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R v McMillan

R v McMillan

Case [2021] NZHC 2118 13 August 2021

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-085-001094

[2021] NZHC 2118

THE QUEEN

v

KENNY LESLIE McMILLAN

Hearing: 13 August 2021

Appearances:

G J Burston for the Crown M Pecotic for Mr McMillan

Sentencing:

13 August 2021

SENTENCING NOTES OF GWYN J

Introduction

[1] Kenny Leslie McMillan, you appear for sentence on nine charges in total: four charges of possession of methamphetamine for supply;1 four charges of supplying methamphetamine;2 and one charge of failing to carry out obligations in relation to a computer system search.3

[2] In sentencing you today, I apply the Sentencing Act, which sets out the purposes and principles of sentencing. The purpose of sentencing in your case is to hold you accountable for the harm you have done to the community through your offending; to promote a sense of responsibility for, and acknowledgment of, that harm;

1      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); maximum penalty life imprisonment.
2      Section 6(1)(c) and (2)(a); maximum penalty life imprisonment.
3      Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.

R v McMILLAN [2021] NZHC 2118 [13 August 2021]

to denounce and deter the criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.4

[3] I will first set out your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting point based on the offending. At that stage I will talk about a case called Zhang v R, which is what we call a “guideline” judgment for offences involving methamphetamine,5 and other cases which are similar. Second, I will apply uplifts and discounts to reflect your personal aggravating and mitigating circumstances. Finally, I will consider whether to impose a minimum period of imprisonment.

The offending

[4] All nine charges result from two police investigations into an operation that supplied methamphetamine in the Auckland and Wellington regions – Operation Superdry in relation to Wellington-based offending, and Operation Maddale in relation to Auckland-based offending. You were the main individual targeted in the Wellington-based offending. Mr James was the principal Auckland-based individual targeted by Operation Maddale and was your primary supplier.

[5] Following a disputed facts hearing, I found the eight methamphetamine charges involved a total of 10.37 kilograms of methamphetamine.6 These charges can be broken down into three categories: the Auckland transportation phase, the carpark building phase, and the termination phase.

Auckland transportation phase

[6] Two of the charges arise from the Auckland transportation phase – offending that occurred between December 2018 and March 2019, when you arranged for the transportation of bulk quantities of methamphetamine to Wellington from Mr James in Auckland.

4      Sentencing Act 2002, s 7.
5      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
6      R v McMillan [2021] NZHC 1993 at [67].

[7] In March 2019, your co-defendants, Mr Philip, Ms Hayman…

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 McMillan

Details

AGLC: R v McMillan [2021] NZHC 2118
Case: [2021] NZHC 2118
Decision Date: 13 August 2021

CaseChat Overview and Summary

In the case of R v McMillan, the defendant was sentenced by Gwyn J in the High Court of New Zealand, Wellington Registry. McMillan was convicted on nine charges related to the possession and supply of methamphetamine, as well as failing to comply with a computer system search. The legal issues before the court were determining an appropriate starting point for sentencing, applying uplifts and discounts, and deciding whether to impose a minimum period of imprisonment. The court considered McMillan's role in the operation, previous convictions, guilty plea, and personal mitigating factors in reaching a final sentence. Gwyn J determined an appropriate starting point of 17 years' imprisonment, imposed an uplift of one year for previous convictions, and did not apply discounts for the guilty plea or personal mitigating factors. The court ultimately sentenced McMillan to 18 years' imprisonment on the drug charges, two months' imprisonment for the computer system charge (to run concurrently), and a minimum period of imprisonment of seven years, two months. The court also ordered the destruction of drug-related items and controlled drugs seized during the investigation.

Orders