23 February 2022 (further material received 24 February 2022)
Court:
Dobson, Brewer and Edwards JJ
Counsel:
J J Rhodes for Appellant in CA505/2021 G J Burston, T G Bain and A G McCluskey for Respondent in CA505/2021 and CA572/2021 and Appellant in CA604/2021 T M Cooper for Appellant in CA572/2021 PVC Paino for Respondent in CA604/2021
Judgment:
11 April 2022 at 1.00 pm
JUDGMENT OF THE COURT
CA505/2021 McMillan v R
AThe appeal against sentence in dismissed.
CA572/2021 Taui v R
BThe application for an extension of time to appeal is granted.
CThe appeal in dismissed.
CA604/2021 R v Philip
DThe appeal is allowed.
EThe sentence of home detention imposed in the High Court is quashed.
FA sentence of two years and 11 months’ imprisonment is substituted.
GThe sentence of imprisonment is to take effect from 3:00 pm on Tuesday 12 April 2022. The current sentence of home detention is to continue in effect until that time.
HMr Philip must surrender himself to the Prison Director at Manawatu Prison at 3:00 pm on Tuesday 12 April 2022 to commence his sentence of imprisonment.
Introduction [2] The finding on the quantity of methamphetamine: [6] The starting point [26] Uplift [39] Mitigating factors [42] Result [54]
TAUI v RCA572/2021 [55]
Introduction [55] The disputed facts hearing [59] Role [75] The starting point [80] Uplifts [86] Mitigating factors [88] Was the sentence manifestly excessive? [96] Result [97]
R v PHILIP CA604/2021 [99]
Introduction [99] Altering the factual basis for the starting point [107] Reconsideration of the sentence [137] Result [157]
These three appeals were heard together because the appellants in the first two appeals and the respondent in the third appeal were all charged in relation to methamphetamine dealing as a result of the same police operation. Messrs McMillan and Taui appeal against their sentences of, respectively, 18 years’ imprisonment with a minimum period of imprisonment (MPI) of seven years and two months,[1] and 11 years’ imprisonment.[2] The Solicitor-General has appealed in Mr Philip’s case on the ground that a sentence of 12 months home detention was manifestly inadequate.[3]
Mr McMillan was convicted of two specific charges of supplying methamphetamine and two representative charges of doing so plus four charges of possession of methamphetamine and a further charge of failing to carry out obligations in relation to a computer search.[4] He pleaded guilty to all bar the two most serious charges…
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.
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Details
AGLC
McMillan v The The Queen [2022] NZCA 128
Case
[2022] NZCA 128
Decision Date
CaseChat Overview and Summary
The case of McMillan v R is an appeal by the Crown against a decision of a lower court in relation to the sentencing of the defendant. The primary issue at hand is whether the sentencing judge was within their rights to alter the factual basis for sentencing from the facts agreed upon between the Crown and the defendant, which were intended for the purposes of a sentence indication that was subsequently accepted by the defendant. This appeal hinges on the interpretation and application of section 24 of the Sentencing Act, which governs the proof of facts for sentencing purposes.
The legal issue before the court was whether the judge was permitted to deviate from the agreed facts that were part of the sentence indication accepted by the defendant. The Crown argued that the judge’s decision to rely on different facts constituted a procedural error, which subsequently led to a substantive error in sentencing. Specifically, it was contended that the agreed facts necessitated a higher classification of the defendant’s role in the methamphetamine dealing operation, contrary to the classification adopted by the judge.
In examining the provisions of section 24 of the Sentencing Act, the court considered the requirement for courts to accept certain facts as proved and the processes for handling disputed facts. The Crown submitted that the judge’s reliance on different facts amounted to a procedural misstep that resulted in an inappropriate sentencing outcome. The court had to determine if the judge's actions were consistent with the statutory requirements and whether such actions warranted a revision of the sentence.
The court found that the judge’s departure from the agreed facts did indeed constitute a procedural error, which in turn affected the substantive outcome of the sentencing. The court concluded that the judge’s reliance on different facts was not permissible under the provisions of section 24 of the Sentencing Act. As a result, the appeal was upheld, and the case was remitted back to the lower court for reconsideration of the sentence in accordance with the proper legal framework.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The first ground of the Solicitor-General’s appeal was that it was not open to the Judge to alter the factual basis for sentencing from the facts that had been agreed between the Crown and the defendant for the purposes of a sentence indication that had been accepted. Proof of the facts to be applied in sentencing is addressed in s 24 of the Sentencing Act in the following terms:24 Proof of facts(1)In determining a sentence or other disposition of the case, a court—(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:(e)either party may cross-examine any witness called by the other party.(3) For the purposes of this section,—aggravating fact means any fact that—(a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the casemitigating fact means any fact that—(a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case. The Crown position is that this section precludes the prospect of a judge relying on materially different facts from those agreed for inclusion in a summary of facts that has been relied upon in a sentencing indication that is subsequently accepted. Mr Burston, for the Crown, submitted that this procedural error led the Judge to make a substantive error in adopting a starting point that was lower than was available. Arguably, the only inferences available from the agreed summary of facts required the Judge to attribute to Mr Philip a more important role in the methamphetamine dealing than the lesser role classified by the Judge, inconsistently with the classification of the offending in the sentencing indication.