primary driver of the offending, dismissing the suggestion in his pre-sentence report that his primary motivation was to sustain supplies for his addiction. It is clear from the sentencing that the Judge placed weight on the sophistication and scope of his offending as pointing against addiction being the primary driver.
[20] However, I accept that the evidence of addiction could not be ignored. It was at least, in part, a driver of the offending, although the scale of the offending went well beyond what was required to feed an addiction, and involved a range of drugs.
[21] That said, I agree with Mr Smith’s submission that the Judge built in substantial discounts into the sentencing process. In at least two stages in the sentencing process he adopted what he described as “merciful” discounts and implicit in this is that he considered Mr McKechnie someone who had rehabilitative potential. In the second sentencing indication, the Judge spoke about “allowing for good character” to reach an end sentence of seven years and effectively allowing a further discount for his youth when reducing the starting point to 10 and a half years. The reference to having
11 Taylor v R [2020] NZCA 584 at [24].
12 At [28].
discounted the sentence for “chances and opportunities and potentiality”13 also reflects what might be described as recognition of good character and rehabilitative potential in reaching the end sentence of seven years.
[22] I also accept that the 20 per cent discount for guilty plea was generous given the long delay before pleading guilty in light of overwhelming evidence against him.
[23] Taking all these factors into account, I consider that, holistically, the end sentence of seven years was within range, taking into account all the mitigating factors relating to Mr McKechnie personally, including the addiction issues, but balancing them against the seriousness and the extent of the offending.
[24]Given the extent of the delay and the lack of merit in the appeal I decline leave.
Conclusion
[25]The application for leave to appeal out of time is declined.
Solicitors:
Crown Solicitor, Dunedin
Copy To:
J-A Kincade QC, Barrister, Auckland
13 R v McKechnie, above n 1, at [14].
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