IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O
AOTEAROA TĀMAKI
MAKAURAU ROHE
CRI-2016-044-4279
[2018] NZHC 2073

THE QUEEN

KANE
McARLEY

Hearing: 14 August 2018

Appearances: N Webby for the Crown

I Tucker for the
Defendant
Judgment: 14 August 2018

SENTENCING NOTES OF GORDON J

Solicitors: Crown Solicitor, Auckland

Tucker & Co, Auckland
R v McArley [2018] NZHC 2073 [14 August 2018]
Introduction

[1] Mr McArley you appear today for sentence after having accepted a sentence
indication of nine years’ imprisonment given by Lang J on 11 June 2018.1 You
pleaded guilty on 13 June 2018 to the following charges:

(a) Two charges of supplying a Class A controlled drug, namely

methamphetamine;2 and

(b) Escaping from lawful custody.3

[2] Supplying a Class A controlled drug carries a maximum penalty of life

imprisonment.4

Factual background

[3] You accepted the sentence indication which was based on an agreed summary
of facts. I adopt and set out below Lang J’s summary of your offending:5

[3] The charges were laid after the police intercepted Mr McArley’s
communications during the course of an on-going operation into the
distribution of drugs within the wider Auckland area and beyond. The police
obtained an interception warrant to intercept Mr McArley’s communications.
From these, they discovered that on two occasions he had travelled to
Christchurch carrying with him methamphetamine. There he had supplied a
person by the name of Riki Wellington with that methamphetamine. The first
supply took place on 6 October 2016 and involved 280 grams. The second
took place on 18 October 2016 and involved the supply of 700 grams.

[4] When the police arrested Mr McArley, he escaped from a police car
as it was entering the Auckland Central Police Station. He was able to slide
under a roller door as it was closing. He then remained at large from
14 December 2016 until 1 March 2017.

Approach to sentencing

[4] Mr McArley, setting a finite sentence involves three steps.6

1
R v McArley [2018] NZHC 1363.
2
Misuse of Drugs Act 1975, s 6(1)(c). As per s 6(2)(a), the maximum penalty is life imprisonment.
3
Crimes Act 1961, s 120(1)(c). The maximum penalty is imprisonment for a term not exceeding
five years.
4
Misuse of Drugs Act, s 6(2)(a).
5
R v McArley, above n 1.
6
R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[5] I must first set a starting point for your sentence to take account of the facts
of your offending, and then adjust it up or down taking into account your personal
circumstances. The last step is to consider what discount you should receive for your
guilty plea. There is also the matter of a minimum period of imprisonment.

[6] In sentencing you, Mr McArley, I must have regard to the purposes and
principles of sentencing which are set out in ss 7 and 8 of the Sentencing Act 2002.
The Court of Appeal commented in the context of methamphetamine offending in
Sarah v R that “deterrence and denunciation must be the primary sentencing
objectives”.7

[7] I must, therefore, impose a sentence that will hold you accountable for the
harm done to the community, to promote in you a sense of responsibility for that
harm, denounce your behaviour, and to deter you and others from committing similar
offending.

[8] I must also take into account the gravity and seriousness of your offending,
including your degree of culpability, the effect of your offending on the community,
the need for consistency with appropriate sentencing levels and the need to impose
the least restrictive sentence that is appropriate in the circumstances.

Starting point

[9] Lang J adopted the two charges of supplying methamphetamine as the lead
charges.8

[10] The supply of methamphetamine carries a maximum penalty of life

imprisonment. As Lang J identified,9 the Court of Appeal decision of R v Fatu is the
tariff case for this offending.10 In Fatu, the Court of Appeal categorised the
seriousness of methamphetamine offending into four bands resulting in different
starting points:11

7
Sarah v R [2013] NZCA 446 at [42].
8
R v McArley, above n 1, at [6].
9
At [6].
10
R v Fatu [2006] 2 NZLR 72 (CA).
11
At [34].
 (a) Band one – low-level supply (less than 5 g) – two to four years’
imprisonment.

(b) Band two – supplying commercial quantities (5 g to 250 g) – three

years to nine years’ imprisonment.

(c) Band three – supplying large commercial quantities (250 g to

500 g) – eight years to 11 years’ imprisonment.

(d) Band four – supplying very large commercial quantities (500 g or

more) – ten years to life imprisonment.

[11] The combined quantity of methamphetamine involved in your offending,

namely 980 grams, falls into band four.

[12] I am also required to refer to the relevant aggravating features of your

offending. Section 9(1) of the Sentencing Act contains a range of aggravating
factors.
As Lang J commented:12

[7] … The quantity involved is not, however, the only relevant factor in
terms of the starting point. The Court is also required to look at the wider
circumstances of the offending.

[13] Lang J assessed your role in the operation as follows:

[8] In the present case I see Mr McArley as being a trusted lieutenant of

Mr H, who was a principal organiser of this drug distribution network. Mr H,
in turn, worked for the ringleader, Ms F. Mr McArley acted under Mr H’s
instructions at all times and therefore needs to be sentenced on that basis.
However, his offending is more culpable than that of a “cut-out” or
“catcher”, whose role it is to be in possession of drugs for a brief period to
ensure the principals at either end of a transaction are not detected. The
driving of drugs from Auckland to Christchurch on two occasions is
obviously a significant activity. It assisted in the wholesale supply of drugs
to a retailer in Christchurch.

[14] I agree with that assessment. I adopt a global starting point of 10 years and
eight months’ imprisonment on the two charges, which was set out in the sentence
indication given by Lang J.13

12
R v McArley, above n 1.
13
At [9].
Uplift for the remaining charge

[15] It is necessary to uplift that starting point for the escaping from custody
charge. I uplift the starting point by four months’ imprisonment, which was the uplift
that Lang J adopted.14

Overall starting point

[16] This results in an overall starting point of 11 years’ imprisonment.

Personal circumstances

[17] I now need to consider your personal circumstances to see whether I should
adjust your starting point.

[18] Lang J did not have the benefit of a pre-sentence report before him when he
gave your sentence indication. A pre-sentence report dated 31 July 2018 has now
been prepared. It supersedes an earlier report dated 3 June 2018.

Pre-sentence report dated 31 July 2018

[19] You are 28 years of age. You were deported back here from Australia under
the new Returning Offenders (Management and Information) Act 2015. As you had
been living in Australia since you were 6 years old, all your family and friends
predominately live in Australia. However, since your arrest your mother has moved
back to New Zealand.

[20] You told the report writer that you were placed in supported housing for
approximately two weeks before being left with no support. You say you were
struggling without your support network and found yourself spending time with your
associates from the Christmas Island Detention Centre, who had also been subject to
deportation.

[21] You agreed to transport methamphetamine for a financial incentive. You told
the report writer that you had nothing and you knew if you could get some money
you

14
At [10].
could pay for your family to come over and visit you. Once your mother and younger
brother had visited, you realised what you had involved yourself in, and took a step
back from your associates. You say you were unaware of how serious the wider drug
operation was, your part being involved in transporting.

[22] The report writer says you expressed great remorse, saying that since you
have been incarcerated you have become aware of the devastating effects that
methamphetamine has on individuals in the community. You reported struggling with
an and off cocaine addiction that started at the age of 19, but you report no use of
methamphetamine.

[23] Since your arrest you have completed a Community Alcohol and Drugs
programme in custody along with a six-week secure on-line learning course. You
expressed interest in entering the three-month drug treatment unit following your
sentencing. You said that you hoped to utilise rehabilitation facilities in the
community upon your release to assist you with integrating back into the community.

[24] The report writer’s assessment was that you appeared to be remorseful with
regard to the charges to which you have pleaded guilty and that you expressed
motivation to address your offending related factors. You are also assessed as
showing great insight with regard to the importance of reintegration into the
community to avoid falling back on to a negative path. Despite your view that your
lack of reintegration support upon your deportation played large role in your
offending you, nevertheless, accept full responsibility for your actions.

[25] Your risk of harm is assessed as medium and your risk of reoffending is
currently assessed as medium. However, the report writer says that should you gain
and utilise the appropriate supports, then your risk of reoffending will be assessed as
low.

[26] Finally, as to employment, you reported that you have one pro-social friend in
New Zealand. You say that your friend is happy to give you employment as a
scaffolder once you are released from prison.
Previous convictions

[27] You do not have any previous convictions from your time in New Zealand.

[28] Like Lang J, I do not consider it appropriate to uplift the sentence to reflect
your previous convictions from when you were living in Australia. 15 You do not have
any previous convictions for drug-related offending.

Personal mitigating features

[29] There are no personal mitigating features which I am aware of. I will deal
with matters relating to remorse under the issue of a minimum non-parole period.

Guilty plea

[30] You are entitled to a reduction in your sentence for your guilty pleas.16

[31] I adopt a discount of two years’ imprisonment to reflect your guilty pleas,
which was set out in the sentence indication given by Lang J.17

End sentence

[32] This results in an end sentence of nine years’ imprisonment. The only matter
left for me to determine is whether or not to impose a minimum period of
imprisonment.

Minimum period of imprisonment

[33] Section 86(2) of the Sentencing Act provides that the Court may impose a
minimum period of imprisonment of more than one-third of the total sentence if it is
satisfied that a one-third period would be insufficient in:

(a) holding the offender accountable for the harm done to the victim and
the community by the offending:

15
At [11].
16
Hessell v R, above n 6, at [73]. See also Sentencing Act 2002, s 9(2)(b).
17
R v McArley, above n 1, at [13].
 (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.

[34] As Lang J commented, “[i]n any case of serious drug offending the criteria
set out in s 86 of the Sentencing Act 2002 are usually engaged”.18

[35] However, Lang J stated that he had an “open mind” on the issue of a
minimum term because this case “lies on the margin”. 19 The Judge noted that you
have no previous convictions for drug-related offending, your offending occurred
shortly after you were deported from Australia, and you only offended on two
occasions, albeit in a significant way.20

[36] Lang J then stated, “[i]f the pre-sentence report was encouraging and
provided an explanation for why Mr McArley became involved in this type of
offending after his return from Australia, I may well decide that a minimum term is
not appropriate”.21 Ultimately, the Judge did not decide the issue because there was
insufficient information, but he commented that if one were imposed, it would be in
the region of 50 per cent.22

[37] Therefore, I must decide whether a minimum period of imprisonment is

appropriate. As well as the pre-sentence report, I have your letter of 29 June 2018.

[38] Mr Tucker, on your behalf, submits that you have taken responsibility for
your actions both by way of both your guilty pleas and the content of your letter to
me. Mr Tucker refers to your statement in the letter that there was no excuse for the
poor choices you made, and that since being in prison in New Zealand you have a
better understanding of the damaging effect methamphetamine has on people and on

18
At [14].
19
At [16].
20
At [15].
21
At [16].
22
At [16]-[17].
communities in which it is distributed and used. You say you have tried your best to
be proactive in doing whatever courses are available and that you are truly sorry for
your offending.

[39] Mr Tucker submits that this reflects ownership of your offending and
illustrates genuine remorse on your part.

[40] Mr Tucker submits that this is relevant to the imposition of a minimum period
of imprisonment. He submits that a minimum period of imprisonment is seldom
imposed when the determinate sentence is less than nine years’ imprisonment and
conversely, commonly imposed when the determinate sentence is nine years or
more.23 Where the determinate sentence is less than nine years’ imprisonment, a
minimum period of imprisonment order is more likely to be made in cases involving
cross- border, high volume drug offending.24

[41] Mr Tucker submits that your offending does not have the features common to
serious drug offending, in that there is no cross-border involvement and the amount
of 980 grams is comparatively low. He adds in your expressed remorse and your
expressed understanding of the damaging effect of methamphetamine. For all those
reasons, Mr Tucker submits it is not necessary for a minimum period of
imprisonment to be imposed in the circumstances of this case.

[42] Mr Webby appearing for the Crown says that the Crown does not submit that
a minimum period of imprisonment is necessary in this case.

[43] As the Court of Appeal recently recognised in Chan v R:25

[39] Whilst minimum periods of imprisonment will frequently be justified

in cases of drug importation on a commercial scale, the imposition of a
minimum period of imprisonment remains a matter that is to be determined
case by case …

[44] In your letter to me you say that you were deported from Australia after living
there for your entire adult life. You do not have any family or many friends here,

23
R v Anslow CA182/05, 18 November 2005 at [27].
24
Mok v R [2017] NZCA 537 at [14].
25
Chan v R [2018] NZCA 148.
although your mother has now arrived in New Zealand since the date of that letter. I
accept that your support network was your fellow deportees. You found yourself in a
situation where you needed to earn money. That goes some way to explain your
actions but it does not excuse them. If those were the only matters relied on that
would not be sufficient to weigh against the imposition of a minimum period of
imprisonment.

[45] But both the pre-sentence report and your letter go further than that. I accept
that you have taken responsibility for your actions, that your remorse is genuine and
that you are now aware of the scourge that is methamphetamine. You have already
undertaken some courses and you have expressed interest in taking further courses
following your sentencing.

[46] I agree with Lang J that in your case the issue of a minimum term lies on the
margin. However, the pre-sentence report is encouraging. I therefore decline to
impose a minimum period of imprisonment.

Sentence

[47] Mr McArley, would you please stand.

[48] On the charge of supplying 700 grams of methamphetamine, you are

sentenced to nine years’ imprisonment.

[49] On the charge of supplying 280 grams of methamphetamine, you are

sentenced to six years and six months’ imprisonment.

[50] On the charge of escaping from lawful custody, you are sentenced to two
years’ imprisonment.

[51] All sentences are to be served concurrently.

[52] As a result of your guilty pleas, the Crown offers no evidence on two further
charges of supplying a class A controlled drug. You are accordingly discharged under
s 147 of the Criminal Procedure Act on those two charges.
[53] Stand down.

Gordon J