Johnson v The the Queen - [2022] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA529/2021
[2022] NZCA 175

BETWEEN	PAUL MALCOLM JOHNSON Appellant
AND	THE QUEEN Respondent

Hearing:	30 March 2022
Court:	Gilbert, Woolford and Dunningham JJ
Counsel:	W D McKean for Appellant M Davie for Respondent
Judgment:	11 May 2022 at 9 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

The appellant, Mr Johnson, was found guilty, by a jury, of conspiring with two others to smuggle methamphetamine into prison to supply to a fellow inmate.[1]
[1]R v Johnson [2021] NZDC 15464 [Sentencing judgment].
Mr Johnson appeals his conviction, saying the verdict was unreasonable. If the conviction stands, he appeals his sentence on the grounds the Judge was wrong to sentence on the basis the conspiracy involved the whole 13.92 grams found on one of the co-defendants.[2]

Background facts

[2]The other grounds on which the sentence was appealed, being failure to adjust for totality and not imposing the sentence concurrently with his existing sentence, were not pursued at the hearing.

In 2019, Mr Johnson was an inmate at Northland Regional Corrections facility. He had a girlfriend who would visit him in prison, Ms Shinae Twist. Also serving a sentence at the prison was Mr Leigh Tito. He, too, had a girlfriend who visited him in prison, Ms Te Whakaiti Apiata. The prisoners would have either contact, or non‑contact (booth), visits with their visitors. The Crown case was that the appellant conspired with Ms Twist and Ms Apiata to bring methamphetamine into the prison to supply his fellow inmate, Mr Tito. This was because Mr Tito was not going to have a contact visit with his girlfriend, but Mr Johnson was, so he and Ms Twist were to be used as a conduit to get the drugs to him.
The Crown case was supported by the content of telephone conversations the appellant and Mr Tito had with their respective girlfriends. On the morning of 13 May 2019, the day of a planned visit, Mr Tito gave Ms Twist’s phone number to his girlfriend saying, “That’s Shinae. She’s coming up. She’s coming up from Aucks. Get a hold of her and meet up with her?” Mr Tito then asked his girlfriend: “[C]an you just give her something for me … some fucken shit. Just a little bit, please”. He continued, saying “she’s gonna, she’s gonna be a visit (sic) too. Visit the bro. … Can you tee up with her please?”
On the same day, Mr Johnson spoke to his girlfriend, Ms Twist, on several occasions. He gave her Ms Apiata’s phone number and name and said to her, “it’s the bros missus”. In the next call, he asked Ms Twist to ring Ms Apiata saying, “cos they’re coming to visit too”. There was then an oblique reference to her acquiring something, saying, “[y]ou shouldn’t have to pay for those”, and “I think it was the…

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 Johnson v The the Queen

Details

AGLC: Johnson v The the Queen [2022] NZCA 175
Case: [2022] NZCA 175
Decision Date: 11 May 2022 at 9 am

CaseChat Overview and Summary

Paul Malcolm Johnson appeals his conviction and sentence in the High Court of New Zealand, arguing that the verdict was unreasonable and that his sentence was incorrectly determined. The court first examines the appeal against the conviction. The appellant contends that the evidence was insufficient to establish that he conspired with others to smuggle methamphetamine into prison to supply a fellow inmate, asserting that the jury could not have reasonably concluded he intended to supply the drugs to the fellow inmate rather than for his own use. The court holds that the evidence, when viewed in its entirety, was sufficient to support the jury's conclusion that the appellant conspired to supply the drugs to the fellow inmate. The court further finds no merit in the appellant's claim that the jury was prejudiced against him due to his status as a prisoner.

The court then considers the appeal against the sentence. The appellant argues that the sentence was incorrect because the Judge considered the conspiracy involved the entire amount of methamphetamine found, rather than "a little bit." The court finds that the Judge correctly assessed the amount of methamphetamine involved as 13.92 g and that the evidence supported the conclusion that the conspiracy involved this entire amount, despite the appellant receiving some of the drugs as payment for his assistance. The court affirms that the sentence was appropriate, taking into account the totality principle and the nature of the offending.

Ultimately, the Court of Appeal dismisses both the appeal against the conviction and the appeal against the sentence.

Orders