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MCINTOSH V NEW ZEALAND POLICE HC ROT CRI-2009-463-84 [2009] NZHC 1410 (12 October 2009)

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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