R v McCarthy - [2013] NZHC 3078

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-025-002416 [2013] NZHC 3078

THE QUEEN

v

BRIAN ANTHONY MCCARTHY

Hearing: 19 November 2013

Appearances: M J Thomas for Crown
J A Westgate for Prisoner

Judgment: 19 November 2013

SENTENCING REMARKS OF D GENDALL J

[1] Brian Anthony McCarthy, you appear for sentence following guilty pleas to

10 counts of cultivation of cannabis, pursuant to ss 9(1) and 9(2) of the Misuse of Drugs Act 1975 the maximum penalty for which is seven years imprisonment; three counts of possession of cannabis for the purpose of sale pursuant to ss 6(1)(f) and
6(2)(c) of the Misuse of Drugs Act 1975, the maximum penalty for which is eight years imprisonment; one count of conspiracy to sell cannabis pursuant to s 6(2A) and
6(2A)(c) of the Act, the maximum penalty for which is seven years imprisonment; and two counts of selling cannabis pursuant to s 6(1)(e) and s 6 (2)(c) of the Act, the maximum penalty for which is eight years imprisonment.

[2] The defendant, Mr McCarthy is a 63 year old man and was a major participant in the Operation Canary cannabis drug ring. He set up substantial cannabis plots, tended to them, harvested the cannabis and then also sold it. More
facts from this offending will appear later in this decision.

R v BRIAN ANTHONY MCCARTHY [2013] NZHC 3078 [19 November 2013]

[3] Sections 7 and 8 of the Sentencing Act 2002 are of particular relevance to the present sentencing and provide for first, the purpose of denouncing the offender’s conduct and secondly, the purpose of deterring the offender and others from committing similar offending.

[4] Turning first to aggravating factors here, the following aggravating factors are present. First, as to the duration of the offending to which the defendant has pleaded guilty, this offending started in October 2008 and continued through to the termination of Operation Canary on 28 May 2012.

[5] Secondly, as to the extent of the defendant’s involvement in the cannabis operation, he is for sentence here on an array of charges which show his involvement in all levels of that operation.

[6] Next, as to premeditation factors, the nature of the offending, particularly the cultivation charges, inherently require premeditation and that is increased here in my view by the ongoing nature of the offending.

[7] Next, as to the amount of cannabis involved with respect to the cultivation charges, the defendant has pleaded guilty to the cultivation of 10 separate cannabis plots containing a substantial quantity of cannabis plants. Although the exact quantity of the total plants in some of the plots is unknown, seven of the 10 cannabis plots contained a total of 361 plants growing in them.

[8] Next, as to issues concerning the amount of cannabis sold here, the two sales to which the defendant has pleaded guilty were for 2 oz and 13 pounds respectively.

[9] Next, with respect to the amount of cannabis which was in the defendant’s possession for sale, one…

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 McCarthy

Details

AGLC: R v McCarthy [2013] NZHC 3078
Case: [2013] NZHC 3078
Decision Date: 19 November 2013

CaseChat Overview and Summary

The case of R v Brian Anthony McCarthy involved the sentencing of Brian Anthony McCarthy, who pleaded guilty to multiple counts of cannabis-related offenses, including cultivation, possession for sale, conspiracy to sell, and actual sale. The offenses were committed under the Misuse of Drugs Act 1975, with each carrying substantial maximum penalties. The court had to determine an appropriate sentence that balanced denunciation and deterrence with the mitigating factors of McCarthy's prior good character and his cooperation, contrition, and guilty plea. The court considered several precedents, including R v Terewi, R v McMahon, R v Ngawaka, R v Hawes, and R v Wharehinga, to place the current offending within category 3 of Terewi, which involves large-scale commercial growing with a high degree of sophistication and organization. This category typically starts with a sentence of four years or more.

The court recognized several aggravating factors, such as the duration and extent of McCarthy's involvement, the amount of cannabis involved, and the sophistication of the operation. These factors, combined with the extended duration and significant scale of the operation, positioned the case between the more serious McMahon and the less severe Ngawaka, Hawes, and Wharehinga cases. After considering the starting point of six years, the court applied discounts for McCarthy's guilty plea and lack of previous convictions, but not for potential civil forfeiture, as it was not convinced that the recovery would equal the total profits. Ultimately, the court sentenced McCarthy to four years and three months imprisonment, finding this to be a proportionate sentence that sufficiently denounced and deterred while being mindful of the least restrictive outcome.

Orders