IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE	
CRI-2020-463-181
[2020] NZHC 1509	

BETWEEN	LIONEL JAMES RUKA McDONALD
Appellant	
AND	THE CROWN
Respondent	

Hearing:

Further Submissions:	11 May 2020

15 May 2020 for the Appellant
18 May 2020 for the Respondent	

Appearances:	
A Schulze for the Appellant
C Macklin for the Respondent	
Judgment:	30 June 2020	

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 June 2020 at 4:45 pm

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Gordon Pilditch, Rotorua
A Schulze, Barrister, Rotorua

McDONALD v R [2020] NZHC 1509 [30 June 2020]

Introduction

[1]	Lionel McDonald appeals against a sentence of 13 years’ 9 months’ imprisonment, with a minimum period of imprisonment of seven years, imposed by Judge Hollister-Jones in the District Court at Rotorua on 14 February 2020 in respect of one charge of possessing methamphetamine for supply.1

[2]	Mr McDonald does not appeal against the length of the term of imprisonment imposed. Rather, he appeals against the imposition of and in the alternative the length of 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, they found 36.5 kilograms of methamphetamine, packaged into 62 snap lock bags containing 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 weights recorded. All five phones were operational – one Mr McDonald described as his regular 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 to which had been found in his vehicle. In the storage unit were four metal lockers. Keys to three of the lockers  were found on the key ring also containing the keys to         Mr McDonald’s vehicle.

[5]	In the storage unit, the Police found 101 one-kilogram packages of methamphetamine, 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 tea packages found in Mr McDonald’s garage; the clear inference, the Police say, being that there had been another 60 kilogram-weight packages of methamphetamine in the locker at some point.

[6]	The weights of the blocks of methamphetamine found in the storage unit corresponded, the Police identified, to the weights recorded in the notebook found in Mr McDonald’s home.

[7]	In all, 137.5 kilograms of methamphetamine was seized, one of the largest seizures to date in New Zealand. The Judge considered that, at street level values prevailing at the time of sentencing, the methamphetamine could have been sold to end users for about $69,000,000.

District Court Decision

[8]	Having set out the above facts, Judge Hollister-Jones noted the amount of methamphetamine recovered placed this offending, in terms of the “huge amount” recovered, as amongst the most serious in New Zealand’s history. The Judge said, on the basis of the Court of Appeal’s statements in Zhang v R, that the weight of methamphetamine is a reasonable proxy for the social harm caused by supply in a given case, and a reasonable indicator of the degree of commerciality.2 He said that this 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 as Mr McDonald’s “claim of naivety”. Rather, the Judge considered that Mr McDonald knew exactly how serious his offence was. He said that Mr McDonald (despite statements to the Police to the contrary) had full knowledge of how to access all of the cell phones recovered. The Judge said that Mr McDonald was clearly intelligent, had held a significant management role and had been involved in the Rotorua community, so would appreciate the social harm caused by methamphetamine and also the scale of his offending. The Judge described Mr McDonald’s role in the offending as operational, relating to storage and onwards distribution of the drug. Mr McDonald had exercised control over the methamphetamine at an important stage of a larger supply chain, albeit only in an operational capacity. The Judge considered Mr McDonald’s motivation was financial but noted there was no evidence of the benefit he in fact derived.

[10]	In terms of the role categorisations of ‘lesser’, ‘significant’, and ‘leading’ set out by the Court in Zhang, the Judge considered that the role was ‘significant’, but at the lower end of the ‘significant’ range.

[11]	The Judge compared the facts of the present case to those in Leung, where Moore J adopted a starting point of 26 years’ 6 months’ imprisonment in respect of an offender, Mr Chiu, who had a leading role in the importation of 157 kilograms of methamphetamine. In terms of Mr Chiu’s co-offender, Mr Chiang, who purchased equipment and moved boxes to facilitate the importation of 109 kilograms, Moore J adopted a starting point of 21 years.3

[12]	Judge Hollister-Jones noted the level of involvement here was more similar to that of Mr Chiang than Mr Chiu, but also noted the amount involved was closer to that in respect of which Mr Chiu had been convicted. He adopted a starting point of 23 years’ imprisonment.

[13]	Turning to personal mitigating factors, the Judge noted that Mr McDonald was 42 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 disorderly behaviour and traffic matters.

[14]	The Judge referred to the fact that Mr McDonald’s father had been violent towards him when he was young, and also towards other family members. But he noted 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 of community initiatives. He therefore declined to find a causal  connection between  Mr McDonald’s troubled childhood and his offending.

[15]	The Judge similarly referred to evidence of a gambling problem (involving spending of up to $200 a day) but did not accept there was sufficient evidence of a gambling addiction or of any connection to the offending to warrant a discount.

[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 multiple character references. The Judge placed weight on what he saw as genuine remorse exhibited by Mr McDonald in a letter to the Court. The Judge also said he considered Mr McDonald’s demonstrated leadership skills, lack of any seriously concerning addiction issues, and apparently co-operative attitude while imprisoned as demonstrating clear rehabilitative potential.

[17]	Taking these points together, the Judge allowed a discount of four years and eight months or about 20 per cent for personal mitigating factors. Together with a 25 per cent guilty plea discount of 55 months, the Judge imposed an end sentence of 13 years’ 9 months’ imprisonment.

[18]	Finally, addressing whether a minimum period of imprisonment should be imposed, the Judge said that:

[42] […] a minimum period of imprisonment is necessary to hold you accountable, denounce your offending, which is at the most serious end of the methamphetamine spectrum, and to deter you and others from offending at this level. I set this at approximately 50 percent of your sentence. The minimum period will be seven years imprisonment. I do not consider it is necessary to sentence you to any higher minimum period, and that is because of your excellent prospects of rehabilitation.

Grounds of Appeal

[19]	As noted, Mr McDonald does not appeal against his sentence of 13 years’ 9 months’ imprisonment, but rather the imposition of a minimum period of imprisonment 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 band
5 supply-only offending by offenders with a low-level ‘significant’ role in the offending.4 That characterisation of the offending is clearly correct. The sentence adopted is also consistent with the approach adopted in the handful of cases dealing

with offending involving huge quantities of methamphetamine since the decision in
Zhang, 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 of imprisonment was needed to achieve the purposes set out in s 86(2) of the Act. He says that when the personal circumstances of the appellant, acknowledged by the Judge, are taken into consideration the imposition of a minimum period of imprisonment is not necessary to satisfy the s 86(2) purposes. Counsel submits that the seriousness of the offending is not in and of itself sufficiently grave to warrant the imposition 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) of the Criminal Procedure Act 2011. As the first appeal court,5 I must allow the appeal if satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.6 The appeal must be dismissed in any other case.7

[23]	In deciding whether to impose a different sentence, I must not simply substitute my own view for that of the original sentencing Judge.8 Rather, I must be satisfied that the sentence is manifestly excessive or wrong in principle.9 That is, a sentencing appeal is “not generally a second shot at sentencing.”10 Therefore, the focus is on the result rather than the process by which the sentence was reached.11

5	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].

Discussion

[24]	As just noted, the focus on an appeal against sentence is on the outcome, rather than the process by which the sentence was reached, insofar as it is necessary for the appeal 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 of imprisonment should not be imposed in a routine or mechanistic way and it is not sufficient for a Judge simply to recite s 86 without more.12 The Court also said, in respect of methamphetamine offending specifically, to the extent a practice of imposing a minimum period of imprisonment in cases attracting an end sentence of more 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 to provide 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 imprisonment greater than that necessary to achieve the purposes of sentencing listed in s 86(2) has been 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 greater minimum period of imprisonment under the Act, one-third of the length of the sentence.15

[29]	Section 86(2) of the Act provides that a minimum period of imprisonment longer than that applicable by default may be imposed if the Court is satisfied that the default 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”.

(a)	holding the offender accountable for the harm done to the victim and the 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 or a similar offence:

(d)	protecting the community from the offender.

[30]	In Zhang, emphasising the points already made that a mechanistic approach cannot 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 at the forefront of decisions in drug cases involving the imposition of a minimum period of imprisonment. That in turn means that as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.

[31]	Of particular relevance in this case, as Mr Macklin submits, is the Court in Zhang’s analysis of the appropriate minimum period of imprisonment in the case of Mr Zhang himself. Mr Zhang was implicated in the importation of 17.9 kilograms of methamphetamine; a little under 15 per cent of the amount that Mr McDonald was involved 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-time offender, 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 Zhang had provided significant assistance to authorities. Yet, the Court upheld the imposition of a fifty percent minimum period of imprisonment in respect of Mr Zhang, noting:17

Given that Mr Zhang is a first time offender and has been assessed as being at low risk of reoffending, we accept that community protection alone would not justify a minimum period of imprisonment. The provision of assistance to authorities is also a factor weighing arguably against imposition of a minimum period of imprisonment. However, this was knowing participation in substantial, commercial-scale drug offending with potentially very serious social consequences. It is unmitigated by vulnerability of any kind. Absent imposition of a minimum period, Mr Zhang would be eligible for release after just two years and 10 months’ imprisonment [being the one-third minimum period of imprisonment applicable to his end sentence of eight years and six months imprisonment by default.] We consider that would send an unacceptable message to those participating, or minded to participate, in

16	Zhang, above n 2, at [171].

commercial-scale drug dealing. Mr Zhang is now remorseful and he poses little future risk to New Zealand, but deterrence, denunciation and accountability for commercial-scale drug offending, all require he serve a longer sentence than two years and 10 months’ imprisonment. We therefore agree with the Judge that a minimum period of 50 per cent of the end sentence was 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 previous sentences of imprisonment, and who had supplied only 4.2 kilograms of methamphetamine, 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 the purposes of holding him accountable, denouncing his conduct, and deterrence.18

[33]	It is clear from the materially lower starting points adopted in their cases that the offending of Mr Zhang and Mr Thompson was less culpable than that of Mr McDonald, the key difference being the extraordinary amount of methamphetamine involved in the present case.

[34]	The personal circumstances on which Mr Schulze relies, being those the Judge referred to, show that Mr McDonald is of excellent previous character and highly remorseful and that a minimum period of imprisonment is not necessary for purposes of personal deterrence or community protection, much as with Mr Zhang. But (again as in Zhang)  the  personal  circumstances  do  not  counter  the  purposes  for which s 86(2)(a), (b), and (c) (so far as that paragraph relates to deterring others from offending) are engaged in a case such as this. In terms of accountability and denunciation, which relate primarily to the level of culpability disclosed by the offending, it is important to recall that Mr McDonald’s offending falls within that category of cases just below the most serious conceivable offending of this type. Even while accepting that Mr McDonald himself had only a “low-level significant” role in the offending, and most of the profits would have accrued to the lead offenders rather than to him, the staggering quantity of methamphetamine, the inordinate level of potential social harm, and extremely high level of commerciality, mean a minimum period of imprisonment should be imposed. Mr McDonald’s being eligible for parole after only four years and seven months or so in prison would not adequately hold him

accountable for the harm done to the community, denounce his conduct, or deter others from committing similar offences.

[35]	I have had regard to Mr Schulze’s submission that I could impose a 40 per cent minimum period of imprisonment instead of 50 per cent, which would result in a minimum period of 5 years and 6 months’ imprisonment. While strongly opposing, Mr Macklin accepted that would not amount to tinkering. I considered there may be some basis for Mr Schulze’s submission, given that (unlike in Zhang) Mr McDonald had (ironically) made a significant contribution to the community and there was strong community support for him at his sentencing, despite the offending. Arguably in those circumstances 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-hearing memorandum, Macedo and Joyce,19 which involved methamphetamine offending where the minimum period of imprisonment imposed under s 86 was quashed on appeal. In both cases the Court of Appeal emphasised the need to consider both the defendant’s personal characteristics and the need for deterrence, denunciation, and promoting accountability in respect of offending of this type. I agree with Mr Macklin that these cases are readily distinguished as they involved vastly lesser quantities of drugs (2.3835 kilograms of cocaine in Macedo and 0.2835 kilograms of methamphetamine in Joyce). Mr McDonald’s culpability is inordinately greater than was Mr Macedo’s or Mr Joyce’s, such that considerations of general deterrence and denunciation weigh far more heavily.

[37]	Ultimately, given the extraordinarily grave character of this offending, I have decided that the call for denunciation, accountability and deterrence of others is too great to be satisfied by a minimum period of imprisonment of less than 50 per cent (in this case seven years), Mr McDonald’s favourable personal characteristics notwithstanding. I also consider that conclusion to be consistent with Zhang. It is necessary to demonstrate to others tempted to become involved in the potentially lucrative business of high-level commercial supply of methamphetamine that a proportionately severe prison sentence will result when convicted.

[38]	I am therefore not satisfied either that there is any error in the sentence under appeal or that a different sentence should have been imposed.

Result

[39]	It follows that the appeal is dismissed.

Hinton J