R v Burnside - [2007] NZCA 527

IN THE COURT OF APPEAL OF NEW ZEALAND
CA412/07
[2007] NZCA 527
THE QUEEN
v
DAVID BURNSIDE
Hearing:12 November 2007

Court:Wilson, Chisholm and Potter JJ
Appearances: M E Goodwin and M M Dixon for Appellant

H D M Lawry for Crown

Judgment:21 November 2007 at 3pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1] Mr Burnside appeals against a sentence of six years one month imposed in relation to two sets of charges.
[2] The charges and sentences imposed were:
1.1Importing a Class C controlled drug, pseudoephedrine – five years five months imprisonment.
1.2Possession for supply of a Class A controlled drug, methamphetamine – four years imprisonment.
Those sentences were to be served concurrently. The appellant entered guilty pleas to both charges on the fourth day of trial.
2.1Possession of methamphetamine – six months imprisonment.
2.2Possession of equipment for manufacturing a Class A drug – eight months imprisonment.
2.3Possession of precursor substance – eight months imprisonment.
2.4Possession of cannabis – one month imprisonment.
Those sentences were to be served concurrently. The eight month sentence was made cumulative on the sentence of five years five months, resulting in the end sentence of six years one month. The appellant entered guilty pleas to the second set of charges shortly before depositions.

[3]       The focus of the appeal was the lead sentence of five years five months imposed for importing pseudoephedrine. No issue was taken with the other sentences imposed, nor with the sentence of eight months for the second set of offending being made cumulative on the sentence for the first set of offending. It was submitted that the starting point of five years taken for the lead sentence was inconsistent with starting points adopted in other Court of Appeal judgments for sentences for importing pseudoephedrine and lacked parity with the starting point for the sentence imposed on the co-offender Mr Rikitama Wilson.
[4]       The Crown submitted first that the sentence of five years five months imposed on the lead charge was well available to the sentencing Judge particularly as it reflected the significantly aggravating feature of the appellant having been found in possession of 22 grams of methamphetamine shortly after he collected the envelopes containing the imported pseudoephedrine. Secondly, it submitted that there are no parity concerns: the different sentences imposed on the appellant and the co-offender Mr Wilson reflected their different roles in the importation as assessed by Cooper J.
Background facts
[5]       On 18 March 2005 a customs officer at the International Mail Centre in Auckland intercepted 27 envelopes each marked with a sticker reading “Sample” or “Free sample, directions and price list enclosed”. The envelopes were date stamped 12 March 2005. Each envelope also contained an A4 size fact sheet on White Portland Cement headed paper which was wrapped around a snaplock plastic bag containing white powder, contained within a second snaplock plastic bag. Each bag of powder was found to…

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 R v Burnside

Details

AGLC: R v Burnside [2007] NZCA 527
Case: [2007] NZCA 527
Decision Date: 21 November 2007

CaseChat Overview and Summary

In the case of R v Burnside, the appellant was convicted of importing a Class C controlled drug, pseudoephedrine, and possession for supply of a Class A controlled drug, methamphetamine, among other charges. The appeal focused on the sentence of five years five months imprisonment imposed for the lead charge of importing pseudoephedrine. The appellant argued that the starting point of five years was inconsistent with other Court of Appeal judgments for similar charges and lacked parity with the sentence imposed on the co-offender, Mr Rikitama Wilson.

The legal issues in this case were whether the starting point of five years for the lead charge was appropriate, and if there were any parity concerns between the sentences imposed on the appellant and Mr Wilson. The Crown submitted that the sentence was well available to the sentencing judge, particularly considering the aggravating factor of the appellant being found in possession of 22 grams of methamphetamine shortly after collecting the imported pseudoephedrine. The Crown also argued that there were no parity concerns, as the different sentences reflected the different roles of the appellant and Mr Wilson in the importation.

The Court found that the starting point of five years for the lead charge was well available to the sentencing judge, taking into account the appellant's significant involvement in the importation and the aggravating factor of the possession of methamphetamine. The Court also found that there were no parity concerns, as the different sentences reflected the different roles of the appellant and Mr Wilson in the importation. The appeal against sentence was dismissed.

In conclusion, the Court of Appeal upheld the sentence of five years five months imprisonment imposed on the appellant for the lead charge of importing pseudoephedrine, finding that it was within the range available to the sentencing judge. The Court also found that there were no parity concerns in relation to the sentences imposed on the appellant and his co-offender, Mr Wilson. The appeal was dismissed, and the original sentence stood.

Orders