McKeown v R [2017] NZCA 99 (3 April 2017)

Last Updated: 11 April 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA505/2016 [2017] NZCA 99
BETWEEN	MATTHEW RUSSELL MCKEOWN Appellant
AND	THE QUEEN Respondent

Hearing:	13 March 2017
Court:	Cooper, Woodhouse and Collins JJ
Counsel:	J Kincade for Appellant E J Hoskin for Respondent
Judgment:	3 April 2017 at 10.30 am

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.
2. The sentence of five years and six months’ imprisonment imposed in the District Court is quashed and a sentence of four years and 10 months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woodhouse
J)

[1] The appellant, Matthew McKeown, appeals against a sentence of imprisonment imposed in the District Court at Auckland by Judge Gibson.^[1] That sentence dealt with 24 offences of possession of methamphetamine for supply, to which Mr McKeown had pleaded guilty (the later offences), and an application for a variation of a sentence of 12 months’ home detention imposed on 28 October 2015 for charges of possession of methamphetamine for supply and possession of utensils for consuming methamphetamine (the earlier offences).^[2]
[2] Twenty of the later offences were committed while Mr McKeown was serving the sentence of home detention for the earlier offences, while the remaining four were committed while he was on remand in respect of the earlier offences. It was accepted at sentencing that Mr McKeown dealt in approximately 146 grams of methamphetamine, although the charges were ones of possession for supply. Judge Gibson imposed a sentence of five years and six months’ imprisonment for the later offences.
[3] Judge Gibson resentenced Mr McKeown for the earlier offences to six months’ imprisonment, cumulative on the sentence of imprisonment for the later offences. Mr McKeown was thus sentenced to an effective sentence of six years’ imprisonment.
[4] Mr McKeown appeals against the sentence of five years and six months’ imprisonment on the following grounds:

• (a) The starting point of six years and six months’ imprisonment was too high as a result of the Judge placing too much reliance on this Court’s decision in R v Egan.^[3]
• (b) Insufficient credit was given for personal mitigating factors.

[5] Mr McKeown appeals against the substituted sentence of six months’ imprisonment on the ground that the Judge failed to give adequate consideration to the totality principle.^[4]
[6] There is an acknowledged arithmetical error in the Judge’s calculations, which led to the end sentence of five years and six months’ imprisonment. This was brought to our attention by Crown counsel, Ms Hoskin. We address this issue at the end of this judgment.

The sentence under appeal

[7] The Judge noted that both counsel agreed that the offending came within band two of R v Fatu: sale or supply of between five and 250 grams of methamphetamine with a range of three to nine years’ imprisonment.^[5] In an apparent reference to the decision of this Court in R v Egan, the Judge said that a starting point for at least 100 grams is approximately five to six years’ imprisonment.^[6]
[8] The Judge said he would have adopted a starting point of seven years’ imprisonment because the total amount of methamphetamine was 146 grams, rather than 100 grams, but he accepted a submission for Mr McKeown that some of the methamphetamine was for Mr McKeown’s personal use. The Judge therefore made what he described as a slight adjustment to the starting point from seven years to six years and six months. There was no increase for previous offences or for the fact that offending either occurred while on remand or while serving the home detention sentence. There was no reduction for personal circumstances. The Judge allowed a reduction of 25 per cent for the guilty pleas. Arithmetically that should have resulted in an end sentence of four years and 10 months (rounding down by half a month). But the Judge formally imposed an end sentence for the later offences of imprisonment for five years and six months.
[9] When dealing with the resentencing for the earlier offences the Judge said that he needed to give Mr McKeown a credit for the part of the sentence that had been served, but overall the credit could not be very much because of Mr McKeown’s later offending while serving the home detention sentence. The Judge noted that he had not applied an uplift for the later offences, but said that, because he was going to sentence Mr McKeown cumulatively on the resentencing, that was “in some ways ... an uplift”.^[7] The Judge assessed that the appropriate new sentence for the earlier offences, standing alone, would be 14 months’ imprisonment. But he considered that a sentence of that length, added to the sentence already imposed of five years and six months’ imprisonment, would be excessive having regard to the totality principle. He therefore reduced the sentence to six months’ imprisonment, cumulative on the sentence for the later offences.

Evaluation: the starting point

[10] Mr McKeown’s counsel, Ms Kincade, contended that the Judge had placed too much emphasis on R v Egan. The facts of that case were compared with the facts of Mr McKeown’s and a number of other cases. In oral submissions Ms Kincade acknowledged that difficulties can arise in seeking to compare the facts of individual cases and accepted that the question whether the starting point was excessive can be determined on the principles stated in R v Fatu. We firmly endorse that approach.
[11] Ms Kincade’s submission was that, making some allowance for Mr McKeown’s personal use of some of the methamphetamine, an appropriate starting point would be five to six years’ imprisonment.
[12] We are satisfied that the starting point adopted by the Judge of six years and six months’ imprisonment was well within range on a straightforward application of R v Fatu, after making a small allowance for personal use.

Evaluation: credit for personal mitigating circumstances

[13] Ms Kincade submitted that there was an error by the Judge in failing to reduce the sentence because of difficulties faced by Mr McKeown in getting treatment for his drug addiction when he was serving the home detention sentence. These difficulties are referred to in a number of letters provided to the Judge, including two from drug and alcohol counsellors. On this appeal we also received and considered a letter from a close friend of Mr McKeown. She had also been sentenced to home detention for the earlier offences and said that she had received good support and had been able to make progress with rehabilitation. This was, in effect, an argument that because Mr McKeown had not been able to take steps to rehabilitate himself — to deal with his drug addiction — the sentence should have been reduced.
[14] When real steps have been taken to rehabilitate, and depending on all other relevant circumstances, the sentence of a commercial drug dealer might be reduced.^[8] On the present appeal, however, there is no evidence of substantial steps having been taken towards rehabilitation. And it is not appropriate to speculate as to what might have happened if he had been afforded different opportunities.
[15] Ms Kincade also contended that Mr McKeown’s offending “was substantially driven” by his addiction and this was a personal mitigating circumstance that should have resulted in a reduction, in addition to the reduction the Judge made to the starting point for personal consumption. We are not persuaded that there was any error by the Judge in this regard.
[16] Mr McKeown, in any event, did in substance obtain a reduction in the sentence as a result of the Judge’s approach. There would have been no error by the Judge if he had increased the starting point, and reasonably substantially, to take account of the fact that four of the later offences had been committed while on remand for the earlier offences and the remainder while serving the home detention sentence, coupled with the fact that there was an earlier methamphetamine dealing offence. The Judge’s decision not to increase the starting point was a generous approach. As earlier recorded, the Judge said he regarded the imposition of a cumulative sentence as “in some ways ... an uplift”.^[9] That, with respect, is open to question. It was the imposition of a fresh sentence for other offences.

Evaluation: totality

[17] The submission for Mr McKeown on the totality principle was that the principle had not been given sufficient consideration by the Judge. We have earlier recorded the extent of the consideration given to the totality principle by the Judge. Ms Kincade did not refer us to matters that Mr McKeown contends should have been taken into account but were not.
[18] We are satisfied that there was no error by the Judge in his consideration of the totality principle. The Judge’s initial assessment, on resentencing, of 14 months’ imprisonment for the earlier offences, which was not challenged, was reduced substantially to the end sentence of six months. The addition of six months to the end sentence for the later offences did not result in an overall sentence contrary to s 85 of the Sentencing Act 2002.

The error in the end sentence

[19] It is not disputed that the end sentence imposed on Mr McKeown resulted from a simple arithmetical error. As earlier recorded, the sentence that should have been imposed for the current offending is imprisonment for four years and 10 months, not five years and six months. This error was not drawn to the Judge’s attention. It was only noted by Crown counsel shortly before the hearing in this Court.
[20] On an appeal against sentence the appeal court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.^[10]
[21] Both elements of that provision plainly apply. Although the error was obviously inadvertent, it is still an error. And the nature of the error means that the correctly calculated end sentence must be substituted.
[22] Accordingly, we allow the appeal, quash the end sentence of imprisonment for five years and six months for the later offences, and substitute a sentence of imprisonment for four years and 10 months.
[23] The sentence of six months’ imprisonment for the earlier offences, cumulative on the sentence of imprisonment for four years and 10 months, is confirmed. The overall end sentence is, therefore, imprisonment for five years and four months.

Result

[24] The appeal against sentence is allowed.
[25] The sentence of five years and six months’ imprisonment imposed in the District Court is quashed and a sentence of four years and 10 months’ imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v McKeown [2016] NZDC 17569.

^[2] Sentencing Act 2002, s 80F.

^[3] R v Egan [2008] NZCA 102.

^[4] Sentencing Act, s 85.

^[5] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[6] R v Egan, above n 3. There was an obvious reference by the Judge to a case but the transcript records the name as being inaudible. Counsel are agreed that this was a reference to R v Egan.

^[7] R v McKeown, above n 1, at [14].

^[8] Hastings v R [2011] NZCA 105; and McMillan v R [2011] NZCA 442.

^[9] R v McKeown, above n 1, at [14].

^[10] Criminal Procedure Act 2011, s 250.