McKechnie v The Queen - [2020] NZHC 3423

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…

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 The Queen

Details

AGLC: McKechnie v The Queen [2020] NZHC 3423
Case: [2020] NZHC 3423
Decision Date: 18 December 2020

CaseChat Overview and Summary

Daniel Patrick McKechnie, the appellant, appeals his seven-year sentence for importing a range of Class A, B and C drugs, arguing it was manifestly excessive. The appellant contends the sentencing judge did not sufficiently consider his drug addiction and good character as mitigating factors. The appeal is approximately five years out of time. The Crown does not contest the appellant's affidavit, which explains the delay. The question of whether leave should be granted will depend on the interests of justice and the circumstances of the case. 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. The sentencing judge had before him more information than 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. However, the judge did not move from the sentencing indication of seven years’ imprisonment. The judge placed weight on the sophistication and scope of the offending as pointing against addiction being the primary driver. However, 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. The appellant's counsel submitted that even prior to Zhang v R, personal circumstances were relevant in drug sentencing. The Court of Appeal in Zhang v R considered the revised sentencing approach in drug cases. The Court of Appeal in Taylor v R said that 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. The appeal court must 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. The sentencing 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 the appellant 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 allowed a further discount for the appellant’s youth when reducing the starting point to 10 and a half years. The reference to having discounted the sentence for “chances and opportunities and potentiality” also reflects what might be described as recognition of good character and rehabilitative potential in reaching the end sentence of seven years. The 20 per cent discount for guilty plea was generous given the long delay before pleading guilty in light of overwhelming evidence against the appellant. Taking all these factors into account, the end sentence of seven years was within range, taking into account all the mitigating factors relating to the appellant personally, including the addiction issues, but balancing them against the seriousness and the extent of the offending. Given the extent of the delay and the lack of merit in the appeal, leave is declined.

The application for leave to appeal out of time is declined.

Orders