R v McMillan - [2021] NZHC 1993

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 1993

THE QUEEN

v

KENNY LESLIE McMILLAN

Hearing: 15 July 2021

Appearances:

G J Burston for the Crown M Pecotic for Mr McMillan

Judgment:

4 August 2021

JUDGMENT OF GWYN J

(Disputed Facts)

Introduction

[1] Mr McMillan has been convicted of 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] Following his convictions, Mr McMillan indicated that he disputes the summary of facts in relation to the eight methamphetamine charges, specifically in relation to the quantity of methamphetamine involved. In a minute dated 6 May 2021

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 1993 [4 August 2021]

I confirmed that is a fact to which the Court will attach significant weight at sentencing,4 and a disputed facts hearing was therefore scheduled.

Background

[3] 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. Mr McMillan was the main individual targeted in the Wellington-based offending. Mr James was the principal Auckland-based individual targeted by Operation Maddale and was Mr McMillan’s primary supplier.

[4] The eight methamphetamine charges can be broken down into three categories: the Auckland transportation phase, the carpark building phase, and the termination phase.

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

(a)charge 7, between 1 December 2018–9 March 2019, supply; and

(b)charge 6, between 10–15 March 2019, possession for supply.

[6] Five of the charges arise from the carpark building phase – offending that occurred between March and May 2019, when Mr McMillan exchanged methamphetamine for cash, primarily with his co-defendant Mr Taui, in carpark buildings in Wellington (some of this was sourced from Mr James, and some was sourced from Mr O):

(a)charge 5 (representative), between 10 March–2 May 2019, supply;

4 Sentencing Act 2002, s 24(2)(a).

(b)charge 1, on 8 April 2019, possession for supply;

(c)charge 2, on 12 April 2019, supply;

(d)charge 3, on 14 April, supply; and

(e)charge 4, on 26 April, possession for supply.

[7] The remaining charge arises from the termination phase – when executing search warrants on 2 May 2019, Police found Mr McMillan in possession of methamphetamine:

(a)charge 8, on 2 May 2019, possession for supply.

[8] Mr McMillan pleaded guilty to charges 1, 2, 3, 4, 5, 8, and 9 on…

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 1993
Case: [2021] NZHC 1993
Decision Date: 4 August 2021

CaseChat Overview and Summary

Kenny Leslie McMillan has been convicted of nine drug-related charges, four for possession of methamphetamine for supply, four for supplying methamphetamine, and one for failing to comply with a computer system search. McMillan disputes the quantity of methamphetamine involved in eight of the charges. The court held a disputed facts hearing to determine the quantity of methamphetamine McMillan was involved with. The court found that McMillan was involved with 10.37 kilograms of methamphetamine across all eight disputed charges. The court found that McMillan was responsible for seven shipments of methamphetamine from his supplier, Mr James, between December 2018 and March 2019, with each shipment containing at least one kilogram of methamphetamine. The court found McMillan was also involved with the supply of 800 grams of methamphetamine from his associate, Mr O, between March and May 2019. McMillan will be sentenced on 13 August 2021. The Crown will be entitled to rely on the aggravating facts found as proved beyond reasonable doubt in this judgment at sentencing.

Orders