R v Ingram

[2018] NZCA 252

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA678/2015
 [2018] NZCA 252

BETWEEN	THE QUEEN Appellant
AND	ALEXANDER WILLIAM INGRAM Respondent

CA715/2015
BETWEEN	STEPHEN MACRIS Appellant
AND	THE QUEEN Respondent

Hearing:	22 February 2018
Court:	Winkelmann, Asher and Williams JJ
Counsel:	I R Murray and S L Graham for the Crown E A Hall for Mr Ingram K R Smith for Mr Macris
Judgment:	13 July 2018 at 3.00 pm

JUDGMENT OF THE COURT

AThe Solicitor-General’s application for leave to appeal in CA678/2015 is granted.

BThe Solicitor-General’s appeal in CA678/2015 is dismissed.

CMr Macris’ appeal in CA715/2015 is allowed.

DMr Macris’ sentence is quashed and concurrent sentences of three years and 11 months’ imprisonment are substituted on all charges.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Table of Contents

Introduction
Facts of the offending

Sentencing

Mr Macris’ sentencing
Mr Ingram’s sentencing

Submissions
Differentiation between drugs in the same class: a summary of our view
MODA and the Sentencing Act

MODA
Sentencing Act

Conclusions

Twenty-five years of jurisprudence

Summary
Pre-Fatu drug sentencing

Fatu
Post-Fatu
Conclusions on the cases

MDA, MDMA and methamphetamine: the evidence on relative harm

Dr Schep
Mr Williamson
Dr Quigley
Conclusions on the evidence

Mr Ingram’s sentence

Starting point

Discounts

Mr Macris’ appeal

Result

Introduction 

1. These are sentence appeals.[1]  Messrs Ingram and Macris were convicted for their part in the manufacture of 289 grams of MDA, a class A analogue of the class B drug MDMA.  Both MDA and MDMA can be referred to as ecstasy.  At sentencing their respective sentencing Judges adopted sharply different starting points.  The difference is primarily attributable to their disagreement on the question of whether the guideline judgment in R v Fatu, in relation to the importation, manufacture and supply of methamphetamine, also controls starting points for other class A drugs — in this case, MDA.[2]  Judge Ongley said it did and set Mr Macris’ starting point at 11 years’ imprisonment.  Judge Barry said it did not and set Mr Ingram’s starting point at eight years’ imprisonment.  The Solicitor-General seeks leave to appeal against Mr Ingram’s sentence and Mr Macris appeals against his.[3]  Though we are also required to address other challenges by the Crown to the way Judge Barry constructed Mr Ingram’s sentence, the essential issue is which Judge was right on the starting point. 

   [1]Mr Ingram originally appealed against conviction but abandoned this appeal.

   [2]R v Fatu [2006] 2 NZLR 72 (CA).

   [3]Mr Ingram has since been released from prison but on the view we take in relation to the Solicitor‑General’s appeal, nothing turns on that.

2. The Solicitor-General requires leave to appeal.  The matters raised in this appeal are important issues of principle and we consider it entirely appropriate to grant leave in this case. 

Facts of the offending

1. Mr Ingram and Mr Macris rented two industrial premises in Wellington.  At one of them they purported to establish a…