The Queen v MacCulloch [2004] NZCA 221; [2005] 2 NZLR 665; (2004) 21 CRNZ 268 (13 September 2004)

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The Queen v MacCulloch [2004] NZCA 221 (13 September 2004); [2005] 2 NZLR 665; (2004) 21 CRNZ 268

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA150/04CA189/04CA317/04THE QUEEN

v

CATHERINE MAE MACCULLOCHVAUGHAN WALTER PARKINSONJARROD LANCE MCDONALD

Hearing: 30 August 2004

Coram: Anderson P John Hansen J Randerson J

Appearances: C R Horsley for MacCulloch
C G Tuck for Parkinson
A C Balme for McDonald
M R Heron and J L S Shaw for Crown

Judgment: 13 September 2004

JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J

[1] These three appeals are against sentences imposed by Judge Rollo in the Tauranga District Court. They arise from the operation of “tinnie” houses in Waihi and associated offending relating to drug debt enforcement and protection from competition. MacCulloch was also sentenced in relation to offences that were intended to dissuade witnesses from giving evidence against her. McDonald faced an unrelated charge of theft of a motor vehicle.
[2] The indictment contained no fewer than thirty one counts. In relation to some of the counts all three appellants pleaded guilty some time after depositions. It is not clear when, but it would appear to be on arraignment. In relation to the balance of the offences for which they were sentenced, they pleaded guilty immediately after the closing of the Crown case. They were discharged pursuant to s347 of the Crimes Act 1961 in relation to the other counts in the indictment.
[3] Ultimately, Ms MacCulloch pleaded guilty to, and was sentenced on, the following offences:

Description of Offence Sentence

Sale of cannabis (representative) 3½ years

Sale of cannabis to a person under 18 3½ years (concurrent)

Sale of cannabis (representative) 3½ years (concurrent)

Possession of cannabis for sale 3½ years (concurrent)

Threatening to kill 2 years (cumulative)

Demanding with menaces 2 years (concurrent)

Attempting to dissuade Prosecution

Witnesses (x2) 2 years (concurrent)

Robbery 1½ years (cumulative)

Receiving 2 months (concurrent)

Wilful damage (x3) 2 months (concurrent)

An effective sentence of seven years imprisonment.

[4] The appellant, Parkinson, pleaded guilty to and was sentenced as follows:

Description of Offence Sentence

Sale of cannabis (representative) 2½ years (cumulative)

Aggravated burglary 3½ years (cumulative)

Injuring with intent to injure 2 years (cumulative)

Assault with a weapon (x2) 2 years each (concurrent)

Assault (x2) 3 months each (concurrent)

An effective sentence of eight years imprisonment.

[5] The appellant, McDonald, pleaded guilty to and was sentenced as follows:

Description of Offence Sentence

Sale of cannabis (representative) 21 months (cumulative)

Possession of cannabis for sale (representative) 21 months (concurrent)

Theft 3 months (concurrent)

Assault 3 months (concurrent)

Injuring with intent to injure 21 months (cumulative)

Wilful damage (x 3) 3 months (concurrent)

Assault with a weapon 3 months (concurrent)

Robbery 15 months (cumulative)

Receiving 3 months (concurrent)

Conversion of a motor vehicle 12 months (cumulative)

An effective sentence of five years and nine months imprisonment.

Background - Facts

[6] The appellant, MacCulloch, was a central figure in setting up and operating cannabis “tinnie” houses in Waihi. She operated from various premises where she resided over an eighteen month to two year period. “Tinnies” were sold with a street value of between $20 and $25. While it appears that sales were generally to a group of persons known to the appellants, on at least one occasion a stranger, Nilsson, a young man under the age of eighteen, was approached and offered cannabis. During some of this time Parkinson was MacCulloch’s de facto partner. He was involved in selling cannabis, and claimed to have an interest in the operation. McDonald, only recently released from prison, stole money from MacCulloch and as a result was coerced into assisting in the business. Sales were often made on credit. The level of the operation escalated during the six months prior to the appellants’ apprehension. This led to the cannabis charges.
[7] The appellants used intimidatory behaviour, threats and actual violence to enforce outstanding drug debts and to warn off potential rivals. MacCulloch used both Parkinson and McDonald as her enforcers, and she herself used intimidation and violence. One of MacCulloch’s customers was Ruben Lowen, a part-time tattooist. MacCulloch engaged him to do a tattoo on her lower back and paid with $20 in cash and a cannabis “tinnie”. She was apparently dissatisfied with the result and went to the studio demanding $50 cash for the payment she had made. She stated that if the payment was not made Lowen’s car tyres would be slashed and the windows of his house broken. She threatened him with gang violence as well. On three occasions MacCulloch and McDonald, in concert, slashed car tyres in attempts to intimidate and enforce drug debts. This resulted in the demanding with menaces and three wilful damage counts. The latter three were joint charges with McDonald.
[8] Again, in concert with McDonald, she approached a person called Stanley, a former associate. She alleged he owed a large sum of money to a gang and that McDonald and she were there to collect. MacCulloch told Stanley they were there to take the car as part payment for the debt, and said if it was not given to her she would arrange for the gang to torch his grandmother’s and sister’s houses, and some cars and a caravan on the property. She also threatened that the gang would take action against his grandmother if the car was not given to her. The complainant, fearing for his safety, that of his family and their property, allowed the car to be taken. MacCulloch used this car for approximately seven days before it was fire bombed by unknown persons. This resulted in the robbery charge against MacCulloch and McDonald.
[9] In November 2002 Parkinson and McDonald went to a property in Waihi. They believed it was occupied by a rival drug dealer. The obvious intention was to frighten the rival out of business and deter competition with their own retail drug operation. They burst into the house with Parkinson yelling he was “Thirty/Forty from The Filthy Few” and this “was his town”. Throughout he was aggressive and he accused the persons in the room of selling cannabis. He pulled a blade, or something similar, from his pocket and held it near one of the complainant’s throat, threatening him and others with it. The aggravated burglary charge against Parkinson followed.
[10] One of the regular purchasers of cannabis was a Karl Jamieson. He allegedly owed money for drugs, or, alternatively, it was claimed he had stolen some cannabis from MacCulloch. He was described as young and slight, but on the 26th October 2002, when he arrived at the house occupied by MacCulloch, he was immediately struck by Parkinson and a struggle ensued. McDonald became involved, kicking Jamieson in the ribs and knocking him to the ground. The complainant then described some twenty five to thirty kicks being delivered to his person by both Parkinson and McDonald. This incident concluded when Parkinson struck the complainant on the back of the head with a solid object, causing a gash which bled significantly. This led to the charge of injuring with intent against both Parkinson and McDonald.
[11] Not satisfied with this, Parkinson and the other two appellants visited a house where the complainant Jamieson was sitting in an area behind the house. Parkinson approached the complainant, grabbed him and starting yelling at him. At the time he was armed with a triangular shaped file which he used to hit the complainant four or five times across the left hand side of his head. One of the lunges just missed his eye. Parkinson then shoved the end of the file into the complainant’s left ear, causing a popping sound and bleeding. This was the first charge of an assault with a weapon.
[12] On yet another occasion Parkinson, along with McDonald, went to the premises occupied by a person they thought was a rival drug dealer. The complainant opened a window to see who was there and the two appellants attempted to grab him and pull him from the window. Parkinson obtained a partial hold, produced a file, and executed an upward stabbing motion aimed at the chest or upper body of the complainant. This was accompanied by threats. This led to the second charge of assault with a weapon, on this occasion jointly with McDonald.
[13] Parkinson also faced a charge of assault on the complainant Jamieson’s girlfriend when he shoved her out of the way when he assaulted Jamieson with a file. This was relatively minor. He faced a further charge of assault when he punched a complainant called Ward on the chin in the course of attempting to retrieve a gang T-shirt.
[14] McDonald faced a charge of assault arising from an incident when one of the regular purchasers of cannabis was attacked by him over alleged debt. This complainant was a handicapped person, and was slapped and punched by McDonald. The physical disability of the complainant was self evident.
[15] Although insignificant for sentencing purposes, both MacCulloch and McDonald faced a receiving charge which arose from them being in possession of two leather jackets and a swastika flag shortly after they were stolen. Somewhat ironically, McDonald also faced a charge of stealing $200, presumably drug money, from MacCulloch.
[16] All of this intimidatory and violent offending was in furtherance of the drug retailing operation. It was used to enforce repayment of debts, and to scare off rivals.
[17] MacCulloch faced three further charges that arose after her arrest. The first was one of threatening to kill. While pre-trial matters were being conducted at the Waihi District Court she was being transported from Court in a Police vehicle. She saw Jamieson outside the Courthouse and yelled at him through the window of the vehicle that he was a “dead narc”, that it was his fault her kids were in CYPS custody, and he would get a bullet in his head. She also attempted to dissuade Stanley, who she had earlier robbed of his vehicle, from giving evidence. In a letter she made threats of gang violence, and then in a telephone call attempted to bribe Stanley by offers of money and sex.
[18] Finally, McDonald faced one charge of conversion of a motor vehicle which is unrelated to the raft of other offending committed by these three appellants. McDonald came across a vehicle with the key in the ignition outside a dealer’s in Katikati. He drove for some twenty minutes before being observed by the Police at a service station in Tauranga when he ran off.

Sentencing

[19] The learned District Court Judge dealt with each appellant separately. In each case he grouped the offending into different categories and imposed sentences accordingly. Within each category, the sentences imposed were concurrent, but the lead sentence for each category was cumulative with other categories. With the exception of the aggravated robbery charge faced by Parkinson, the Judge did not specify starting points for the sentences imposed.

MacCulloch

[20] In relation to the cannabis offending, the Judge noted the offending took place over a period of at least eighteen months, and perhaps up to two years. He commented that it had escalated in intensity in the last six months. The Judge, who heard considerable evidence at trial, found that the appellant was a person from whom a significant group in Waihi normally bought their cannabis. He noted the Crown’s reliance on R v Terewi [1999] 3 NZLR 62, to submit an appropriate starting point in relation to the representative count of supplying cannabis was between four to five years. A similar starting point was urged for the possession of cannabis for sale, and a lower starting point for the two charges relating to specific sales. Despite a defence submission that the appropriate starting point was one of eighteen months to two years, based on R v Smith [1980] 1 NZLR 412, the Judge determined the appropriate sentence for the cannabis offending was one of three and a half years. He imposed that for the representative charge of the sale of cannabis, and also concurrently on all the other cannabis offending.
[21] The next group of offences dealt with by the Judge related to the robbery of Stanley’s motor vehicle, the three counts of wilful damage, and receiving. Apart from the receiving, the Judge said this was all in the course of drug debt enforcement. He considered the robbery the lead sentence and imposed a sentence of eighteen months imprisonment. For the three wilful damage counts and receiving count two months was imposed on each, being concurrent with the robbery sentence. He noted that the appellants were responsible for what was essentially a “reign of terror” in Waihi, and he considered that the sentence should therefore be cumulative on the drug offending.
[22] Finally, in relation to MacCulloch, he turned to what he termed the “intimidation offences”. The Judge said he considered MacCulloch was responsible for the intimidation offences, which he noted either directly or indirectly struck at the proper course of justice. He sentenced the appellant to two years on each of the counts, concurrent, but to be cumulative on the earlier two categories of sentence.
[23] While noting that the appellant had another side to her character, he said that was in stark contrast to her “prolonged, premeditated, self centered and grasping drug offending, and your propensity for calculated and callous violence, either directly or indirectly.” However, he put some weight on that caring and supportive side of MacCulloch’s nature, and accepted her expressions of remorse. He referred to the issue of totality, and stated that he had initially thought that a total sentence in the region of seven and a half years was warranted. He then noted the Crown sought a lesser sentence, and after taking into account the mitigating factors that Mr Horsley referred to, imposed the effective sentence of seven years. He said he endeavoured to take into account an assessment of the individual offences and MacCulloch’s culpability for them, but looked at the end of the day at all of the offending to justify that sentence.

Parkinson

[24] In relation to the cannabis offence, the Judge considered Parkinson’s culpability fell in the range between that of MacCulloch’s and McDonald’s. He stated that Parkinson was involved in selling, but also claimed he had an interest in the selling business. He imposed a sentence of two and a half years.
[25] He found all of Parkinson’s violent offending related to the enforcement of drug debts, or to protect the preeminence of MacCulloch’s “tinnie” house operations. He considered the aggravated burglary the most serious offence, and after referring to R v Mokaraka [2002] 1 NZLR 793 (CA), he accepted that the starting point of ten years approved in that case and in R v Mako [2000] 2 NZLR 170 (CA) was too high because the home invasion provisions had been repealed, although they remained aggravating features, and the scale of Parkinson’s actions was less than the facts of Mokaraka. He adopted the starting point of five years suggested by defence counsel, and after considering the mitigating factors imposed a sentence of three years and six months. That was cumulative on the cannabis offending.
[26] He then referred to the violent attack on Mr Jamieson, noting that it was again to support MacCulloch’s and Parkinson’s commercial cannabis selling business and imposed a sentence of two years imprisonment. That was to be cumulative on the cannabis and the aggravated burglary sentences. He imposed respectively concurrent sentences of two years imprisonment and three months imprisonment.
[27] Noting that this left a total sentence of eight years, the Judge considered that properly reflected the totality principle, as well as having heed to parity with the other prisoners for his offending. He accepted that a number of charges common to MacCulloch and McDonald were not shared by Parkinson, but noted that in contrast he had participated in serious violence that justified a higher tariff being imposed overall, modified by the totality principle to the final sentence.

McDonald

[28] The Judge noted that McDonald’s cannabis offending encompassed only a two month period, but said that was a notably intense period in the business of retailing “tinnies”. He assessed his culpability at a lower level than the other two appellants and imposed a sentence of twenty-one months’ imprisonment.
[29] On the charge of assault on Mr Furmage, receiving, the three charges of wilful damage, and the theft of money, he was sentenced to three months imprisonment on each charge, those terms to be concurrent with the twenty-one months imposed for the cannabis offending
[30] In respect of the charge of injuring with intent to injure, the Judge accepted McDonald’s role was lesser than Parkinson in that it was Parkinson who struck Jamieson the heavy blow to the back of the head. He sentenced him to twenty-one months imprisonment, to be cumulative on the cannabis offence.
[31] In relation to the robbery, he considered McDonald’s culpability to be less than that of MacCulloch, and imposed a sentence of fifteen months imprisonment, which was cumulative on the cannabis and the injuring with intent sentences.
[32] Finally, in relation to the unrelated car conversion charge he imposed a sentence of 15 months imprisonment, which was the same sentence imposed for a previous offence of the same nature. He made that cumulative on the other categories of offending.. The Judge calculated this as a total sentence of five and a half years.
[33] The Judge then recalled MacDonald because counsel had pointed out that the sentences imposed, in fact, totalled six years when he had said five and a half years. For that reason, he reduced the sentence on the car conversion from fifteen months to twelve months, giving the total sentence of 5 years 9 months imprisonment. He said he considered that to be a fair and appropriate way to deal with that.
[34] For the sake of completeness, we noted that McDonald was also convicted on a charge of breach of parole and sentenced to 6 months, again concurrent, although that plays no part in this appeal.

Submissions

MacCulloch

[35] Mr Horsley submitted that the overall sentence was manifestly excessive. He also submitted that the sentence imposed for the cannabis and the intimidation offending, when considered separately, was manifestly excessive as well. He accepted that the robbery sentence was within the acceptable range. He further submitted that the Judge in imposing sentence for the three categories has simply taken an incremental approach and had failed properly to consider the totality of the offending. Finally it was submitted that the Judge failed to make or apply appropriate weight to the appellant’s guilty pleas, her personal circumstances and her age.
[36] In relation to the cannabis related offending carrying a maximum penalty of eight years imprisonment, Mr Horsley submitted the relevant authority was R v Smith [1981] NZLR 412 (CA). He said that the counts involving single incidents of selling would not individually attract a sentence of three and a half year’s imprisonment. Further, he submitted the overall criminality of the two other charges could not warrant such a sentence. By reference to Smith he submitted a starting point of two and a half to three years imprisonment would place the appellant at the top range of sentences before any credit is given for mitigating factors He submitted that although no specific starting point is mentioned, it must have been excessive given the ultimate sentence passed.
[37] However, the Crown submitted contemporary decisions are more relevant. Mr Heron submitted that if one considers the categories set out in R v Terewi [1999] 3 NZLR 62 (extended from cultivation to cannabis dealing by R v Keefe (CA275/02, 28 November 2002) a starting point of four to five years was justified and the final sentence could not be considered as manifestly excessive.
[38] In relation to the witness intimidation charges, Mr Horsley referred to the tariff authority R v Hillman (CA14/92, 14 May 1992). He submitted on that authority, after allowing for the mitigating factors including the guilty pleas, the starting point taken must have been in the range of two and a half to three years which he said was excessive.
[39] The Crown, however, contended that the offending requires the need for a condign and deterrent sentences as R v Hillman recognises. Mr Heron submitted that bearing in mind the totality of the offending, where the four counts were separate in time, a comparison of the offending to the earlier sentencing decisions must lead to a conclusion that the sentence of two years was not manifestly excessive.

Parkinson

[40] Mr Tuck on behalf of the appellant, Parkinson, submitted that the total sentence was wholly out of proportion to the gravity of the overall offending, was manifestly excessive and not in accordance with the totality principles set out in s85(2) of the Sentencing Act 2002.
[41] He did not take issue with the individual sentences imposed except to say that if the level of cannabis sentencing was too high for MacCulloch then it must be also too high for Parkinson.

McDonald

[42] Mr Balme on behalf of McDonald advanced the same grounds as Mr Tuck advanced for Parkinson. He said it was the addition of the 12 month cumulative sentence on the conversion of a motor vehicle, that led to the manifestly excessive sentence.

Submissions on totality

[43] Counsel for the appellants advanced similar submissions and conveniently they can be considered together. Mr Tuck in particular, referred to Thomas, Principles of Sentencing 2nd Ed. 1979 pp57 58 where the author states:

The totality principle has two levels:

A cumulative sentence may offend the totality principle if:

(1) the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved; or
(2) if its effect is to impose upon the offender a crushing sentence, not in keeping with his or her record.
[44] All counsel submitted that the total sentence imposed on the respective appellants was “a crushing sentence” and substantially above the normal level of sentences for the most serious of the individual offences.
[45] Mr Tuck referred to R v Drever [2003] NZCA 17; (2003) 20 CRNZ 96, an appeal determined after the introduction of the Sentencing Act 2002 where this Court said at paragraph 25:

[25] It is necessary to consider whether the overall effect of sentence is appropriate. An assessment of the gravity of offending viewed as a whole is required to ensure that the total sentence is not out of proportion (s85 Sentencing Act 2002).”

[46] The Crown referred to the guidance as to the use of cumulative sentences provided in s84 of the Sentencing Act and Mr Heron submitted that it did not appear to have been disputed at sentencing, or on appeal, that cumulative sentences were inappropriate given the variety of offending and their separation in time. He said the totality principle is codified in s85 and the Courts have hesitated to set down rules beyond the statutory criteria.
[47] He also submitted that in the citation above from Thomas, the first limb does not form part of the law of New Zealand, or at least is not a principle of general application.
[48] He referred to R v Bradley [1979] 2 NZLR 262, 263 where this Court stated:

We would hesitate to attempt to refine the principle or to evolve rules of thumb for its application. For our purposes it is sufficient to say that undoubtedly it is crucial in arriving at a sentence for several offences, after considering them individually, to stand back and look in a broad way at the totality of the criminal behaviour.

[49] In R v Dean [1991] 3 NZLR 444, this Court at 448, while finding Thomas’ analysis helpful in determining the limits of an appropriate sentence in the case on appeal, stated that “we would not regard it [Thomas’s analysis] as necessarily of general application”.

Discussion

[50] This Court has said on numerous occasions, for example, in R v Peters (CA12/03 14 May 2003), the issue of whether or not a sentence is manifestly excessive is to be examined in terms of the sentence actually passed, rather, than the process by which it is reached. In this case we consider it appropriate to approach the matter on the basis of whether or not the lead sentences for the individual categories of offending considered by the Judge are manifestly excessive, and then to consider whether the ultimate sentence offended against the totality principle.
[51] This was a significant retail cannabis operation operated from various properties occupied by the appellant, MacCulloch. Her some time partner, Parkinson, and the appellant, McDonald, played a significant part in the operation of the “tinnie houses. That it as a significant operation is evidenced by the fact that the participants were prepared to use considerable violence to scare off rival dealers and to enforce debts. The appellants were prepared to sell on a regular basis to customers over and under the age of eighteen. The evidence of Sam Nilsson makes it clear that the appellants were prepared to accost strangers and sell to them in the street. The appellant McDonald’s mother, gave evidence of seeing six or seven tinnies and bags of cannabis on MacCulloch’s bed, and another witness gave evidence of seeing fourteen or fifteen tinnies in a jar.
[52] We are quite satisfied that there was evidence before the Judge at trial and in the accepted Summary of Facts to allow him to find that this was a significant cannabis dealing operation. It was combined with debt enforcement and “patch” protection by violence and threats of violence, most of this with gang overtones. The Judge, having heard the evidence, was in our view quite entitled to find as he did that this was “prolonged, pernicious and nasty offending in Waihi”.
[53] Furthermore there was ample evidence that Ms MacCulloch was a central figure in this and that her some time partner, Parkinson, was the primary enforcer. What is more, Parkinson claimed an interest in the cannabis business. Nor do we take issue with the Judge’s assessment that the appellants were responsible for “a reign of terror” in Waihi.
[54] While McDonald may have initially got involved because he was beholden to MacCulloch because he stole money from her, there is no doubt that he entered into the business of selling cannabis and enforcing debt and protecting the business from rivals in an enthusiastic way.
[55] Before turning to the effective total sentence imposed on each appellant, it is necessary to consider the sentences imposed under each of the groupings considered by Judge to determine if any of them are, individually, manifestly excessive.

MacCulloch

Cannabis offending

[56] As we have just noted this was long term dealing at retail level. MacCulloch was the central figure in this and the operation was based in the houses she occupied throughout the relevant period. It is acknowledged that in the last six months the extent of this offending intensified. Not only was she prepared to sell to regular customers, it is apparent that sales occurred to complete strangers who were approached and offered cannabis. The extent of the activity can be measured by the extreme lengths MacCulloch and her associates went to enforce debts and protect their drug dealing empire.
[57] Although the Judge did not mention a starting point we accept it must have been in the range of four years. We consider Terewi and Keefe are the appropriate tariff authorities. The facts readily fit into the second category of Terewi, as extended to cannabis dealing by Keefe. Such a category encompasses small-scale dealing for commercial profit with a starting point generally between two and four years. Given the period of this offending, its nature and extent coupled with the central role played in it by MacCulloch, the case can readily be placed at the upper end of Category 2. We consider a starting point of around four years to be appropriate. It is clear that the Judge gave a generous discount in circumstances when there was little that could be said in mitigation. The pleas were late and as this was drug offending little credit could be given for personal circumstances. It cannot be said that a sentence of three and a half years on for drug offending is manifestly excessive.
[58] The leading authority relating to witness intimidation is R v Hillman (supra). In that case the eighteen year old complainant had been Hillman’s girlfriend for some months. She complained to the Police that she had been assaulted by another young man who, along with Hillman, was a member of a local gang. Hillman came to the house and asked her to drop the charges. He swore at her and stormed out when she refused. She felt threatened and later the same day he returned and repeated his request. He was angry and elbowed another youth in the room. In delivering the decision of this Court Richardson J stated at page 3:

Any attempt to dissuade a witness from giving evidence strikes at the administration of justice and must be met by the courts with a stern response. In assessing the seriousness of the criminality involved in the particular case it is helpful to refer to three sentencing appeal decisions in this Court. The first is R v Ormsby (CA80/79, judgment 4 September 1979). In that case Ormsby sat down beside a witness who was waiting to give evidence and asked in a very threatening way whether the witness was intending to drop the charges. The dissuasion succeeded and the witness refused to give incriminating evidence. A sentence of three years was upheld. The second is R v Laugalis (CA.277 and 278/87, judgment 3 May 1984). In that case Laugalis had been sentenced to four years imprisonment for 41 counts of theft by misappropriation and a cumulative sentence of three years imprisonment for attempting to defeat the course of justice by inciting an undercover constable who had been deployed because of a concern that Laugalis might make such an attempt to threaten or bribe witnesses and jurors in Laugalis’s then forthcoming trial. On the totality principle the overall sentence of seven years imprisonment was reduced on appeal to 2½ years being allocated to the charges of attempting to defeat the course of justice. The third is R v Monika (CA139/90, judgment 20 November 1990). In that case Monika was facing a charge of burglary of a house. He and some others returned to the house, severely damaged the property and threatened the occupants and a sentence effectively of three years imprisonment was upheld.

In those three cases three years was taken as the bench mark for what was very serious offending of its kind. We are satisfied that by comparison the sentence of three years in this case must be held to be excessive and should be reduced to 18 months imprisonment. In doing so we emphasise that in all cases of this kind a condign and deterrent sentence is required because of the nature of the offending striking as it does at the proper administration of justice, and with the additional factor in this case that the appellant was influence in his conduct by staunchness to his gang allegiances.

[59] This group of charges clearly warranted a condign sentence. There were three separate counts in time which illustrates the persistence with which Ms MacCulloch pursued her attempts to dissuade witnesses in an effort to avoid the consequences of her serious offending. Even allowing that her attempts were unsuccessful, we are not persuaded that the sentence arrived at by the Judge could be said to be manifestly excessive.

Parkinson

Cannabis offending

[60] It is clear that Parkinson was heavily involved in the cannabis retailing and over a lengthy period. The Judge, as he was entitled to do on the evidence, recognized the lesser culpability of Parkinson when compared with MacCulloch. The lesser sentence reflects that reduced culpability. We see nothing to suggest in the circumstances of this case that it was manifestly excessive. It is again Terewi category 2 offending.

Aggravated burglary

[61] This offence featured intimidatory violence and the aggravation of home invasion (s9(1)(b)) Sentencing Act 2002). It included threats of gang violence and was effected to deter possible rival drug dealers from interfering with the appellants’ cannabis dealing operation. Correctly, the Judge referred to the leading tariff authority of this Court, R v Mako (supra) and properly took a lower starting point because he considered the scale of Parkinson’s actions as less than those identified in Mako. It is hard to understand the appellant’s complaint as the starting point selected by the Judge was that urged on him by defence counsel then appearing. From that five year starting point the ultimate discount of one and a half years must be seen as generous. The pleas were late and there is little else by way of mitigation, other than the family matters referred to by the Judge, that could be put forward. Such a substantial discount could well be considered overly generous and suggests to us that the Judge had the totality principle in mind when imposing sentence.

Injuring with intent to injure

[62] This was a vicious and unprovoked attack on a young, slight complainant who was said to have owed money for cannabis. It involved numerous kicks from both Parkinson and McDonald with Parkinson concluding the incident by striking the complainant a heavy blow on the back of his head with either a brick, bottle or similar object. This caused a deep gash and significant bleeding. For such serious violence a sentence of two years imprisonment cannot be considered manifestly excessive. That is particularly so when one looks at this group of violent offending together. The two assaults with a weapon were serious and in the case of the complainant, Jamieson, led to his ear being perforated by the file which appeared to be Parkinson’s weapon of choice.
[63] Nor can there be any criticism of the Judge for the small disparity with the sentence imposed on McDonald for the same offence. It is clear that Parkinson was responsible for initiating the assault and McDonald only joined in later. As well Parkinson was responsible for the blow to the head. That is clearly a distinguishing factor.

McDonald

[64] We note that counsel took no issue with the individual sentences. His only complaint was the cumulative twelve months for the conversion made the final sentence manifestly excessive. This was the only offence that is unrelated to the cannabis operation run by the three appellants. It is a separate and discrete offence. Despite the fact that McDonald was only in the vehicle for approximately twenty minutes we do not consider the sentence manifestly excessive. That is because of McDonald’s appalling record for offending of this sort. He had forty five previous convictions of a related nature spanning a five year period which shows serious recidivism. As well he was on parole at the time for a sentence of eighteen months imprisonment for fraud imposed on him. Against that background it is impossible to classify a sentence of one year as excessive.

Totality

[65] The imposition of cumulative sentences in the Court’s consideration of the totality of the offending are covered by ss84 and 85 of the Sentencing Act 2002 which read:

84 Guidance on use of cumulative and concurrent sentences of imprisonment

(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a) the time at which they occurred; or

(b) the overall nature of the offending; or

(c) any other relationship between the offences that the court considers relevant.

85 Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4) If only concurrent sentences are to be imposed,—

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b) each of the lesser offences must receive the penalty appropriate to that offence.
[66] We consider the Judge has carefully followed the guidance set out in s.84. The Judge rightly categorised the offences and then considered appropriate sentences with those categories. Having done that he properly made the lead sentences for each category cumulative. We consider this to be a proper approach to what was a difficult sentencing exercise, given the variety of offending and the period of time over which the various offences were committed. The only question is whether the total sentence imposed was out of proportion with the gravity of the offending.
[67] We do not accept counsel for the appellant’s reliance on the citation from Thomas set out above. We agree with Mr Heron that the first limb does not form part of New Zealand law in the circumstances of these three appellants. We concur with the statement of Holland J in Benbow v Police (HC, Christchurch AP 107/93, 2 July 1993) 16 TCL 33/10 where the Judge stated:

“I do not consider that the Court in Bradley adopted that suggestion as being appropriate. It certainly does not amount to a proposition that the sentence for cumulative sentences should not exceed the maximum which would be imposed for the major offence among that number. Such a conclusion would be in direct contradiction to the obligation to have regard to the totality of the offending.”

[68] Given the serious offending of these three appellants, the application of the first limb set out in Thomas would lead to an absurdly lenient sentence which would not reflect the criminality and the culpability of these appellants. It must also be borne in mind that what Thomas states is the “cumulative sentence may offend the totality principle if:” [emphasis added].
[69] We consider the sentences of the learned District Court properly meet the criteria set out in s.85. We do not accept the argument advanced on behalf of the appellants that the Judge has simply imposed sentences for the individual groups of offending and then added those together to achieve a final result. We are quite satisfied that he always had the totality principle foremost in his mind. No doubt that factor led to some of the individual sentences imposed being lenient in the sense that considerable allowance were made for mitigating factors in circumstances where there was virtually nothing that could be said in mitigation. Effectively, the Judge applied the totality principle by reducing the lead sentence which would otherwise have been properly imposed.
[70] Stepping back and looking at all of these sentences overall, we do not consider they offend against the totality principle. They are sentences that recognize the overall criminality and the individual culpability of each appellant. This was serious drug offending reinforced with the indiscriminate use of stand-over tactics and violence. The sentences imposed reflected that. The final sentences are not out of proportion to the gravity of this offending.
[71] In relation to MacCulloch and Parkinson, their appeals against sentence are dismissed. In relation to McDonald, leave to appeal out of time is granted but the appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland
Adams & Horsley, Tauranga for MacCulloch