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R v McKinley

R v McKinley

Case [2018] NZHC 601 29 March 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2012-004-14896

[2018] NZHC 601

THE QUEEN

v

SIMON DAVID McKINLEY CAMERON BLAIR BROXTON JEANETTE CATHERINE MORRIS PATRICK GERALD HILL

Hearing: 28 and 29 March 2018

Appearances:

B Northwood for Crown

J D Munro and J N Olsen for Mr McKinley A J Maxwell-Scott for Mr Broxton

A J Holland for Ms Morris T Maxwell for Mr Hill

Sentencing:

29 March 2018

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors:
Crown Solicitor, Auckland
Counsel:
J D Munro, Auckland
A J Maxwell-Scott, Auckland A J Holland, Auckland
T Maxwell, Auckland

R v McKINLEY & ORS [2018] NZHC 601 [29 March 2018]

Introduction

[1] .Simon McKinley, Cameron Broxton, Jeanette Morris and Gerald Hill, you appear for sentence today on the following charges:

(a)Ms Morris, Mr McKinley and Mr Hill each face one charge of selling a Class C controlled drug analogue (4-MEC);1

(b)Mr Broxton faces charges of

(i)selling a class B controlled drug (N-ethylamphetamine);2 and

(ii)selling a Class C controlled drug analogue (N-ethylcathinone);3

(c)Mr Broxton, Ms Morris, Mr McKinley and Mr Hill each face one charge of selling a Class C controlled drug.4

[2] The maximum penalties for each of the offences with which you have been charged is imprisonment for eight years.

[3] Ms Morris, Mr McKinley, and Mr Broxton, you pleaded guilty following sentence indications on 20 February 2018 at which I heard submissions from your counsel regarding the sentences to be imposed on each of you.5 In giving those indications I set out the background and the offending relied upon by the Crown. I will not repeat the process by which I arrived at the indicated sentences, which is found in my sentence indication remarks, which are annexed to and form part of these sentencing notes. I will however, refer to those remarks when explaining the sentences I am imposing today.

[4] Mr Hill, you were not subject to that sentence indication, but you entered a guilty plea on 7 March 2018. I will set out the facts for which you are to be sentenced,

1      Misuse of Drugs Act 1975, ss 6(1)(e) and 6(2)(c): maximum penalty of eight years’ imprisonment.
2      Sections 6(1)(c) and 6(2)(b): maximum penalty of 14 years’ imprisonment.
3      Sections 6(1)(e) and 6(2)(c): maximum penalty of eight years’ imprisonment.
4      Sections 6(1)(e) and 6(2)(c): maximum penalty of eight years’ imprisonment.
5      R v Morris [2018] NZHC 200.

and arrive at a starting point for you, taking the same approach and with similar purposes and principles in mind as set out in my sentence indication.6

[5] However, in setting all of today’s sentences, I have also had regard to the sentences imposed yesterday by Woodhouse J on three Operation Ark defendants whose circumstances had a number of elements common to all of you. As I said yesterday when adjourning the sentencing until today, it is highly desirable and in the interests of justice that there is…

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 McKinley

Details

AGLC: R v McKinley [2018] NZHC 601
Case: [2018] NZHC 601
Decision Date: 29 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, four defendants, Simon McKinley, Cameron Broxton, Jeanette Morris, and Gerald Hill, were sentenced for various drug-related offences. The court had to decide on the appropriate starting points for their sentences, taking into account the level of culpability and the Supreme Court's decision in Cameron v R. The court also had to consider the impact of the delay in bringing the defendants to trial and the discounts for their guilty pleas. Finally, the court assessed the personal circumstances of each defendant, including their remorse, rehabilitation efforts, and likelihood of re-offending.

The court decided that the starting points for the defendants' sentences should be reduced to reflect the lesser standard of culpability of recklessness, as per the Cameron v R decision. The court also granted discounts for the undue delay in bringing the defendants to trial and for their guilty pleas. In assessing the personal circumstances of each defendant, the court considered factors such as remorse, rehabilitation efforts, and likelihood of re-offending.

The court sentenced Simon McKinley to 10 months' home detention, Cameron Broxton to 8 months' home detention, Jeanette Morris to 6 months' community detention, and Gerald Hill to 6 months' home detention and 150 hours of community work. These sentences were subject to the conditions set out in the relevant pre-sentence reports, with some modifications.

Orders