McRae v The the Queen - [2022] NZHC 1581

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…

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 McRae v The the Queen

Details

AGLC: McRae v The the Queen [2022] NZHC 1581
Case: [2022] NZHC 1581
Decision Date: 5 July 2022

CaseChat Overview and Summary

Gordon Mark McRae appeals his sentence of five years and four months' imprisonment, imposed by Judge Snell in the Rotorua District Court, on charges of offering to sell a restricted weapon to unauthorised persons, unlawful possession of firearms and ammunition, conspiring to unlawfully possess firearms, supplying a firearm to an unlicensed person, and supplying a Class A drug (methamphetamine). McRae argues that Judge Snell gave insufficient weight to his personal mitigating factors and imposed an insufficient discount. The Crown takes a neutral position on the application for leave to appeal out of time but opposes the appeal. The appeal court can only allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed. 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. The appeal court found that the end sentence was not manifestly excessive. While the appeal court accepted that McRae's addiction, childhood influences and remorse are inter-related and should be assessed holistically, it did not accept that a discount of 30 per cent was warranted. The appeal court considered that a discount of 20 per cent was appropriate to reflect mitigating factors personal to McRae, namely addiction, upbringing and remorse. The appeal court found that the sentence imposed was not manifestly excessive and dismissed the appeal.

Orders