McKeown v R - [2017] NZCA 99

IN THE COURT OF APPEAL OF NEW ZEALAND

CA505/2016
[2017] NZCA 99

BETWEEN	MATTHEW RUSSELL MCKEOWN Appellant
AND	THE QUEEN Respondent

Hearing:	13 March 2017
Court:	Cooper, Woodhouse and Collins JJ
Counsel:	J Kincade for Appellant E J Hoskin for Respondent
Judgment:	3 April 2017 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of five years and six months’ imprisonment imposed in the District Court is quashed and a sentence of four years and 10 months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by Woodhouse
J)

The appellant, Matthew McKeown, appeals against a sentence of imprisonment imposed in the District Court at Auckland by Judge Gibson.[1] That sentence dealt with 24 offences of possession of methamphetamine for supply, to which Mr McKeown had pleaded guilty (the later offences), and an application for a variation of a sentence of 12 months’ home detention imposed on 28 October 2015 for charges of possession of methamphetamine for supply and possession of utensils for consuming methamphetamine (the earlier offences).[2]
[1]R v McKeown [2016] NZDC 17569.
[2]Sentencing Act 2002, s 80F.
Twenty of the later offences were committed while Mr McKeown was serving the sentence of home detention for the earlier offences, while the remaining four were committed while he was on remand in respect of the earlier offences. It was accepted at sentencing that Mr McKeown dealt in approximately 146 grams of methamphetamine, although the charges were ones of possession for supply. Judge Gibson imposed a sentence of five years and six months’ imprisonment for the later offences.
Judge Gibson resentenced Mr McKeown for the earlier offences to six months’ imprisonment, cumulative on the sentence of imprisonment for the later offences. Mr McKeown was thus sentenced to an effective sentence of six years’ imprisonment.
Mr McKeown appeals against the sentence of five years and six months’ imprisonment on the following grounds:
(a)The starting point of six years and six months’ imprisonment was too high as a result of the Judge placing too much reliance on this Court’s decision in R v Egan.[3]
(b)Insufficient credit was given for personal mitigating factors.
[3]R v Egan [2008] NZCA 102.
Mr McKeown appeals against the substituted sentence of six months’ imprisonment on the ground that the Judge failed to give adequate consideration to the totality principle.[4]
[4]Sentencing Act, s 85.
There is an acknowledged arithmetical error in the Judge’s calculations, which led to the end sentence of five years and six months’ imprisonment. This was brought to our attention by Crown counsel, Ms Hoskin. We address this issue at the end of this judgment.

The sentence under appeal

The Judge noted that both counsel agreed that the offending came within band two of R v Fatu: sale or supply of between five and 250 grams of methamphetamine with a range of three to nine years’ imprisonment.[5] In an apparent reference to the decision of this Court in R v Egan, the Judge…

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 McKeown v R

Details

AGLC: McKeown v R [2017] NZCA 99
Case: [2017] NZCA 99
Decision Date: 3 April 2017 at 10.30 am

CaseChat Overview and Summary

In McKeown v R, the appellant, Matthew Russell McKeown, challenged the sentence imposed by the District Court for a series of methamphetamine possession and supply offences. The appeal concerned the severity of the sentence and the application of the totality principle. McKeown's legal team argued that the starting point of six years and six months' imprisonment was excessive and that insufficient credit had been given for personal mitigating factors, including his drug addiction. They also argued that the judge failed to adequately consider the totality principle when imposing the sentence. The Court of Appeal reviewed the arguments and concluded that while the starting point was within the range set by previous case law, the arithmetical error in the final sentence meant that the appeal should be allowed. The Court substituted the sentence of five years and six months with a corrected sentence of four years and 10 months. The resentencing for the earlier offences, which was six months' imprisonment, remained unchanged, resulting in an overall sentence of five years and four months' imprisonment.

The Court of Appeal examined the District Court's reasoning and calculations, finding that the judge had appropriately considered the relevant case law and mitigating factors. However, the Court noted that the final sentence imposed contained an arithmetical error, which was not identified until the appeal was heard. Despite this error, the Court concluded that the appeal should be allowed because the nature of the error necessitated a substitution of the sentence. The Court replaced the incorrect sentence of five years and six months with the correctly calculated sentence of four years and 10 months for the later offences. The resentencing for the earlier offences remained at six months' imprisonment, resulting in a total effective sentence of five years and four months' imprisonment.

Orders