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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CRI-2009-463-84 CRI-2009-463-85 TERRY NED MCINTOSH Appellant v NEW ZEALAND POLICE Respondent Hearing: 12 October 2009 Appearances: Mr R Vigor-Brown for Appellant Ms S-L Wootton for Respondent Judgment: 12 October 2009 (ORAL) JUDGMENT OF LANG J [on appeal against sentence] Solicitors: Crown Solicitor, Rotorua Counsel: Mr R Vigor-Brown, Rotorua MCINTOSH V NEW ZEALAND POLICE HC ROT CRI-2009-463-84 12 October 2009 [1] On 29 August 2009 Mr McIntosh appeared in the District Court for sentence on three sets of charges. After hearing the submissions of counsel, His Honour Judge McGuire sentenced him to an effective term of four years imprisonment. He now appeals to this Court against the sentence that the Judge imposed. He does so on the basis that the Judge erred in principle and that the starting point that the Judge selected was too high. He argues that the cumulative effect of these matters is that the sentence that the Judge imposed was manifestly excessive. [2] In order to understand the basis for the appeal it is necessary to have regard to the facts. These were taken from the summary of facts in respect of which there were no significant areas of dispute. The Facts [3] The first set of charges arises out of an incident that occurred in the early hours of Sunday 25 January 2009. At that time a number of police officers were attending a violent domestic incident in Kaingaroa. The perpetrator of that incident was believed to be in possession of a sharpened ornamental samurai sword and was believed to be walking the streets of Kaingaroa Village. [4] As two members of the police team walked past the rear of Mr McIntosh's address, he walked out and challenged them. At that stage he was in possession of a stolen Hussey double barrel shotgun that was loaded with a live round in one of the chambers. Mr McIntosh was holding the gun at his side as he challenged the police. [5] As soon as the police officers identified themselves, Mr McIntosh backed away and hid the shotgun behind a fence. When he was spoken to, he was co- operative and admitted that he was in possession of the stolen gun. He said that he had purchased the gun through a third party because the Kaingaroa Village could be a dangerous place at times, and he needed to be able to protect his children. [6] The second incident occurred on 19 March 2009. On that date the police executed a search warrant at Mr McIntosh's address in Kaingaroa. At the rear of the address the police found an old disused vehicle that contained a large quantity of high quality cannabis plant material inside it. The combined weight of the cannabis head material was 1.345 kilograms. The police then searched the balance of the property and found five mature cannabis plants in various outbuildings around the property. They also found six freshly harvested cannabis plants that were being prepared for stripping and drying. [7] In addition, the police found 15 cannabis bullets having a combined dry weight of 20 grams and a polystyrene container with 2.02 kilograms of partially dried cannabis leaf. The police also found another container with 20 grams of dried cannabis leaf, as well as two bowls containing 14 and 395 grams of cannabis leaf respectively. In addition, the police found a variety of cannabis utensils, together with smaller dried quantities of dried cannabis leaf material. Mr McIntosh frankly admitted that the material belonged to him. [8] The third set of charges arose from an incident that occurred over the evening and early hours of the morning of 7 and 8 May 2009. On the evening of 7 May 2009 the neighbours to one side of Mr McIntosh began drinking outside their property. This drinking session continued through until the early hours of the morning. It appears that there was some animosity between Mr McIntosh and his neighbours as a result of the neighbours' belief that Mr McIntosh's son may have had something to do with stealing property from them. This apparently prompted them to throw a large number of beer bottles onto the roof of Mr McIntosh's house. Bottles were also thrown at the side of the address, and some of these smashed windows in the address. [9] This led to a verbal altercation, followed by an incident in which Mr McIntosh's neighbours entered his property. One of the neighbours was apparently carrying a knife as he did so. Mr McIntosh and his son were able to repel the intruders, but as they left they said words to the effect that they would be back and that they would burn his house down. Some time after that, Mr McIntosh was alerted by the sound of a vehicle driving around and skidding on the lawn of his address. He sought help, without success, from a neighbour before resorting to a shotgun that he had stored at his address. He went out to the front of his address and discharged the shotgun at the vehicle, hitting it on the side. He then fired two more shots at the vehicle as it left the address, although it does not appear that either of these shots hit the vehicle. [10] On the following morning the police conducted a search warrant in relation to his address. When they did so, they found a large quantity of cannabis material and drug-related paraphernalia. They found a canvas army bag in a bedroom that contained four separate packages of cannabis having a total combined weight of 217 grams. [11] Inside the ceiling of the address they found three ice-cream containers that contained a total of approximately 170 grams of cannabis head. Inside these containers the police also found two small separate packages that were of a similar shape and size to that of a tampon. The summary records that it appears that this cannabis was packaged for the purpose of internal concealment within the body of a person. Also inside the ceiling cavity the police found a flax bag inside of which were two snaplock plastic bags containing cannabis head material that weighed a total of 73 grams. In all the police found 260 grams of cannabis head material in the ceiling cavity. [12] They also found a further canvas shoulder bag that contained just over three kilograms of cannabis cabbage material. In addition, they found 31 grams of cannabis head material scattered throughout the kitchen of the address and inside a motor vehicle parked outside. In all, the police found a total of more than half a kilogram of cannabis head material and more than three kilograms of cabbage at the address. [13] Once again, Mr McIntosh took full responsibility for all of the items that the police had found at his address. In explanation, he said that he used cannabis for recreational purposes and that it was all for his own use. He admitted, however, that he did give cannabis to friends. He denied that he sold cannabis at all. The Judge's decision [14] The Judge was clearly unimpressed by the fact that Mr McIntosh was appearing for sentence again. He noted that Mr McIntosh had seven previous convictions for being in unlawful possession of firearms. He had also appeared on several previous occasions in relation to cannabis charges. [15] Of particular concern was the fact that Mr McIntosh had appeared before the Judge on 13 February 2002, when he was for sentence on charges of cultivating cannabis, being in possession of cannabis and being in unlawful possession of a pump action shotgun. On that occasion the Judge sentenced Mr McIntosh to two years imprisonment. He suspended that sentence for two years and gave Mr McIntosh a final warning. He expressed the final warning in the final terms: [14] In addition, there will be a final warning on your file. So if in 10 years time, you go back to your old ways of growing cannabis and selling it, then that final warning on your file will tell the Judge that this guy has run out of rope and if you do it again, you are looking at a minimum jail term of four years. [16] The Judge's sentencing remarks in relation to the present offending make it clear that he believed that he had, to use his own words, been "suckered" by Mr McIntosh when he had appeared for sentence in 2002. He took the dimmest of views that Mr McIntosh had remained involved with cannabis and firearms, and made it clear that imprisonment was the only option that was available to him. He selected a starting point of three years imprisonment on all of the cannabis related charges. He reduced that by one-third to reflect the guilty pleas, thereby leaving an end sentence on the cannabis charges of two years imprisonment. [17] He selected the same starting point in relation to the firearms charges. Applying the same discount, he imposed an end sentence of two years imprisonment on those charges also. He then ordered Mr McIntosh to serve the two year end sentences cumulatively, thereby leading to the effective sentence of four years imprisonment. Grounds of appeal [18] On appeal, counsel for Mr McIntosh submits that the Judge fell into error by effectively finding himself bound by his earlier sentencing remarks. He submitted that the Judge had tailored the sentences to reach the end result predicted in 2002, namely an end sentence of four years imprisonment. [19] In addition, he submits that the Judge failed to have regard to the principle of totality. He submits that an end sentence of around three to three and a half years imprisonment would have been appropriate, and that an end sentence of four years imprisonment was excessive having regard to all the circumstances. Decision [20] I agree that the Judge was clearly influenced in reaching the sentence that he did by having regard to the events that occurred when he sentenced Mr McIntosh in 2002. I am not necessarily sure, however, that it can properly be said that the Judge considered himself to be bound by his earlier remarks. It may be a matter of coincidence that the Judge imposed an end sentence that was exactly the same as that which he had predicted would be imposed when he sentenced Mr McIntosh in 2002. [21] Of more concern to me is the fact that the Judge did not, overtly at least, apply the totality principle. He was required to apply that principle because he was imposing cumulative terms of Mr McIntosh. As a result, s 85(2) Sentencing Act 2002 required him to have regard to the totality of the offending when considering the end sentence. The Judge did not mention the totality principle at all in his sentencing remarks. He simply selected a starting point on each of the two forms of offending and then reduced that starting point by one-third to reach the end sentence. [22] I do not consider that the Judge can be criticised for the starting point that he selected in respect of either the firearms or cannabis charges. It seems to me that each of those charges warranted a starting point of at least three years imprisonment having regard to the circumstances in which the offending occurred. In addition, Mr McIntosh's previous convictions mean that it is now inevitable that an uplift will be applied on any occasion where he appears for sentence on cannabis or firearms related charges. [23] The issue, then, is whether an end starting point of six years imprisonment was warranted having regard to the circumstances of the offending and the earlier convictions. I have reached the conclusion that that end sentence was slightly high, and that some adjustment needs to be made to give effect to totality principles. I consider that an appropriate end sentence on all charges would have been five and a half years imprisonment. [24] I accept that the Judge may have been a little generous in relation to some of the charges when he applied a discount of one-third to reflect the guilty pleas. This is because the guilty pleas on some charges cannot realistically be said to have been entered at the earliest opportunity. Nevertheless, that is the formula that the Judge considered to be appropriate and I do not consider that it would be proper for this Court on appeal to adopt a different approach. [25] Adopting that approach, the overall discount to be applied is one of one-third, or 22 months imprisonment. This leaves an overall end sentence of three years eight months imprisonment. [26] To give effect to that conclusion, I propose to leave all of the sentences on the drugs charges intact. This means that Mr McIntosh will serve an effective sentence of two years imprisonment on those charges. [27] On the two charges of being in unlawful possession of the firearm, the sentences of two years imprisonment are quashed and are replaced with sentences of one year eight months imprisonment. Those sentences are to be served concurrently with each other but cumulatively on the sentences imposed on the drug-related charges. [28] On the charge of receiving the stolen shotgun, Mr McIntosh is sentenced to six months imprisonment, and on the charge of discharging the firearm he is sentenced to 12 months imprisonment. Both those sentences are to be served concurrently with each other and concurrently also with all other charges. Lang J
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URL: http://www.nzlii.org/nz/cases/NZHC/2009/1410.html