McRae v The the Queen
[2022] NZHC 1581
•5 July 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-166
[2022] NZHC 1581
BETWEEN GORDON MARK McRAE
Appellant
AND
THE QUEEN
Respondent
Hearing: 29 June 2022 Appearances:
D Dickinson for the Appellant A Maino for the Respondent
Judgment:
5 July 2022
JUDGMENT OF GORDON J
This judgment was delivered by me
on 5 July 2022 at 10:30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
D Dickinson, Barrister, Auckland A Maino, Crown Solicitor, Rotorua
McRAE v R [2022] NZHC 1581 [5 July 2022]
Introduction
[1] On 4 August 2021, Gordon McRae was sentenced to five years and four months’ imprisonment by Judge Snell in the Rotorua District Court on the following charges to which he had pleaded guilty:
(a)Offering to sell restricted weapon (pistol) to unauthorised persons;1
(b)Unlawful possession of firearms and ammunition;2
(c)Conspiring to unlawfully possess firearms;3
(d)Supplying a firearm to unlicensed person;4
(e)Supplying a Class A drug (methamphetamine) (x 2, representative).5
[2] He now appeals that sentence on the basis that Judge Snell gave insufficient weight to his personal mitigating factors, and therefore imposed an insufficient discount. There is no issue as regards the starting point or uplifts.
[3] The appeal is out of time. Mr McRae seeks leave to appeal out of time. The Crown takes a neutral position on that application but opposes the appeal.
Background facts
[4] The following information is drawn from the Police Summary of Facts. I will follow a chronological order rather than the order of the charges.
Firearms offences
[5]Mr McRae has never held a firearms licence.
1 Charge 1. Arms Act 1983, s 44(1)(b): maximum penalty three years’ imprisonment or $30,000 fine.
2 Charge 2. Arms Act, s 45(1)(b): maximum penalty four years’ imprisonment or $5,000 fine.
3 Charge 3. Arms Act, s 45(1)(b) and Crimes Act 1961, s 310: maximum penalty four years’ imprisonment or $5,000 fine.
4 Charge 6. Arms Act, s 43(1)(a): maximum penalty two years’ imprisonment or $20,000 fine.
5 Charges 4 and 5. Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.
[6] Charge 6: On 29 September 2020, Mr McRae arranged for an associate to purchase five firearms (Alfa magnum carbine revolver rifles – four 0.22 calibre and one 0.357 calibre) and 1200 rounds of ammunition, from a retailer in Hamilton, using the associate’s lawful firearms licence. Between 29 September 2020 and 10 February 2021, Mr McRae on-sold the five firearms to unknown, non-licensed persons in the criminal environment for cash or as part payment for methamphetamine. In communications, Mr McRae reassured his customers that the firearms were “brand new”.
[7] Charge 1: On 20 October 2020, Mr McRae contacted a Killer Beez gang member and offered to exchange a 0.38 calibre pistol and $3,000 cash for an ounce of methamphetamine. In text communications, Mr McRae told the contact that he had bought five pistols and intended to sell four for profit and keep the fifth for himself. He detailed costs of ammunition (referred to as “boxes of food”) and told the contact that he needed to supply the original purchaser of the firearms with seven grams of methamphetamine for his services. Mr McRae’s offer was rejected.
[8] Charge 2: On 5 December 2020, Mr McRae and an associate travelled to a retail store in Auckland where the associate purchased a 12-gauge Dickinson pump action shotgun for $799 which came with 250 complimentary rounds of ammunition, and a 9 mm Alfa carbine long barrelled revolver rifle for $2,299. The associate also ordered five further Alfa firearms (three in 0.22 calibre, and two in 9 mm calibre), and paid a cash deposit against the order of $505. The two men left the store in possession of the firearms and ammunition.
[9] Charge 3: On 14 December 2020, Mr McRae contacted the associate referred to in [8] above (first associate) and arranged for him to travel to Auckland with another associate to purchase the five rifles on order. Mr McRae agreed to supply the first associate with methamphetamine for the drive. However, the purchase was never made as Police had contacted the retailer which then declined to fulfil the order. In communication with Mr McRae, the first associate referred to the firearms which they had already purchased as “cut up”, meaning that they had been converted from rifles to pistols.
[10]None of these firearms has been recovered.
[11] In explanation, Mr McRae told Police that he had acquired the firearms he was attempting to on-sell from a specialist pistol store prior to a law change. He also said that he simply accompanied the first associate to the retail store in Auckland and was not involved in purchasing the firearms.
Drug offences
[12] Charge 4: Between 23 September 2020 and 10 February 2021, Mr McRae supplied an associate methamphetamine, on at least four occasions. The total quantity supplied on these occasions was at least two ounces (56 grams).
[13] Charge 5: Between 23 September 2020 and 10 February 2021, Mr McRae supplied another associate methamphetamine on at least four occasions, a total of at least two ounces (56 grams). Mr McRae and that associate maintained a business-type relationship to obtain and supply methamphetamine to each other and other “clients” which the associate secured.
[14] On 10 February 2021, Police executed a search warrant at Mr McRae’s address and located small empty plastic dealing bags, $1,850 in cash and a supply of cutting agent for diluting methamphetamine in order to increase its apparent weight.
[15] In explanation, Mr McRae told Police that he was addicted to methamphetamine and personally smoked around a half a gram most days. He stated that he facilitated deals in order to skim a supply of methamphetamine off each deal, to maintain his own habit and repay his debts. He said he did not regard himself as a drug dealer.
Pre-sentence report
[16] Community Probation Services provided a Provision of Advice to Courts (PAC report) on Mr McRae, dated 11 June 2021.
[17] The report assesses Mr McRae’s risk of re-offending as high, given that he was subject to release conditions at the time of the current offending and had previously re-offended while subject to electronic monitoring. His risk of harm to others was also assessed as high, due to the serious nature of the offending and Mr McRae’s history of firearms convictions. Given his long history of methamphetamine addiction, the report finds that he has a high risk of further drug use.
[18] Offending related factors are identified as drug abuse, attitudes, associates and lifestyle.
[19] The report acknowledges that Mr McRae has a good work history in forestry, no physical or mental health concerns, and a supportive, pro-social family.
[20] However, the report also notes that Mr McRae has gang affiliations: he advised Police that he had been loyal to the Rebels Motorcycle (MC) Gang in the Taupo area for 12 years, although he was not a member. The report states that Mr McRae holds little concern for Court imposed sanctions, and a history of non-compliance with bail conditions. It also states that Mr McRae’s conduct supplying firearms to criminal groups indicates a complete disregard for community safety. Police note that Mr McRae’s heavy reliance on methamphetamine, combined with his history of drug and firearms charges, places him at a high risk of re-offending within the community. He is also said to have outstanding drug debts which will not be forgiven, and which will likely drive him to re-offend.
[21] As to remorse, the report quotes Mr McRae as asking the Court “not to lose faith in me, I’m going to do great things on the next part of my journey. I want to apologise, I want to be a great father, I don’t want to lose my family again”, but expresses scepticism about whether this remorse is genuine, given that Mr McRae had re-offended following previous convictions on similar charges.
District Court decision
[22] In the District Court, Judge Snell identified the penalties associated with each charge and reviewed the facts of the offending, based on the Police Summary of Facts. The Judge then noted Mr McRae’s previous convictions and referred to the
PAC report. The Judge also referred to a report prepared under s 27 of the Sentencing Act 2006 (the Act) and commented on Mr McRae’s self-reported methamphetamine addiction and his upbringing within gang culture. Judge Snell then reviewed submissions made on behalf of Mr McRae, submissions for the Crown and the purposes and principles of the Act.
[23] When structuring the sentence, Judge Snell took the two drug supply charges as the lead charges. He held that the offending fell within band two of the tariff case for sentencing methamphetamine offending, Zhang v R,6 having regard to the total quantity of methamphetamine supplied (112 grams) and number of charges (two representative). The Judge identified Mr McRae’s significant level of participation and the wholesale quantities bought and sold as aggravating features of the offending and considered a number of comparator cases.7 The Judge noted the Crown submission that the starting point should be six years, and observed that this was the “high point” of available starting points for the offending given the greater amounts of methamphetamine involved in comparator cases. In light of the range of offending, quantity of drugs involved, representative nature of the charges, and method of operation, Judge Snell concluded that a starting point of between five and five and a half years was appropriate. He then set the starting point at five years, without further reasoning.8
[24] Judge Snell declined to adopt a reduction of the starting point to reflect Mr McRae’s methamphetamine addiction at that stage of sentencing because, in his view, this factor applied to all of the charges and the discount should therefore be applied at the end.
[25] On the firearms charges, Judge Snell identified the quantity of firearms, supply to the criminal underworld, the risk posed to the public and Police, and significant premeditation as aggravating factors. He noted that it was “routine” to impose an uplift of between 12 and 18 months on firearms charges that are related to drug offending.9 He then observed that in Mr McRae’s case an overall totality figure for
6 Zhang v R [2019] NZCA 507.
7 R v Cossey [2021] NZHC 1333; Roulston v R [2020] NZCA 255; Wineera v R [2021] NZHC 900.
8 At [26].
9 At [29].
the firearms offending, given the level of culpability and range of offending, would be between three and three and a half years. Judge Snell noted that he was choosing to sentence Mr McRae on a totality basis, by imposing an uplift rather than providing a discrete cumulative sentence on the firearms charges.10 The uplift was set at two years, four months, which Judge Snell commented was sufficient to fulfil the purposes of denunciation and deterrence.11
[26] Turning to personal aggravating factors, Judge Snell identified Mr McRae’s previous firearms convictions and breach of post-detention conditions as two factors warranting an uplift. He considered these factors together and held that an uplift of between six and nine months was appropriate. He then adopted the “lowest uplift possible”, namely six months, without further reasoning.12
[27] Judge Snell then imposed the full 25 per cent discount for Mr McRae’s early guilty plea. He acknowledged that this was a significant discount, and observed that some judges would not allow the full discount in cases where the evidence against the offender was overwhelming, as it was in Mr McRae’s case. The discount of 25 per cent brought the adjusted starting point to six years’ imprisonment.13
[28] When considering mitigating factors personal to the offender, Judge Snell referred to the PAC report which identified Mr McRae as having a high risk of re- offending and a high risk of harm to others, due to the serious nature of his offending and continuous conviction rate related to firearms.14
[29] The Judge also referred to a s 27 report and commented on Mr McRae’s self- reported methamphetamine addiction and his upbringing within gang culture. Judge Snell commented on some inconsistencies between Mr McRae’s account and statements made by his sister. He observed that “It is always concerning to the Court that matters are raised by people before they are sentenced and especially people who
10 At [21] and [29].
11 At [29].
12 At [30].
13 At [31].
14 At [14].
are experienced as [Mr McRae is] within the justice system and the sentence regime that are matters that would provide sentence mitigation”.15
[30]In calculating a discount for mitigating factors, Judge Snell remarked:16
As regards your addiction issues, I accept that you are addicted to methamphetamine. I note that you have been given previous opportunities to address that, including during your home detention recently imposed and your post-detention conditions. You have not taken those opportunities at rehabilitation. Having said that, I also note that you are saying that you are ready to move on with your life and the pre-sentence report indicates that you are wanting to have a fresh start and I have been shown some certificates of things that you have done while you have been in custody, and I have read the remorse letter that you have written saying those very same things, that you want to get over your addiction and that you want to have a better life moving forward. I balance the addiction, the remorse with the fact that you have re- offended in a very similar way for part of this offending while on sentence for similar offending and there is limited discount that I can give you for it, but I add about seven per cent.
[31] A seven per cent discount resulted in a total discount of 32 per cent. Judge Snell calculated this was equivalent to a discount of 30 months (or two years, six months) from the starting point of seven years, 10 months.
[32] The final sentence imposed was five years, four months on each of the drug charges, and 20 months’ imprisonment on each of the firearms charges, to be served concurrently.
Law on appeal
[33] Appeal of sentences can be brought as of right.17 The appeal court can only allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.18 However, the Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.19 The sentence must be “manifestly excessive” for the appeal court to substitute its own
15 At [16].
16 At [32].
17 Criminal Procedure Act 2011, s 244.
18 Criminal Procedure Act, s 250.
19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
views. Whether the sentence is manifestly excessive is to be assessed in terms of the end sentence given, rather than the process by which it is reached.20
Appellant submissions
[34] Mr Dickinson, for Mr McRae, submits that Judge Snell gave insufficient weight to Mr McRae’s personal mitigating factors: significant drug rehabilitation before sentencing, the nexus between his upbringing and his offending, and his genuine remorse.
[35] Mr Dickinson submits that the seven per cent discount applied in recognition of Mr McRae’s addiction did not take into account the wider circumstances of his offending or the relevant case law, and a total discount of 30 per cent for all personal mitigating factors should have been imposed.
[36]The following documents are relied on:
(a)PAC report;
(b)Letter of support, written by Mr McRae’s sister, dated 21 June 2021 (sister’s letter);
(c)Letter of remorse, written by Mr McRae, undated;
(d)Cultural report, prepared by Andrew Baker, pursuant to s 27 of the Act, dated 28 June 2021 (cultural report);
(e)Education and Programme Information reports on Mr McRae, prepared by the Department of Corrections, dated 16 April, 22 April and 14 July 2021, confirming completion of programmes on self-management, financial management, and drug rehabilitation (Education reports); and
(f)ITP Te Ngahere: Participant Progress report, prepared by Taylor Burton for Odyssey House, dated 14 July 2021, confirming completion to date
20 Ripia v R [2011] NZCA 101 at [15].
of five weeks of an eight-week intensive drug rehabilitation programme (Progress report).
[37] Mr Dickinson submits that the statement in the PAC report that “NZ police note Mr McRae’s heavy reliance on methamphetamine…” provided the District Court with the type of corroboratory evidence required by Zhang21 to support a finding of a causal nexus between drug use and the offending.
[38] It is further submitted that what the District Court described as “anomalies” and inconsistencies between Mr McRae’s version of his life story and what his sister told the report-writer are more apparent than real. Mr Dickinson suggests that any minor differences between their accounts certainly do not appear to relate to “many of the events” in the appellant’s life. These differences may be accounted for by differences in age (his sister is ten years older and was thus away from home at relevant times), gender and family relationships.
[39] It is submitted that Judge Snell’s perception of problems with the cultural report undercut the extent to which the Judge acknowledged the evidence the report provided of a very obvious nexus between Mr McRae’s childhood background of gang culture, drugs, alcohol, and dishonesty offending, and his current offending.
[40] While acknowledging the Judge was correct to say that Mr McRae had not taken up earlier opportunities for rehabilitation during home detention and under post- detention conditions, Mr Dickinson submitted Mr McRae had subsequently done so. Moreover, the steps taken were of his own volition.
[41] In particular, Mr Dickinson draws the Court’s attention to the Education report which notes that Mr McRae:
· Himself reached out to the Te Ngahere team to voice his interest before referring himself onto the programme.
· Attended every session of Te Ngahere that he was able to, totalling more than 200 hours of coursework.
21 Zhang v R, above n 6, at [148].
· Was a highly engaged programme participant, remaining attentive and respectful within the group space even during disruption from others.
· Was described as connecting strongly with the clinical programme concepts, displaying a high level of awareness and comprehension.
· Attended five Kaitiaki (1:1) sessions, with his key worker speaking often about his determination for change and future goals about becoming a positive role model for the youth in his community to make amends around inadvertent damage he caused while in active addiction.
· Engaged positively in a journaling aspect of the programme, exhibited a range of strengths, and often spoke about his remorse.
[42] Mr Dickinson says that the Progress report speaks of Mr McRae in similar terms and corroborates the Education report. He also observes that it is extremely difficult for remand prisoners to access rehabilitation courses, and he submits that Mr McRae’s efforts are extraordinary.
[43] In this light, Mr Dickinson suggests that Judge Snell failed to appreciate the extent of Mr McRae’s rehabilitative efforts and progress prior to sentencing, or the significant discount they warranted.
[44] He submits that Mr McRae’s remorse letter is a heartfelt display of remorse which shows that Mr McRae is willing to be frank with the Court about his life; it is not an expression of self-pity.
[45] In conclusion, Mr Dickinson submits that Mr McRae’s personal mitigating circumstances warranted a discount in the region of 30 per cent, which would have resulted in a total discount of 55 per cent and an end sentence of three years, six months’ imprisonment. The sentence of five years, four months, as imposed, is therefore manifestly excessive.
Respondent submissions
[46] The Crown submits that the end sentence is appropriate and within range, given that Judge Snell took a lenient approach to starting points and other adjustments, as follows:
(a)Selecting a starting point for the methamphetamine offending below the point of six years that the Crown submitted was appropriate (and the Crown stands by its submissions); identifying an available range below six years, and then selecting the lowest available point within this range.
(b)Electing to consider addiction in relation to all offending, as opposed to only the drug offending (resulting in a greater overall discount).
(c)Reducing the sentence for the firearms offending from three to three and a half years by up to one year, two months, to reflect totality (resulting in an uplift of two years and four months).
(d)Declining to uplift the indicated starting point to reflect earlier relevant convictions, which tended to indicate a more deterrent response was appropriate (over and above what should apply simply in respect of this offending occurring while still on release conditions).
(e)Allowing a full 25 per cent for pleas, despite the overwhelming strength of the Crown case.
[47] The Crown suggests that, had Judge Snell taken a sterner but still available approach to all the above factors, and a more generous approach to discounts for mitigating factors personal to the offender, the end sentence would have been similar to that which was imposed. Therefore, the result is within range and not manifestly excessive.
[48] As to the particular grounds for discounts sought by Mr McRae, the Crown makes the following submissions:
(a) Addiction: Following Zhang, allowances do not turn on “addiction” per se, but the nexus between that addiction and the moral culpability of the offending; self-serving “addiction” claims cannot inform this nexus. It is accepted that Mr McRae’s offending was driven by his compulsion
to acquire and consume methamphetamine. However, how this impacted on his moral culpability has not been quantified. It appears that only the prospect of a significant sentence of imprisonment lead Mr McRae to identify his addiction as problematic.
(b) Remorse: Mr McRae has expressed sincere regret for his situation, and a heartfelt desire to change his life and be there for his family. However, this does not indicate remorse for the wider harm to the community resulting from his significant and repeated drug and firearms offending. The safety risks to the community from illicit firearms and the social and medical harm inflicted by methamphetamine cannot be overstated. Allowances for remorse are routinely modest; five per cent is a common figure for exceptional sincere remorse.
(c) Culture/Background: Judge Snell found that the cultural report provided a limited nexus between the difficulties faced by Mr McRae and the index offending. Mr McRae’s sister recalled their childhood differently and indicated that gang life had not been a significant influence. Further, there was no evidence of systematic deprivation and social harm, as evidenced (for example) in families suffering in the long shadow still cast by colonisation.
[49] In summary, the Crown submits that the seven per cent discount imposed in the District Court was appropriate, the end sentence was within range, and the sentence should not be disturbed on appeal.
[50] Alternatively, the Crown submits that if the Court is not persuaded that the end sentence can stand, an allowance closer to 10 – 15 per cent could be more appropriate, to reflect addiction, with limited (if any) allowances made for remorse and cultural/background factors.
Discussion
Addiction
[51] In Zhang,22 the Court of Appeal recognised the role addiction plays in drug offending and the need to give it proper consideration in sentencing. The Court observed that addiction is relevant because it can impair the rational choice made to offend, diminish moral culpability, and diminish the deterrent aspect of sentencing.23 Recognition of addiction as causative of the offending must be based on persuasive evidence as opposed to self-reporting.24
[52] The Court of Appeal acknowledged that addiction may logically give rise to a discount of up to 30 per cent of the sentence depending on the extent to which it mitigates moral culpability for the offending. However, the Court accepted that figure was arbitrary and affirmed that it was indicative only.25
[53] There is no doubt that Mr McRae is a long-term methamphetamine addict. The PAC report quotes Mr McRae as admitting to regular consumption of methamphetamine and a long history of addiction. The report also states that a drug screening assessment was completed at interview which indicates Mr McRae is at a high risk of further methamphetamine use. Police contribution to the report notes that Mr McRae’s heavy reliance on methamphetamine, combined with his history of drug and firearms offending and drug connections, presents a high risk of re-offending. I accept Mr Dickinson’s submission that while there is some self-reporting, the information goes beyond mere self-reporting on the part of the offender.
[54] The cultural report provides detailed background information about Mr McRae’s history of alcohol and drug abuse, including a long-standing methamphetamine addiction. While this report is based on an in-depth interview with Mr McRae, and therefore self-reporting, the Court accepts this report as a legitimate account of the offender’s personal history. Mr McRae witnessed and participated in alcohol and drug use from the age of eight, as a consequence of his father’s gang
22 Zhang v R, above n 6.
23 At [145] – [147].
24 At [148].
25 At [149].
affiliations and criminal activity. He became addicted to methamphetamine at age 14 when he was introduced to the drug by a friend’s older brother, who was a dealer. He is now 35 years old. He has used methamphetamine on a very regular basis for over 20 years. At his peak, he reports using five to six times a day. The report says that he was a high-functioning addict who managed to combine regular use with fulltime work in the forestry industry.
[55] The cultural report also provides information on events immediately prior to the current offending, which illustrate the extent to which the addiction was causative of the offending. Mr McRae told the report-writer that he got into serious debt with someone supplying him with methamphetamine. The supplier said the debt was
$60,000 and told Mr McRae “I'm gonna come down there and break your legs with sledgehammers in front of your family if you don't pay this bill”. Mr McRae said he concocted the plan to engage in firearms dealing to attempt to pay this debt. He acknowledges that he chose to engage in this conduct, knowing it to be criminal, for the purpose of paying his debt.
[56] I am satisfied that Mr McRae has satisfied the onus of proof (to the civil standard) to establish the extent and effect of his addiction as a mitigating circumstance of his offending, as required by Zhang.26 Both his drug offending and his firearms offending was driven by his addiction; he undertook the firearms dealing to repay debts incurred to a methamphetamine supplier and he supplied the drug to others in order to skim a supply for himself off the top. He has not benefitted financially from his offending (by the acquisition of substantial assets); he has spent his earnings over the last 20 years on methamphetamine. In these circumstances, I consider that his decision-making capacity and moral culpability was effectively diminished. However, I consider this was not the sort of “hand-to-mouth” offending which would attract the highest level of discount.27 The trading in firearms gave a commercial aspect to Mr McRae’s methamphetamine dealing, notwithstanding the fact that he was dealing to feed his addiction.
26 At [150].
27 See, for example, the appeals of Ms Crighton and Ms Phillips in Zhang v R, above n 6, at [193] –
[203] and [204] – [228]. They also had PTSD and used methamphetamine as a coping mechanism. See also Crighton v R [2018] NZHC 3282; and R v Phillips [2018] NZHC 2119.
Cultural deprivation
[57] In relation to the effect that social, cultural and economic deprivation can have on “the rational choice model”, the Court of Appeal in Zhang emphasised that such matters ought to be addressed and supported under s 27 of the Act. The Court observed that “social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender. Likewise, the tools available in ss 25 and 27 are there for use by any relevant offender”.28
[58] Mr Dickinson refers the Court to a recent decision of this Court, Popata v R,29 in which Downs J summarised the principles governing the assessment of personal circumstances and cultural background as mitigating factors warranting a discount at sentencing:30
· An offender’s background is relevant at sentencing. The law takes a broad view of what comprises this background.
· Potential discount extends to what is described as systemic disadvantage, meaning long standing deprivations that affect – and afflict – some groups, at least when this informs the commission of the offence by some influence upon choice.
· The mere fact of an offenders’ ethnicity does not constitute a basis for a sentencing discount.
· The amount of discount for personal circumstances depends not just on causal potency, but countervailing policy considerations; the Court of Appeal has made it clear offence seriousness does not preclude discounts for personal mitigating circumstances, including systemic disadvantage.
[59] In Popata, Downs J reviewed case law indicating that discounts for cultural background ranged between 10 and 20 per cent.31
[60] In Solicitor General v Heta,32 Whata J considered a discount of 30 per cent might be available for personal mitigating features encompassing systemic
28 Zhang v R, above n 6, at [162].
29 Popata v R [2022] NZHC 489.
30 At [15] – [19].
31 At [25] – [33].
32 Solicitor General v Heta [2018] NZHC 2453.
disadvantage, in circumstances where the defendant had made “significant strides ....
towards rehabilitation”.33
[61] In this case Mr McRae’s primary family consisted of his mother, step-father, older sister and younger half-brother. Both adults worked full time and they provided the necessities and a stable home environment for their children. It was Mr McRae’s weekend contact with his biological father, between the ages of eight and 14, that caused the harm. Mr McRae identifies as pakeha, of Scottish decent. While his family were not wealthy, and his father was involved in gang life, there is no suggestion that this was a consequence of post-colonial systemic cultural deprivation, as in Solicitor General v Heta.
[62] While his primary family unit was stable I accept that Mr McRae’s childhood was negatively impacted by his father’s gang involvement and criminal activities. The cultural report states that his father was a member of the Filthy Few Motorcycle Club. From the age of eight, Mr McRae’s father involved him in gang-related activities, including motorcycle theft, alcohol and marijuana consumption, and late-night parties with topless female bartenders. Mr McRae witnessed his father being violent to others and engaging in drug dealing. Mr McRae saw his father’s gang lifestyle as glamorous and a “brotherhood”. He participated in order to feel connected to his father, whom he admired at that stage.
[63] As a young teenager, Mr McRae began dealing drugs at his school and using drugs during school hours. He left school at the end of fifth form, without qualifications. From that point onwards, his life revolved around methamphetamine. His supplier at the time found him accommodation and a job in forestry. Mr McRae then spent his whole salary on methamphetamine each week and got into debt to purchase more. This pattern appears to have continued until recently. Against this backdrop, I do not doubt that his father’s influence set Mr McRae on a path of addiction and criminality.
33 At [64(g)].
Remorse
[64] Section 9(2)(f) of the Act provides that a mitigating factor is “any remorse shown by the offender”.
[65]In Hessell v R,34 the Supreme Court recognised:35
Sentencing Judges are very aware that remorse may very well be no more than self-pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. When remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.
[66] The Court of Appeal in Zhang confirmed that remorse can be recognised in drug-related sentencing.36
[67] I accept that Mr McRae has expressed genuine remorse. The Education and Progress reports indicate that his engagement with rehabilitative programmes while on remand has been both proactive and authentic. He is reported as showing personal insight into the causes of his offending (including his father’s influence on him as a child) and an understanding of the harm his addiction has caused to his family. There is limited, but nevertheless still some recognition of the harm he has caused to the community. He has vowed to lead a different life upon his release from prison, return to forestry work, take responsibility for his finances, provide for his partner and child, and strive to become a positive influence on those around him – particularly young men who may otherwise fall into addiction and criminal conduct as he did. This goes beyond an expression of self-pity or regret that his actions have resulted in a sentence of imprisonment.
Conclusion on discounts for personal factors
[68] I accept Mr Dickinson’s submission that the factors of addiction, childhood influences and remorse are inter-related and should be assessed holistically. However,
34 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
35 At [64].
36 The Court accepted that discounts for remorse were appropriate when reviewing the sentences for defendants Zhang, Thompson, Yip, and Phillips.
I do not accept his submission that a discount of 30 per cent is warranted. I refer to my comments at [56] above that this was not “hand-to-mouth” offending and the trading of firearms gave a commercial aspect to Mr McRae’s dealing. In view of the information provided by the cultural report, PAC report, Education and Progress reports, and letters from Mr McRae and his sister, I consider that a discount of 20 per cent is appropriate to reflect mitigating factors personal to Mr McRae, namely addiction, upbringing and remorse.
Conclusion on end sentence
[69] However, the role of this Court on appeal is to assess whether the end sentence was within the available range and not manifestly excessive.
[70] I accept the Crown submission that Judge Snell took a lenient approach to setting the starting point and imposing uplifts. In order to assess whether the end sentence was within the available range, I need to review these aspects of the decision as well.
[71]Judge Snell’s decision-making and reasoning is set out above.37
[72] As to the starting point, the Crown says that six years would have been appropriate. Judge Snell considered that the available range fell between five and five and a half years. He then imposed the lowest available starting point in this range without giving reasons for doing so. An assessment of the comparator cases considered by Judge Snell follows:
(a)In Cossey,38 the offender was sentenced on three charges of supply/offer to supply/possess methamphetamine (total quantity
135.49 grams).39 In the High Court, Justice Jagose held that the
offending was aggravated by commercial quantity and premeditation, but accepted the offender had a lesser role in the wider criminal
37 At [26] to [30].
38 R v Cossey, above n 7.
39 And one breach of parole condition.
operation. A starting point of four years, six months’ imprisonment was imposed.
(b)In Roulston,40 the offender was sentenced on three charges of manufacture/possess/supply methamphetamine (total quantity 113 grams).41 On appeal, the Court of Appeal held that the offending fell within band two of Zhang, given that the offender was a small-time commercial manufacturer and addict who manufactured for personal use. Having regard to quantity and role the Court considered a starting point of six years on the drug offending to be within the appropriate range.
(c)In Wineera,42 the offender was sentenced on three charges of possess/supply methamphetamine (total quantity 198 grams).43 The offending fell at the upper end of band two; despite managing a commercial operation, the offender was a “relatively low level” dealer and a “one man band” who was driven to offend by his own addiction. On appeal to the High Court, a starting point of six years imposed in the District Court was left undisturbed.
[73] In light of the comparator cases, particularly Roulston, a starting point of six years, while stern, would not have been out of range. Mr McRae faced two representative charges of supply. The total quantity is very similar to that in Roulston. Mr McRae was a low-level dealer and addict who supplied methamphetamine to associates in order to “skim off” supply for his own use. In my view the available range is between five and a half years and six years.
[74] It would have been open to Judge Snell to impose a discrete cumulative sentence on the firearms charges. The Judge considered that a sentence of three to three and a half years was appropriate. However, the Judge decided to proceed by way of an uplift. I will follow the same approach in making my assessment. The Judge
40 Roulston v R, above n 7.
41 And unlawful possession of a pistol.
42 Wineera v R, above n 7.
43 As well as multiple Class C drug offences, firearms and property charges.
observed that it was routine where firearms are found along with drug dealing offending to impose an uplift between 12 and 18 months, and in bad cases up to two years.44 Having regard to all the circumstances the Judge reduced the three to three and a half years to an uplift of two years and four months to take into account the totality principle.
[75] I consider a greater uplift might well have been warranted. An 18 month uplift was upheld in Joyce v R.45 I consider the firearms offending in this case to be more serious than in Joyce which involved the possession of two airguns and a loaded sawn- off shotgun in the context of methamphetamine offending. In the present case Mr McRae was involved in ongoing trading in firearms. Judge Snell was right to say:
[27] … With the firearms charges, I consider that there are a number of aggravating features relating to those firearms. Your offending relates to at least nine firearms other than those that you had in your possession or had been supplied to others. There was a conspiracy to obtain a further five of those revolver rifles which you were going to disseminate to the criminal underworld. All of the evidence suggests that you and your associates were modifying those revolver rifles by cutting them down into pistol size, meaning that there are a whole series of pistols out there in heavy calibres capable of inflicting very serious harm on law enforcement people, those involved in the drug industry associating with criminals, and the general public. It is to be noted that the firearms have been supplied to members of the criminal underworld. None have been recovered. So they are lost and we can only assume that they are in use. I consider that that is a huge aggravating factor because the whole safety of our community is put at risk by the distribution of firearms on the black market, particularly these types of firearms with lethal capabilities and particularly when we look at the overall picture here which is firearms, drugs and gangs and when you have all three of those in one picture, it is not a pretty picture at all.
[76] An uplift of two years and eight months would not have offended against the totality principle.
[77] Judge Snell correctly identified aggravating factors personal to Mr McRae as prior convictions and offending while subject to post-detention conditions. The Judge dealt with these together and made an uplift of six months. In my view, it would have been appropriate to impose separate uplifts. Offending while subject to court-imposed conditions typically attracts an uplift of six months. Mr McRae’s criminal history of
44 At [29].
45 Joyce v R [2020] NZCA 124 at [24].
similar drug and firearms charges is significant. In this case, I consider that a separate uplift of six months would have been appropriate for prior convictions.
[78] Although I agree with Judge Snell’s observations on the guilty plea (that although it was early the Crown case was overwhelming), I consider that the Judge was correct to allow the full 25 per cent discount, given that the parties were in agreement on this issue. The guilty plea was entered before the case review stage and although the Crown case was very strong a full discount was appropriate.
[79] Having reviewed each step of the sentencing, I consider that an alternative pathway available to Judge Snell was as follows:
(a)Starting point of five years and six months on the drug charges;
(b)An uplift on the firearms charges of two years and eight months;
(c)Separate uplifts of six months for offending while subject to post- detention conditions, and six months for prior similar convictions (equivalent to a total uplift of 12.25 per cent);46
(d)Discount of 25 per cent for early guilty plea; and
(e)Discount of 20 per cent for mitigating factors personal to the offender (addiction, rehabilitative efforts, remorse and cultural background).
[80] On this alternative approach, the end sentence would have been five years and five and a half months’ imprisonment (rounded down in Mr McRae’s favour). This is one and a half months more than the sentence imposed in the District Court of five years, four months’ imprisonment. Alternatively adopting a starting point of six years, which would have been available, this would have resulted in an end sentence of five years and nine months. The end sentence is therefore not manifestly excessive.
46 These uplifts are required to be applied at step two, being factors personal to the offender, not the offending: Stuart v R [2021] NZCA 539 at [15] – [16]. Judge Snell incorrectly applied a six month uplift at step one.
Result
[81] The application for leave to appeal out of time is granted but the appeal is dismissed.
[82] The sentences on all charges and the post-imprisonment conditions remain as imposed by the Judge.
Gordon J
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