McKee v The Queen - [2013] NZCA 387

IN THE COURT OF APPEAL OF NEW ZEALAND

CA781/2012
[2013] NZCA 387

BETWEEN	WILLIAM DUFFIELD MCKEE Appellant
AND	THE QUEEN Respondent

Hearing:	24 July 2013
Court:	White, Goddard and Simon France JJ
Counsel:	Appellant in person M H Cooke for Respondent
Judgment:	22 August 2013 at 10.30 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

BThe appeal against sentence is allowed. The sentence of 12 months’ home detention is quashed and a sentence of six months’ home detention substituted.
CThe sentence of home detention is to be served at the address identified in the report prepared for the District Court by the Department of Corrections in October 2012.
DThe standard conditions for home detention under s 80C(2) of the Sentencing Act 2002 are to apply.
EThe sentence is to commence at 2 pm on Friday 30 August 2013.

FThe appellant must be at the address from the time of the commencement of the sentence and remain there pending the arrival of a probation officer and an officer of the company responsible for connecting the electronic monitoring system.

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REASONS OF THE COURT

(Given by Goddard J)

The appellant was convicted by a jury of four charges of selling cannabis and one charge of cultivating cannabis. He represented himself at trial with the assistance of an amicus. He was sentenced to 12 months’ home detention.[1] He now appeals against both conviction and sentence.
[1]R v McKee DC Palmerston North CRI-2011-031-1025, 30 October 2012.
The appellant was again assisted by a McKenzie friend in this Court. The friend, Ms Purchas, although a qualified lawyer, does not currently hold a practising certificate, but, in the particular circumstances of this case, was given leave to address the Court on certain aspects of the appellant’s appeal.
There are five grounds of appeal against conviction. In relation to the appeal against sentence, the grounds are that the sentence was manifestly excessive or wrong in principle.

Background facts

The appellant is an activist who promotes the medical use of cannabis through a website styled GreenCross. GreenCross is the name of an organisation which seeks a change in the law to make raw cannabis available for medicinal purposes.
Activities on the website, relating to the sale and distribution of cannabis plant, attracted the attention of police and an investigation was commenced into those activities.
The investigation involved the deployment of a police officer in a covert role, using an assumed name.
In February 2010 the officer telephoned the contact number on the GreenCross website and spoke with the appellant. The officer explained he suffered from migraines and that doctors had been unable to help him. The appellant recommended hemp oil, which may be legally sold in New Zealand, to assist with the pain. Subsequently the officer purchased $25 of hemp oil through the appellant.
Over the next four months there was sporadic communication between the officer and the appellant, mainly by email, during which further purchases of hemp oil were made and during…

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 McKee v The Queen

Details

AGLC: McKee v The Queen [2013] NZCA 387
Case: [2013] NZCA 387
Decision Date: 22 August 2013 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, William Duffield McKee, appealed against his conviction and sentence for selling and cultivating cannabis. McKee ran an organisation promoting the medical use of cannabis, which attracted the attention of the police. McKee was convicted by a jury and sentenced to 12 months' home detention. The grounds of appeal against conviction were that the trial judge misdirected the jury, failed to apply the New Zealand Bill of Rights Act 1990 and Magna Carta, and contravened the doctrine of jury nullification. The grounds of appeal against sentence were that the sentence was manifestly excessive or wrong in principle. The court found that the trial judge's directions to the jury were appropriate, and the verdicts were in accordance with the evidence. The appeal against conviction was dismissed. Regarding the sentence, the court found that while the appellant's actions were planned, persistent, and publicised lawbreaking, the overall culpability was at the low end of Category 2. The sentence of 12 months' home detention was quashed and a sentence of six months' home detention was substituted.

The appeal against conviction was dismissed, and the appeal against sentence was allowed. The sentence of 12 months' home detention was quashed and a sentence of six months' home detention was substituted. The sentence of home detention was to be served at the address identified in the report prepared for the District Court by the Department of Corrections in October 2012. The standard conditions for home detention under s 80C(2) of the Sentencing Act were to apply. The sentence was to commence at 2 pm on Friday 30 August 2013. The appellant must be at the address from the time of the commencement of the sentence and remain there pending the arrival of a probation officer and an officer of the company responsible for connecting the electronic monitoring system.

Orders