R v McArley - [2018] NZHC 2073

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-044-4279

[2018] NZHC 2073

THE QUEEN

v

KANE McARLEY

Hearing: 14 August 2018

Appearances:

N Webby for the Crown

I Tucker for the Defendant

Judgment:

14 August 2018

SENTENCING NOTES OF GORDON J

Solicitors: Crown Solicitor, Auckland
Tucker & Co, Auckland

R v McArley [2018] NZHC 2073 [14 August 2018]

Introduction

[1] Mr McArley you appear today for sentence after having accepted a sentence indication of nine years’ imprisonment given by Lang J on 11 June 2018.1 You pleaded guilty on 13 June 2018 to the following charges:

(a)Two charges of supplying a Class A controlled drug, namely methamphetamine;2 and

(b)Escaping from lawful custody.3

[2] Supplying a Class A controlled drug carries a maximum penalty of life imprisonment.4

Factual background

[3] You accepted the sentence indication which was based on an agreed summary of facts. I adopt and set out below Lang J’s summary of your offending:5

[3] The charges were laid after the police intercepted Mr McArley’s communications during the course of an on-going operation into the distribution of drugs within the wider Auckland area and beyond. The police obtained an interception warrant to intercept Mr McArley’s communications. From these, they discovered that on two occasions he had travelled to Christchurch carrying with him methamphetamine. There he had supplied a person by the name of Riki Wellington with that methamphetamine. The first supply took place on 6 October 2016 and involved 280 grams. The second took place on 18 October 2016 and involved the supply of 700 grams.

[4] When the police arrested Mr McArley, he escaped from a police car as it was entering the Auckland Central Police Station. He was able to slide under a roller door as it was closing. He then remained at large from 14 December 2016 until 1 March 2017.

Approach to sentencing

[4]Mr McArley, setting a finite sentence involves three steps.6

1      R v McArley [2018] NZHC 1363.
2      Misuse of Drugs Act 1975, s 6(1)(c). As per s 6(2)(a), the maximum penalty is life imprisonment.
3      Crimes Act 1961, s 120(1)(c). The maximum penalty is imprisonment for a term not exceeding five years.
4      Misuse of Drugs Act, s 6(2)(a).
5      R v McArley, above n 1.
6      R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[5] I must first set a starting point for your sentence to take account of the facts of your offending, and then adjust it up or down taking into account your personal circumstances. The last step is to consider what discount you should receive for your guilty plea. There is also the matter of a minimum period of imprisonment.

[6] In sentencing you, Mr McArley, I must have regard to the purposes and principles of sentencing which are set out in ss 7 and 8 of the Sentencing Act 2002. The Court of…

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 R v McArley

Details

AGLC: R v McArley [2018] NZHC 2073
Case: [2018] NZHC 2073
Decision Date: 14 August 2018

CaseChat Overview and Summary

The case of R v McArley involved the sentencing of Kane McArley, who had pleaded guilty to charges of supplying methamphetamine and escaping from lawful custody. The High Court of New Zealand, Auckland Registry, presided over the case, with Gordon J delivering the judgment. The central legal issues revolved around setting an appropriate starting point for the sentence, considering personal circumstances, and determining whether a minimum period of imprisonment should be imposed. The court had to balance the purposes and principles of sentencing, including accountability, deterrence, and denunciation, with the personal circumstances of the offender and his genuine remorse.

Gordon J began by setting a starting point for the sentence based on the severity of the methamphetamine supply, which was categorized under band four due to the quantity involved (980 grams). The court also considered aggravating factors, such as McArley's role in the drug distribution network, which was deemed more culpable than that of a mere "cut-out" or "catcher." The global starting point was set at 10 years and 8 months, uplifted by 4 months for the charge of escaping from lawful custody, resulting in an overall starting point of 11 years. Personal circumstances, including McArley's lack of family support and his efforts towards rehabilitation, were considered but did not warrant a downward adjustment. A discount of 2 years was applied for McArley's guilty pleas, leading to an end sentence of 9 years imprisonment. The court then deliberated on whether to impose a minimum period of imprisonment, ultimately deciding against it due to McArley's acceptance of responsibility, genuine remorse, and proactive engagement in rehabilitation courses.

In conclusion, McArley was sentenced to 9 years imprisonment on the methamphetamine supply charges, 2 years for escaping lawful custody, with all sentences to be served concurrently. The court also discharged McArley on two additional charges of methamphetamine supply due to his guilty pleas.

Orders