McInnes v The Queen

[2011] NZCA 261

IN THE COURT OF APPEAL OF NEW ZEALAND

CA852/2010
[2011] NZCA 261

BETWEEN  TONY JAMES MCINNES
Appellant

AND  THE QUEEN
Defendant

Hearing:         23 May 2011

Court:             Glazebrook, Simon France and French JJ

Counsel:         P H B Hall for Appellant
F Sinclair for Respondent

Judgment:      7 June 2011 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

1. Mr McInnes was convicted following a trial before Judge Moran of one count of possession of the class A drug LSD for supply and one count of possession of the class A drug methamphetamine.  He had earlier pleaded guilty to one count of possession of a glass pipe (for smoking methamphetamine).

2. Mr McInnes was sentenced on 3 December 2010 to three years imprisonment.  He appeals against that sentence on the basis that it was manifestly excessive.

Background[1]

[1]      This is largely taken from the Crown submissions.

1. For some 14 years before the current offending, Mr McInnes had been involved in the fishing industry.  In November 2009, he had an operation for an elbow injury and was obliged to stop work for seven months.

2. In January 2010, Mr McInnes left his home in Hawea, Central Otago, and travelled to Taupo, where on his evidence, he paid about $5,000 for an assortment of drugs.  The payment came from a bank loan, which he and his fiancée had arranged for the purpose of their intended wedding.

3. On his way back Mr McInnes stayed in Christchurch.  Here, he consumed some of the methamphetamine that he had bought.  The motel owner contacted the police.  Mr McInnes was arrested and found to have:

   (a)2.9 grams of methamphetamine, 2 grams of which were divided into 10 point bags.  The remainder was in a larger bag;

   (b)       66 tabs of LSD;

   (c)       a glass pipe, which had been used; and

   (d)      a bag containing ecstasy (1.4 grams) and gelatine capsules.

4. The number of LSD tablets exceeded the threshold which triggers the reverse onus under s 6(6) of the Misuse of Drugs Act 1975.[2]

   [2]LSD is presumed to be for supply where there are 25 or more tablets.  See sch 5 of the Misuse of Drugs Act 1975.

5. Mr McInnes pleaded guilty on the day of his trial to possession of a methamphetamine pipe.  He was acquitted on the charge of possessing ecstasy (MDMA) for supply.  He was acquitted on the charge of possessing methamphetamine for supply and convicted for possession only.  He was convicted on the remaining count, possessing LSD for supply.

6. The defence at trial was that Mr McInnes had become depressed in the period leading up to the offending.  He said that he had bought the drugs in bulk because he had an opportunity to do so.  He intended to use them gradually for his own consumption.  It was suggested that such drugs were not readily accessible in Hawea.  He possessed scales when apprehended because he needed to check the weight of the drugs he was buying.  He also intended to use them when administering drugs to himself.  The same explanation – rationing – was offered for the possession of empty point bags.  There was no evidence in the form of tick lists, cash or message intercepts to suggest that he was involved in dealing in drugs.

7. While admitting to cannabis use even before his operation, Mr McInnes’ evidence was that he had first tried methamphetamine on one occasion in 2009.  He did not use the drug again until his Taupo trip in January 2010.  He had tried LSD once, about eight or nine years earlier.  He had once taken ecstasy, several years ago.

8. Mr McInnes’ position appeared to be that, rather than having an existing addiction to particular drugs, he had bought these drugs in order to go on a “bender”.  He described himself as a “recreational” rather than a heavy user.  At trial the Crown submitted that it was implausible for Mr McInnes to have borrowed $5,000 and gone to Taupo to buy drugs for personal use, when he had very little exposure to the kinds of drugs he acquired.

9. At trial the Crown called a Detective Senior Sergeant who said that in his opinion it was unusual to find somebody in possession of that number of LSD tabs if they were not involved in the supply of the drug.  The number of tabs for a mere possession charge would normally be in single figures.

Judge’s sentencing remarks

1. Judge Moran, the trial Judge, took the lead sentence as being the possession of LSD for supply.  He accepted that some of the LSD tabs were for Mr McInnes’ personal use but held that “by a large degree they were for the purpose of supply to others”. 

2. The Judge considered that conclusion reinforced by the fact that Mr McInnes had gone to the North Island with money belonging to him and his fiancée.  The Judge thought it likely that Mr McInnes wished to recoup some of his expenditure on the drugs and expenses relating thereto by supplying the LSD tabs.

3. The Judge, after referring to R v Stanaway[3] and R v Edwards,[4] took a starting point of three and a half years.  On the basis of Mr McInnes’ efforts at rehabilitation and the restrictive bail conditions that was reduced to three years imprisonment.  Concurrent sentences were imposed for the other offending.

Our assessment

[3]      R v Stanaway [1997] 3 NZLR 129 (CA).

[4]      R v Edwards [2009] NZCA 269.

1. For Mr McInnes, Mr Hall concedes that sentencing must proceed on the basis that the LSD was for supply and also concedes that the trial Judge is entitled to make any findings relevant to sentencing that are not inconsistent with the jury’s verdict.

2. However, he submitted in this case that, viewed in the context of the acquittals on the other supply charges, the jury likely convicted Mr McInnes on this supply charge because Mr McInnes could not meet the reverse onus.  He submitted that, where the drug quantities are relatively small (for example, under 100 tablets) and where there is no actual evidence of supply (such as tick lists) then a lesser sentence should apply than in the cases referred to by the trial Judge.

3. Mr Hall cited no authority for that somewhat startling proposition.  This is unsurprising as it does not represent the law.  The conviction is for possession for supply, whether through the failure to meet the reverse onus or not and Mr McInnes had to be sentenced accordingly.

4. Mr Hall’s next submission was that there was insufficient evidence for the Judge to conclude the majority of the LSD tabs were for supply.  We reject that submission.  There was ample evidence for the Judge to come to that conclusion, including the fact that he was not a recent user of LSD,[5] that the normal number of LSD tabs for personal use would be in single figures[6] and that he used borrowed money for the purchase.[7]

Result

[5] See at [9] above.

[6] See at [11] above.

[7] See at [4] above.

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent