Collinson v The Queen - [2005] NZCA 244

IN THE COURT OF APPEAL OF NEW ZEALAND
CA440/04
THE QUEEN
v
ANTHONY EDWARD DAVIS
CA13/05
THE QUEEN
V
STEPHEN MURRAY COLLINSON
Hearing:13 October 2005

Court:Robertson, Baragwanath and Heath JJ
Counsel:M F Laracy for Crown

P J Kaye & D Beston for Respondent Davis
S J Bonnar for Appellant Collinson

Judgment:20 October 2005

JUDGMENT OF THE COURT

AThe Solicitor-General’s application for leave to appeal is granted. The sentence of seven years’ imprisonment is quashed and in its place Mr Davis is sentenced to concurrent terms of ten years’ imprisonment with a minimum non-parole period of five years on each count.
BMr Collinson’s appeal against sentence is allowed only in respect of the minimum non-parole period which is quashed.

____________________________________________________________________
REASONS
(Given by Robertson J)
Table of Contents

Para No

INTRODUCTION  [1]
THE FACTUAL POSITION  [8]
THE DAVIS SENTENCE  [22]
THE MORGAN SENTENCING  [36]
THE DAVIS APPEAL  [43]
THE COLLINSON APPEAL  [84]
CONCLUSION  [104]
Introduction
[1]       These two appeals were heard together as they arise out of the same criminal offending. In respect of Mr Davis the Crown seeks leave to appeal against a sentence of seven years’ imprisonment imposed upon him by Laurenson J in the High Court at Auckland on 15 October 2004. Mr Davis pleaded guilty to counts of:
(a)having in his possession a Class A controlled drug, namely cocaine, for any of the purposes set out in s 6(1)(c) of the Misuse of Drugs Act 1975 in respect of which the maximum penalty is life imprisonment;
(b)conspiring to export a Class A controlled drug, namely cocaine, from New Zealand in respect of which the maximum penalty is 14 years’ imprisonment.

[2]       The Crown seeks leave to appeal on the basis that the Judge’s starting point of ten years was manifestly inadequate, and that a minimum non-parole period should have been imposed.
[3]       Mr Collinson appeals against an effective sentence of nine years’ imprisonment imposed upon him by Goddard J in the High Court at Auckland on 30 November 2004 after he entered pleas of guilty to the same two charges. He also had a minimum non-parole period of four and a half years’ imprisonment imposed. In Mr Collinson’s case the sentencing Judge held that the appropriate starting point was 12 years.
[4]       This appeal is advanced on the basis that the effective sentence imposed was, in any event, manifestly excessive, that there was an unjustifiable disparity between the sentence imposed on him and that imposed on Mr Davis, and that the imposition of a minimum non-parole period was inappropriate and unjustified.
[5]       Although not the subject of appeal, the total picture can best be assessed if regard is had also to the sentencing of Christine Morgan who appeared for sentence on one count of importing cocaine and one count of possession of cocaine for supply. She was found guilty after trial by jury on both charges, each of which carry a maximum penalty of life imprisonment. Ms Morgan was part of the same overall criminal operation.
[6]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Collinson v The Queen

Details

AGLC: Collinson v The Queen [2005] NZCA 244
Case: [2005] NZCA 244
Decision Date: 20 October 2005

CaseChat Overview and Summary

The Court of Appeal of New Zealand granted the Solicitor-General's application for leave to appeal against the sentence imposed on Mr. Davis, and allowed Mr. Collinson's appeal against sentence. The appeals arose from the same criminal offending involving the importation and exportation of cocaine. The Crown sought leave to appeal against the seven-year sentence imposed on Mr. Davis, arguing that the starting point of ten years was manifestly inadequate and that a minimum non-parole period should have been imposed. Mr. Collinson appealed against his nine-year sentence, arguing that it was manifestly excessive, that there was an unjustifiable disparity between his sentence and that imposed on Mr. Davis, and that the imposition of a minimum non-parole period was inappropriate and unjustified.

The Court found that the starting point of ten years selected by the sentencing Judge for Mr. Davis was clearly out of line with the approach that the Court had consistently adopted for this level of involvement in the import and/or export of substantial quantities of class A drugs. The Court was satisfied that a starting point of less than 13 or 14 years could never have been justified. The Court also found that a minimum non-parole period should be imposed in respect of Mr. Davis, and substituted a period of ten years' imprisonment subject to a minimum non-parole period of five years.

In respect of Mr. Collinson, the Court found that the 12-year starting point was appropriate and consistent with patterns that have emerged which give appropriate consideration to the total scale of the operation and the individual's involvement in it. However, the Court concluded that the imposition of a minimum non-parole period was inappropriate and unjustified because of the disparity issue which will arise as between Mr. Collinson and Ms. Morgan. For that reason alone, the Court concluded that the appeal against sentence should be allowed and the minimum non-parole period quashed.

The Court quashed the seven-year sentence imposed on Mr. Davis and substituted concurrent terms of ten years' imprisonment with a minimum non-parole period of five years on each count. The Court also quashed the minimum non-parole period imposed on Mr. Collinson.

Orders