Solicitor-General v McArthur
[2016] NZHC 1403
•24 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000116 [2016] NZHC 1403
BETWEEN SOLICITOR-GENERAL
Appellant
AND
SCOTT IAN MCARTHUR Respondent
Hearing: 21 June 2016 Appearances:
J E L Carruthers for Appellant
P J Kaye for RespondentJudgment:
24 June 2016
JUDGMENT OF GILBERT J
This judgment is delivered by me on 24 June 2016 at 4.00 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitor/Counsel:
Crown Law, Wellington
P J Kaye, Barrister, Auckland
SOLICITOR-GENERAL v MCARTHUR [2016] NZHC 1403 [24 June 2016]
Introduction
[1] On the morning of trial, Mr McArthur pleaded guilty to 11 charges: manufacturing methamphetamine; possessing methamphetamine for the purposes of supply; possession of materials for the manufacture of methamphetamine; possession of equipment for the manufacture of methamphetamine; unlawful possession of firearms (x 2); unlawful possession of explosives (x 2); receiving a stolen motor vehicle; possession of cannabis; and resisting police. He was convicted and sentenced by Judge E M Thomas in the Auckland District Court on 24 March 2016
to 12 months’ home detention and 100 hours of community work.1
[2] The Crown appeals on the grounds that this sentence is manifestly inadequate and wrong in principle.
Sentencing judgment
[3] The Judge adopted a starting point of four and a half years’ imprisonment on the lead offending, being the methamphetamine charges. This starting point took into account that a fully equipped methamphetamine laboratory and associated precursor materials were found in the laundry, 3.81 grams of methamphetamine was found in the bedroom, and a large number of unused plastic snap lock bags, scales and $2,470.80 in cash were also found in the house. The starting point also took into account the serious aggravating feature that Mr McArthur’s partner’s 10 year old son was in the house and was exposed to the methamphetamine manufacture. The presence of methamphetamine was found in his hair and in his clothing.
[4] The Judge applied an uplift of six months’ imprisonment to take account of the fact that a loaded Ruger pistol with an extended stock was found under Mr McArthur’s bed and a loaded pump action shotgun was found in the wardrobe together with a bag containing 17 shotgun cartridges.
[5] The Judge imposed no uplift to reflect the other offending.
1 R v Driessen, McArthur and Osborne [2016] NZDC 5152.
[6] From this overall starting point of five years’ imprisonment, the Judge allowed a discount of approximately 20 per cent to reflect Mr McArthur’s rehabilitative efforts, including completion of a CADS programme and to take account of time spent on electronically monitored bail. The Judge was clearly impressed with the progress Mr McArthur had made:
[17] … It is rare that we see anybody who has been able to turn their lives around to the extent that you have … you have … plainly worked very hard to do so. That is worthy of a significant discount.
[7] The Judge then applied a further discount of 15 per cent for Mr McArthur’s guilty pleas, even though these were entered on the morning of trial. I note that a discount at this level was supported by the Crown at sentencing.
[8] These discounts resulted in an indicated end sentence of three years and six months’ imprisonment. This is not a short-term sentence of imprisonment able to be commuted to a sentence of home detention pursuant to s 15A of the Sentencing Act
2002. The Judge nevertheless commuted the sentence to one of home detention and community work by taking into account the time Mr McArthur had spent in custody on remand:
[21] Mr McArthur, applying all of the discounts that I possibly can we would arrive at an end sentence of three and a half years’ imprisonment. Had it been open to me to do so I would have reserved leave for you to serve the remainder of your sentence through home detention once you got to the two year mark. It does not appear that I have that ability.
[22] I recognise, however, that you have spent a significant amount of time on custodial remand. The equivalent of 14 months. If I had been able to make the order that I was wanting to make you would have effectively only have spent another two months’ in custody before I would have allowed you to serve your sentence through home detention. On that basis I am going to let you off those two months. I sentence you on all charges to
12 months home detention and 100 hours community work.
Did the Judge err in principle?
[9] It is common ground that the Judge erred in principle by taking into account the time Mr McArthur spent in custody on remand to reduce the sentence that would otherwise have been imposed of three years and six months’ imprisonment to two years’ imprisonment.
[10] A two step process is required in determining whether a sentence of home detention may be imposed. The first step requires the Court to consider whether the sentence that would otherwise be imposed is a short-term sentence of imprisonment, two years or less. It is only where the sentence is two years’ imprisonment or less under the first step that the Court can proceed to the second step which requires the exercise of discretion as to whether it is appropriate in all of the circumstances to commute the sentence of imprisonment to one of home detention.
[11] As the Court of Appeal stated in R v Vhavha, the first step must be undertaken on the assumption that there will not be a second step.2 Time spent in custody while on remand cannot be taken into account as part of the first step because of s 82 of the Act:
82Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in s 91 of the Parole Act 2002.
[12] The Judge arrived at an indicated sentence of three years and six months’ imprisonment “applying all of the discounts that [he] possibly [could]”. This was the outcome of the first step and was not a short-term sentence of imprisonment. Home detention was therefore not an option available to the Judge. It is perhaps worth noting that Judge Thomas is not the first to fall into this trap in striving to find a way to impose a community-based sentence in a particular case rather than
imprisonment.3
What was the appropriate sentence?
[13] The error of principle was material to the Judge’s decision to impose a community-based sentence. Had he not made the error, it is apparent that the Judge would have sentenced Mr McArthur to three years and six months’ imprisonment. While Mr Carruthers submits that a sentence of three years and six months’ imprisonment could be considered generous, he accepts that it was within an
appropriate sentencing range. The Crown therefore seeks an order setting aside the original sentence and replacing it with a sentence of three years and six months’ imprisonment.
[14] Mr Kaye acknowledges that the Judge fell into error in taking the last step in the sentencing exercise where he reduced the indicated sentence of three years and six months to two years’ imprisonment by allowing a credit of 14 months to reflect the seven months Mr McArthur spent in custody on remand and by disregarding the other two months (“I am going to let you off those two months”). Nevertheless, Mr Kaye submits that this Court should confirm the sentence of two years’ home detention and 100 hours of community work on the basis that this was the appropriate sentencing response in Mr McArthur’s case. This submission effectively requires Mr Kaye to persuade the Court that Judge Thomas’ indicated sentence of three years and six months’ imprisonment was manifestly excessive.
[15] In his written submissions, Mr Kaye submitted that Mr McArthur’s offending fell within band one of R v Fatu because the Judge accepted that this case involved “a single cook” to raise funds for Mr McArthur’s wedding.4 Mr Kaye submitted that the starting point should have been in the range of two and half to three years’ imprisonment. However, at the hearing, Mr Kaye acknowledged that this submission is in error. There is no band one for manufacturing methamphetamine.
[16] The Judge was correct to find that the offending fell within band two for which sentences of four to 11 years’ imprisonment are indicated. The Judge could not have adopted a starting point any lower than four years’ imprisonment. He was quite right to increase this by six months to take into account the fact that Mr McArthur’s partner’s son was present and exposed to the methamphetamine manufacture. The presence of loaded firearms was a very serious aggravating
feature and required a discrete uplift.5 The uplift of six months was the least that
could have been imposed in the circumstances. In my view, the Judge made no error
in arriving at an overall starting point of five years’ imprisonment. It could easily
have been higher and the Judge did not apply any uplift for the other offending as he could have done.
[17] The Judge allowed a discount of approximately 20 per cent to take account of the time Mr McArthur spent on EM bail and to recognise his commendable rehabilitative efforts. He did not specify the allocation, nor was he required to do so.
[18] Mr Kaye submits that the overall discount was inadequate because he claimed that Mr McArthur spent two years on EM bail and was entitled to a substantial discount for the progress he had made with his rehabilitation. He submitted that the discount to reflect time spent on EM bail alone should have been
12 to 15 months.
[19] The Judge did not specify the amount of time Mr McArthur had spent on
EM bail. However, I was advised at the hearing that it was approximately
17 months, not two years as suggested by Mr Kaye in his written submissions. The allowance for time spent on restrictive bail terms is a matter for the Judge to determine in the exercise of the sentencing discretion in all the circumstances of the case.6 I accept that 17 months spent on EM bail is an unusually lengthy period and could have justified a greater discount than the Judge appears to have allowed. However, this is off-set by the comparatively generous approach the Judge took to
the other aspects of the sentencing process.
[20] Taking into account the nature of offending, the overall discount for personal mitigating factors of 20 per cent allowed by the Judge was within the range of his sentencing discretion. The 15 per cent for the guilty pleas could not have been higher given that these were not entered until the morning of trial.
[21] I agree with the Judge’s assessment that a sentence of imprisonment no less than three years and six months could be justified. This was the least restrictive outcome appropriate in all of the circumstances. For the reasons given, the appeal
must be allowed.
6 Rangi v R [2014] NZCA 524 at [10].
[22] Mr McArthur has served three months on home detention. Mr Kaye says that Mr McArthur has also carried out some community work but the Court has been given no information about this, including the number of hours worked. Counsel were agreed that an adjustment of up to six months would be appropriate to recognise the time served. In all of the circumstances, I consider that an adjustment of six months would be appropriate.
Result
[23] The appeal is allowed. The sentence imposed in the District Court is set aside and replaced with a sentence of three years’ imprisonment.
M A Gilbert J