The Queen v Daniel Joseph McElhinney
[2000] NZCA 262
•4 April 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA33/00 |
THE QUEEN
V
DANIEL JOSEPH MCELHINNEY
| Hearing: | 28 March 2000 |
| Coram: | Tipping J Doogue J Cartwright J |
| Appearances: | D C Ruth for Appellant J C Pike for Crown |
| Judgment: | 4 April 2000 |
| JUDGMENT OF THE COURT DELIVERED BY CARTWRIGHT J |
This appeal concerns a disparity in sentence between two co-offenders.
The Sentence imposed on the Appellant
The appellant Daniel Joseph McElhinney was sentenced on the 2nd of December 1999 in the High Court at Christchurch to a total of 6½ years imprisonment. The appellant pleaded guilty to 8 charges. One was of importing a Class A controlled drug, two were of possession of a Class A controlled drug for supply and one was of supply of a Class A controlled drug. In all instances the drug was LSD. In addition the appellant pleaded guilty to one charge of production and two of supply of a Class B controlled drug, cannabis resin, and one charge of cultivation of cannabis.
The sentence of imprisonment was imposed for the offence of importation of LSD. In relation to the other Class A drug offences, the appellant was convicted and discharged. He was sentenced on the Class B offence of manufacturing to 2 years imprisonment and for cultivation of cannabis to 6 months imprisonment. Both sentences were to be served concurrently with the 6½-year sentence. On the remaining Class B charges he was convicted and discharged.
The Class B offending involved the production of 10 grams of cannabis resin and its supply to his flatmates. The cultivation charge related to 38 cannabis seedlings found growing at the premises. The appellant admitted owning 16 of these seedlings.
The importation charge was the most serious. The appellant had lived in Amsterdam and had from time to time discussed with his co-offender MacKay with whom he shared a flat, his ability to import LSD into New Zealand. It was intended that MacKay, who was a current drug user, would then distribute it to his connections. The appellant arranged for LSD to be sent to New Zealand from Amsterdam. It was he who had the contact with a supplier in the Netherlands, and he who arranged for a total of $4,000 in two lots of $2,000 to be remitted. MacKay provided an address to which the LSD would be posted. The mail was to be directed to a fictitious name “Nigel Hunter”. The 2,000 tabs sent to that name and address in New Zealand were intercepted by the New Zealand Customs Service. MacKay, who had the task of checking the mailbox for delivery, ultimately uplifted them and was arrested in possession of the drug. The retail value in Amsterdam for each tab was $3.50. According to the appellant, MacKay was to purchase the drugs from him for $15.00 a tab and resell them. There was however, no evidence that MacKay was in a position to obtain sufficient funds for this purpose. The New Zealand price was estimated at $40 - $50 a tab.
Following MacKay’s arrest a search warrant was executed on the premises occupied by the appellant and MacKay. The appellant admitted ownership of a further 425 LSD tabs and that he had already sold some to MacKay. $5,645 was located in cash. The LSD trips were of the same type as the 2,000 found in MacKay’s possession.
MacKay’s Involvement
MacKay was sentenced by the same Judge and at the same time as the appellant. The Judge noted that sentencing of the two men presented certain problems given the conflict between the two Police summaries. He approached sentence by reading the statements to the Police given by the appellant and by MacKay. He considered the Police summaries independently for each individual deliberately making no attempt to cross-reference them. In the summary of facts relating to the appellant, MacKay’s involvement was characterised as that of a co-offender with the same degree of culpability, albeit with a different role.
The sentencing Judge, however, saw their involvement in a different light. He described the appellant as taking a leading role in a premeditated and planned operation. Moreover, it was not an isolated offence. The appellant had pleaded guilty also to charges relating to the manufacture of a Class B drug cannabis resin. He emphasised the size of the importation as an aggravating factor. By contrast he described MacKay as having very much a subsidiary role. He noted that the probation officer while acknowledging that MacKay had not made an impulsive decision to co-operate with the appellant had nonetheless been under some sustained pressure from him to commit these offences. Clearly he sentenced MacKay on the basis that he was a secondary party to a charge of importation of a Class A drug and to possession for supply of that drug. MacKay also pleaded guilty to possession of a Class B controlled drug cannabis resin, and of a Class C controlled drug cannabis, and was sentenced to 2 years imprisonment for the importation charge. He was convicted and discharged on the possession for supply of a Class A drug. He received a concurrent sentence of 6 months imprisonment on each possession charge and was granted leave to apply to the District Prisons Board for home detention.
The Distinctions in Sentencing
Both the appellant and his co-accused were first offenders and both pleaded guilty at an early opportunity. Both had a history of drug dependency. Immediately upon arrest MacKay gave considerable assistance to the Police in relation to this matter. It is the appellant’s submission that the disparity in sentencing is too stark for the relative culpability and even more marked when MacKay might be granted the opportunity to serve his sentence by way of home detention.
Counsel for the appellant does not suggest that the sentence imposed was manifestly excessive. Indeed he acknowledges that the sentence for each offender was within the range available to the Judge. It is accepted that the starting point of 8 years for the appellant and 3½ for MacKay was appropriate. Viewed in isolation from the sentence imposed on MacKay, counsel accepts that the appellant’s sentence is unexceptionable.
The Disparity
The appellant acknowledges that it is for him to show that there is a disparity which is unjustifiable and gross: R v Rameka [1973] 2 NZLR 592. Moreover where, as in the present instance, the sentence is not excessive in itself, the Court will interfere only if, on an objective assessment, it considers it to be in the interests of justice to remove a sense of grievance arising from a grave discrepancy in the sentences imposed on co-offenders.
The appellant’s sentence of imprisonment was more than 3 times that of his co-offender MacKay. Of itself a sentence will not be regarded as unjustifiably disparate only because that of a co-accused falls into the category where, pursuant to s 21D of the Criminal Justice Act, the Court must consider granting leave to apply for release to home detention. There is force however in the submission that, in the present instance, for the latter issue to become relevant at all, there must have been a gross disparity on account of the leniency extended to MacKay.
We are of the view that the sentence imposed on the appellant was appropriate when viewed in isolation from MacKay’s. However, the disparity between an effective sentence of 6½ years and 2 years imprisonment is too great to justify a clear difference between the two men even having regard to the appellant’s additional convictions. Nor was the mitigating feature of MacKay’s co-operation with the Police, while significant, of such moment as to permit such a discrepancy between the two men.
In order to avoid any sense of unfairness in the treatment of the two co-accused, we have with some reluctance concluded that the appellant’s sentence of imprisonment for the conviction for importation of LSD should be reduced from 6 ½ years to 5 years. We make no amendment to the sentence imposed in relation to any other charge.
The appeal is allowed. The appellant’s sentence for the importation of LSD offence will be reduced from 6½ years to 5 years imprisonment.
Solicitors
Layburn Hodgins, Christchurch for Appellant
Crown Law Office, Wellington
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