R v McKenzie - [2013] NZHC 3351

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-009-008952 [2013] NZHC 3351

REGINA

v

JOHN DOUGLAS McKENZIE

Hearing: 13 December 2013

Counsel: B Hawes for Crown
JHM Eaton QC for Prisoner

Judgment: 13 December 2013

SENTENCING REMARKS OF WHATA J

[1] Mr McKenzie you were charged and found guilty of one count of conspiracy to manufacture methamphetamine. This attracts a maximum sentence of 14 years imprisonment.

[2] A key factor in your sentencing is the extent of the role played by you in the conspiracy as any sentence I impose must be based on proven offending, that is proven beyond reasonable doubt.

Background

[3] It is important first to set your activities within the wider context of the conspiracy to manufacture which I am satisfied was established by the Crown beyond reasonable doubt. I will address later the extent of your knowledge and
active involvement in the conspiracy.

R v McKENZIE [2013] NZHC 3351 [13 December 2013]

[4] Mr Newton was the central figure. He sourced pseudoephedrine based products and equipment, for example, from a Mr Situ. Pseudoephedrine was extracted from these products by a Mr Linton, Mr Black and a Mr Box. Mr Newton and Mr Box took the precursor substances to the cooks, including Mr Miles and Mr Lee. Mr Smith and Mr Harris were also cooks. Methamphetamine was then manufactured by them at various locations including clandestine laboratories located at Cashel St, Main South Road, Maunsell Street and 7 Gregory Avenue.

[5] Various types of substances containing pseudoephedrine were located at the addresses; the largest amount, 638 grams of ContactNT capsules and some 4,500 pseudoephedrine tablets was found at the Gregory Avenue address occupied by Mr Lee. This level of product could produce between 136.35-314.61 grams of methamphetamine. Large amounts of cash were also found totalling $134,855.

[6] The evidence of your connection to the conspiracy was relatively sparse, comprising an agreement to lend Mr Newton the sum of $180,000 at an interest rate of 80% over four months. The police also seized $37,970 in cash, which was said to be the remainder of a $50,000 part payment to you from Mr Newton. Relevantly the money found was wrapped in a similar manner to cash found at other addresses associated with the methamphetamine enterprise.

[7] A note was also found at your address, written by Mr Newton, recording a payment of “50k” to you, to a loss of “436k,” to “900 gram” in the boot, and “1.2 kg payd for”. The note also included reference to “Lance Lee” and to “60 x 20 Rits for you if you want”. Relevantly, at the time Lance Lee’s premises had recently been raided with a large quantum of precursors seized, and a quantity of rits or ritalin was also subsequently found at your address.

[8] A copy of this note will be attached to my sentencing given its central role in establishing your culpability.

[9] As I found in my pretrial ruling, I consider that this combination 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 McKenzie

Details

AGLC: R v McKenzie [2013] NZHC 3351
Case: [2013] NZHC 3351
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Whata J sentenced John Douglas McKenzie on one count of conspiracy to manufacture methamphetamine. The court found that McKenzie had lent $180,000 to Mr Newton at an interest rate of 80% over four months, which was to be used to fund the methamphetamine enterprise. McKenzie was found to be aware of Mr Newton's enterprise and that his loan would assist in it. However, the court was not satisfied that McKenzie had a detailed understanding of the scale of the methamphetamine manufacture.

The court assessed McKenzie's culpability as opportunistic, motivated by greed but without a clear appreciation of the full scale of Mr Newton's methamphetamine business. The court rejected the Crown's suggested starting point of ten years, and instead, proposed a starting point of five years and six months, reduced by 18 months to reflect McKenzie's different and more focused culpability. McKenzie's age and emotional condition warranted a further 10% discount, resulting in a sentence of three years ten months imprisonment. The court also granted the application for forfeiture.

McKenzie was sentenced to three years ten months imprisonment, with no minimum period of imprisonment. The court granted the application for forfeiture. McKenzie's counsel submitted that he should receive a substantial discount for his prior good record, which the court accepted. The court also accepted that a lengthy prison sentence may have a disproportionate impact on McKenzie, in light of his age and emotional condition. The court considered all relevant factors, including the purposes and principles of the Sentencing Act 2002, before arriving at the final sentence.

Orders