McDonald v R [2011] NZCA 97 (25 March 2011)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

McDonald v R [2011] NZCA 97 (25 March 2011)

Last Updated: 29 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA581/2010 [2011] NZCA 97

BETWEEN ERROL FRANCIS MCDONALD Appellant

AND THE QUEEN Respondent

Hearing: 28 February 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: R A A Weir for Appellant T Epati for Respondent

Judgment: 25 March 2011 at 12 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Drug offending

[1] On 1 October 2009 the police went to Errol McDonald’s home to uplift a firearm. On detecting the smell of cannabis, they conducted a warrantless search pursuant to s 18 of the Misuse of Drugs Act 1975. They found 32 g of cannabis in a drawer and 30 cannabis plants in a purpose-built room under the floor of a garden shed.
[2] The next day the police returned with a search warrant to conduct a more thorough search. They found on this occasion over 3 kg of cannabis in various locations, more than $6,000 in cash, a set of scales, 18 boxes of resealable bags, a roll of tinfoil and a number of items associated with an indoor growing operation. The purpose-built room beneath the shed was a shipping container that had been lined. It contained ventilation fans and equipment for growing cannabis. Two cellphones located at the property indicated that Mr McDonald had been involved in the sale of quantities of cannabis over a six week period prior to 1 October 2009.
[3] In addition, the police found a shotgun in the wardrobe and a Tazer in the front console of Mr McDonald’s vehicle.
[4] Mr McDonald was charged with, and ultimately pleaded guilty to, counts of cultivating cannabis, selling cannabis, possessing cannabis for supply, unlawful possession of a firearm (the shotgun), and possession of a restricted weapon (the Tazer).
[5] It was accepted at sentencing that the cultivation was a two crop rotation, the first crop having been in part sold and being in part represented by the dried material found at the house. The second crop, discovered by the police in plant form, was nearing maturity. The sentencing judge, Judge Bidois, sentenced Mr McDonald to a total of 33 months’ imprisonment.[1] Mr Weir, for Mr McDonald, submits that sentence was manifestly excessive. He also criticises the way in which the Judge reached the final figure.

Was the sentence manifestly excessive?

[6] We set out first how the Judge approached the sentencing exercise. His Honour took the cultivation charge as “the lead charge”.[2] He considered it fell into category 2 of the guideline judgment for cannabis cultivation and dealing, R v Terewi.[3] He fixed a starting point of two and a half years. He then considered what uplift was required for the cannabis that had already been sold and the cannabis which had been cultivated and was ready for sale. He determined the uplift should be a year.[4]
[7] His Honour made no adjustment for Mr McDonald’s past convictions. He then allowed a 25 per cent discount to reflect Mr McDonald’s guilty pleas (on arraignment) and what the Judge considered to be Mr McDonald’s “motivation to address [his drug] issues”.[5] That led, he said, to a ten month deduction and an end sentence for the pure drug offending of 30 months.[6] In fact, the Judge’s arithmetic was wrong. A ten month deduction should have led to an end sentence of 32 months.
[8] The Judge then considered the shotgun and Tazer charges separately. They were together worth, he thought, a starting point of six months’ imprisonment. He reduced that figure to four months on the basis of guilty pleas and then deducted a further month on the basis of totality principles. That figure was to be cumulative on the 30 months, making a total sentence for all the offending of 33 months.
[9] Mr Weir submitted there were numerous errors in the Judge’s approach. Before detailing them, we begin by observing this Court has repeatedly said that what is important is that the final sentence is fair and appropriate and reflects “the totality of the offending”. How the total sentence is made up has never been important.[7]
[10] First, Mr Weir submitted that, while two and a half years was appropriate as a starting point for the cultivation charge, the uplift for the other cannabis offending was too high. We do not agree. Perhaps it would have been better for the cannabis offending to be looked at in the round. Here the Judge was faced with a man who had been dealing in cannabis for some time and cultivating in a reasonably sophisticated way. The overall nature of the cultivation/sale operation was “high category 2”, which could have justified a starting point near the top of the range. The Judge effectively adopted a three and a half year starting point, which we do not think could be faulted. Of course, if one adopted our alternative approach of looking at the offending in the round, it would still be necessary to assign individual sentences to the lesser charges, as the Judge did here.
[11] Mr Weir submitted that the uplift for possession of the shotgun and Tazer was too high. We see the presence of the Tazer as very significant. It could have been seen as an aggravating factor of the cannabis operation, driving the starting point up towards the four year mark. Alternatively, it could be treated as stand-alone offending, as the Judge did.
[12] In any event, even if the Judge were high in the add-on he made for firearm offending, the overall sentence is not excessive because of the extreme generosity of the guilty plea discount. The sentence before application of the guilty plea discount was 47 months (42 months for the drug offending and five months[8] for the firearm offending). A reduction of 14 months for guilty plea discount equates to a 30 per cent discount, an extremely generous discount in terms of this Court’s decision in Hessell v R,[9] the controlling authority at the time.[10] These pleas were entered on arraignment. An even lower discount would have been justified on the basis of the Supreme Court’s judgment in Hessell.[11] Even if the Judge had provided no uplift for the firearm offending (which would have been wrong), the discount was still a generous 21 per cent.
[13] We are quite satisfied the overall sentence was fair and appropriate; it was not manifestly excessive. We dismiss the appeal.

Solicitors:
Clive Gardner Law, Mount Maunganui, for Appellant
Crown Law Office, Wellington, for Respondent

---

[1] R v McDonald DC Tauranga CRI-2009-070-8137, 13 July 2010.
[2] At [14].
[3] R v Terewi [1999] 3 NZLR 62 (CA).
[4] At [14].
[5] At [12].
[6] Lesser sentences were imposed on the selling and possession for sale charges.
[7] R v Xie [2007] 2 NZLR 240 (CA) at [16]; R v Barker CA57/01, 30 July 2001 at [10].
[8] Six months’ starting point less one month on the basis of totality principles: see [8] above.
[9] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.

[10] In part, the generous discount stemmed from the arithmetical error to which we earlier referred: see [7] above.
[11] Hessell v R [2010] NZSC 135, (2010) 24 CRNZ 966.