Solicitor-General v McArthur - [2016] NZHC 1403

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 Respondent

Judgment:

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…

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 Solicitor-General v McArthur

Details

AGLC: Solicitor-General v McArthur [2016] NZHC 1403
Case: [2016] NZHC 1403
Decision Date: 24 June 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Solicitor-General v McArthur involved an appeal against the sentence imposed on Scott Ian McArthur by Judge E M Thomas in the Auckland District Court. The Crown sought to appeal the sentence of 12 months’ home detention and 100 hours of community work imposed on McArthur, arguing that it was manifestly inadequate and wrong in principle. The legal issues before the court were whether the judge erred in principle by taking into account the time McArthur spent in custody on remand in reducing the sentence, and whether the sentence imposed was appropriate.

The court found that the judge did indeed err in principle by considering the time spent on remand in reducing the sentence from three years and six months’ imprisonment to two years’ imprisonment. Under the Sentencing Act 2002, time spent in custody while on remand cannot be taken into account in determining the length of sentence to be imposed. The court held that had the judge not made this error, it is apparent that the judge would have sentenced McArthur to three years and six months’ imprisonment, which could be considered within an appropriate sentencing range. The court also found that the judge’s starting point of four and a half years’ imprisonment for the methamphetamine charges, and the discounts applied for McArthur’s rehabilitative efforts and guilty pleas, were within the range of the judge’s sentencing discretion.

The court allowed the appeal and set aside the sentence imposed in the District Court, replacing it with a sentence of three years’ imprisonment, with an adjustment of six months to recognise the time served on home detention.

Orders