The Queen v McDonald [2007] NZCA 383 (31 August 2007)

Last Updated: 6 September 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA321/07

[2007] NZCA 383

THE QUEEN

v

PETER JOHN MCDONALD

Hearing: 22 August 2007

Court: Arnold, Gendall and Priestley JJ

Counsel: W N P van Vuuren for the Appellant
A Markham for Crown

Judgment: 31 August 2007 at 2.30 pm

JUDGMENT OF THE COURT

A The application for leave to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Priestley J)

Introduction

[1] The appellant appeals from a sentencing judge’s refusal to grant leave to apply for home detention.
[2] The appeal is out of time. However, the Crown did not oppose leave.
[3] In May 2006 the police executed a search warrant at the appellant’s home in Ashburton. The appellant’s garage contained a modest cannabis plantation. Seven adult plants and 64 immature plants were growing under lights. Elsewhere in the house the police discovered 72 grams of dried cannabis head, snaplock deal bags, a set of scales and a canister containing four capsules totalling 2.8 grams of cannabis oil. The appellant had just over $480 in cash, $320 of which was in $20 notes.
[4] Despite these indicia, the appellant denied he was a cannabis dealer, although he admitted growing cannabis. He faced three charges under the Misuse of Drugs Act 1975; cultivation of cannabis, possession of a Class B controlled drug (cannabis oil), and possession of cannabis for supply.
[5] This last charge was laid indictably. The appellant pleaded guilty to it on arraignment, having pleaded guilty at an earlier stage to the other charges.

The Sentence

[6] Counsel in the District Court agreed the volume of cannabis placed the offending at the lower end of category 2 of R v Terewi [1999] 3 NZLR 62. The lowest start point for category 2 offending is usually two years. Judge Erber, however, adopted a 21 month start point and gave credit for guilty pleas. He sentenced the appellant to 15 months imprisonment. The indictable offence was the lead sentence. Nine months and one months imprisonment were imposed concurrently on the other two charges.

Home Detention

[7] The appellant’s counsel urged the Judge to grant leave to apply for home detention. Counsel advanced 12 reasons. These included the appellant being on bail for over 12 months without incident; the appellant’s medical condition; the fact that he had not offended for over nine years; and his commitment as a contact parent for his son. Other reasons were advanced relating to the cannabis operation.
[8] The Judge referred to the 12 matters (without itemising them) and declined leave. He mentioned a 1998 conviction for selling cannabis (dealt with by way of a fine). He considered the appellant had embarked on a major programme to grow cannabis plant for commercial gain. He had used his house as an integral part of this operation. He said there should be “no encouragement by the diminishing of the rigour of imprisonment” by granting leave to apply for home detention. Leave was declined.

Discussion

[9] Mr van Vuuren submitted the Judge had weighed inadequately the 12 factors the appellant had advanced or given them no weight. There is no basis for this submission.
[10] Offending against the Misuse of Drugs Act in a prisoner’s home is not an absolute bar to the favourable exercise of the discretion under s 97(3) of the Sentencing Act 2002 to grant home detention (R v Paki CA165/05 September 2005). But the fact that the offending occurred at the appellant’s home was not a determinative reason for the Judge. Rather, against the backdrop of cultivation, supply in part for commercial gain, and the appellant’s previous convictions for cannabis offending, the purpose of deterrence outweighed other favourable factors.
[11] The s 97(3) discretion had to be exercised by the Judge taking into account the nature and seriousness of the offence and the circumstances and background of the appellant. All these factors were before him. Indeed many of them were highlighted in the appellant’s submissions.
[12] The Judge’s decision not to grant leave to apply for home detention was clearly open to him. We have not been shown a basis on which it can be said he erred in principle or was clearly wrong. Thus the appeal must fail.

Result

[13] Leave to appeal is granted but the appeal is dismissed.

Solicitors:
Petrie Mayman Clark, Timaru for Appellant
Crown Law Office, Wellington