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R v McLean

R v McLean

Case [2009] NZCA 465 8 October 2009

Criminal Liability

Mens Rea & Intention

Unlawful Possession of Firearms

Aggravating Factors

Sentencing

Criminal Law

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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…

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 McLean

Details

AGLC: R v McLean [2009] NZCA 465
Case: [2009] NZCA 465
Decision Date: 8 October 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Grant Andrew McLean, contested the sentence imposed by Judge Wade in the Manukau District Court. McLean was sentenced to four years imprisonment for multiple charges including importing cannabis seeds, possessing equipment and chemicals for manufacturing methamphetamine, cultivating cannabis, and unlawfully possessing a firearm. The appeal challenged the sentence's structure and length, asserting it was manifestly excessive. The court examined the appeal's legal issues, including whether the Judge erred in treating the Arms Act charge as cumulative rather than connected to the other charges, and if the discount for a guilty plea was appropriate. The court concluded that while there were some errors in the sentencing process, the overall sentence was not manifestly excessive. The combination of firearms and drug offences, particularly the possession of a loaded pistol, was a significant aggravating factor. The court emphasised the importance of sentencing that reflects society's condemnation of such dangerous activities. Ultimately, the appeal was dismissed, and the original sentence was upheld.

Orders