McDONALD v R [2020] NZHC 1509

McDONALD v R [2020] NZHC 1509 [30 June 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-181[2020] NZHC 1509BETWEEN LIONEL JAMES RUKA McDONALDAppellantAND THE CROWNRespondentHearing:FurtherSubmissions:11 May 202015 May 2020 for the Appellant18 May 2020 for the RespondentAppearances: A Schulze for the AppellantC Macklin for the RespondentJudgment: 30 June 2020JUDGMENT OF HINTON JThis judgment was delivered by me on 30 June 2020 at 4:45 pmRegistrar/Deputy RegistrarSolicitors/Counsel:Gordon Pilditch, RotoruaA Schulze, Barrister, RotoruaIntroduction[1] Lionel McDonald appeals against a sentence of 13 years' 9 months'imprisonment, with a minimum period of imprisonment of seven years, imposed byJudge Hollister-Jones in the District Court at Rotorua on 14 February 2020 in respectof one charge of possessing methamphetamine for supply.1[2] Mr McDonald does not appeal against the length of the term of imprisonmentimposed. Rather, he appeals against the imposition of and in the alternative the lengthof the minimum period of imprisonment.Background[3] Mr McDonald pleaded guilty on the basis of the following summary of facts.On 14 August 2019, the Police searched his vehicle and home. In the vehicle, theyfound 36.5 kilograms of methamphetamine, packaged into 62 snap lock bagscontaining varying amounts of the drug. In his home, five cell phones were found,together with a notebook with entries in it that included columns with weightsrecorded. All five phones were operational – one Mr McDonald described as hisregular phone, the others he said he did not know how to unlock.[4] On 15 August 2019, Mr McDonald's storage unit was searched, the key towhich had been found in his vehicle. In the storage unit were four metal lockers. Keysto three of the lockers were found on the key ring also containing the keys toMr McDonald's vehicle.[5] In the storage unit, the Police found 101 one-kilogram packages ofmethamphetamine, 99 in Chinese green tea packaging, and two in snap lock bags.Also in the lockers were 25 empty green tea packages similar to 35 empty green teapackages found in Mr McDonald's garage; the clear inference, the Police say, beingthat there had been another 60 kilogram-weight packages of methamphetamine in thelocker at some point.1 R v McDonald [2020] NZDC 2606.[6] The weights of the blocks of methamphetamine found in the storage unitcorresponded, the Police identified, to the weights recorded in the notebook found inMr McDonald's home.[7] In all, 137.5 kilograms of methamphetamine was seized, one of the largestseizures to date in New Zealand. The Judge considered that, at street level valuesprevailing at the time of sentencing, the methamphetamine could have been sold toend users for about $69,000,000.District Court Decision[8] Having set out the above facts, Judge Hollister-Jones noted the amount ofmethamphetamine recovered placed this offending, in terms of the "huge amount"recovered, as amongst the most serious in New Zealand's history. The Judge said, onthe basis of the Court of Appeal's statements in Zhang v R, that the weight ofmethamphetamine is a reasonable proxy for the social harm caused by supply in agiven case, and a reasonable indicator of the degree of commerciality.2 He said thatthis case sat "in the category of being near to the most serious of cases." It was plainly,the Judge considered, agreeing with the Crown, at the upper end of band 5 in Zhang.[9] Assessing Mr McDonald's role, the Judge did not accept what he termed asMr McDonald's "claim of naivety". Rather, the Judge considered that Mr McDonaldknew exactly how serious his offence was. He said that Mr McDonald (despitestatements to the Police to the contrary) had full knowledge of how to access all of thecell phones recovered. The Judge said that Mr McDonald was clearly intelligent, hadheld a significant management role and had been involved in the Rotorua community,so would appreciate the social harm caused by methamphetamine and also the scaleof his offending. The Judge described Mr McDonald's role in the offending asoperational, relating to storage and onwards distribution of the drug. Mr McDonaldhad exercised control over the methamphetamine at an important stage of a largersupply chain, albeit only in an operational capacity. The Judge considered MrMcDonald's motivation was financial but noted there was no evidence of the benefithe in fact derived.2 Zhang v R [2019] NZCA 507 at [103]-[104].[10] In terms of the role categorisations of 'lesser', 'significant', and 'leading' setout by the Court in Zhang, the Judge considered that the role was 'significant', but atthe lower end of the 'significant' range.[11] The Judge compared the facts of the present case to those in Leung, whereMoore J adopted a starting point of 26 years' 6 months' imprisonment in respect of anoffender, Mr Chiu, who had a leading role in the importation of 157 kilograms ofmethamphetamine. In terms of Mr Chiu's co-offender, Mr Chiang, who purchasedequipment and moved boxes to facilitate the importation of 109 kilograms, Moore Jadopted a starting point of 21 years.3[12] Judge Hollister-Jones noted the level of involvement here was more similar tothat of Mr Chiang than Mr Chiu, but also noted the amount involved was closer to thatin respect of which Mr Chiu had been convicted. He adopted a starting point of 23years' imprisonment.[13] Turning to personal mitigating factors, the Judge noted that Mr McDonald was42 years of age and, for the purposes of the sentencing under appeal, essentially a first-time offender. Mr McDonald's only previous convictions were for disorderlybehaviour and traffic matters.[14] The Judge referred to the fact that Mr McDonald's father had been violenttowards him when he was young, and also towards other family members. But henoted that Mr McDonald had overcome these early setbacks to become a "highly-functioning adult" in a stable marriage, who had been involved in a number ofcommunity initiatives. He therefore declined to find a causal connection betweenMr McDonald's troubled childhood and his offending.[15] The Judge similarly referred to evidence of a gambling problem (involvingspending of up to $200 a day) but did not accept there was sufficient evidence of agambling addiction or of any connection to the offending to warrant a discount.3 R v Leung [2019] NZHC 3299.[16] On the other hand, the Judge did allow Mr McDonald credit for his "blame-free life" and numerous contributions to the community, as evidenced by multiplecharacter references. The Judge placed weight on what he saw as genuine remorseexhibited by Mr McDonald in a letter to the Court. The Judge also said he consideredMr McDonald's demonstrated leadership skills, lack of any seriously concerningaddiction issues, and apparently co-operative attitude while imprisoned asdemonstrating clear rehabilitative potential.[17] Taking these points together, the Judge allowed a discount of four years andeight months or about 20 per cent for personal mitigating factors. Together with a 25per cent guilty plea discount of 55 months, the Judge imposed an end sentence of 13years' 9 months' imprisonment.[18] Finally, addressing whether a minimum period of imprisonment should beimposed, the Judge said that:[42] [] a minimum period of imprisonment is necessary to hold youaccountable, denounce your offending, which is at the most serious end of themethamphetamine spectrum, and to deter you and others from offending atthis level. I set this at approximately 50 percent of your sentence. Theminimum period will be seven years imprisonment. I do not consider it isnecessary to sentence you to any higher minimum period, and that is becauseof your excellent prospects of rehabilitation.Grounds of Appeal[19] As noted, Mr McDonald does not appeal against his sentence of 13 years' 9months' imprisonment, but rather the imposition of a minimum period ofimprisonment of 7 years under s 86 of the Sentencing Act 2002 (the Act) and,alternatively, the length of that minimum period.[20] That is an appropriately restrained position for the appellant to adopt on appeal.The sentence the Judge arrived at was well within the range set out in Zhang for band5 supply-only offending by offenders with a low-level 'significant' role in theoffending.4 That characterisation of the offending is clearly correct. The sentenceadopted is also consistent with the approach adopted in the handful of cases dealing4 Above n 2 at [125] and [126].with offending involving huge quantities of methamphetamine since the decision inZhang, such as the case of Leung referred to by the Judge.[21] Addressing the sole ground of appeal, counsel for Mr McDonald, Mr Schulze,submits that the Judge failed to adequately identify why a minimum period ofimprisonment was needed to achieve the purposes set out in s 86(2) of the Act. Hesays that when the personal circumstances of the appellant, acknowledged by theJudge, are taken into consideration the imposition of a minimum period ofimprisonment is not necessary to satisfy the s 86(2) purposes. Counsel submits thatthe seriousness of the offending is not in and of itself sufficiently grave to warrant theimposition of a 50 per cent (or so) minimum period.Approach on Appeal[22] This first appeal against sentence is brought as of right pursuant to s 244(1) ofthe Criminal Procedure Act 2011. As the first appeal court,5 I must allow the appealif satisfied that there is an error in the sentence imposed on conviction, and that adifferent sentence should be imposed.6 The appeal must be dismissed in any othercase.7[23] In deciding whether to impose a different sentence, I must not simply substitutemy own view for that of the original sentencing Judge.8 Rather, I must be satisfiedthat the sentence is manifestly excessive or wrong in principle.9 That is, a sentencingappeal is "not generally a second shot at sentencing."10 Therefore, the focus is on theresult rather than the process by which the sentence was reached.115 Criminal Procedure Act 2011, s 247(b)(i).6 Section 250(1)-(2).7 Section 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].9 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]–[35].10 Polyanszky v R [2011] NZCA 4 at [17]-[18].11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 [36].Discussion[24] As just noted, the focus on an appeal against sentence is on the outcome, ratherthan the process by which the sentence was reached, insofar as it is necessary for theappeal court to be satisfied that a different sentence should be imposed.[25] Mr Schulze is correct to submit based on Zhang that a minimum period ofimprisonment should not be imposed in a routine or mechanistic way and it is notsufficient for a Judge simply to recite s 86 without more.12 The Court also said, inrespect of methamphetamine offending specifically, to the extent a practice ofimposing a minimum period of imprisonment in cases attracting an end sentence ofmore than nine years' imprisonment had emerged under the preceding Fatu tariff,"such a practice must cease."13[26] For those reasons, as Mr Macklin accepts for the Crown, it is necessary toprovide some analysis of the basis for applying s 86(2) and of the period that is fixed.In largely reciting s 86, the Judge arguably did not do that.[27] However, that does not disclose a reason why the appeal should succeed.Rather, the appellant must demonstrate that a minimum period of imprisonmentgreater than that necessary to achieve the purposes of sentencing listed in s 86(2) hasbeen imposed, such that the sentence is one that was unavailable to the Judge.[28] The default non-parole period in respect of a "long-term determinate sentence"of imprisonment (one longer than two years)14 is, subject to the imposition of a greaterminimum period of imprisonment under the Act, one-third of the length of thesentence.15[29] Section 86(2) of the Act provides that a minimum period of imprisonmentlonger than that applicable by default may be imposed if the Court is satisfied that thedefault period is insufficient to achieve any or all of the purposes of:12 Blackler v R [2019] NZCA 232 at [38]; Tamati v R [2018] NZCA 463 at [15]; R v Gordon [2009]NZCA 145; R v Parker CA179/03, 21 August 2003.13 Above n 2 at [10(n)] and [164]-[174].14 Parole Act 2002, s 4(1) definition of "long-term sentence".15 Parole Act 2002, s 84(1).(a) holding the offender accountable for the harm done to the victim andthe community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committing the same ora similar offence:(d) protecting the community from the offender.[30] In Zhang, emphasising the points already made that a mechanistic approachcannot be adopted, and there is no presumption, the Court of Appeal stated that:16[] it is deterrence, denunciation and accountability that are likely to be atthe forefront of decisions in drug cases involving the imposition of a minimumperiod of imprisonment. That in turn means that as a general rule, lengthyminimum periods of imprisonment are properly reserved for cases involvingsignificant commercial dealing.[31] Of particular relevance in this case, as Mr Macklin submits, is the Court inZhang's analysis of the appropriate minimum period of imprisonment in the case ofMr Zhang himself. Mr Zhang was implicated in the importation of 17.9 kilograms ofmethamphetamine; a little under 15 per cent of the amount that Mr McDonald wasinvolved in supplying. Mr Zhang's end sentence was eight years and six months'imprisonment. His role was, as with Mr McDonald, placed at the lower end of the'significant' range. Like Mr McDonald, Mr Zhang was dealt with as a first-timeoffender, was genuinely remorseful and was assessed as being at a low-risk of re-offending. Even more compellingly than Mr McDonald's early guilty plea, Mr Zhanghad provided significant assistance to authorities. Yet, the Court upheld the impositionof a fifty percent minimum period of imprisonment in respect of Mr Zhang, noting:17Given that Mr Zhang is a first time offender and has been assessed as being atlow risk of reoffending, we accept that community protection alone would notjustify a minimum period of imprisonment. The provision of assistance toauthorities is also a factor weighing arguably against imposition of a minimumperiod of imprisonment. However, this was knowing participation insubstantial, commercial-scale drug offending with potentially very serioussocial consequences. It is unmitigated by vulnerability of any kind. Absentimposition of a minimum period, Mr Zhang would be eligible for release afterjust two years and 10 months' imprisonment [being the one-third minimumperiod of imprisonment applicable to his end sentence of eight years and sixmonths imprisonment by default.] We consider that would send anunacceptable message to those participating, or minded to participate, in16 Zhang, above n 2, at [171].17 At [263].commercial-scale drug dealing. Mr Zhang is now remorseful and he poseslittle future risk to New Zealand, but deterrence, denunciation andaccountability for commercial-scale drug offending, all require he serve alonger sentence than two years and 10 months' imprisonment. We thereforeagree with the Judge that a minimum period of 50 per cent of the end sentencewas justified in this case.[32] Similarly, in assessing the sentence of Mr Zhang's co-offender Mr Thompson,who entered an early guilty plea, had a minor criminal history with no previoussentences of imprisonment, and who had supplied only 4.2 kilograms ofmethamphetamine, but was considered to have had a principal role in the offending,the Court considered a 50 per cent minimum period of imprisonment necessary for thepurposes of holding him accountable, denouncing his conduct, and deterrence.18[33] It is clear from the materially lower starting points adopted in their cases thatthe offending of Mr Zhang and Mr Thompson was less culpable than that of MrMcDonald, the key difference being the extraordinary amount of methamphetamineinvolved in the present case.[34] The personal circumstances on which Mr Schulze relies, being those the Judgereferred to, show that Mr McDonald is of excellent previous character and highlyremorseful and that a minimum period of imprisonment is not necessary for purposesof personal deterrence or community protection, much as with Mr Zhang. But (againas in Zhang) the personal circumstances do not counter the purposes for whichs 86(2)(a), (b), and (c) (so far as that paragraph relates to deterring others fromoffending) are engaged in a case such as this. In terms of accountability anddenunciation, which relate primarily to the level of culpability disclosed by theoffending, it is important to recall that Mr McDonald's offending falls within thatcategory of cases just below the most serious conceivable offending of this type. Evenwhile accepting that Mr McDonald himself had only a "low-level significant" role inthe offending, and most of the profits would have accrued to the lead offenders ratherthan to him, the staggering quantity of methamphetamine, the inordinate level ofpotential social harm, and extremely high level of commerciality, mean a minimumperiod of imprisonment should be imposed. Mr McDonald's being eligible for paroleafter only four years and seven months or so in prison would not adequately hold him18 At [280].accountable for the harm done to the community, denounce his conduct, or deter othersfrom committing similar offences.[35] I have had regard to Mr Schulze's submission that I could impose a 40 per centminimum period of imprisonment instead of 50 per cent, which would result in aminimum period of 5 years and 6 months' imprisonment. While strongly opposing,Mr Macklin accepted that would not amount to tinkering. I considered there may besome basis for Mr Schulze's submission, given that (unlike in Zhang) Mr McDonaldhad (ironically) made a significant contribution to the community and there was strongcommunity support for him at his sentencing, despite the offending. Arguably in thosecircumstances the community call for a stern sentence is not so great.[36] I also considered the cases to which Mr Schulze referred me in a post-hearingmemorandum, Macedo and Joyce,19 which involved methamphetamine offendingwhere the minimum period of imprisonment imposed under s 86 was quashed onappeal. In both cases the Court of Appeal emphasised the need to consider both thedefendant's personal characteristics and the need for deterrence, denunciation, andpromoting accountability in respect of offending of this type. I agree with Mr Macklinthat these cases are readily distinguished as they involved vastly lesser quantities ofdrugs (2.3835 kilograms of cocaine in Macedo and 0.2835 kilograms ofmethamphetamine in Joyce). Mr McDonald's culpability is inordinately greater thanwas Mr Macedo's or Mr Joyce's, such that considerations of general deterrence anddenunciation weigh far more heavily.[37] Ultimately, given the extraordinarily grave character of this offending, I havedecided that the call for denunciation, accountability and deterrence of others is toogreat to be satisfied by a minimum period of imprisonment of less than 50 per cent (inthis case seven years), Mr McDonald's favourable personal characteristicsnotwithstanding. I also consider that conclusion to be consistent with Zhang. It isnecessary to demonstrate to others tempted to become involved in the potentiallylucrative business of high-level commercial supply of methamphetamine that aproportionately severe prison sentence will result when convicted.19 Macedo v R [2020] NZCA 132; and Joyce v R [2020] NZCA 124.[38] I am therefore not satisfied either that there is any error in the sentence underappeal or that a different sentence should have been imposed.Result[39] It follows that the appeal is dismissed.Hinton J