Monk v The Queen - [2015] NZCA 113

IN THE COURT OF APPEAL OF NEW ZEALAND

CA121/2012
CA497/2012
[2015] NZCA 113

BETWEEN	DAMIAN BRIAN MONK Appellant
AND	THE QUEEN Respondent

Hearing:	11 March 2015
Court:	Stevens, Asher and Williams JJ
Counsel:	P J Kaye and S D Withers for Appellant H W Ebersohn for Respondent
Judgment:	17 April 2015 at 11.30 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

BThe appeal against sentence is allowed. The end sentence of 17 years and one month’s imprisonment stands, but the minimum period of imprisonment of 10 years is quashed and replaced by a minimum period of imprisonment of eight and a half years.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

On 16 June 2011 in the Auckland District Court Mr Monk pleaded guilty to 10 counts of manufacturing methamphetamine, 13 counts of importing pseudoephedrine, five counts of supplying methamphetamine, and one count of possession of methamphetamine for supply. On 20 February 2012, Judge Gibson sentenced him to 17 years and one month’s imprisonment on these charges, with a 10 year minimum period of imprisonment (MPI).[1]
[1]R v Monk DC Auckland CRI-2009-004-24447, 20 February 2012.
The Judge described Mr Monk as the leader of a drug ring. Mr Monk, who was in charge of the manufacturing process, acted as a methamphetamine cook and supplier. The amounts involved were large: between June and December of 2009, some 700 grams were manufactured. The supply charges involved quantities of ounces and percentages of ounces.
Mr Monk also imported large quantities of pseudoephedrine between December 2008 and October 2009.[2] The pseudoephedrine was obtained from contacts in Thailand and Cambodia. He managed the sourcing of the pseudoephedrine through those contacts and arranged for monies to be sent to them to procure the drug. On average, Mr Monk was sending $55,000 a month to overseas destinations for the purchase of pseudoephedrine. A total of $273,400 was shown to have been sent to the overseas contacts. The Judge concluded that at least 1.4 kilograms of pseudoephedrine were imported, and that a further 1.5 kilograms were intercepted at Customs.[3] He stated:[4]
Overall, the amount of pseudoephedrine involved could have been converted to between 1.5 kilograms and 2.25 kilograms of methamphetamine with a possible retail value of between $1.5 million and $2,250,000.
[2]At [6].
[3]At [8]–[9].
[4]At [9].
The scale of the undoubtedly commercial enterprise is reflected not only in the quantities, but also in the 13 occasions on which the offending occurred.

Appeal against conviction

Mr Monk submits that his conviction is unsafe because of the manner in which his former counsel, Mr Barry Hart, conducted the defence. He has four specific criticisms:
(a)Mr Hart failed to properly advance the point of Mr Monk’s mental impairment either as a fitness to stand trial or a fitness to plead issue.
(b)Mr Hart was negligent in his attention to the detail of Mr Monk’s case.
(c)Mr Hart provided advice that was plainly wrong, representing that Mr Monk’s conduct would attract a non-custodial sentence…

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 Monk v The Queen

Details

AGLC: Monk v The Queen [2015] NZCA 113
Case: [2015] NZCA 113
Decision Date: 17 April 2015 at 11.30 am

CaseChat Overview and Summary

The case of Monk v The Queen involved an appeal against both the conviction and sentence of Damian Brian Monk. Monk had pleaded guilty to multiple drug manufacturing and importing charges, and was sentenced to 17 years and one month’s imprisonment, with a minimum period of imprisonment of 10 years. The appeal against conviction argued that Monk's former counsel, Mr Barry Hart, had failed to properly address Monk's mental impairments and provide adequate legal representation. However, the Court found that Mr Hart had properly considered the mental health issues and provided appropriate advice and representation. The appeal against sentence argued that the sentence was manifestly excessive. The Court found that while the starting point of 19 years’ imprisonment was appropriate, the minimum period of imprisonment (MPI) of 10 years was too high. The Court allowed the appeal against sentence and reduced the MPI to eight and a half years.

The Court dismissed the appeal against conviction, finding no merit in the arguments that Mr Hart's conduct had rendered the trial unfair or resulted in a miscarriage of justice. The Court found that Mr Hart had properly raised the issue of Monk's mental impairments and provided adequate legal representation. While Monk had suffered a significant brain injury, the evidence showed that he was fit to stand trial and plead guilty.

The Court allowed the appeal against sentence, finding that the MPI of 10 years was too high. The Court reduced the MPI to eight and a half years, considering Monk's physical and mental injuries from his car accident. However, the end sentence of 17 years and one month’s imprisonment was upheld as appropriate given the seriousness of Monk's offending as the leader of a large scale drug manufacturing and importing operation.

Orders