| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA529/2021 [2022] NZCA 175 |
| BETWEEN | PAUL MALCOLM JOHNSON |
| AND | THE QUEEN |
| Hearing: | 30 March 2022 |
Court: | Gilbert, Woolford and Dunningham JJ |
Counsel: | W D McKean for Appellant |
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…
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CaseChat Overview and Summary
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
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Background
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Evidence
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Ratio Decidendi
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