Eze v The Queen
[2013] NZCA 529
•31 October 2013 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA760/2012 [2013] NZCA 529 |
| BETWEEN | COLLINS EZE |
| AND | THE QUEEN |
| Hearing: | 24 October 2013 |
Court: | Miller, Venning and Andrews JJ |
Counsel: | J M Scott for Appellant |
Judgment: | 31 October 2013 at 4.00 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Following a jury trial in the District Court Collins Eze was convicted of one count of importing methamphetamine and one count of possession of methamphetamine for supply. Judge Perkins sentenced Mr Eze to 11 years’ imprisonment and imposed a minimum non-parole period of five years, six months.[1] Mr Eze appeals against his sentence on the ground it was manifestly excessive.
[1]R v Eze DC Auckland CRI-2010-092-7088, 26 October 2012.
In sentencing Mr Eze the Judge took a starting point of 12 years. He then allowed a reduction of 12 months for Mr Eze’s remorse and to take account of the extra hardship imprisonment would cause Mr Eze, given that he was not a New Zealand citizen and also suffered from diabetes. Judge Perkins considered a minimum non-parole period of 50 per cent was required to hold Mr Eze accountable, to provide denunciation and deterrence and to protect the community.
Ms Scott made the following principal submissions in support of the appeal:
(a)That there was a disparity between the starting point taken for the sentence of Mr Eze and a co-offender Ms Peneha. Ms Peneha had pleaded guilty to the importation. Judge Andrée Wiltens had taken a starting point of 10 years in her case. Ms Scott argued that Mr Eze’s culpability was the same as Ms Peneha’s and Judge Perkins should have adopted the same starting point.
(b)If the appeal ground based on the starting point was unsuccessful then Ms Scott argued the minimum non-parole period was itself manifestly excessive and not supportable.
(c)The Judge erred in not giving any allowance for the time Mr Eze had spent in custody.
We are satisfied Judge Perkins was entitled to take a starting point of 12 years for Mr Eze’s offending and that there was no disparity between the starting point of his sentence and that of Ms Peneha. The lead offence related to the importation of 444 grams of methamphetamine. Judge Perkins had the advantage of presiding over the trial of Mr Eze and a co-offender Mr Olua.[2] Ms Peneha had pleaded guilty to the one charge of importing methamphetamine. Judge Perkins assessed Mr Eze’s culpability as follows:[3]
I am not prepared to accept, on the evidence that I heard at trial, that you were a lesser player than Mr Olua. You definitely played different roles than him, but in my view both of you were intricately involved as the major players in the importation and the possession of this drug. So I am not prepared to accept that you are more closely aligned with Ms Peneha than Mr Olua. You were right up there with him, and the evidence was quite intricate, subtle in some cases but, in my view, the jury were left with the appropriate position that you were a major player.
[2]R v Ezeala & Olua DC Auckland CRI-2010-092-7088, 2 July 2012.
[3]R v Eze, above n 1, at [30].
Ms Scott suggested there were passages in the evidence, particularly text messages, that suggested Ms Peneha’s role was equal to that of Mr Eze. However, as Ms Walker pointed out, there were a number of texts that supported the conclusion Mr Eze was directing Ms Peneha. We refer to the following texts by way of example:
Eze: Tel kelle dnt try to open d box
Peneha:You have told her stop panicking if any thing goes wrong dnt cme 2 me
Eze:im not joking
...
Peneha:Im gona ring u ok
Eze:wait...i tel u wen
And later Mr Eze sent this text to Ms Peneha:
Eze:morning, hope u had a gud sleep, pls do this nw, tel tasi to get the box nw, is out for delivery, i just tracked it nw, thats the one for ashley.
And then these further messages to Ms Peneha:
Eze:oh man, can u ring him plz, this so important...just to knw if his ph is on or off
...
Eze: pls go c him pls
There are a number of other references of a similar vein.
We accept that Judge Perkins was entitled to conclude Mr Eze played a more central role in the importation than Ms Peneha and that their different roles supported the starting points taken for each of them.
Ms Scott then submitted the minimum non-parole period was manifestly excessive when applied to the end sentence of 11 years. However again we consider it was open to the Judge to impose a non-parole period of 50 per cent to address the considerations to which the Judge referred.[4] This was serious drug offending involving a large importation. As this Court noted in Zhou v R:[5]
... the pervasive and pernicious influence of methamphetamine in New Zealand society is such that the usual MPI of one-third applicable under the Parole Act 2002 will most often be insufficient to meet the statutory purposes identified in s 86(2) in cases of large scale offending.
[4]Sentencing Act 2002, s 86(2).
[5]Zhou v R [2009] NZCA at [19]. See also R v Anslow CA182/05, 18 November 2005; and R v Aram [2007] NZCA 328 at [78].
The last point made by Ms Scott was the suggestion that Mr Eze should have had some credit for time spent in custody pending trial. However, in this case, the time spent in custody is provided for by the appropriate credit under the Parole Act 2002. As the Supreme Court recorded in R v Williams:[6]
... if the accused has been in custody, that time will count towards service of the term of imprisonment.
There is no basis for Mr Eze to receive any additional credit on sentence for time spent in custody.
Result
[6]R v Williams [2009] 2 NZLR 750 at [18].
The appeal against sentence is dismissed.
Solicitors:
Public Defence Service, Auckland for Appellant
Crown Solicitor’s Office, Auckland for Respondent
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