McMillan v R - [2011] NZCA 442

IN THE COURT OF APPEAL OF NEW ZEALAND

CA103/2011
[2011] NZCA 442

BETWEEN SERA MCMILLAN
Appellant

AND THE QUEEN
Respondent

CA104/2011

AND BETWEEN CASEY TIMOTI HOTAI
Appellant

AND THE QUEEN
Respondent

Hearing: 10 August 2011

Court: Harrison, Rodney Hansen and Andrews JJ

Counsel: M R Bott for Appellants
J E Mildenhall for Respondent

Judgment: 6 September 2011 at 11.30 am

JUDGMENT OF THE COURT

A Mr Hotai’s appeal against sentence in CA 104/2011 is allowed.

BThe sentence of two years and four months imprisonment is quashed. In its place, Mr Hotai is sentenced to a term of one year and nine months imprisonment.

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REASONS OF THE COURT

(Given by Andrews J)

Introduction

On 8 October 2010 Ms McMillan pleaded guilty in the District Court at Palmerston North on one count of possessing cannabis for sale and one count of possessing utensils for consuming cannabis. Mr Hotai (Ms McMillan’s husband) pleaded guilty to one count each of selling cannabis, possessing cannabis for sale, possessing utensils for consuming cannabis, and possessing equipment for cultivating cannabis. They were sentenced by Judge Garland on 28 January 2011: Ms McMillan to one year and nine months imprisonment, and Mr Hotai to two years and four months imprisonment.[1] Both appealed against sentence.
[1]R v Hotai DC Palmerston North CRI-2010-054-1227, CRI-2010-030-847, CRI-2010-031-848, 28 January 2011 (the sentencing notes).
We gave an oral judgment on 10 August 2011 allowing Ms McMillan’s appeal, quashing the sentence of imprisonment (of which she had now served six months), and substituting a sentence of four months home detention on specified conditions.[2] That judgment also recorded that our decision on Mr Hotai’s appeal was reserved, and we directed that the Department of Corrections was to provide, within 14 days, a report as to the suitability of a sentence of home detention for Mr Hotai.
[2] R v McMillan [2011] NZCA 392.
We now set out our reasons for allowing Ms McMillan’s appeal, and our judgment on Mr Hotai’s appeal.

Facts

The charges were laid after an unrelated search warrant was executed at the appellants’ home. In their daughter’s bedroom, the police found a bag of cannabis, ten cannabis tinnies, and $7,210 in cash. A combination safe in another bedroom contained two bags of cannabis totalling 45 grams. There was an ice cream container on the kitchen bench which had in it eight and a half tinnies and various “spotting” knives, pipes and bongs. The police found 22 pieces of tinfoil cut into tinnie size, and two caps of cannabis oil. Finally, the police found a cannabis “growing room” under the stairs, fitted with a heat lamp, fan, timer, and transformer.
Mr Hotai admitted to the police that he intended to sell the tinnies, that he had been selling cannabis for about six months, and that half of the money found came from previous sales of cannabis. He said the bags of cannabis and the cannabis oil were for his personal use.
Ms McMillan told the police that she owned the…

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 McMillan v R

Details

AGLC: McMillan v R [2011] NZCA 442
Case: [2011] NZCA 442
Decision Date: 6 September 2011

CaseChat Overview and Summary

The case of McMillan v R involved two appellants, Sera McMillan and Casey Timoti Hotai, who were convicted and sentenced for drug-related offences. McMillan was convicted of possessing cannabis for sale and possessing utensils for consuming cannabis, while Hotai was convicted of selling cannabis, possessing cannabis for sale, possessing utensils for consuming cannabis, and possessing equipment for cultivating cannabis. Both appellants appealed against their respective sentences. The appeal court was required to determine whether the sentences imposed by the District Court were appropriate in light of the appellants' personal circumstances and the purposes of sentencing.

The appeal court found that the District Court had erred in not giving sufficient consideration to the appellants' personal circumstances and prospects for rehabilitation. In the case of McMillan, the appeal court concluded that a sentence of home detention was appropriate, despite the fact that the offending had taken place at her residence. The court found that the concerns raised by the probation officer about the safety of the residence and gang connections were not substantiated, and that the balance of factors favoured a sentence of home detention. In the case of Hotai, the appeal court found that a reduction of about 30% or nine months from the starting point of two years and six months was warranted on account of Hotai's personal circumstances and his guilty plea. The court held that a sentence of one year and nine months imprisonment was appropriate both to meet the needs of deterrence and promote the prospects of Hotai's rehabilitation and reintegration into society. The appeal court also found that a sentence of home detention would not be appropriate for Hotai, due to concerns about the integrity of the sentence if two drug dealing co-offenders were given home detention at the same address, and the undue pressures that would be placed on the household.

The appeal court allowed McMillan's appeal, quashed her sentence of imprisonment, and substituted a sentence of four months home detention. The appeal court also allowed Hotai's appeal, quashed his sentence of two years and four months imprisonment, and substituted a sentence of one year and nine months imprisonment.

Orders