McLaine v R [2012] NZCA 186 (14 May 2012)

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McLaine v R [2012] NZCA 186 (14 May 2012)

Last Updated: 27 May 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA23/2012 [2012] NZCA 186

BETWEEN WARREN JOHN MCLAINE Appellant

AND THE QUEEN Respondent

Hearing: 2 May 2012

Court: Stevens, Chisholm and Priestley JJ

Counsel: P F Gorringe for Appellant M H Cooke for Respondent

Judgment: 14 May 2012 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

[1] Having pleaded guilty on the first day of his trial in the High Court at Rotorua to a representative charge of being in possession of the Class A controlled drug methamphetamine for supply, the appellant was sentenced by Lang J to imprisonment for five years and one month.[1] He appeals against that sentence on two grounds: no allowance was made for remorse; and having indicated that he would allow “around 15 per cent” for the guilty plea, the Judge only allowed 7.5 per cent for the plea.

The offending

[2] The appellant’s offending was revealed by a police operation targeting Graeme Williams and Edward Phillips. When sentencing the appellant and Mr Phillips, Lang J described Mr Williams as “being at the top of the tree” of a “busy network of drug dealers”.[2]
[3] Lang J described the appellant’s role in the offending, which extended from March to October 2009, thus:

[8] ... You were associated with Mr Williams. The Crown accepts that your role in the operation was largely as a middle-man, or go-between, who transported drugs and/or cash on Mr Williams’ behalf. You were clearly a trusted lieutenant, and he relied on you to source and deliver drugs and cash for him . On occasions when Mr Williams’ sources of supply were unable to supply him with drugs, you used your own contacts in an endeavour to source methamphetamine for him.

Although the appellant acknowledged that 266 grams of methamphetamine had passed through his hands, Lang J accepted that the appellant had not made any commercial gain because he had been receiving methamphetamine to feed his habit.[3]

The appellant

[4] At the time of sentencing the appellant was 59 years of age, with seven previous drug related convictions. These include a conviction for possession of cannabis for supply in 1985, which attracted a fine, and a conviction in 2000 for conspiring to sell the Class C controlled drug cannabis, which resulted in a sentence of two and a half years imprisonment. An appeal against that sentence was dismissed by the Court of Appeal.[4]
[5] On the probation officer’s analysis of the current offending:

Mr McLaine is certainly remorseful that he has found himself in prison. He now says he is sorry that he became so involved in the Methamphetamine scene. He says by way of background that he starting using Methamphetamine in about 2007 “on a social basis”. Because of the easy availability of the drug, his usage became more frequent. He found himself becoming more distant from his family, “but being bailed to my [daughter’s address] has put me back to where I was with the family – where I should be,” he says. He has seemingly allowed himself to be influenced by more sophisticated criminals, and particularly through his loyalty to (and friendship with) co-offender Graeme Williams.

...

... Mr McLaine’s own usage of Methamphetamine, coupled with his close affinity with his friend Graeme Williams, has allowed him to “take the risk” of offending. He “thought the risk was minimal”, and admits he could have “stopped at any time” – but chose not to.

...

As an habitual drug abuser, Mr McLaine now says he has abstained for 700 days. He is charged with a serious Methamphetamine offending, from March 2009. Warren McLaine is assessed as at high risk of re-offending. He is also assessed as at low motivation and readiness to change, given his “serial drug offending”, and having already served a substantial prison sentence for Conspiracy to Deal With Class C Drug. ...

[6] A pre-release home detention report (which seems to have been prepared following the sentence of imprisonment imposed in 2000) was also mentioned by the probation officer. That report stated:

Warren McLaine presented at interview as motivated to address his offending. He said that since being incarcerated he has taken every opportunity to improve his life that has been available to him and is determined to live drug free once released.

It was the probation officer’s view that Mr McLaine’s continued drug-related offending indicated that he had an established pattern of drug use and that prison had not deterred him. A “long term of [i]mprisonment” was recommended.

[7] A letter from Mr McLaine was before the Judge. This letter explained his family support, provided some history of his drug addiction, acknowledged the damage caused by methamphetamine, and expressed remorse for the part he had played “in the wheel that is methamphetamine dealing”. Letters of support from the appellant’s parents and his daughter were also before the Judge.

Sentencing in the High Court

[8] Having decided that Mr McLaine fell within band 2 of R v Fatu,[5] Lang J adopted a starting point, which is not challenged, of five and a half years imprisonment. He decided that there should not be any uplift for the previous offending because it did not involve dealing in Class A controlled drugs and the most serious offending had occurred 13 years ago.
[9] Turning to the extent to which the starting point for the appellant (and a higher starting point for Mr Phillips) should be reduced to reflect mitigating factors, Lang J said:

[24] You have each supplied me with letters indicating your remorse and determination to change your path and steer clear of drugs in the future. I hope that is the case, but really you have had ample warnings in the past that should have served as a deterrent to prevent this offending.

[25] The only real factor that I can give weight to is the fact that you pleaded guilty. Mr Phillips, you pleaded guilty on 1 September 2011, approximately three weeks before your trial. Mr McLaine, you pleaded guilty on the first day of your trial.

[26] I accept, however, that there were ongoing discussions between your counsel and the Crown that affected the decision to plead guilty. I propose to make an allowance for that of around 15 per cent in the sentence that I impose.

While a discount of 15 per cent was allowed in arriving at Mr Phillips’ sentence of six years and seven months imprisonment, the appellant’s discount was five months which equates to 7.5 per cent.

First ground of appeal – no discount for remorse

Appellant’s submissions

[10] Mr Gorringe submitted that there should have been a 5 per cent discount for remorse. He claimed that the pre-sentence report was “a little harsh” on Mr McLaine. He suggested that the appellant’s previous offending was “indicative of a user” and that the current methamphetamine offence was “atypical and somewhat isolated from the previous offences”. Mr Gorringe also submitted that the appellant’s letter to the Judge indicated a recognition of the social and legal wrong of his offending, as well as his repentance at being involved in it.
[11] Counsel for the appellant noted that the Judge had not rejected the appellant’s expression of remorse. Rather, he had declined to give any credit for it because of the previous drug offending and, presumably, because the Judge considered it was too late for remorse. Mr Gorringe submitted that the Judge could have made allowance for the fact that this was Mr McLaine’s first conviction for a Class A drug offence and that he had been drug free since arrest.

Crown’s response

[12] Ms Cooke submitted that a separate discount for remorse would have been inappropriate in this case. Given the appellant’s history of cannabis offending, his expression of remorse was correctly regarded with scepticism. It was clear that the sentence of imprisonment in 2000 had not served as a deterrent and his offending had escalated in seriousness since that time. The reality is that the appellant’s remorse reflected the situation in which he found himself. And while he had self reported that he had not used methamphetamine for a total of 700 days while on remand and on bail, personal factors including rehabilitation will inevitably be of lesser significance in cases of serious drug offending: Horsfall v R.[6]

Our conclusions

[13] In Hessell v R[7] the Supreme Court commented:

[64] ... Sentencing Judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.

It is apparent from Lang J’s sentencing remarks that despite the appellant’s letter expressing remorse, he was not persuaded that the remorse was sufficiently genuine to attract a separate discount in accordance with Hessell.

[14] Such a conclusion was plainly open to the Judge. It is highly significant that after his incarceration in 2000 the appellant also expressed determination to address his offending and to live drug free, but failed to deliver on that intention. To the contrary, he later embarked upon more serious offending involving a Class A drug and hoped that he would be able to avoid detection. The offending in which he was involved spanned several months. It was also significant that he told the probation officer he could have stopped at any time but chose not to. Against that background it is hardly surprising that the probation officer concluded that the appellant’s motivation and readiness to change was low, and that the real reason for remorse was that he had found himself in prison.
[15] This ground of appeal has not been made out.

Second ground of appeal – inadequate discount for the guilty plea

Appellant’s submissions

[16] Mr Gorringe submitted that Lang J had made an arithmetical mistake when calculating the number of months that would equate to 15 per cent and that this resulted in a sentence five months longer than the Judge had intended. Had that mistake not been made, this sentence would not be before this Court. And if the sentence of five years and one month was confirmed, “that would validate the mistake made in the High Court, even though it would not be an unreasonable sentence in length”.
[17] Counsel relied on R v Brooks[8] in which the Court of Appeal accepted that a sentence must be manifestly excessive or wrong in principle before the Court will interfere.[9] He submitted that the error in this case meant that the sentence was wrong in principle and that this vitiated the original sentencing discretion. Rectification by adjusting the end sentence to four years and eight months imprisonment was required. Whether or not the sentence can be categorised as manifestly excessive is not the issue “because to apply that test is to confuse the approach in Brooks”. Nor does R v Shipton[10] suggest that such a “cross-over in the tests” is acceptable or proper.

Crown’s response

[18] Ms Cooke submitted that the applicable principles were explained by this Court in Shipton. The key issue is the sentence imposed, rather than the process by which the sentence was reached. In this case the end sentence of five years and one month imprisonment appropriately recognises the appellant’s culpability and is not manifestly excessive. While an error may have occurred, it has not in terms of Shipton vitiated the exercise of the original sentencing discretion. The possible calculation error in this case is no different from an erroneous adoption of an incorrect starting point, or an erroneous adjustment for an aggravating or mitigating factor.
[19] In any case, the Crown submitted, it is unclear whether there was an error in calculation. It may be that Lang J intended to differentiate between the two offenders owing to the different stages at which they pleaded guilty. If that is the case the discount of 7.5 per cent for a plea on the first day of the trial after the jury was empanelled would be appropriate. In any event the Crown case was very strong.

Our conclusions

[20] In Shipton this Court considered the scope of s 385(3) of the Crimes Act 1961 which expresses the powers of this Court on an appeal against sentence:

[138] ... The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. ...

As is apparent from these observations, not every error in the sentencing process will require intervention by this Court. The issue for us in this case is whether the error was such as to vitiate the sentencing discretion exercised in the High Court. For the reasons that follow, we have not been persuaded that this was such a case.

[21] A discount of 7.5 per cent was entirely consistent with the 5 to 10 per cent discount sought at sentencing by the appellant’s trial counsel, and would, indeed, have represented the mid-point of that range. It would also reflect the distinction between Mr Phillips and the appellant in terms of when their guilty pleas were entered (Mr Phillips about three weeks before the trial and the appellanton the first day of trial).
[22] Equally important, a 7.5 per cent discount would be within the range that might be expected for a guilty plea at the late stage that this plea was entered. We were told by Mr Gorringe that although negotiations concerning the charges and pleas were concluded as far back as 15 June 2011, the appellant did not agree to plead to the single charge until September 2011 because a letter to him had gone missing. But that does not explain why the appellant waited several months until the jury had been empanelled before he pleaded guilty.
[23] Finally, we do not accept that the error can be properly categorised as an error in principle requiring the intervention of this Court. For a lengthy period the appellant had played a significant role within this “busy network of drug dealers”, and a significant quantity of the Class A drug methamphetamine was involved. The case against him was strong. Some judges would have applied an uplift for the previous offending. Within the overall context the arithmetical error was not significant. Moreover, the sentence imposed is within range and could not be said to be manifestly excessive.
[24] This ground of appeal also fails.

Result

[25] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] R v McLaine HC Rotorua CRI-2009-063-5871, 24 November 2011.
[2] At [4].
[3] At [9].
[4] R v McLaine CA355/00, 30 November 2000.
[5] R v Fatu [2006] 2 NZLR 72 (CA).
[6] Horsfall v R [2012] NZCA 97 at [15].
[7] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[8] R v Brooks [1950] NZLR 658 (CA) at 659
[9] R v Brooks [1950] NZLR 658 (CA) at 659.
[10] R v Shipton [2007] 2 NZLR 218 (CA).