McSweeney v The Queen - [2012] NZCA 90

IN THE COURT OF APPEAL OF NEW ZEALAND

CA656/2010
[2012] NZCA 90

BETWEEN SARA LEE MCSWEENEY
Appellant

AND THE QUEEN
Respondent

Hearing: 13 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: R J Stevens for Appellant
G J Burston and V C Brewer for Respondent

Judgment: 14 March 2012 at 10 a.m.

JUDGMENT OF THE COURT

The appeal against conviction and the imposition of a minimum period of imprisonment of four years is dismissed.

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REASONS OF THE COURT

(Given by Arnold J)

Introduction

Following a jury trial before Gendall J, the appellant, Ms McSweeney, was convicted on five counts of importing a Class A controlled drug (methamphetamine) into New Zealand. The Judge sentenced her to eight years imprisonment, with a minimum period of imprisonment (MPI) of four years.[1] She now appeals against her convictions and the imposition of the MPI.

Background

[1] R v McSweeney HC Wellington CRI-2007-085-6245, 6 September 2010.

The appellant’s convictions arose out of her alleged participation in a drug importation operation organised and operated by inmates in Rimutaka Prison. A Thai prisoner, Mr Sungsuwan, arranged for methamphetamine to be imported from Thailand through contacts he had in that country. Three syndicates, each made up of Rimutaka Prison inmates and their associates, were involved. A contact outside prison (X), who gave evidence for the Crown, made arrangements with syndicate members who were not prison inmates for the provision of addresses for delivery of the drugs and for payment. The Crown alleged that the appellant was one of these contacts, on behalf of a syndicate involving, among others, Mr Wilkie, who is an inmate at Rimutaka Prison and is the appellant’s former partner and the father of her child, and Mr Sneller, a convicted drug dealer who was the appellant’s partner at the time.
The Crown case was that Mr Wilkie placed orders with Mr Sungsuwan in prison and then arranged for the appellant to meet X to arrange payment and to give her the addresses to which the packages of methamphetamine were to be sent. There was evidence that the appellant visited Mr Wilkie in prison and that they were also in regular telephone contact over the relevant period. The Crown alleged that the appellant met X on seven occasions and each time handed her bags of varying descriptions which contained cash and addresses. All of the addresses in the bags were connected to the appellant in some way, two being her residence at the time. The Crown led expert evidence that the handwriting on one of the pieces of paper recording an address for delivery was that of the appellant.
Mr Wilkie and the appellant were tried together. Both gave evidence. The appellant admitted that she had met X on five occasions and handed her the bags as alleged, but claimed that she was unaware of their contents. She said that she had met with X and given her the bags at Mr Sneller’s request, believing them to contain contraband items such as…

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 McSweeney v The Queen

Details

AGLC: McSweeney v The Queen [2012] NZCA 90
Case: [2012] NZCA 90
Decision Date: 14 March 2012

CaseChat Overview and Summary

In McSweeney v The Queen, the appellant, Sara Lee McSweeney, appealed against her conviction and sentence for five counts of importing a Class A controlled drug (methamphetamine) into New Zealand. The appeal was heard by Arnold, Potter and Simon France JJ in the Court of Appeal of New Zealand. The appellant was convicted on the basis of her involvement in a drug importation operation organised and operated by inmates in Rimutaka Prison. The operation involved three syndicates, each consisting of Rimutaka Prison inmates and their associates. The appellant claimed that she was an innocent pawn who was used by her partner, a convicted drug dealer, to smuggle contraband into the prison. However, the jury rejected her account and found her guilty on all counts.

The appellant advanced three grounds of appeal against her conviction, arguing that the trial judge failed to provide a balanced summing up, failed to put the defence case properly, and misdirected the jury in relation to wilful blindness. The Court found that the trial judge had attempted to follow the principle in Leonard v R, summarising the critical strands of circumstantial evidence in the Crown case and the defence response. While the summing up was not perfect, the Court found that it did not lack balance or omit a central line of defence. The Court also found that the trial judge's direction on wilful blindness was capable of misleading the jury, but the redirection was an accurate statement of the position, and the issue of wilful blindness was not material given that the jury found the appellant's former partner was involved in the syndicate.

The appellant also appealed against the imposition of a minimum period of imprisonment (MPI) of four years. The Court found that the trial judge was entitled to impose an MPI of four years, as the end sentence of eight years imprisonment was extremely generous to the appellant, and an MPI was required to meet the need for punishment, deterrence, and denunciation in the circumstances of this case.

In conclusion, the appeal against conviction and sentence was dismissed. The appellant's convictions and sentence were upheld by the Court of Appeal of New Zealand.

Orders