R v McLean

[2009] NZCA 465

IN THE COURT OF APPEAL OF NEW ZEALAND

CA471/2009
[2009] NZCA 465

THE QUEEN

v

GRANT ANDREW MCLEAN

Hearing:1 October 2009

Court:Robertson, Chisholm and Priestley JJ

Counsel:R J Hooker for Appellant

M D Downs for Crown

Judgment:8 October 2009 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The appeal

[1]        The appellant was sentenced to terms of imprisonment totalling four years by Judge Wade in the Manukau District Court in July 2009: HC MANU CRI-2007-092-8344 30 July 2009. 

[2]        He had pleaded guilty to two counts of importing cannabis seeds; three counts laid under s 12A(2) of the Misuse of Drugs Act 1975 relating to equipment, precursor substances and chemicals with the capacity and intention of being used in the manufacture of methamphetamine; and a count of cultivating cannabis.  Additionally the appellant was convicted under the Arms Act 1983 of unlawful possession of a pistol.

[3]        This appeal attacks the structure and length of the imposed sentence, claiming that four years imprisonment is manifestly excessive.

Background

[4]        In October 2007 a parcel addressed to the appellant from the United Kingdom was intercepted by New Zealand Customs.  Inside were two envelopes.  Each envelope contained quantities of cannabis seed.  Printing on the envelopes suggested that the seeds were from Colombia and the Hindu Kush respectively.

[5]        As a result of that interception a search warrant was executed on the appellant’s home on 22 November 2007.  Fifty cannabis plants were discovered growing in a sectioned-off area in the garage.  Glassware, equipment, and chemicals were seized including ethanol, toluene, caustic soda, nitric acid, and hydrochloric acid.  Swabs of some of the equipment revealed traces of methamphetamine.  A number of drums containing toxic chemicals, waste products, and residue left from methamphetamine manufacture were found outside the garage.

[6]        Alarmingly, a 9 mm Luger pistol was found in a bucket in the garage.  The pistol was operational.  Its attached magazine contained seven live rounds of pistol ammunition.  A box of 9 mm cartridges was also found.  The appellant had no firearms licence.

[7]        When interviewed by the police the appellant denied any involvement in methamphetamine manufacture.  He accepted he imported his own seeds, regarding himself as a “connoisseur” of marijuana who liked to smoke different strains.  He said he was cultivating cannabis for his own use.  The pistol, he told the police, he had bought because he was interested in the mechanics of how the gun operated.

[8]        The appellant was not to plead guilty until May 2009, over 17 months after his arrest.  He had additionally been charged with manufacture of methamphetamine but that count was not pursued.

The appellant’s circumstances

[9]        When sentenced the appellant was 37.  Before being imprisoned he had full time employment as a prototype engineer.  His explanation to the probation officer was that he used cannabis to alleviate the symptoms of his vertigo.  He persisted with his explanation of possessing a Luger pistol and loaded magazine by saying he wanted to study its mechanics.  Because of the appellant’s criminal history, his continuous use of drugs, and his past failure to comply with community-based sentences (eight convictions in all for such failure), the pre-sentence report recommended imprisonment.  The appellant’s risk of re-offending was assessed as being moderate to high if he did not address his cannabis use.

[10]      The appellant’s criminal history is significant.  Excluding Youth Court appearances, between 1992 and 2006 he has sustained 27 convictions.  These include convictions for a number of cannabis-related offences in 1996.  In April 2005 he was sentenced to community work for cultivating cannabis and unlawful possession of ammunition.

The sentence

[11]      Judge Wade’s sentencing notes include three unorthodox aspects.  First, in respect of the offending under the Misuse of Drugs Act, the Judge chose as his lead sentence the s 12A(2) charges, which carry a maximum of five years imprisonment, rather than either the cannabis importation charge or the cultivation charge which carry maximum terms of eight and seven years respectively.  Secondly, the Judge chose to impose a cumulative sentence (18 months) for the Arms Act charge rather than regard that charge as being connected to the other offending and justifying a substantial uplift.  Thirdly, the Judge spent some time setting out the facts of the appellant’s 2004 offending which had come before him in the form of proposed propensity evidence which the Crown intend to lead at the appellant’s trial.  That approach led the Judge to conclude the appellant had been “…found yet again in unlawful possession of a firearm” whereas in fact the 2004 convictions included one for unlawful possession of ammunition rather than a firearm, although a shotgun had been discovered.

[12]      Nonetheless, the route whereby the Judge arrived at four years is clear.  He accepted that the cannabis importation and cultivation offending related to cannabis intended for the appellant’s own use.  He remarked, and correctly so, that the cultivation was substantial.  He considered that all the Misuse of Drugs Act offending justified an overall start point of two and a half years.  He commented that the guilty pleas were not entered until three days before the start of the projected trial, which justified a discount of 10 per cent.  Such discount, however, was in the Judge’s view offset by the appellant’s criminal history.

[13]      Thus the Judge imposed a two and a half year sentence on the three s 12A(2) counts; six month terms on the two importation and cultivation counts to be served concurrently; and a cumulative 18 month sentence on the conviction for unlawfully possessing a firearm.

Discussion

[14]      Mr Hooker submitted that an overall term of two years imprisonment would have been appropriate and thus the four year term was manifestly excessive.  His written submissions suggested that a sentence of home detention could be substituted.

[15]      Counsel’s written submissions also suggested that, since the Crown at sentencing had accepted the sentence under the Arms Act should be concurrent rather than cumulative, it was a breach of natural justice for the Judge to impose a cumulative sentence without inviting counsel’s comment.

[16]      Counsel referred us to a number of decisions of this Court involving sentences for offending under s 12A, which included R v Harding [2007] NZCA 551, R v Towgood [2007] NZCA 359, and R v Te Rure [2007] NZCA 305 (a Solicitor-General’s appeal). Mr Hooker submitted that the 10 per cent discount was too low. Pleading guilty to the s 12A counts had been a “difficult call” for the appellant. Counsel submitted the Judge was justified in using the s 12A counts as lead offences but should have deployed an 18 month start point with a nine month uplift for the cannabis and Arms Act offending.

[17]      Mr Downs submitted that if there had been a material error in the Judge’s fact finding (a reference to unlawful possession of a firearm in 2004 rather than ammunition and the proposed propensity evidence) then it was open to this Court to resentence the appellant.  He correctly pointed out the critical feature of an appeal against sentence was its totality rather than its precise make-up, a reference to R v Faifua CA287/05 27 March 2006 at [33].  Referring to R v Terewi [1999] 3 NZLR 62 (CA) and R v Anderson [2007] NZCA 146, he submitted that at least a six month term was justified for the cultivation charge and 18 months to two and a half years imprisonment for the s 12A offending.

[18]      Finally, Mr Downs reminded us that the combination of firearms and drugs had long been regarded by this Court as a serious aggravating factor.

Decision

[19]      This Court sees no purpose in resentencing the appellant.  It would have been preferable for the Judge to have reflected his justifiable concern over the presence of the pistol with its loaded magazine in the appellant’s garage by a substantial uplift rather than by imposing a cumulative sentence.  Given the policy and guidance of s 84 of the Sentencing Act 2002 we consider that the possession of the pistol was connected to the appellant’s drug offending rather than a discrete matter.  Although it is possible to argue s 84(1) came into play because an Arms Act offence is “different in kind” from drug offending, on the facts here the pistol was clearly connected to the appellant’s drug offending.

[20]      We do not consider there is any breach of natural justice in the Judge opting for a cumulative sentence rather than a concurrent sentence.  The real inquiry must be the appropriateness of the sentence having regard to the totality of the offending (s 85).

[21]      We test the four year term this way.  Accepting, as the Judge appears to have, that the cannabis importation and cultivation were limited to the appellant’s own purposes rather than having any commercial element, and accepting too that the s 12A counts do not indicate any methamphetamine manufacturing dimension which could be linked to the appellant, we nonetheless consider the appellant’s overall culpability on all the Misuse of Drugs Act counts was significant.  A three year start point would not have been untoward. 

[22]      In the light of the appellant’s prior history of cannabis cultivation and use, an uplift of six months would have been justified. 

[23]      A further significant uplift is justified for unlawful possession of a pistol.  The appellant’s explanation that his sole interest in the Luger pistol was to examine its mechanics is facile.  The pistol and its loaded magazine were found in a bucket in the garage where the appellant was cultivating cannabis, and storing methamphetamine related chemicals, and equipment.  With the loaded magazine attached, one movement would have been sufficient to put a round in the chamber.  The inescapable inference is the pistol was designed to provide a means of warding off any others who might have had an interest in the drug related activities in the appellant’s garage.  Regrettably, unlawful possession of firearms and ammunition is an alarming and frequent feature of drug offending.

[24]      As this Court said in R v Fonotia [2007] 3 NZLR 338 at [40], unlawful possession of loaded weapons is a seriously aggravating factor. This Court has also said in R v Richardson CA450/02 5 March 2003 at [33] that loaded firearms are “anathema within our community” with the courts having a clear obligation to impose sentences which express society’s condemnation of unlawful possession of loaded firearms because of their potential for danger.  Similar comments appear in R v Faifua.  The Luger with its loaded magazine was a seriously aggravating feature of the appellant’s offending which would justify a further uplift of 12 months.

[25]      From such a sentence of four years six months imprisonment a discount of just over 10 per cent would produce an end sentence of four years’ imprisonment.  Such a sentence might perhaps be stern, but it is unquestionably within a permissible range given the totality of the appellant’s offending.

[26]      For these reasons we conclude the end sentence reached by the Judge is not manifestly excessive. 

Result

[27]      The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington