MCKELVY v R [2018] NZCA 286

MCKELVY v R [2018] NZCA 286 [2 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA706/2017[2018] NZCA 286BETWEEN MILES JOHN MCKELVYAppellantAND THE QUEENRespondentHearing: 7 June 2018Court: Cooper, Whata and Thomas JJCounsel: M S Gibson for AppellantE J Hoskin for RespondentJudgment: 2 August 2018 at 11.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr McKelvy appeals his sentence of five years and two months' imprisonmentfor two representative counts of supply of a class B controlled drug, GBL.1 Mr Gibsonfor Mr McKelvy submits the starting point was manifestly excessive and the discountfor ill health and guilty plea (10 months) was too small.1 R v McKelvy [2017] NZDC 27306.[2] We disagree. The starting point adopted by Judge Moala of six years falls wellwithin the available range for offending involving commercial level supply of aclass B drug. The offending involved importation of GBL on 10 separate occasions.Six of them were intercepted, netting a total of 81 litres of GBL at a value of $364,500.It was band two offending as described by this Court in R v Wallace:2[31] Commercial manufacture or importation on a substantial scalereflecting sophistication and organisation with operations extending over aperiod of time though not involving massive quantities of drugs or prolongeddealing [3] The Court ascribed a range for such offending of between five to eight yearsimprisonment. A starting point of six years is also comparable to the sentencesimposed in R v Palmer, where a starting point of seven years for importation of a classB drug worth a minimum of $500,000 was considered appropriate.3 It is also accordswith comments made in Hartman v R, where this Court indicated that a six-yearstarting point for an importation of 15.5 litres of GBL was appropriate.4[4] Mr Gibson referred to several other sentences for GBL offending involvingstarting points of between seven years and eight years six months for importationsranging from 125 litres to 277 litres.5 But, while relatively less stern than the presentsentence, we are satisfied the starting point adopted by the Judge remainedproportionate to the offending.[5] The discounts for guilty plea and ill health were also satisfactory.The combined discount of 10 months amount to a 14 percent reduction on the startingpoint. The guilty plea was given shortly after the charges were amended, but subjectto a disputed fact hearing that put in issue whether he imported the GBL for alegitimate purpose.6 Inevitably this required a thorough canvas of the availableevidence about the circumstances of the importation, Mr McKelvy's knowledge of theGBL and his intention at the time of the importations. This resulted in findings that2 R v Wallace [1999] 3 NZLR 159 (CA).3 R v Palmer [2007] NZCA 167, [2007] 3 NZLR 313 at [33].4 Hartman v R [2010] NZCA 90. Overall, the Court also endorsed an eight year starting point,inclusive of unquantified methamphetamine offending and the supply of up to 400 MDMA pills.5 R v Stark CA104/06, 31 July 2006; and Close v R [2011] NZCA 434.6 R v McKelvy [2016] NZDC 25481 at [24]–[36].Mr McKelvy imported GBL to be distributed and sold by other people as a recreationaldrug, thus negating the allegation of legitimate purpose.7[6] Effectively, therefore, the Court was engaged in a substantive trial process.The benefits of the guilty plea were, in this context, small. A five to 10 percentdiscount for this factor was available to the Judge.[7] Mr McKelvy's ill health comprises his age, 60, and a diagnosis of prostatecancer which currently appears to be in remission. We accept this warranted a separatediscount because a lengthy sentence may have a disproportionately severe effect onMr McKelvy. However, while a more generous discount was available to the Judge,a discount in the order of five per cent is within range.[8] Accordingly, a discount of 14 percent was not inadequate and an end sentenceof five years and two months' imprisonment was not manifestly excessive.[9] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent7 At [67].