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…
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