McLaine v The Queen - [2012] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

CA23/2012
[2012] NZCA 186

BETWEEN WARREN JOHN MCLAINE
Appellant

AND THE QUEEN
Respondent

Hearing: 2 May 2012

Court: Stevens, Chisholm and Priestley JJ

Counsel: P F Gorringe for Appellant
M H Cooke for Respondent

Judgment: 14 May 2012 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

Having pleaded guilty on the first day of his trial in the High Court at Rotorua to a representative charge of being in possession of the Class A controlled drug methamphetamine for supply, the appellant was sentenced by Lang J to imprisonment for five years and one month.[1] He appeals against that sentence on two grounds: no allowance was made for remorse; and having indicated that he would allow “around 15 per cent” for the guilty plea, the Judge only allowed 7.5 per cent for the plea.

The offending

[1] R v McLaine HC Rotorua CRI-2009-063-5871, 24 November 2011.

The appellant’s offending was revealed by a police operation targeting Graeme Williams and Edward Phillips. When sentencing the appellant and Mr Phillips, Lang J described Mr Williams as “being at the top of the tree” of a “busy network of drug dealers”.[2]
[2] At [4].
Lang J described the appellant’s role in the offending, which extended from March to October 2009, thus:
[8] ... You were associated with Mr Williams. The Crown accepts that your role in the operation was largely as a middle-man, or go-between, who transported drugs and/or cash on Mr Williams’ behalf. You were clearly a trusted lieutenant, and he relied on you to source and deliver drugs and cash for him . On occasions when Mr Williams’ sources of supply were unable to supply him with drugs, you used your own contacts in an endeavour to source methamphetamine for him.

Although the appellant acknowledged that 266 grams of methamphetamine had passed through his hands, Lang J accepted that the appellant had not made any commercial gain because he had been receiving methamphetamine to feed his habit.[3]

The appellant

[3] At [9].

At the time of sentencing the appellant was 59 years of age, with seven previous drug related convictions. These include a conviction for possession of cannabis for supply in 1985, which attracted a fine, and a conviction in 2000 for conspiring to sell the Class C controlled drug cannabis, which resulted in a sentence of two and a half years imprisonment. An appeal against that sentence was dismissed by the Court of Appeal.[4]
[4] R v McLaine CA355/00, 30 November 2000.
On the probation officer’s analysis of the current offending:
Mr McLaine is certainly remorseful that he has found himself in prison. He now says he is sorry that he became so involved in the Methamphetamine scene. He says by way of background that he starting using Methamphetamine in about 2007 “on a social basis”. Because of the easy availability of the drug, his usage became more frequent.…

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 McLaine v The Queen

Details

AGLC: McLaine v The Queen [2012] NZCA 186
Case: [2012] NZCA 186
Decision Date: 14 May 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Warren John McLaine, the appellant, sought to appeal the sentence imposed upon him by Lang J in the High Court at Rotorua, which was a term of five years and one month for being in possession of the Class A controlled drug methamphetamine for supply. The appeal was based on two grounds: the absence of any discount for remorse, and an alleged miscalculation by Lang J in determining the discount for the guilty plea, which resulted in a sentence five months longer than intended. The appeal was dismissed by the Court of Appeal, Stevens, Chisholm, and Priestley JJ.

The key legal issues were whether the sentencing judge erred in not allowing a discount for remorse, and whether there was an arithmetical error in the calculation of the discount for the guilty plea. The appellant argued that he should have received a 5% discount for remorse and that there was an arithmetical error in calculating the discount for the guilty plea. The Crown contended that the appellant's remorse was not genuine, and that the sentence was not manifestly excessive, and therefore, there was no error requiring the intervention of the Court of Appeal.

The Court of Appeal found that it was open to the sentencing judge to be sceptical about the appellant's expression of remorse, given his history of drug-related offending and his failure to abstain from drug use after previous periods of incarceration. The Court also held that any error in the calculation of the discount for the guilty plea did not vitiate the exercise of the original sentencing discretion, as the sentence imposed was within range and not manifestly excessive. The Court emphasised that not every error in the sentencing process required intervention by the Court of Appeal.

The appeal against sentence was dismissed, and the original sentence of five years and one month imprisonment was upheld.

Orders