R v McGannan - [2013] NZHC 915

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-19380 [2013] NZHC 915

THE QUEEN

v

DANIEL OLIVER MCGANNAN

Hearing: 30 April 2013

Counsel: J Wall for Crown
G Newell for Prisoner

Judgment: 30 April 2013

SENTENCING NOTES OF TOOGOOD J

Solicitors:
J Wall, Meredith Connell, Auckland: justin.wall@meredithconnell.co.nz
G Newell, Barrister, Auckland: g.newell@xtra.co.nz

R V MCGANNAN HC AK CRI-2011-092-19380 [30 April 2013]

Introduction

[1] Daniel Oliver McGannan, you appear for sentence having pleaded guilty to one count of supplying the Class A controlled drug cocaine.1

Factual background

[2] Your offending was detected as a result of a Police investigation into the importation of cocaine and its subsequent distribution in New Zealand. Living in the United Kingdom at the time, your role in the enterprise was to arrange the onwards delivery of the cocaine to a number of your associates within New Zealand following the importation. You did this by being in contact with your friends via phone calls and text messages from the United Kingdom.

[3] On 13 December 2011, a Mexican national, David Nevarez, was caught at Auckland International Airport attempting to smuggle 2.985 kg of cocaine into New Zealand in a suitcase. The cocaine was 80 per cent pure and had an estimated street value of between (NZD) $750,000 to $1.2 million. You were contacted by the person who had arranged the importation; he was someone who had supplied you with cocaine for your personal use. With the promise of a quick financial gain, you agreed to see if you could arrange the distribution of the drugs within New Zealand.

[4] You persuaded friends in New Zealand who, like you, had no previous involvement in drug-dealing, to handle the shipment. You made the arrangements with your contacts which resulted in the cocaine being shipped from Auckland through Wellington to Christchurch where it was finally seized.

[5] Following the Police investigation into your offending, you were arrested and spent four months in custody before being extradited to New Zealand from the United Kingdom on 26 October 2012 to face trial. You intimated a guilty plea at the
post-committal hearing and pleaded guilty at the second call-over in this Court, after

1 Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a).

the Crown agreed not to pursue the allegation that you were involved in the importation of the drugs.

Personal circumstances

[6] You are 28 years old and are a dual citizen of New Zealand and the United Kingdom. You came to New Zealand aged 11 and remained here until you were 18. It seems you have returned here from time to time. For three years prior to your extradition you ran your own business as a wine merchant; financial difficulties associated with your business appear to have been the motivation for your naive acceptance of the invitation to commit this offence. However, you have a supportive family and friends who also think highly of you. They have spoken of your good character and it appears to me that you…

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 McGannan

Details

AGLC: R v McGannan [2013] NZHC 915
Case: [2013] NZHC 915
Decision Date: 30 April 2013

CaseChat Overview and Summary

Daniel Oliver McGannan was sentenced for supplying Class A controlled drug cocaine, specifically 2.985 kg of cocaine with an estimated street value of between NZD $750,000 to $1.2 million. The offending was detected during a police investigation into the importation and subsequent distribution of cocaine in New Zealand. McGannan, living in the United Kingdom at the time, arranged for the distribution of the cocaine in New Zealand through his associates. He communicated with his contacts via phone calls and text messages.

The court was required to determine the appropriate sentence for McGannan, taking into account the purposes and principles of sentencing as set out in the Sentencing Act 2002. The court considered holding McGannan accountable for the harm done to the community by his involvement in the supply of Class A drugs, promoting a sense of responsibility and acknowledgement of the harm, denouncing his conduct, and deterring him and others from such offending. The court also considered the principles of sentencing, particularly those under section 8(e) regarding co-offenders and section 8(g) which requires the court to impose the least restrictive outcome that is appropriate in the circumstances.

The court set the starting point for McGannan's sentence at 10 years' imprisonment, taking into account the seriousness of the offending and the factors that increased his culpability. These factors included the large amount of cocaine, the calculated nature of the offending, McGannan's key role in the distribution, and the personal financial gain motivation. The court then adjusted the starting point to account for any aggravating or mitigating factors relevant to McGannan personally. There were no aggravating factors, but the court found mitigating factors such as McGannan's genuine remorse and previous good character. The court also took into account McGannan's efforts towards rehabilitation and the educational opportunities he hoped to take advantage of during his sentence.

After applying a discount for McGannan's guilty plea, the court sentenced him to six and a half years' imprisonment for supplying the Class A controlled drug cocaine.

The final orders of the court are not explicitly stated in the text, but it can be inferred that McGannan will serve his sentence in New Zealand and that the period during which he was in custody in the UK pending extradition will be added to the time he has spent in prison here. The court may also have taken into account the impact of the sentence on McGannan's family and the hope of parole when determining the appropriate sentence.

Orders