Eze v The Queen - [2013] NZCA 529

IN THE COURT OF APPEAL OF NEW ZEALAND

CA760/2012
[2013] NZCA 529

BETWEEN	COLLINS EZE Appellant
AND	THE QUEEN Respondent

Hearing:	24 October 2013
Court:	Miller, Venning and Andrews JJ
Counsel:	J M Scott for Appellant N E Walker for Respondent
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…

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 Eze v The Queen

Details

AGLC: Eze v The Queen [2013] NZCA 529
Case: [2013] NZCA 529
Decision Date: 31 October 2013 at 4.00 pm

CaseChat Overview and Summary

Collins Eze appealed against his sentence for importing and possessing methamphetamine for supply, arguing it was manifestly excessive. The District Court Judge sentenced Eze to 11 years’ imprisonment with a minimum non-parole period of five years, six months. The Court of Appeal heard submissions from Eze's counsel, who argued there was a disparity in the starting point of Eze's sentence compared to a co-offender, the minimum non-parole period was excessive, and Eze should have received credit for time spent in custody. The Crown argued the starting point and minimum non-parole period were appropriate given the circumstances of the case. The Court found that the Judge was entitled to take a starting point of 12 years for Eze's offending and that there was no disparity between the starting point of his sentence and that of his co-offender. The Court also found that the minimum non-parole period was appropriate, given the nature and scale of the offending. The Court rejected the argument that Eze should have received credit for time spent in custody, as the appropriate credit was already provided for under the Parole Act 2002. The appeal against sentence was dismissed.

The Court of Appeal dismissed the appeal against sentence. The Court found that the starting point and minimum non-parole period were appropriate given the circumstances of the case. The Court rejected the argument that Eze should have received credit for time spent in custody, as the appropriate credit was already provided for under the Parole Act 2002. The sentence of 11 years’ imprisonment with a minimum non-parole period of five years, six months, remains in place.

Orders