Frewer v The Queen - [2012] NZCA 29

IN THE COURT OF APPEAL OF NEW ZEALAND

CA445/2011
[2012] NZCA 29

BETWEEN MATTHEW FREWER
Appellant

AND THE QUEEN
Respondent

Hearing: 16 February 2012

Court: Stevens, Ronald Young and Andrews JJ

Counsel: P J Kaye for Appellant
M J Lillico for Respondent

Judgment: 23 February 2012 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is allowed in part.

BThe sentence of eight years and nine months is quashed and a sentence of eight years and seven months is imposed. The appellant is to serve a minimum period of imprisonment of four years and two months.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Mr Frewer, pleaded guilty to three counts of supply of a Class B controlled drug, namely MDMA. In the High Court Venning J sentenced him to eight years, nine months imprisonment with a minimum period of imprisonment of four years, three months.[1] The appellant appeals against this sentence on the basis that it is manifestly excessive. The appeal is based on four grounds. The first is the correctness of the initial starting point. The second is whether a sufficient discount was given for time spent on electronically monitored (EM) bail. The third is the level of discount for the guilty pleas. The final issue concerns the imposition of a minimum period of imprisonment.

Factual background

[1]R v Frewer HC Auckland CRI-2009-404-384, 24 June 2011.

The appellant was involved with a group that imported and distributed MDMA in New Zealand. The appellant was a principal wholesaler with responsibilities for receiving and delivering MDMA and taking payment. The Judge found he was an integral and important part of the group but not the mastermind behind the operation.[2] He was described as “effectively a principal wholesaler” who on-sold or supplied drugs to three other “main wholesalers”, Messrs Keown, Bowyer and Voerman.[3]
[2]At [17].
[3] At [17] and [10].
Between 4 March and 15 April 2008 the police intercepted certain conversations of the appellant. Shortly prior to trial the appellant pleaded guilty to confirmed sales of approximately 29,000 MDMA tablets. The value on a wholesale basis of those sales exceeded $600,000.
During the course of their investigations, the police also uncovered evidence of sums of cash in safety deposit boxes at a vault operated by the appellant. Between 9 April 2008 and 22 July 2008 total sums of USD 300,000 and NZD 785,550 were located as a result of search warrants executed at the vault. This money was to be remitted to those in control of the operation.

Sentencing

In the High Court the Judge adopted a starting point of 11½ years imprisonment. In reaching that finding Venning J had regard to the decision of this Court in R v Wallace[4] and to the submissions of counsel. The offending by the appellant was seen as more serious and at a higher level than that of co-offenders such as Mr Keown and Mr Voerman.
[4]R v Wallace [1999] 3 NZLR 159.
Venning…

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 Frewer v The Queen

Details

AGLC: Frewer v The Queen [2012] NZCA 29
Case: [2012] NZCA 29
Decision Date: 23 February 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against sentence brought by Matthew Frewer. Frewer had pleaded guilty to three counts of supplying a Class B controlled drug, MDMA. The High Court sentenced him to eight years and nine months imprisonment with a minimum period of imprisonment of four years and three months. Frewer appealed against this sentence on the basis that it was manifestly excessive. The appeal was based on four grounds: the correctness of the initial starting point, whether a sufficient discount was given for time spent on electronically monitored bail, the level of discount for the guilty pleas, and the imposition of a minimum period of imprisonment.

The Court of Appeal found that the starting point was appropriate, considering the overall seriousness of the offending and the appellant's role as a principal wholesaler. The Court did, however, find that an additional allowance of two months imprisonment should be made to account for the possibility that no specific allowance was made for time spent on electronically monitored bail. The Court found that the discount for the guilty pleas was appropriate and did not find merit in the argument that no minimum period of imprisonment was required, citing the need for accountability, denunciation, and general deterrence.

The appeal was allowed in part. The sentence of eight years and nine months was quashed and a sentence of eight years and seven months imprisonment was imposed. The appellant was to serve a minimum period of imprisonment of four years and two months.

Orders